text
stringlengths 9
720k
| embeddings
sequencelengths 128
128
|
|---|---|
The opinion of the court was delivered by
Johnston, J.:
C. F. Medaris recovered a judgment against the Missouri, Kansas & Texas Railway Company for personal injuries sustained by him while employed in setting a curbing around the office building and depot of the railway company in Parsons. The curbstones had been prepared elsewhere and shipped to Parsons and unloaded near the building around which they were to be placed. The men employed to set the curbing dug a ditch, and several of the curbstones were brought up and left on the side of the ditch, ready to be placed. A stone which had been left standing' unsupported on the edge of the ditch was upset and fell upon the leg of Medaris while setting another one, causing a permanent injury. He alleged that the injury resulted from the negligence of his coemployees in leaving the stone in an insecure position, and the jury found that the allegation was sustained by the testimony, and awarded damages in the sum of $3000.
The question we are called upon to determine is whether Medaris is within the protection of the statute which makes railway companies liable for damages to coemployees for injuries caused by the negligence of fellow servants. (Laws of 1874, ch. 93, § 1; Gen. Stat. 1897, ch. 70, § 15.) From the facts, it appears that there was no common-law liability for the injury sustained, but if any exists it arises under the above fellow-servant act. Whether Medaris is entitled to the benefit of this law depends upon the character of the work in which he was engaged, and not on the mere fact that he was an employee of a railroad company. The validity of the law has been sustained as against the charge that it was class legislation, on the ground that the hazaz’dous character of the business of operating a railroad justified the passage of a law for the protection of those ezzgaged in that service. The rule of liability applied under the statute is different from that which ordinarily applies between master and servant, but this diffez'.ence is' founded on the hazardous character of the sezwice, and is not intended as a discrizhination between employers. The statute would certainly be open to objection if a different rule of liability were applied to a railroad company than is applied to other employers zznder like circumstances and conditions. The hazaz’ds incident to the use and operation of railroads is a natural and reasonable classification which justifies the exceptional legislation. If the statute were not given that interpretation and limited in its operation to the protection of those engaged in the hazardous service, it could not be upheld.
In Union Trust Co. v. Thomason, 25 Kan. 1, the stat ute was held to apply only to those engaged in the hazardous business of operating railroads. In Mo. Pac. Rly. Co. v. Haley, 25 Kan. 53, the act was again construed, and it ¡was remarked that it “embraces only those persons more or less exposed to the hazards of the business of railroading.” We have had a number of railroad cases in which the interpretation referred to has been pushed to the uttermost limit, but they have all been cases where the injury.occurred in connection with the use and operation of the railroad. In U. P. Rly. Co. v. Harris, 33 Kan. 416, 6 Pac. 571, it was held to apply to a section man employed in repairing a track, and where he was injured while assisting in removing a rail from a car on the track. In A. T. & S. F. Rld. Co. v. Koehler, 37 Kan. 463, 15 Pac. 567, the injury was received by a person while loading rails on a car to be taken to other portions of the company's road. It was held that the services were of such character as brought him within the protection of the act. A. T. & S. F. Rld. Co. v. Brassfield, 51 Kan. 167, 32 Pac. 814, is a similar case, where a section man was injured while unloading material from a car for the purpose of repairing the railroad. The hazardous character of the service entitled him to the benefit of the act. In C. K. & W. Rld. Co. v. Pontius, 52 Kan. 264, 34 Pac. 739, the" act was held to apply to a bridge carpenter who was injured while loading timbers on a car for transportation .over the company's road. Emphasis was placed on the statement that the accident did not happen while he was engaged in building a bridge, but that it occurred in connection with the operation of a railroad — that is, in loading a car which was on the track for transportation over the railroad. In A. T. & S. F. Rld. Co. v. Vincent, 56 Kan. 344, 43 Pac. 251, an em ployee of a railroad was inj ured by the negligence of his coemployee while engaged in repairing the railroad, and the claimed liability against the company was sustained.
In each of these cases it will be observed that the injured person held to be entitled to the benefit of the act was engaged in services connected • with the use and operation of a railroad. Here, however, the service which Medaris w*as performing did not expose him to the hazards peculiar to the business of using and operating a railroad. He was not at work on a railroad, and his injury was not caused by the operation of a railroad or the use of any railroad appliance. It is true that there were railroad tracks near the place where he was at work, but no train was passing or near the place where Medaris was at work at the time the injury was inflicted.' It is true, also, that he was at work for a railroad company, and upon the land of a railroad company, but this does not entitle him to the benefits of the act. He can only recover by showing that the service in which he was engaged exposed him to the peculiar perils incident to the operation of a railroad. As the jury specially found, the work in which he was engaged involved no more risk or hazard' than it would if the same work were being done for an individual at the same time and place. The benefits of the act can no more be claimed by him than by the carpenter who laid the floor in the office building or nailed the shingles on its .roof. No stronger claim could be made for him than could for a person injured while hauling the rock from the quarry to the place where the curbing was to be set.
As was held by the supreme court of Minnesota, one rule of liability cannot be established for a railroad company as such, and another for other employers under like circumstances and conditions. To avoid the imputation of class legislation, the distinction must be based upon a difference in the nature of the employment, “but no just reason can be suggested why such difference should be founded not on the character of the employment nor on the dangers to which those employed are exposed, but on the character only of the employer. We can see why the employer’s liability should be greater when the business is that of operating a railroad, but cannot see why one individual or corporation should be held to a rule of liability different from that applied to another when the employment and its hazards are precisely the same.” (Lavallee v. St. P. M. & M. Rly. Co., 40 Minn. 249, 41 N. W. 974. See, also, Johnson v. St. Paul & Duluth R. Co., 43 Minn. 222, 45 N. W. 156; Deppe v. C. R. I. & P. Rly. Co., 36 Iowa, 52; Stroble v. C. M. & St. P. Rly. Co., 70 Iowa, 555, 31 N. W. 63.)
It is difficult to see how the validity of the law can be sustained unless it is interpreted, as was stated in Mo. Pac. Rly. Co. v. Haley, supra, to “embrace only those persons more or less exposed to the hazards of the business of railroading.” We feel compelled to hold that the plaintiff below was not engaged in that kind of service when the injury was inflicted, and therefore that no liability’' against the company under the statute arises in his favor. The judgment is reversed. | [
-12,
120,
-3,
-99,
26,
110,
-78,
-38,
65,
-76,
-91,
83,
-19,
-113,
-127,
99,
-25,
61,
-16,
43,
-12,
-93,
66,
-29,
-110,
-13,
115,
-51,
-80,
75,
102,
85,
77,
48,
74,
-43,
-26,
75,
69,
30,
-118,
45,
40,
-23,
89,
0,
48,
122,
84,
79,
17,
-97,
115,
42,
25,
-57,
41,
44,
107,
45,
-47,
-15,
-102,
-123,
119,
20,
-111,
4,
-100,
-89,
-60,
28,
-104,
21,
0,
-24,
115,
-92,
83,
-44,
33,
-71,
-55,
98,
98,
33,
25,
111,
108,
-104,
14,
-50,
-115,
-89,
54,
88,
-85,
69,
-97,
-107,
86,
4,
6,
126,
-10,
29,
27,
36,
3,
-117,
-48,
-80,
-81,
117,
-98,
-121,
-49,
-127,
48,
116,
-60,
-86,
93,
3,
114,
27,
-113,
-36
] |
The opinion of the court was delivered by
Smith, J. :
A judgment was rendered in the court below against plaintiffs in error for $6977, interest, and costs. At the same time a decree was entered foreclosing a mortgage given by them, to secure said debt, and adjudging the amount to be a first lien on three lots in the city of Topeka. The property was sold October 21, 1895, under an order of sale, to John Bushnell for $6000, and the sale confirmed on November 25. Proceedings in error were commenced to review the order confirming the sale, and John Bushnell, the purchaser, was made a party thereto. On'January 11, 1897, while the proceedings in error were pending in this court, John Bushnell, having dispossessed the plaintiffs in error of the premises, sold and conveyed the same to defendants in error for a consideration of $6000. On March 5, 1898, the order of the district court confirming the sale was reversed .and set aside by this court. (Evans v. Bushnell, 59 Kan. 160, 52 Pac. 419.)
Thereupon the plaintiffs in error filed a petition in the district court asking that an accounting be had between themselves and defendants in error of the said premises and the amount due and owing by them to said defendants, and that plaintiffs in error be decreed the right to redeem the premises from the mortgage lien by the payment of such sum of money as said accounting would find lawfully due the defendants, who were grantees from the purchaser at the sheriff's sale. The mortgage was originally held by the Lombard Investment Company, which assigned the same and the note secured by it to Daniel Bushnell, whose legal representatives, after his death, brought the action to foreclose. The amended petition in the case at bar contains, among others, the following allegations :
“That on October 21, 1895, the said premises were sold by the sheriff, as aforesaid, to John Bushnell, for the sum of $6000; that there was due, at the time of said sale, under said judgment of foreclosure, to the plaintiffs in said action to foreclose, a balance of $1697.96 ; that said balance was not assigned to John Bushnell, the purchaser, but has been and is now held by the original plaintiffs against the original defendants ; that said balance due on the judgment in force of about $1697.96 has not been assigned to these defendants; that the judgment creditors offered to assign the said judgment to these defendants, but these defendants refused to accept the same.’’
A general demurrer was sustained to the petition,, and plaintiffs below have brought such action of the trial court here for review. We will consider first the rights of the plaintiffs below to redeem from the grantees of the purchaser at the sheriff’s sale, who are defendants in error here. This suit to redeem is confined to an offer to pay defendants in error the amount they paid John Bushnell for the property less the rents and profits. It is an old rule of equity jurisprudence, so venerable that it would be irreverent to question it, that a mortgagor who seeks to redeem acquires his standing in court by virtue of the mortgage, and must tender the amount thereof. Redemption is regarded as a “ buyiqg back ” by the mortgagor of the legal es tate after it has passed to the mortgagee. In Pomeroy’s Equity Jurisprudence, section 1220, it is said: “ No such redemption, however, is possible unless the mortgage debt is due and payable, nor unless the mortgage is wholly redeemed by payment of the entire amount of the mortgage debt.” In Collins v. Riggs, 14 Wall. 491, Mr. Justice Bradley, speaking for the court, said:
“To redeem property which has been sold under a mortgage for less than the mortgage debt, it is not sufficient to tender the amount of the sale. The whole mortgage debt must be tendered or paid into court. The party offering to redeem proceeds upon the hypothesis that, as to him, the mortgage has never been foreclosed and is still in existence. Therefore he can only lift it by paying it. The money will be subject to distribution between the mortgagee and the purchaser, in equitable proportions, so as to reimburse the latter his purchase money and pay the-former the balance of his debt.” (Pingree, Mortg., § 2184; Jones, Mortg., §§ 1072-1075; Hasford v. Johnson et al., 74 Ind. 479; Martin v. Fridley, 23 Minn. 13; Bradley v. Snyder et al., 14 Ill. 263-266; Vroom v. Ditmas et al., 4 Paige, 526; Johnson v. Harmon, 19 Iowa, 56.)
That the amount the plaintiffs in error must pay to redeem is measured by the amount of the mortgage and interest, is the settled rule. If the amount of the purchase-money paid at the sheriff’s sale was to determine the amount required to redeem, then in case the purchase-money exceeded the mortgage debt, redemption could not be had except by a payment of more than the amount of the mortgage.
' The second question involved in the case relates to the right of the plaintiffs in error to be heard at all as against defendants in error who were purchasers from the grantee in the sheriff’s deed. They bought the property from the purchaser intermediate between the confirmation of the sale and the reversal of the order of confirmation'by this court. It is insisted by counsel for plaintiffs in error that the doctrine of Us pendens applies. We differ with them in this contention. No supersedeas bond was given on the proceedings in error from the order confirming the sale.
An order confirming a sheriff’s sale is a final order within the meaning of our statute. (Koehler v. Ball, 2 Kan. 160.) According to the averments of the petition, the sale was confirmed by the court below and a deed ordered to be made and delivered to the purchaser. In section 591, chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶ 4652), it is provided :
“No proceeding to reverse, vacate or modify any judgment or final order rendered in the probate court or district court, except as provided in the next section and the fourth subdivision of this section, shall operate to stay execution, unless the clerk of the court in which the record of such judgment or final order shall be shall take a written undertaking, to be executed on the part of the plaintiff in error to the adverse party, with one or more sufficient sureties, as follows : . . . Second. When it directs the execution of a conveyance or other instrument, the undertaking shall be in such a sum as may be prescribed by any court of record in this state, or any judge thereof, to the effect that the plaintiff in error will abide the judgment, if the same shall be affirmed, and pay the costs.”
Again, by section 19, chapter 83 (Gen. Stat. 1889, ¶ 4674), it is provided that a party seeking to vacate or modify a judgment or order may obtain an order suspending proceedings upon the execution of an undertaking to the adverse party to pay all damages that may be caused by granting the same. It will be seen, that, at the time the sale was confirmed, by the same' order the court directed a deed to be made by the> sheriff and delivered to the purchaser. The defendants in error were not parties to any of the proceedings in the original foreclosure suit; but were purchasers from the grantee in the sheriff’s deed. Even as to John Bushnell, however, we think that unless the effect of the order confirming the sale was stayed,- his title would not be affected by a reversal of the order. It is important that property offered for sale in such cases bring the highest price after competition; and to permit interference with the sale after confirmation upon a review of the proceedings in a higher court, which might be delayed years after the purchase, without supersedeas bond, would have the effect of making bidders timid, for they would remain in a state of insecurity as to their titles until the final disposition of the cause in the court of review. In Freeman on Judgments, 4th ed., section 484, it is said :
“The law permits judgments and decrees to be in force during the time in which appeals may be taken, and also while appeals are pending and undetermined, unless some bond or other security given as required by law operates to stay proceedings. Courts have always construed the law so as to impart confidence in judicial sales by protecting purchasers thereat from those ill consequences which the latter might suffer if the title acquired by them depended upon the freedom of prior proceedings from all errors of law. It was thought to be unjust to require purchasers to suffer for errors committed by the judges of subordinate courts, and impolitic, by making such a requirement, to discourage bidders at such sales and thereby to expose large amounts of property to the hazard of being sacrificed at nominal prices. Therefore, it is a rule nowhere disputed, that third persons purchasing at a sale made under the authoi'ity of a jxxdgmexit or decree xiot suspended by any stay of proceedings, thereby acquire rights which no subsequent reversal of sucli judgment or decree can in any respect impair; nor is the fact that the purchaser was notified not to purchase, because the judgment was claimed to be erroneous, and that an attempt would be made to procure its reversal, of any consequence.”
The rule above stated tends to the security of titles. It is laid down in the books as a general rule that when the purchaser at a sheriff’s sale is an innocent third person, and is a bona fide purchaser who has paid the purchase-price before obtaining knowledge of the reversal of the judgment, he shall be protected in his title to the property, notwithstanding the reversal of the judgment. (Rorer, Jud. Sales, §§ 1142, 1143; Smith v. Dixon, 27 Ohio St. 471; Range v. Brown, 29 Neb. 116, 122, 45 N. W. 271; McAusland v. Pundt, 1 id. 211.)
The decision of the court below was correct. The petition did not state a cause of action. The judgment is affirmed.
Johnston, J., concurring. | [
-16,
98,
-80,
-2,
90,
-32,
72,
-118,
96,
-32,
-89,
83,
-51,
-61,
5,
109,
-26,
41,
-47,
104,
71,
-77,
7,
-85,
-46,
-13,
-39,
-51,
-67,
108,
-27,
-42,
76,
32,
66,
-43,
102,
-63,
69,
84,
-50,
-123,
41,
101,
-1,
0,
52,
59,
20,
65,
81,
-83,
-13,
46,
61,
-61,
73,
40,
-5,
-71,
-47,
-8,
-101,
-124,
-1,
21,
17,
23,
-36,
67,
88,
-82,
-110,
53,
64,
-88,
115,
-106,
70,
116,
69,
11,
44,
38,
98,
33,
1,
-21,
-24,
-68,
46,
-43,
-123,
-89,
-105,
88,
67,
40,
-66,
-99,
108,
16,
39,
-10,
-25,
21,
-103,
104,
-125,
-54,
-106,
-111,
-49,
124,
-102,
27,
-1,
7,
32,
96,
-49,
-88,
93,
71,
123,
-69,
-114,
-68
] |
The opinion of the court was delivered by
Doster, C. J. :
This was an action brought by James Q,. Blodgett and Mary K. Plackuey against the Palmer Oil and Gas Company to restrain the company from boring for oil and gas upon a certain quarter-section of land of which it claimed to be the lessee under a lease executed to it by one Mary Blodgett, and in which land the plaintiffs claimed an estate of remain der succeeding a life-estate held by the lessor. The claimed estates were created by the following deed :
“ This indenture, made this 26th day of May, 1886, between N. S. Sunderland and Rachel Sunderland, his wife, of Pawnee county, in the state of Kansas, of the first part, and Mary Blodgett, of Allen county, in the state of Kansas, of the second part, Witnesseth : That the said parties of the first part, in consideration of the sum of one thousand dollars, the receipt of which is hereby acknowledged, do by these presents grant, bargain, sell and convey unto said party of the second part, her heirs and assigns, all the following-described real estate situated in the county of Allen and state of Kansas, to wit: The southeast quarter of section 33, township 24 south, of range 19 east, less the right of way of the St. Louis, Port Scott & Wichita Railroad Company, to have and to hold the same, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, during her natural life, and at her death to be divided as follows, to wit: Sixty-five acres, including the right of way of the said St. Louis, Fort Scott & Wichita Railroad Company, off of the north side of said quarter-section, to go to Mary K. Blodgett, a daughter of the said Mary Blodgett, and the balance of the quarter-section to go to James 0,.# Blodgett, a son of the said Mary Blodgett.”
The Mary K. Blodgett named in the above-quoted deed married subsequently to its execution, and became Mary K. Hackney. Mary Blodgett, the grantee in the deed, executed to the Troy Oil Company a lease of the entire tract in question, by the terms of which the right to bore for oil and gas and to u’se and pipe away the product found were conferred in consideration of certain rentals and the performance of certain conditions. This lease was subsequently assigned to the Forest.Oil Company, which in turn assigned it to the Palmer Oil and Gas Company, the defendant be low, the plaintiff in. error here-. Operations under the lease being to the injury of the estate in remainder claimed by the plaintiffs, injunction was brought in the court below. The defendant, as a jm’incipal defense, denied the existence in the plaintiffs of any interest in the land. The court found all the issues in favor of the plaintiff Mary K. Hackney, but found against her co-plaintiff James Q. Blodgett. It, however, rendered judgment in favor of Mary K. Hackney, enjoining the defendant, as to her, from operating under its lease upon any part of the land, but refused the like relief to James Q. Blodgett.
The first question is one of construction of the deed. Do the plaintiffs below, the defendants in error here, have an estate of remainder in the land? Counsel for plaintiff in error claim that they do not. They divide the deed, as is proper to be done, into premises or granting clause, habendum, etc., and contend that under the granting clause the fee-simple title fully passed to Mary Blodgett, and that the habendum clause following, under which the estate would appear to be limited to her life, was ineffectual to restrain the full .operation of the grant or to create a remainder in the other persons, because in cases of repugnancy between the premises and the habendum in a deed the former controls and neutralizes the latter. In support of this rule, Blackstone’s Commentaries, book 2, p. 298, and Tyler v. Moore, 42 Pa. St. 386, and other Pennsylvania decisions, are cited. Modern theories, however, put deeds of real estate, for purposes of construction of their terms, in the list with all other kind of written contracts, and they endeavor to ascertain the intent of the parties executing them more from the language of the whole instrument than from- the relative positions of the different parts or clauses. Any person reading the conveyance above quoted will admit that the grantor’s intention was to convey a life-estate to Mary Blodgett, with fee in remainder to James Q. and Mary K. Blodgett. That, as a proposition of fact, is self-evident, and effect must be given to this intention if possible. The later authorities not only make it possible but require it. In Harriot v. Harriot, 49 N.Y. Supp. 447, the court states and decides a case as follows :
“In November, 1855, the owner of a certain real property executed a deed of gift thereof to his son, which conveyed the same, together with all the estate, right, title and interest of the grantor, ‘ to have and hold, . . . unto the said party of the second part, from and after May 1, 1861, for and during the residue of his natural life, with the remainder over . unto his lawful issue, ... as tenants in common, . . . and in case any child should die, . . . leaving lawful children, then such children shall take,’ etc. The grantor also, in terms, reserved the intermediate estate prior Jo May 1, 1861. The grantee, who never had issue, died intestate in 1897, leaving the plaintiff, his widow. Held, that the deed conveyed to the grantee only a life-estate.”
In the opinion in this case it was remarked :
“Usually the granting clause or the premises of the deed would indicate what was intended to be conveyed. By our statute it is provided (1 Rev. Stat., p. 748, § 1), among other things, that any grant of real estate shall pass all the estate or interest of the grantor, unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied from the terms of such grant. If there is a plain and open repugnancy between the granting clause and the habendum, and nothing else to ,be considered, the larger estate granted may not be cut down or reduced by the habendum; but in the construction of deeds, as of other instruments, the real question is, What was the intention of the grantor, to be gathered from all the terms of the instrument? Here it seems to me that it is plain that this grantor merely intended that his son should have a life-estate in the property.”
In Barnett v. Barnett, 104 Cal. 298, 37 Pac. 1049, it was held:
“In construing a deed the intention of the grantor is to be ascertained from the entire instrument, including the habendum as well as the granting clause * and if it appears from such construction that the grantor intended by the habendum clause to restrict or limit or enlarge the estate named in the granting clause the habendum will prevail over the granting clause. . . . The intention of the parties to the grant is to be gathered from the instrument itself, and determined by a proper construction of the language used therein, but for the purpose of ascertaining this intention the entire instrument, the habendum as well as the premises, are to be considered, and if it appear from such consideration that the grantor intended by the habendum clause to restrict' or limit or enlarge the estate named in the granting clause, the habendum will prevail over the granting clause. (Faivre v. Daley, 93 Cal. 670, 29 Pac. 256; Pelissier v. Corker, 103 id. 516, 37 Pac. 465.) It is in such case to be considered as an addendum or proviso to the conveyancing clause, which by a well-settled rule of construction must control the conveyancing clause or premises, even to the extent of destroying the effect of the same.”
In Bodine’s Administrators v. Arthur, 91 Ky. 53, 14 S. W. 904, it was ruled :
“When there is a repugnancy between the granting clause and the habendum of a deed, and it cannot be determined from the whole instrument and attendant circumstances with reasonable certainty that the grantor intended that the habendum should control, the granting clause must control; but where it appears from the whole conveyance and attendant circumstances that the grantor intended the habendum to enlarge, restrict or repugn the granting clause the habendum, must control, for the reason that it is the last expression of the grantor’s wish as to the conveyance.”
See generally, upon the construction of deeds and conflicts between the granting and habendum clauses, Devlin on Deeds, vol. 1, § 213, et seq., and vol. 2, § 836.
It is claimed that the evidence shows Mary K. Hackney, the plaintiff below, to be estopped from objecting to an assertion of rights by the defendant under its lease because of conduct upon her part amounting to waiver and acquiescence. However, this conduct, according to the plaintiff in error, amounted to nothing more than mere silence and non-assertion of rights, with the knowledge that the company had obtained the lease, was paying rent for it, and was expending money in the development of the gas fields of Allen county. It- is not claimed that she remained silent while the company was expending money under the lease in developing oil or gas on the land in question. Whether mere silence under these circumstances is sufficient to raise an estoppel we need not undertake to determine. -There was no plea of estoppel in the defendant’s answer. Whether the court below found upon this question in Mary K. Hackney’s favor because the evidence against her was insufficient to create an estoppel, or because there was no plea of estoppel under which evidence could be introduced, we do not know. In disposing of the question the latter is sufficient for our purpose. All acts, representations and conduct, relied upon as an estoppel must be specially pleaded. (Insurance Co. v. Johnson, 47 Kan. 1, 27 Pac, 100; Insurance Co. v. Thorp, 48 id. 239, 28 Pac. 991.)
Upon .what state of facts or theory of law the court found against the plaintiff James Q,. Blodgett, and yet granted 'to Mary K. Plackney an order of relief fully protective of Ms interests, we are at a loss to know. If the interests of these two persons were those of tenants in common, if each owned in remainder an undivided moiety of the land, a judgment in favor of one would appear to operate in favor of the other, because of the inseparability of'their interests; but the conveyance under which they claim is a conveyance of divided, not undivided, interests. The conveyance to Mary K. Hackney was of the north sixty-five acres. With that only is she concerned. The conveyance to James Q,. Blodgett was of the remaining ninety-five acres. With that only is he concerned. If he has performed an act of estoppel as to his portion he must abide the consequence.- He can claim no immunity by subrogation, as it were, to the better equities of Mary K. Hackney. For purposes of separability of interests between remainder-holders the conveyance above quoted is as if there were two, one to Mary K. and another to James Q. Blodgett. Counsel for James Q. Blodgett, however, contends that the judgment of the court below is to be upheld upon the doctrine of the entirety of contracts. He says that the lease in question was a single contract; that it must wholly stand or wholly fall; that it cannot be held bad as to Mary K. Hackney without likewise being held bad as to James Q,. Blodgett, because to do otherwise would give it the character of a divisible, instead of an entire, instrument. A sufficient reply to this is that the doctrine of entirety of contracts applies only as between parties to them, and has no application to controversies between a party on one side and a stranger on the other. It is not the present estate of Mary Blodgett, the owner of the life-estate, but his own future estate in remainder in a portion of the land, which James Q. Blodgett is interested in protecting. He is asserting no rights under the contract of lease. He has, therefore, ho concern to maintain the indivisibility or entirety of its obligations. The question he seeks to raise could only arise in a controversy between Mary Blodgett, the lessor, and the Palmer Oil and Gas Company, the lessee. Whether the law will apportion the rent money and other considerations in consequence of the failure of the lease as to Mary K. Hackney's sixty-five acres is not before us for determination. James Q. Blodgett cannot defend this action upon the assumption that such apportionment cannot be made.
The judgment of the court below will be modified to conform to the views expressed in this opinion, and the costs of this court will be equally divided between the parties. | [
-12,
110,
-12,
29,
-88,
-32,
40,
-109,
96,
-80,
-92,
83,
77,
-55,
5,
61,
79,
61,
-47,
106,
-26,
-13,
7,
-14,
82,
-13,
-71,
-51,
-80,
89,
-26,
-42,
72,
32,
74,
85,
-58,
66,
71,
92,
-114,
13,
73,
-32,
73,
96,
62,
123,
50,
75,
113,
-114,
-14,
43,
29,
-61,
45,
46,
-5,
57,
9,
-80,
-85,
-122,
31,
18,
0,
6,
-104,
-57,
-56,
26,
-104,
-111,
24,
-20,
83,
-90,
-42,
-12,
3,
-101,
12,
38,
99,
99,
-116,
-17,
108,
24,
14,
-6,
-115,
-89,
-74,
72,
-30,
104,
-66,
-99,
116,
4,
3,
-10,
-17,
5,
93,
124,
-121,
-113,
-106,
-127,
7,
114,
-104,
19,
-5,
-123,
36,
97,
-55,
34,
93,
71,
48,
-101,
-113,
-72
] |
The opinion of the court was delivered by
Smith, J. :
The defendant in error, J. M. Jones, filed a petition in the district court of Douglas county, alleging in substance that on the 6th day of April, 1897, there was held in the city of Lawrence an election of city officers, at which the plaintiff was a can didate for the office of councilman of the fifth ward on the populist or citizens’ ticket, he being a duly qualified elector of said ward and city, and the said defendant was a candidate for the same office, in opposition to the plaintiff; that the judges of the election determined that the plaintiff and the defendant had each received 151 votes, and thereupon proceeded to determine the election of a candidate by lot; that the lot fell to the plaintiff Jones, who was declared to be elected, and the returns were sent to the city clerk, as provided by law ; that the mayor and councilmen met as a canvassing board, canvassed the returns of the election in the manner provided by law, and thereupon determined and resolved that the plaintiff Jones was the duly elected councilman of said fifth ward, and ordered a certificate of election to be issued to him; that, notwithstanding the fact that said board of canvassers declared the plaintiff elected and ordered a certificate issued, the said Watt wrongfully and improperly usurped the said office and wrongfully holds and exercises the office of city councilman, to which the plaintiff was legally elected. The prayer was for a judgment of ouster, asking that-the defendant Watt be excluded from the said office, and that the plaintiff Jones be awarded the same, and for costs.
The defendant Watt answered in substance as follows : (1) A general denial of all the allegations of the petition not admitted in the answer; (2) admitting that there was an election on April 6, 1897, in the city of Lawrence, and that the plaintiff and defendant were both candidates for the office of councilman for the fifth ward; that the defendant was the regularly nominated candidate for said office on the republican ticket, and that the plaintiff was the regu larly nominated candidate on the citizens’ ticket; that the election board of said fifth ward made return to the city council that said plaintiff and defendant each had received 151 votes, and that said, judges of election had determined the result thereof by lot as alleged in the petition ; and admitting further that on the 12th day of April, 1897, the city council, sitting as a canvassing board, canvassed the returns of said election of said fifth ward, and upon such canvass of said returns declared the plaintiff Jones to be elected ; (3) the defendant Watt answered further that at said election H. J. Snyder and four others named constituted an election board; that after the ballots had been cast by the electors of said ward and the polls closed, and while said election board was counting the ballots, J. M. Cooper, while acting as clerk of said election board, manipulated the tally-sheets in such a way, by entering therein more tallies for the plaintiff Jones than he had received votes, as to cause said tally-sheets to show that the plaintiff and defendant had each received the same number of votes, and thereupon said election board proceeded to determine said election by lot; that said board wrote upon slips of paper the names of said plaintiff and defendant respectively, and placed them in a hat; it being agreed by said board that whichever candidate’s name was first drawn out should be returned as the successful candidate; that the name of the defendant Watt was first drawn out, and said defendant was then entitled to be returned as the successful candidate ; but said election board, disregarding the rights of the defendant in that respect, replaced said slips of paper in the hat a second time, and then drew out first the slip of paper containing the name of the plaintiff Jones, and thereon returned the name of said Jones as the successful candidate ; that upon such fraudulent and illegal returns the city council, while sitting as a canvassing board, declared the plaintiff Jones elected and ordered a certificate of election to issue to him as aforesaid; (4) defendant Watt, further answering, alleged that within ten days after said election was held, and on April 12, 1897, said defendant Watt, pursuant to the provisions of section 18, of ordinance No. 7, of the Revised Ordinances of the city of Lawrence, entitled “An ordinance relating to elections,” stated to said city council in writing his grounds of contest of said election and caused due legal and personal notice to be served upon said plaintiff Jones; that said city council thereupon fixed the time and place to hear and determine said contest, and thereafter, on the 19th day of April, 1897, in the council chamber of the city of Lawrence, at the time and place fixed for the hearing, said city council, acting as a contest board, proceeded to hear and determine said contest; that at said hearing both parties appeared by attorneys, and said city council, acting as. a contest board as aforesaid, having heard the allegations and evidence of the parties and argument of counsel, having recounted all the ballots cast in said fifth ward at said election, and being fully advised in the premises, did find and determine that said plaintiff Jones had received at said election 149 votes and said defendant Watt had received 152 votés, whereupon they adopted the following resolution :
“Whereas, the city council of the city of Lawrence, sitting as a contest'board, having recounted the ballots cast at the said election held April 6, 1897, for the election of councilman of the fifth ward in said city ; and
“ Whereas, on such recount J. M. G-. Watt received for councilman of the fifth ward in said city 152 votes and J. M. Jones 149 votes : therefore, be it
“Resolved, that J. M. G. Watt be and is hereby declared as councilman from the fifth ward in the city of Lawrence ; and be it further
“Resolved, that the mayor and clerk be-authorized and directed to issue to him a certificate of election as such councilman.”
The defendant alleged further, that thereupon said mayor and clerk made and issued to the defendant Watt a certificate of election, who duly qualified as councilman from said fifth ward, and entered upon the discharge of the duties of his office, and has ever since held and still holds said office, and enjoys all and singular the honors and emoluments thereof; that by reason thereof said contest is now fully settled and determined, and no cause of action accrues to said plaintiff to relitigate said contest in an independent action; (5) the defendant below further answered, that at said election he received a majority of all the votes cast in said fifth ward; that the total number of ballots cast was 333, of which the defendant Watt received 157 and the plaintiff Jones 149 ; that, of said number of votes cast for said plaintiff Jones, seven illegal ballots were cast and counted for him, containing identifying and distinguishing and other improper markings, and that the same could not be lawfully counted for said Jones ; ■ (6) that five persons who had no legal capacity to vote appeared at said voting place in the fifth ward, and voted for said plaintiff Jones ; (7) that a recount of the ballots cast at said election in said fifth ward would show that defendant Watts received a majority of all the votes cast for councilman in said fifth ward, and was legally entitled to hold said office.
To this answer the plaintiff below, Jones, filed a demurrer, stating as reasons that said answer did not state facts sufficient to constitute a cause of action or defense to or against the said petition. This demurrer to the answer was sustained by the district court, and ,the plaintiff in error, Watt, electing to stand thereon, judgment of ouster was rendered against him.
We are not informed as to Ihe precise point upon which the demurrer to the answer was sustained. The defendant in error made no appearance in this court, and no briefs have been filed in his behalf. The allegations contained in paragraph 4 of the a?rswer relate to contest proceedings commenced by the defendant below before the city council. That tribunal seems to have been authorized by ordinance to hear and decide contests between persons claiming to have been elected to any city office. In the answer it is referred to by title as “An ordinance relating to elections ” ; but its contents are not pleaded, and our only knowledge of it is derived from the brief of the plaintiff in error. All the proceedings of the council as a contest board, and its authority so to act, are based upon its provisions. The resolution ordering a certificate of election to issue to the defendant is but declaratory of the findings of the council so assembled by virtue of said ordinance. Unless the court below could have taken judicial notice of this ordinance, it could not have considered the proceedings had before said contest board, or the result. This was a civil action between individuals, and we think the rule is well established that, in such cases, an ordinance, which is a mere by-law of a municipal corporation, must be pleaded either by quoting its language or stating the substance of its provisions. A reference to the title is not sufficient. Ordinances stand on the same footing as private and special statutes, the laws of other states, and of foreign countries, and must be averred and proved like other facts. (17 A. & E. Encycl. of L. 262; City of Austin v. Walton, 68 Tex. 507, 5 S. W. 70.)
Upon this question this court has heretofore gone no further than to hold that in misdemeanor cases, where an appeal is taken from the police court of a city to the district court, the latter will take judicial notice of the ordinance under which the defendant is being prosecuted. In such cases the district court is pro hac vice the police court. (City of Solomon v. Hughes, 24 Kan. 211; Downing v. City of Miltonvale, 36 Kan. 740, 14 Pac. 281.) It follows then that paragraph or count 4 of the answer stated no defense to the allegations of the petition, nor did it set up any grounds of counter-claim which could be considered by the court.
The fifth and sixth counts of the answer state sufficient facts to constitute a defense to the plaintiff’s claim. They aver that the total number of ballots cast was 333, of which the defendant received 157 and the plaintiff Jones 149; that there were seven illegal ballots cast and counted for Jones, containing identifying and distinguishing marks; that five persons who had no legal capacity to vote appeared at the fifth ward polls and voted for the plaintiff Jones. The allegations of said counts or paragraphs, if proved, would have entitled the defendant Watt to the office. (Dorey v. Lynn, 31 Kan. 758, 3 Pac. 557.)
The facts set up in these paragraphs were sufficiently and definitely pleaded to stand good as against a demurrer.
The answer, however, nowhere alleges that Watt, the defendant below, was a qualified elector of the city of Lawrence. This qualification is a prerequisite to the holding of any city office under the law regulating cities of the second class. Section 35, chapter 37, General Statutes of 1897 (Gen. Stat. 1889, ¶772), reads : “All officers elected or appointed shall be qualified electors of said city.” The constitution fixes the qualifications of electors. (Const., art. 5, § 1.) Again, section 21, chapter 37, General Statutes of 1897 (Gen. Stat. 1889, ¶ 771), provides that “no person shall be eligible to the office of councilman who is not at the time of his election an actual resident of the ward for which he is elected” ; and section 20, “ that he shall be an owner of real estate within the city.” There is no averment in the answer which brings the defendant in error within the requirements of these sections of the statute. It might be asserted that a certificate of election having been issued by the council to the defendant in error, Watt, the same presupposes that all previous qualifications for the office existed. This certificate of election, however, as before stated, was ordered issued by a tribunal acting as a contest board, assembled under a city ordinance not pleaded, the provisions of which we cannot judicially know.
The answer of Watt is in the nature of a cross-petition, in which he asks affirmative relief against Jones and prays that he be adjudged to have been elected. His demand is based upon the fact that he received 157 votes and Jones 149 ; that illegal ballots were cast for Jones, which had distinguishing marks upon them and ought not to have been counted for Jones, and, further, that five persons who had no legal capacity so to do voted for Jones. This demand of the defendant below for affirmative relief should have contained an allegation that he was qualified to hold the office. (People v. Wallace, 91 Cal, 535, 27 Pac. 767; The State, ex rel. Ault, v. Long, 91 Ind. 351; Reynolds v. The State, ex rel. Titus, 61 id. 392.) The answer having failed to state this material allegation, the demurrer thereto was properly sustained. The judgof the court below will be affirmed. | [
-16,
-20,
-72,
-116,
10,
-64,
2,
-100,
25,
-111,
-28,
115,
-115,
-118,
13,
61,
-13,
61,
-47,
107,
-64,
-77,
-122,
-95,
-110,
-13,
-49,
-59,
-79,
76,
-10,
-4,
76,
48,
10,
-99,
70,
64,
-49,
-36,
-114,
3,
105,
-20,
-39,
-64,
52,
122,
50,
67,
113,
62,
-13,
46,
28,
115,
-19,
45,
91,
-72,
-47,
-15,
-116,
-123,
77,
22,
19,
38,
-98,
-121,
120,
62,
-40,
49,
-64,
-20,
115,
-90,
-126,
-12,
77,
-87,
12,
102,
98,
32,
-99,
-81,
-24,
-104,
15,
122,
-99,
-90,
-109,
25,
106,
64,
-74,
-103,
100,
80,
3,
126,
-27,
4,
29,
44,
10,
-114,
-76,
-77,
79,
52,
-118,
-109,
-29,
50,
32,
100,
-35,
-110,
92,
70,
50,
27,
-49,
-68
] |
The opinion of the court was delivered by
Joi-inston, J. :
This was an action of replevin, brought by William Magee to recover a stock of merchandise which had been previously seized by S. T. Hartzell as sheriff, upon attachment process. Magee claimed to have purchased the goods from J. T. Pershall, but the creditors of Pershall alleged that the transfer was fraudulent, Accordingly the good faith of the parties and the honesty of the transaction were submitted to a jury, but their verdict was against Magee. He attempted to take the case to the court of appeals, and when it came on for review in that court the jurisdiction of the court was challenged upon several grounds, one of which was that no summons in error had ever been issued or served, and that the issuance and service of the same had not been waived. The court overruled the objections to the jurisdiction, and going to the merits decided that the verdict was contrary to the evidence, and the judgment was thereupon reversed. (Magee v. Hartzell, 7 Kan. App. 489, 54 Pac. 129.) The discretionary jurisdiction of this court was invoked, and upon an order made the case was certified here for review, and the first question presented to us is as to the jurisdiction of the court of appeals.
No summons in error was ever issued or served, and no written waiver of summons was filed, nor do we find any legal proof that such waiver was ever executed. The court of appeals, however, held that, as the defendant raised the objection in the same brief and in connection with the merits of the case, he had thereby conferred jurisdiction on the court, and for that reason that the jurisdictional objections were not available to him. This view does not meet our approval. A common practice, which has never been discouraged in this court, is for defendant in error to raise jurisdictional objections at the final submission of the case and to present them in the same brief with the merits. His argument is in the alternative, that the case should be dismissed for want of jurisdiction, but, if the court disagree with him on that point, that for reasons stated the judgment should be affirmed. This practice is a convenience to counsel and to the court, and the view taken here is that parties to a proceeding in error do not thereby estop themselves to deny the jurisdiction of the court. A waiver is not implied so readily in an appellate court as in one of general original jurisdiction, and proceedings in error must be brought in the manner pointed out by the statute. “This court cannot take cognizance of a case not brought before it by regular process of law, nor in conformity with any of the statutes regulating the manner of bringing cases into this court. Cases not so brought are irregularly here, and must be dismissed for want of jurisdiction.” (Adolph Cohen v. C. B. Trowbridge, 6 Kan. 385; Atkins v. Nordyke, ante, p. 354, 56 Pac. 533.)
Again, if the briefing of the motion and the merits together could be treated as an effectual appearance, it came too late to confer jurisdiction on the.court of appeals. A proceeding in error is not in time unless it is brought within one year after the rendition of the judgment sought to be reversed. The judgment in question was rendered on March 25, 1893, and the brief was not filed nor the so-called appearance made until 1898, more than five years after the judgment was rendered. Parties to a proceeding in error cannot by voluntary appearance, or even by agreement, confer upon an appellate court power to hear and determine a proceeding brought after the expiration of the time limited therefor.
The judgment of the court of appeals will be reversed, and the cause remanded with directions to dismiss the proceeding in error. | [
-78,
-16,
-8,
63,
10,
-32,
42,
-70,
65,
-125,
39,
115,
-23,
-101,
1,
63,
-1,
107,
116,
123,
-51,
-73,
7,
-21,
114,
-14,
-111,
-43,
-80,
108,
-25,
94,
12,
48,
-62,
-43,
70,
-54,
-63,
30,
-18,
37,
-88,
-23,
-7,
64,
48,
57,
16,
11,
81,
-113,
-13,
46,
25,
-53,
-23,
41,
123,
61,
64,
-48,
-65,
-123,
127,
4,
16,
52,
-100,
39,
120,
46,
-108,
25,
3,
-8,
121,
-74,
-126,
116,
43,
59,
9,
98,
99,
-127,
65,
-25,
56,
-88,
46,
126,
29,
-90,
-80,
8,
75,
-95,
-106,
-99,
-4,
18,
5,
124,
-22,
-115,
-33,
108,
11,
-113,
-106,
-93,
-113,
84,
-66,
87,
-61,
-106,
16,
81,
-60,
-88,
92,
85,
122,
-97,
-114,
-38
] |
The opinion of the court was delivered by
Smith, J. :
This was an action by Richard R. Laird to recover damages from the defendants below, John V. Farwell & Co., for malicious prosecution. The firm of W. J. Wilson & Co. became indebted to the defendants in error in the sum of $30,000 and over, and to the State National Bank in about the sum of $7000, and to secure the same executed to them chattel mortgages on a stock of dry-goods, notions, fixtures, etc., in the city of Wichita. John V. Farwell & Co. were wholesale merchants in Chicago, and they, together with the bank, placed the possession of said stock of goods in the hands of one W. D. Curtis, as their agent, for the purpose of selling the same on their account as mortgagees. While in charge of said goods and engaged in disposing of the same, Blumenthal Bros. & Co., creditors of W. J. Wilson & Co., brought an action in attachment against the latter. Richard R. Laird, the plaintiff in error, was an agent for Blumenthal Bros. & Co., and signed and verified the attachment affidavit in said suit brought by them. A writ of attachment was thereon issued, and levied on goods in the possession of said Curtis as the agent of John V. Farwell & Co. and the bank. Thereupon Curtis filed a complaint before a justice of the peace charging the plaintiff below, Laird, with perjury in making the attachment affidavit, and caused his arrest upon said charge. A preliminary examination was had, and the plaintiff in error discharged, for the reason that there was no probable cause to believe him guilty of the offense charged against him. He then brought this action. At the close of the evidence introduced by him a demurrer was interposed by the defendants below, which was sustained by the court, and judgment rendered against the plaintiff in error for costs.
The first error assigned relates to the action of the court in granting leave to the defendants below to amend their answer and verify the same. The case had been once tried and judgment rendered for the plaintiff below. The answer to the petition in the first case was a general denial not verified. This of course did not put in issue the authority of the agent Curtis, and such authority was by the pleadings admitted. The first judgment was reversed by this court. (Farwell v. Laird, 58 Kan. 402, 49 Pac. 518.) Evidence was introduced on the application for leave to amend and verify the answer, at the conclusion of which the court permitted the amendment to be made. The allowing of amended pleadings to be filed in a cause is a matter committed largely to the discretion of the court, and, unless abused, the exercise of such discretion will be not reviewed. It has been held to be error in some cases to refuse to permit amendments to pleadings even during the progress of the trial. (Wright v. Bacheler, 16 Kan. 259; St. L. & S. F. Rly. Co. v. Dudgeon, 28 Kan. 285; Chinberg v. Manufacturing Co., 38 Kan. 228, 16 Pac. 462.)
It appears from the evidence that Curtis had the usual powers conferred upon an agent of mortgagees in possession of a stock of salable merchandise, his principal duty being to do whatever was necessary to convert the same into money, rendering an account of his agency to his employers. Did his action in commencing a prosecution against Laird for perjury, and causing his arrest, bind his principals for the consequences? In other words, was the arrest of Laird an act done within the scope of Curtis’s employment? We are quite clear that he exceeded his authority.
In Hudson v. M. K. & T. Rly. Co., 16 Kan. 470, the plaintiff went to the depot of the defendant railway company to receive some freight. While there the agent of the defendant in charge of the depot assaulted plaintiff with a poker. The court held that the assaulting of the plaintiff by defendant’s agent was not in the line of the agent’s employment. The court said :
“ The employment may have given the opportunity and occasion, but it was not an act which in any fair sense the company could have been considered to have employed him to do or to have anticipated that he would do, nor an act which was the act of the company. ... A party goes into a store to purchase goods, and is therefore rightfully there. He makes an inquiry as to the price of an article of the clerk behind the counter, who in reply takes a weight and knocks him down with it. Can this be said to be an act which the proprietor contemplated when he employed the clerk? That it was in the line of the clerk’s employment, and that therefore the employer was responsible? But the cases are parallel. The employment in each furnishes the opportunity and the occasion; but in each the act is not one the agent was employed to perform, nor within the scope of his employment.”
In Mali v. Lord, 39 N. Y. 381, it was held that a clerk, employed to sell goods, in the absence of his employer had no authority to search, arrest and detain a person suspected of having stolen and secreted about his person any of the goods in his charge ; that in so doing the servant was not engaged in the business of the master anymore than committing an assault upon or slandering a customer. The court said :
“In examining this question, it must be assumed that by the employment the master confers upon the servant the right to do all necessary and proper acts for the. protection and preservation of his property, to protect it against thieves and marauders ; and that the servant owes the duty to so protect it to his employer. But this does not include the power in question.”
In Pressly v. Railroad Co., 15 Fed. 199, a land agent of the company, exercising supervision over its property ,to the extent of making leases, collecting rents, selling stumpage, and negotiating sales, was held nob to have implied authority to the extent of making the' railroad liable for the arrest of a person for larceny: committed with respect to the property of the company in charge of said agent. The court said: “To say that to put the criminal law in operation against a party on a charge of larceny of the property of the,corporation is within the scope of his agency, and in the course of his employment, is a proposition which, in the light of decided cases, cannot be maintained: See also Allen v. Railway Co., 6 Q. B. L. R. 65; Travis v. Insurance Co., 86 Mich. 288, 49 N. W. 140. It is not profitable here to mark out the dividing line between the powers of a general agent and the authority of a special agent. The duties of Curtis, as disclosed in the record, were no greater than stated above.
Railroad Co. v. Brown, 57 Kan. 785, 48 Pac. 31, was an action for malicious prosecution based on an arrest made by an agent of the claim department of the railroad. The plaintiff was charged with burglary in breaking and entering a station-house of the company. It was held that the railroad was not liable for the agent’s tort. The court, speaking through Chief Justice Doster, said :
“Of course, the rules for determining what is, and what is not, in the line of the agent’s employment or within the scope of his authority are the same in the case of corporate agents as in the case of agents for individuals. One of these is, that where the right of recovery is not based upon an allowance by the principal to the agent of an appearance of authority which he did not in fact possess — in other words, where the principal is not estopped by his own conduct to deny the agency — he can be held liable only for such acts of his agent as fall within the limits of the authority conferred.’’
There is nothing to show in the evidence but that Curtis might have been prompted in causing the arrest by a motive beyond that of serving his employers. 'The court below was called upon to infer that in causing the arrest Curtis was doing an act in furtherance of his master’s business, for which his employer was liable. This, however, might be inferred of any agent in charge of his principal’s property who might commit a tort which the custody of the property afforded Mm an opportunity to commit. The rule of implied authority cannot be extended as far as contended by counsel for plaintiff in error. (Travis v. Insurance Co. v 86 Mich. 288; 49 N. W. 140; Govaski v. Downey, 100 Mich. 429, 59 N. W. 167; Carter v. The Howe Machine Co., 51 Md. 290, 34 Am. Rep. 311.)
The case of Wheeler & Wilson Mfg. Co. v. Boyce, 36 Kan. 350, 13 Pac. 609, cited by plaintiff in error, does not assist him. There the sewing-machine agent was managing agent for the company, and his authority was general. He had authority to sell machines and collect the money, and it was conceded that he had authority to institute legal proceedings to recover possession of machines conditionally sold. It was held that the arrest of Boyce was incidental to the replevin action, and made the company liable. The court said r “ His act, although wrongful, was in the line of his employment, was done in the execution of authority conferred upon him, and must be regarded as the act of the company.” The act of Curtis in making the arrest involved malice and want of probable cause. Without more evidence of authority to make the complaint against Laird than we have been able to find in the record, we do not hesitate to say that defendants in error were not responsible for Curtis’s acts in causing the arrest. We are equally clear that the evidence did not sustain the allegations of the petition as to the existence of a conspiracy.
The demurrer to the evidence was rightfully sustained, and the judgment of the district court must be affirmed. | [
-80,
110,
-8,
-97,
30,
96,
40,
-102,
23,
-96,
-89,
115,
-51,
-121,
1,
105,
118,
61,
84,
106,
-58,
-78,
22,
-86,
-46,
-77,
-39,
-51,
-75,
109,
-28,
-36,
77,
48,
66,
-105,
-26,
-120,
-63,
20,
-50,
37,
40,
-19,
-38,
8,
52,
59,
-91,
73,
113,
12,
-13,
58,
24,
-61,
105,
44,
107,
41,
-48,
-79,
-118,
-51,
-35,
22,
17,
84,
-66,
71,
-38,
14,
-112,
53,
16,
-88,
115,
-74,
6,
-12,
45,
-87,
108,
102,
98,
48,
5,
-21,
120,
-100,
46,
-1,
-99,
-89,
-111,
72,
-94,
109,
-66,
-99,
102,
16,
-122,
-2,
-21,
77,
25,
108,
3,
-117,
-106,
-77,
-49,
124,
-102,
27,
-21,
-125,
16,
113,
-49,
32,
76,
103,
123,
-125,
-50,
-77
] |
The opinion of the court was delivered by
Allen, J. :
This action was brought by James Smith against the railroad company to recover damages for alleged malicious prosecutions. The petition charges that on the 26th day of January, 1893, the defendant procured three complaints to be made by one Fritter, its agent at La Junta, Otero county, Colorado, before a justice of the peace, charging the plaintiff with the crime of burglary and larceny in freight-cars on the defendant’s railroad; that the plaintiff was arrested under warrants issued on these complaints, committed to jail, and that the prosecutions were afterwards dismissed by the prosecuting attorney ; that after the discharge of the plaintiff from these prosecutions he was again arrested on four warrants issued by a justice of the peace of Las Animas county, Colorado, on complaints filed by E. B. Leonard, the agent of the defendant at Trinidad, acting under the defendant’s direction, charging him with like burglaries and larcenies in Las Animas county ; that these prosecutions were also terminated by the prosecuting officer, who dismissed the cases ; that on the 28th day of January, 1893, ^yhile the plaintiff was confined in the county-jail of Otero county, the defendant wilfully and maliciously procured a search-warrant from a justice of the peace of Colfax county, New Mexico, and caused the premises of the plaintiff at Raton, N. M., to be searched for stolen property by the deputy sheriff of Colfax county. The petition alleges that all these prosecutions were malicious, without probable cause, and instituted and carried on by the defendant for the purpose of injuring him. A motion having been made and sustained requiring the plaintiff separately to state and number the several causes of action set up in the petition, the plaintiff amended by interlining, just preceding the prayer of the petition, the following:
“ The plaintiff avers that he brings this suit as one cause of action; that he avers the fact to be that the defendant, actuated by a malicious intention and design to ruin the plaintiff, to cause him expense he could not bear, and to causelessly punish him, did perform and cause to be performed all the acts aforesaid, and that all said acts were taken by defendant in pursuance of said design originally formed.”
A motion was made to dismiss the case on the ground that the plaintiff had failed to comply with the order to state and number his causes of action separately. This motion was overruled. After the overruling of a demurrer to the petition the defendant answered, denying generally the matters charged in the petition. On the 4th day of February, 1896, the case was called for trial, and the defendant asked a continuance on the ground that the issues had not been made up in time for trial at that term of court. This was refused and a jury was thereupon impaneled. The plaintiff offered in evidence certain of the papers and copies of the records in the cases prosecuted against him in Colorado, testified in his own behalf, and rested his case. A demurrer to the testimony was filed and overruled. The defendant offered the depositions of the district attorney of the district including Otero county, Colorado, of his deputy at La Junta, and of the district attorney of Las Animas county. The court, by its instructions, submitted the question of probable cause for the prosecution, as well as all questions of fact to the decision of the jury, and they returned a general verdict in favor of the plaintiff for $10,000 damages. A motion for a new trial having been made and overruled, the railroad company brings the case here for review.
•The objection urged against the sufficiency .of the petition on the ground that it states in one count a number of separate and distinct causes of action is not good. The plaintiff had a right to treat all the prosecutions as connected, instituted and carried on under a continuing purpose to injure him.
It is unnecessary to discuss the minor questions raised by counsel for the railroad company. The principal question decisive of this case is whether the prosecutions complained of were instituted without probable cause. This was submitted to the jury as a question of fact. As there was no substantial conflict in the testimony bearing on the question it should have been determined by the court as a matter of law. (Drumm v. Cessnum, 58 Kan. 331, 49 Pac. 78, and cases cited.) It appears from the plaintiff’s own testimony that a large amount of property had been stolen from the cars of the railroad company, and that much of it was found in the house of Crotty, a conductor of a freight-train which was sometimes hauled by the engine in charge of the plaintiff as engineer. A detective named Landon had been put at work as a brakeman on the part of the road where property was being sto len, aud some of the stolen property was found in Landon’s house. Quite an exhibit of stolen property was brought into the court-room both at La Junta and Trinidad. A considerable number of trainmen were arrested on charges similar to those lodged against the plaintiff. At th.e preliminary examination before a justice of the peace at La Junta, Crotty and Landon testified against this plaintiff. Crotty stated that he had stolen from the company the things mentioned in the complaint, and that he had broken into box cars of the railroad company and stolen goods many times. He implicated a dozen or fifteen persons, and the plaintiff among the number. He said that they stopped between stations and took the stuff out of the cars, mostly between La Junta and Trinidad. He mentioned Thatcher and a place between Thatcher and Fillmore as places where the plaintiff was connected with the crimes. He claimed that the plaintiff came back and got some things and that others were taken by Crotty to the engine for the plaintiff. The plaintiff said on the witness-stand that he expected there was a considerable amount of merchandise stolen by the men who did the stealiug, but that he was innocent of all connection with the crime, and that Crotty was a man of very bad reputation. At the preliminary examination no testimony was offered on-behalf of the defendant, (plaintiff below in this action,) and he was bound over.
The testimony of the prosecuting attorneys tends to show that they received their information -as to the connection of the plaintiff with the burglaries from Mr. Swain, who represented himself to be the general manager of a detective agency and the sheriff of Otero county. On this information complaints were drawn, and sworn to by Fritter, the agent of the railroad com pany at La Junta. . The state, having failed to convict another defendant charged with one or more of the same series of crimes, dismissed the prosecutions in that county, and there was a question as to the county in which some of the crimes were committed. On the dismissal of the cases in Otero county the prosecutions in Las Animas county were started. Smith was arrested and taken to Trinidad, where he gave bond for his appearance at the district court. The cases were never brought to trial, and, after continuance over one term of court, were dismissed. After his discharge from the service of the company Smith made many fruitless efforts to obtain employment as an engineer. He claims that his failure was due to the unfriendly attitude of the defendant toward him, and that when he applied to the general manager for an investigation in order that he might show that he was wrongfully prosecuted the latter refused to give him a hearing.
That the prosecutions and the hostile attitude of the railroad company toward the plaintiff have resulted in serious injury and loss to him is clear. He was not only discharged from the service of the defendant, but the discharge was made under such circumstances as to leave him resting under the suspicion of guilt, which it has refused to. make any effort to remove. For an innocent man thus to be deprived of all opportunity to follow that calling for which he was trained and especially fitted, through unjust suspicions and prosecutions, cannot fail to excite strong sympathy, but courts have no license to be guided by their sympathies. Before the defendant company can be held to respond in damages for these prosecutions it must appear that they were instituted maliciously and without probable cause. (Counsel for the defendant very strenuously insist that the railroad company is not responsible for the prosecutions ; that the evidence fails to show that it authorized them, and does show affirmatively that they were instituted and directed by the proper prosecuting officers of Otero and Las Ani-. mas counties, Colorado. We shall assume, but without expressing any opinion as to the correctness of the assumption, that the railroad company authorized the prosecutions and is responsible for them.
The principal question is, Was there probable cause to believe that the plaintiff was a party to the crimes for which he was prosecuted? Many such crimes were committed on the line of the defendant’s railroad, and that they were committed by coemployees of the plaintiff, engaged in operating the trains hauled by the engine under the plaintiff’s charge, is a conceded fact. It is also clear that it was the duty of the railroad company, not only to itself but to the general public, to make a vigorous effort to ferret out the criminals and bring them to justice. Having caught Crotty, the conductor, in possession of a large amount of the plunder, they obtained from him a confession and a statement as to who were his accomplices. Among them the plaintiff was named. It is strenuously insisted that Crotty, being not only a thief but a man of bad character m every particular, ought not to have been believed, and that his mere statement was insufficient to warrant an arrest. In the detection of crime it is often found necessary by prosecuting officers to act on the statements of confessed criminals, and their testimony, when corroborated by circumstances, is often accepted and acted on by juries. In this case it was not Grotty’s statements alone that tended to. cast suspicion on the plaintiff, but these were corroborated by the fact that larcenies were com mitted from the trains hauled by the engine of which the defendant had charge. It was claimed, also, that stops were made on the line of the railroad away from any station and goods there taken from the cars and secreted. The testimony of the prosecuting attorneys shows that in directing complaints to be filed they acted on information derived from detectives and the sheriff. Just what this information was does not appear.
Under all these circumstances we are forced to the conclusion that there was probable cause for a prosecution against the plaintiff, and that the evidence tends to show that the prosecution was instituted rather for the purpose of punishing a man believed to be guilty than of maliciously oppressing an innocent one. The statements of the plaintiff as to what was said by the general manager, while indicating that he still entertained a belief of the plaintiff’s guilt, do not show any malicious purpose to injure him. Under the plaintiff’s own showing we are forced to hold that there was probable cause for the prosecutions and that no cause of action was proved against the company. The judgment is, therefore, reversed. | [
112,
112,
-75,
-65,
58,
96,
56,
-104,
113,
-15,
-92,
-45,
-19,
9,
-112,
113,
-5,
125,
84,
121,
102,
-78,
71,
35,
26,
-77,
123,
-11,
50,
93,
-18,
-42,
78,
32,
74,
29,
103,
-24,
-63,
28,
-114,
33,
-119,
-28,
-47,
8,
52,
123,
22,
15,
-15,
-82,
-5,
46,
24,
-37,
41,
44,
-5,
-84,
-16,
-15,
-70,
93,
-43,
6,
-125,
38,
-97,
-121,
68,
25,
-112,
17,
0,
-24,
115,
-78,
-122,
-12,
101,
-85,
0,
98,
98,
33,
124,
-81,
40,
-88,
62,
-70,
-99,
38,
114,
80,
27,
101,
-98,
-103,
54,
20,
-89,
-2,
-27,
77,
120,
44,
-123,
-54,
-106,
-125,
-33,
32,
-52,
87,
-5,
37,
52,
112,
-51,
-94,
92,
71,
115,
-99,
15,
-76
] |
The opinion of the court was delivered by
Johnston, J. :
This was a proceeding to enjoin the collection of a special fire tax levied by the county commissioners of Edwards county upon railroad property located in three townships of that county. In two of the townships a levy of two mills was made, and in the other the levy was one mill on the dollar. The contention of the railway company is that chapter 263, Laws of 1895 (Gen. Stat. 1897, ch. 170), discriminates against railroad companies by excluding their property from the benefits provided; that the tax is not equal and uniform, as the constitution requires ; that the enforcement of the tax is an attempt to deprive them of property without due process of law ; that it denies to them the equal protection of the law, and is therefore void.
The act provides that the county commissioners may levy a fire tax on the property of the county, and in addition thereto may levy a like tax in each or any of the townships of the county. The township trustee is required to make a map of his township and subdivide it into suitable and convenient fire districts ; and if there is a railroad in the district, he is to divide his township, where it is possible, so that the line of the district shall come to the line of the right of way, but shall not cross the railroad. The road overseers are made fire overseers, and on them is devolved the duty of breaking, plowing, mowing or burning fire-breaks. The law appears to prescribe two methods for protection against fire — one, where there is no railroad, as provided in section 5, where at a certain time the overseer is required to plow strips on the outside lines of his district six rods apart where there is open prairie, and also in fenced pastures where the owners’ consent can be obtained, and to burn the grass between the strips of breaking; the other, which is provided in section 6, where there is a line of railroad, and it is there made the duty of the overseer “to cause to be plowed two strips of at least three furrows each, at least six rods apart, on all open prairie or fenced pasture, with the owners’ consent, along the section lines running the nearest parallel with said railway, not . nearer than one-quarter of a mile to nor more than two and one-half miles from said railroad, making said strips continuous by running at right angles when necessary to keep within the distance above mentioned, and cause the grass to be carefully burned off between said strips ; provided, that where there is open and unoccupied prairie the road overseer may plow and burn said strips running parallel with said railway, not closer than one-quarter of a mile to the said railroad.” As will be observed, the act is somewhat crude and inconsistent in its provisions.
Aside from the manifest purpose to exclude railroad property from fire districts to be created, the provision relating to where the fire-guards shall be made are in conflict. First, the act requires fire-guards to be plowed and burned on all exterior lines in the district. In another section, however, it provides that where there is a railroad like fire-guards are to be made on section lines running nearest parallel with the railroad, but which are not to be closer than one-quarter of a mile to the railroad nor more than two and one-half miles distant therefrom. In order to place fire-guards within the limits mentioned, and make them continuous, they are to run, when necessary, at right angles on section lines, but there is an express provision that in no instance are they to be made closer than one-quarter of a mile to a railroad. The exterior limits of a fire district which extend to and run parallel with the right of way would ordinarily be only fifty feet distant from the railroad, and according to one provision there would be a fire-guard thereon, but by the other provision it would be one-quarter of a mile away, and might be two and one-half miles. Then, again, no provision is made for placing the tax upon, the tax books nor that it shall become a lien at any time upon the property taxed, nor does it provide that it shall be collected the same as other taxes are collected. No provision is made for the collection of this tax in money, but persons residing in the district may work out the tax under the direction of the road overseer at specified rates of compensation. How far these omissions might affect the validity of the law in the absence of other defects we need not determine. It appears, however, from the provisions referred to, that railroad property is excluded from districts organized for fire protection, and that the fire-guards are so remote as to afford the company but little, if any, protection from fire. Much of the property of the company is of such nature as may be injured or consumed by fire, and what protection would a fire-guard located two and one-half miles from the property afford? Or even if it were but a quarter of a mile away, which is as near as it may be made? It is well known that fires are sometimes started from locomotives used on the 'railroads, and that railroad companies are required to respond in damages for property destroyed by fire originating in that way. This act, as we have seen, affords no protection to railroad companies’ property, neither does it afford any protection to property destroyed by fire originating in the operation of the railroads, and for which the companies may be held responsible. It may have been the theory that railroad companies had provided, and would provide, their own protection in their own way, but being required to do this, the tax is more burdensome on them than on other taxpayers in the township. As some of the taxpayers appear to have been purposely excluded from the benefit and protection of the law, the tax, therefore, lacks that equality and uniformity essential to its validity. It is a discrimination against one taxpayer in favor of others, and is a denial of the equal protection of the law required by both state and federal constitutions. Absolute equality in taxation is, of course, unattainable, but a law, the manifest purpose and legitimate result of which is discrimination and inequality, cannot be sustained. As to the fire tax the judgment of the court of appeals will be reversed and the judgment of the district court will be affirmed.
The other question presented by the record, the validity of the state delinquent tax, received consideration in Railway Co. v. Clark, immediately following. That tax is held to be valid, and for the reasons stated in that case .the judgment of the court of appeals with respect thereto is affirmed. | [
-12,
122,
-44,
-68,
-86,
96,
59,
-71,
83,
-79,
-92,
-45,
-17,
-102,
-111,
33,
-6,
61,
-47,
107,
84,
-93,
83,
98,
-98,
-13,
-45,
-51,
-69,
78,
-12,
70,
72,
48,
-118,
85,
102,
104,
69,
20,
-114,
13,
43,
-55,
-37,
64,
60,
123,
114,
75,
17,
-117,
-5,
46,
16,
-47,
109,
45,
-5,
-95,
-127,
-71,
-70,
-42,
119,
6,
49,
66,
-120,
-95,
-24,
42,
-104,
53,
-126,
-4,
115,
-90,
-105,
-12,
13,
-55,
9,
38,
99,
1,
53,
-17,
-20,
-104,
14,
-102,
-113,
-89,
22,
25,
-78,
10,
-74,
-107,
84,
86,
-49,
126,
-25,
5,
85,
108,
-124,
-117,
-92,
38,
-113,
108,
-110,
71,
-49,
33,
48,
84,
-62,
58,
95,
71,
51,
27,
-97,
-36
] |
The opinion of the court was delivered by
Johnston, J :
A. C. Wheelock brought ah action against John E. Myers and Augusta M. Myers to recover upon a promissory note on which there was due the sum of $2538 and to foreclose a mortgage on land, given by Myers and wife to the Rickert Invest ment Company to secure the same, and which was dated April 4, 1889. The petition alleged the execution of the note and coupons, as well as the mortgage securing the debt, the assignment and transfer of the same to the plaintiff on May 29, 1889, and that the plaintiff was the present owner and holder thereof. There was also an allegation that the assignment of the mortgage to Wheelock was duly recorded. The defense set up in the answer was that the assignment of the mortgage had not been recorded as required by chapter 160, Laws of 1897, and asked that it be adjudged that the mortgage was not a lien upon the property, and that the same be discharged and canceled. The case was submitted to the court upon an agreed statement of facts, which is as follows :
“It is agreed that the allegations of plaintiff’s petition are true, but that the assignment of the mortgage alleged in plaintiff’s petition was filed for record in the office of the register of deeds of Wyandotte county, Kansas, on January 10, 1898, and not at any other time ; that plaintiff ever since the time of purchasing the note sued on, .and then, was a non-resident of Kansas ; that' the allegations of payment in the defendant’s answer are not true, but the allegations therein as to the time of filing for record of the aforesaid assignment are true, and this action was commenced. January 11, 1898.”
Upon this stipulation judgment was rendered for plaintiff, and the defendants below complain and insist that the failure to record the assignment of the mortgage to plaintiff within six months after the passage of the act of 1897 is a complete defense against the recovery of the debt and the foreclosure of the mortgage.
The challenge of jurisdiction because of the absence of parties cannot be sustained, as it appears that all of the parties to be affected by the decision of the court are before us.
Questions as to the effect and validity of chapter 160, Laws of 1897, which provides for recording assignments ' of real-estate mortgages and prescribes penalties for failing to do so, are presented, and the determination of these, it is claimed, are necessarily involved. The statute, after requiring the acknowledgment and recording of such assignments, in section 4, provides that “no assignment of mortgage shall be received against the mortgagor, his heirs, personal representatives, or assigns, in any court of this state unless the same shall have been acknowledged and recorded as herein provided.” In section 6 of the act there is a provision that assignments of existing mortgages, bearing date prior to the taking effect of the act, shall be recorded within six months after the act goes into effect, and that the provisions of section 4 shall be applicable to all assignments not so recorded. As will be observed, the penalty prescribed for failure to record is the inhibition of the use of the assignment as evidence against the mortgagor, his heirs, personal representatives, or assigns. It is not, as apparently contended, the annulment of the mortgage nor the destruction of the mortgage lien. The provision that the assignment shall not be received in any court means no more than that it shall not be received in^ evidence, as that is the only purpose for which it would be offered or received in court. Instead of prescribing that the non-record of the transfer shall extinguish the mortgage lien, it simply made the unrecorded assignment wholly valueless as proof to establish the ownership of the mortgage ; and other provisions of the act unite in indicating this to have been the legislative purpose.
A question is raised whether under the agreed facts proof of the assignment was necessary to a recovery. On one side it is contended that the mortgagors, having solemnly admitted the assignment of the mortgage to -Wheelock and that he was the owner thereof, are estopped to deny the truth of the admission, or to contest further the ownership of the mortgage. On the other side the contention is that the admission of the fact that the assignment was not recorded within six months after the passage of the act had the effect of destroying the validity of the assignment as proof o.f ownership ; and .being as a matter of law nugatory as evidence, the court could not consider the admitted transfer and ownership merely because the fact of assignment and ownership was included in an agreed statement of facts. The majority of the court hold that the.mortgagors are not concluded by the agreed facts, and that Wheeloek was still required to prove the assignment and ownership of the mortgage. The agreed facts are regarded to have no other function or any greater force than evidence, and since the invalidity of .the evidence was conceded the court could not make it the basis of a recovery.
The writer is unable to agree with his associates in this view. In his opinion, the agreed facts are more than a statement of evidence from which inferences of fact are to be drawn. They are the ultimate and only facts in the case, and the sole duty of the court was to apply the law and determine the rights of parties as would have been done from findings of fact made by a jury. The assignment of the mortgage being distinctly stipulated and agreed on, why should it not be treated as an ultimate and governing fact ? While the statute prohibits the receipt of the assignment in evidence, it does not prohibit parties from agreeing that the assignment was in fact made and that plaintiff is in fact the owner and holder of the mortgage. In this action we have all the parties connected with the mortgage, including the original mortgagee, and why then is a stipulation in the action that the mortgage was duly assigned not permissible and also binding upon the parties ? To the writer it seems that the assignment and ownership of the mortgage were as much established facts as if they had been admitted in the pleadings ; and if distinctly admitted in the answer would proof of them have been essential to a recovery ? The fact of ownership being established, the mortgagors were fully protected from any claim thereon by the original payee of the mortgage, and from all danger of being required to pay it a second time. The assignment, it is true, cannot be received in evidence, but if the plaintiff can make out his case without such evidence it is difficult to understand why he is not entitled to a recovery. All the facts being agreed upon, including the transfer and ownership, nothing remained for the court but to render judgment on the admitted facts, and it appears to the writer that judgment was rightly given. However, the court has determined that the agreed facts did not warrant a recovery, and the judgment must therefore be reversed, unless the statute be held invalid.
On behalf of the defendant in error, it is said that if the statute be so interpreted that it takes away the right of an assignee to enforce a mortgage which he owned wdien the act was passed, it impairs the obligation of a contract. He claims that when the law was enacted the mortgagors were bound to him in a complete contract the obligation of which was that they would pay him the debt on a fixed day, and if not, that certain real estate should be sold and the proceeds applied in payment of the debt. It is conceded that recording acts may be passed which will affect and invalidate the existing contracts of those who neglect to conform to the requirements of such acts. It is well settled that limitation laws may also be enacted which likewise affect existing contracts, but neither of these classes of laws is repugnant to either the federal or state constitution if a reasonable time be afforded pax-ties to assert or protect their rights before the law takes effect. Here the assignees of existing mortgages were given six months in which to place their assignments on record, and this, considering the pux-poses of the act and the circumstances of its observance, is deemed to be a reasonable time. It is in its nature a conditional lixnitation which contingently restricts the rights of parties, and may in certain cases cut off all remedy, but at the same time it affords opportunity for the protection of all existing rights and leaves a substantial remedy to parties holding mortgages, and therefore is not open to the constitutional objections urged against it. In a recent case, decided by the supreme court of Indiana, it was said:
"Limitation laws which operate on subsisting contracts, and laws which regulate the registration of existing conveyances or instruments affecting titles to lands, are within the operation of this rule when a reasonable time is given within which the effect of such a statute, as applied to existing conveyaxxces, may be avoided and rendered harmless in respect to vested rights.” (The Connecticut Mutual Life Ins. Co. v. Talbot et al., 113 Ind. 373, 14 N. E. 586.)
As tending to support the validity of the act, the following cases are cited : Wahlgren v. Kansas City, 42 Kan. 243, 21 Pac. 1068; Turner v. New York, 168 U. S. 90, 18 Sup. Ct. 38; Tarpley v. Hamer et al., 9 Sm. & M. (Miss.) 310; Watson v. Doherty, 56 Miss. 628; Vance v. Vance, 108 U. S. 514, 2 Sup. Ct. 854; Terry v. Anderson, 96 U. S. 628; Kenyon v. Stewart, 44 Pa. St. 179; People v. Turner, 117 N. Y. 227, 22 N. E. 1022; Tucker v. Harris, 13 Ga. 1; Boston & Gunby v. Cummins, Claimant, 16 Ga. 102; Salmon v. Huff, 28 S. W. (Tex. Civ. App.) 1044; Kingley v. Cousins, 47 Me. 91; Relyea v. Tomahawk Pulp and Paper Co., 78 N. W. (Wis.) 413.
The act being valid, it follows that the judgment of the district court must be reversed, and the cause remanded for further proceedings.
Doster, C. J., and Smith, J., concurring. | [
-14,
111,
-7,
-115,
-118,
96,
32,
-102,
122,
-96,
-92,
83,
109,
74,
5,
109,
-10,
45,
-48,
104,
103,
-77,
6,
105,
-62,
-13,
-39,
77,
-67,
76,
-28,
-42,
77,
32,
-54,
-73,
-58,
-62,
-61,
28,
-50,
-115,
-88,
-60,
-39,
0,
48,
59,
84,
72,
21,
47,
-13,
43,
29,
82,
105,
42,
-53,
60,
-48,
-16,
-118,
-121,
125,
3,
19,
103,
-120,
69,
74,
-84,
-112,
53,
1,
-8,
123,
38,
-122,
-12,
77,
-101,
13,
98,
103,
34,
116,
-21,
-12,
-104,
38,
60,
-99,
-89,
-109,
72,
3,
8,
-66,
-99,
116,
16,
7,
-12,
-25,
-108,
29,
108,
7,
-113,
-44,
-73,
31,
126,
-102,
11,
-10,
-93,
-80,
113,
-51,
-70,
93,
-61,
26,
27,
-98,
-72
] |
The opinion of the court was delivered by
Johnston, J. :
This proceeding involves the validity of an order of revivor, and the subsequent action of the district court in refusing to set aside the order of revivor because the judge who made the order was disqualified to act in the case.
It appears that on March 8, 1892, R. J. Berkley recovered a judgment against Tootle, Hosea & Co. and other defendants for the sum of $2000, together with interest that had accrued for a period of about five years. In October, 1897, a motion was made to revive this judgment, it being alleged that it was wholly unsatisfied and had become dormant. The defendants being non-residents of the state, notice of the hearing of the motion was given by publication, and on December 3, 1897, a hearing was had before Judge Geiger at chambers, and an order of revivor was made. Afterward, on December 3, 1897, a claim and notice of an attorney’s lien was filed in behalf of Judge Geiger and his associate, in which it was stated that they had been attorneys for the plaintiff in the case and had obtained a judgment, and that for the conduct of two trials in the district court and two trials of the same cause in the supreme court they claimed a lien of $225. Shortly afterward, and on February 24, 1898, the defendants made a special ap'pearance and moved the court, Judge Geiger presiding, to set aside the order of revivor upon the ground that the judge who made it had no authority to revive the judgment, for the reason that he was an attorney of record in the action at the time of the trial and when the judgment was obtained, and that by reason of his connection with and interest in the case he was disqualified to make the order which was made. This order was refused, except as to the representatives of two of the parties, who had died since the judgment was rendered, and the court then declared that the judgment revived at chambers on December 3, 1897, should be in full force and effect and stand revived as against all of the defendants except the two named. Exceptions were taken to these rulings, and the principal question presented, in this review is whether a judge who had been of counsel in the case, and had assisted in obtaining the judgment, and who was seeking to enforce a lien upon the judgment for his services, could legally hear and determine a motion to revive the same.
None of the essential facts as to the disqualification of the judge is in dispute, and that he was disqualified is hardly open to controversy. Our statute expressly provides that a judge who is “interested or has been of counsel in the case or subject-matter thereof” is disqualified to sit; and- to prevent a failure of justice by reason of his disqualification provision is made for a trial before a judge or tribunal not disqualified to hear and decide the,controversy. (Laws 1897, ch. 108, § 1; Gen. Stat. 1897, ch. 95, § 51.) If-the statute were silent on the-subject the judge would nevertheless be disqualified to act. It is a-rule of the common law and a principle of natural j ustice that no man shall be judge in his own case or in one in which he may have a pecuniary interest. It has been said that “the learned wisdom of enlightened nations and the unlettered ideas of ruder societies are in full accordance upon this point.” (Insurance Co. v. Price, 1 Hopk. Ch. 1.) The principle of law which incapacitates a person from being judge in his own cause is extended so as to disqualify,a .judge who may have been of counsel for one of. the parties in the case. It is the purpose of the law that no judge shall hear and determine a case in which he is not wholly free, disinterested, impartial, and independent. “Next in importance to the duty of ¡rendering a righteous judgment is that of doing it- in such a manner as will beget no suspicion of the fairness or integrity of the judge.'” (12 A. & E. Encycl. of L. 40.)
In the present case the judge was not only of counsel in obtaining the judgment revived, but it appears that he had a .direct and pecuniary interest in the revivor. The fee earned in procuring the judgment was unpaid, and its collection, it seems; largely depended upon the existence of the judgment. The claim or lien for attorneys’ fees could not be enforced against a dormant judgment, but might- be if the judgment were revived. It is true the amount of the fee was not large, but the law does not undertake to fix the minimum of interest which might affect the minds of men who are differently constituted and situated, and so it prohibits a judge from sitting who has a direct and pecuniary interest in a case, however small or trifling it may be. (Pearce v. Atwood, 13 Mass. 324; Moses v. Julian, 45 N. H. 52; Oakley v. Aspinwall, 3 N. Y. 547; 12 A. & E. Encyl. of L. 47.) Limerick v. Murlatt, 43 Kan. 318, 23 Pac. 567, is closely in point here.' There, a justice of the peace was given a large number of promissory notes for cSllection under an agreement with the owner that actions were to be brought upon the notes before the justice if they could not be collected without suit, and in cases brought before him upon the notes he was to get no costs except what he could get from the defendants. It was held that the agreement between the justice and the owner of the notes made the justice an interested party in the result of the actions, and therefore disqualified him to act as a justice of the peace in the trial of the cases. The interest of the justice in these cases was inconsiderable in amount, but as he had a direct financial interest in each case it was deemed sufficient to disqualify him.
It is generally held that the rule of disqualification should not have a narrow or technical construction, but should rather be broadly applied in all cases where one is called upon to act judicially or to decide between conflicting rights. There was no necessity to trench upon the rule in this case as ample provision is made by statute for the hearing of the matter before a judge who is qualified; and certainly it cannot be claimed that a proceeding to revive a judgment is a mere formality, or so inconsequential as to except, the case from the operation of the rule. No improper motive is imputed to the judge in reviving the judg mpnt, but the motive with which it was done is not controlling. Although he was not conscious of any prejudice or bias, he was clearly disqualified upon two grounds, and he should have declined to sit in the case. No litigant should be compelled to submit the determination of his rights to a judge who has a direct and pecuniary interest in the controversy, and as the order of revivor was made without authority, it is without force or validity.1
The rulings of the trial court will be reversed and the cause remanded for further proceedings. | [
-16,
-18,
-60,
-98,
26,
96,
46,
-98,
65,
-32,
-73,
83,
-23,
-37,
0,
55,
-13,
121,
-11,
106,
-58,
-77,
22,
-95,
-5,
-13,
-37,
-51,
-79,
108,
-10,
-11,
12,
40,
-54,
-43,
102,
-62,
-63,
86,
-122,
12,
41,
-19,
-39,
96,
48,
56,
119,
23,
117,
78,
-13,
44,
29,
-41,
-23,
60,
127,
-71,
-48,
-104,
-97,
-123,
111,
20,
51,
54,
-98,
-125,
88,
46,
-124,
53,
3,
-24,
115,
-12,
-106,
116,
75,
-71,
40,
98,
102,
1,
69,
-21,
-72,
-120,
39,
30,
-99,
-90,
-103,
16,
66,
103,
-98,
-99,
-9,
20,
-89,
110,
-73,
-99,
-35,
44,
5,
-49,
-106,
-79,
-113,
120,
-120,
-62,
-21,
35,
48,
116,
-124,
-32,
92,
86,
83,
27,
-114,
-80
] |
The opinion of the court was delivered by
Price, J.:
This is an appeal from a verdict and judgment in favor of plaintiff widow in an action brought by her on behalf of herself and two minor children for the wrongful death of her husband, resulting from a highway collision.
The collision occurred on State Highway No. 5, a few miles west of Kansas City, Kan., about 2:30 p. m., on January 26, 1948. Plaintiffs husband was riding in a Ford panel truck being driven by his brother, and the other vehicle was a passenger bus, owned and operated by defendant transportation company, and being driven by one Garner, who originally was made a party defendant in the action. At the commencement of the trial plaintiff dismissed as to him.
The highway was of concrete slab, eighteen feet in width. It, as well as. the surrounding countryside, was coated with ice and snow. The truck was headed west, the bus east. The point of collision was about one-third of the way down a long grade or hill up which the bus was proceeding. No other vehicle was involved.
Several passengers on the bus testified for plaintiff. One, who was sitting three seats behind the driver on the left side, estimated the hill which the bus was climbing to be about 700 feet long, and stated that when he first saw the panel truck the bus had already started chmbing the hill; that it was traveling forty or forty-five miles per hour; the highway was slippery, just like “glass”; that as the truck came over the hill it started skidding “all over the road”; that there was nothing to prevent the driver of the bus from seeing the truck, and that the bus proceeded on up the hill on its own right side of the highway.
Another witness, who had been seated in about the center of the bus on the left side, but who had not seen the truck, estimated the speed of the bus at about fifty-five miles per hour, and that it did not change or slacken its speed prior to the collision.
A third witness, a nurse, had been seated in the extreme rear seat extending across the rear of the bus. She saw the truck as it came over the brow of the hill; it was skidding back and forth on the ice, “fighting the hill”; most of the time it was over in the wrong lane; it was coming fairly slowly; the bus was traveling forty or forty-five miles per hour; it did not at any time reduce its speed, but continued right on up the hill in its own traffic lane, despite the fact such lane was occupied and blocked most of the time by the skidding truck. She had seen the truck some 600 or 700 feet away, and in attempting to “prepare” for what appeared to her as inevitable threw her coat over the face of the girl riding next to her.
Another witness had been sitting a little behind the bus driver on the left side, and he testified that he saw the panel truck just as it came over the hill; that it was out of control and on its left side of the highway, and he estimated the speed of the bus at “35 or 40, maybe faster.” According to him the truck was moving slowly, about ten or fifteen miles per hour, but was “zigzagging back and forth,” and that when he last saw the truck the vehicles were still some 300 feet apart. This witness was knocked unconscious as a result of the collision.
The sheriff arrived at the scene shortly after the collision and he found the bus pointed northeast, with its front end over on the north (left) side of the slab. The truck was practically demolished. He quoted the bus driver as stating that when he got to the bottom of the hill he saw the truck coming from- the east, sliding down the hill toward him; that it was on both sides and all over the highway coming down the hill, but that he couldn’t get out of the way because of a terrace on each side of the highway. An accident report was introduced in which the bus driver stated that the truck came over the hill sliding sideways across the highway. This witness described the icy conditions and testified that the shoulder of the highway along the south side was ten or twelve feet wide, with no ditch.
Another witness, who came on the scene shortly after the collision, testified that it looked as though “someone had picked the bus up and set it down on top of the Ford.”
An engineer, who had made measurements of the hill, testified that it was approximately 775 feet long, was about a five percent grade, and that the collision, according to information supplied to him, occurred about 325 feet from the top of the hill. He also calculated that an object the height of an automobile would be visible at a distance of 112 feet over and beyond the top of the hill. According to him, the north shoulder was nine feet wide and the south shoulder six feet wide at the point of collision.
Plaintiff’s husband was decapitated in the collision. He was in good health, thirty-four years of age, was a plumber earning $90 per week, and was the sole support of plaintiff and their two young children. It was stipulated that he was killed as a result of the collision, and that he and his brother, who also was killed, were at the time engaged in a joint enterprise, so that the negligence of the brother, if any, was imputable to him. The bus driver did not testify.
Defendants’ demurrer to plaintiff’s evidence was overruled. Defendants offered no evidence whatsoever. The jury was instructed in writing and returned a verdict for plaintiff in the sum of $15,000, the amount prayed for, and answered one special question, in which it found that at the moment of impact the truck was traveling nineteen miles per hour.
Motions to vacate and set aside the verdict, for a new trial, and for judgment notwithstanding the verdict, were overruled, and judgment was entered upon the verdict. Defendants have appealed, alleging numerous errors, among them being the overruling of the demurrer to plaintiff’s evidence, the giving of erroneous instructions, the refusal to give certain requested instructions and special questions, alleged misconduct of counsel, erroneous rulings on evidence, the excessiveness of the verdict, and the court’s rulings on all post-trial motions.
Plaintiff’s theory throughout the trial was that the truck was out of control due to the slippery and icy condition of the highway rather than through negligence on the part of its occupants, and that the bus driver, when confronted with the situation and circumstances heretofore related, was negligent in failing to slacken his speed or bring the bus to a stop before the collision; in operating it at a speed greater than was reasonable and prudent under the circumstances then existing; in failing to turn the bus aside so as to avoid striking the truck, and in failing to keep a proper lookout and observe the truck skidding on the highway toward the bus.
The theory of defendants was that the skidding of the truck was brought about by the negligence of its occupants in driving at a high rate of speed without due regard for the condition of the highway; that the truck’s being over in the south traffic lane makes out a clear, prima-facie case of negligence so as to bar recovery, and that the bus driver, faced with such a situation, and being under a duty to protect his passengers, and also not knowing which way the truck was going to turn, cannot be held negligent for proceeding on up the hill in his own traffic lane.
We thus have a situation which perhaps, at some time or other, confronts nearly every driver of a motor vehicle on our highways— not knowing "what the other fellow is going to do.” Here the evidence discloses that as the bus started up the long ice covered grade the truck came over the top of the hill skidding sideways all over the highway, obviously out of control and over in its wrong traffic lane. There was nothing to keep the bus driver from observing the truck, no other vehicles were involved, but he continued on up the hill without turning to one side or decreasing his speed, variously estimated at from thirty-five to fifty-five miles per hour, until the crash, which occurred in his lane.
In 60 C. J. S., Motor Vehicles, § 298, pp. 703 and 704, it is stated that while an unavoidable interference with a driver’s control does not relieve him from liability where he was negligent, yet he is not liable unless his negligence was the cause of the loss of control, that this principle is often applied in the case of the skidding of a motor vehicle, and that the mere skidding of a vehicle does not of itself constitute negligence as a matter of law unless it resulted from the driver’s negligence.
We also find the rule to be (§ 284, p. 661, same volume) that the driver of a motor vehicle has the duty of keeping a proper lookout at all times, the extent of observation being dependent upon the conditions and circumstances then existing, and that such duty includes the obligation to keep a vigilant lookout for such vehicles even as may be negligently on the highway, such as in the wrong lane of traffic.
We think clearly these matters were properly submitted to the jury. It was for the jury to determine whether the truck was out of control, and if so, whether as a result of negligence on the part of its occupants or tire condition of the highway, and whether, under the circumstances, the driver of the bus kept a proper lookout, and whether he exercised proper care in taking such steps as were possible, such as turning aside, slowing or stopping, in order to avoid the collision or at least to minimize its effects. In a case such as this it is not the function of this court to weigh evidence, and here the evidence was such that reasonable minds might differ on the question of negligence on the part of plaintiff’s deceased as well as on the part of the bus driver. The demurrer to plaintiff’s evidence was properly overruled.
Complaint is made of certain instructions given by the court, and particularly one which it is contended failed to state all of the elements of the last-clear-chance doctrine in that it did not go far enough so as to limit the bus driver’s negligence, if any, to that committed after the danger was created by deceased’s negligence, in the event it had ceased, but instead expanded the liability of the bus driver so as to include primary or direct negligence charged in the petition.
The instructions are lengthy and will not be set out. However, we have examined them in detail and think they fairly and correctly stated the law applicable to the issues presented by the evidence. We cannot say the court erred in the instructions given or in its refusal to give certain ones requested.
Error is also predicated on the court’s refusal to submit special questions relative to the condition of the brakes, steering apparatus and tread of the tires on the bus. The answer to this complaint is that there was no evidence as to those matters and the court’s refusal was therefore proper.
Other contentions, such as alleged misconduct of counsel, erroneous rulings on evidence, and the like, have been noted and examined, but, being without substantial merit, require no discussion.
This brings us to the basic question in this appeal, that is, are the verdict and judgment sustained by the evidence?.
It is true that the statute (G. S. 1949, 8-537) and rules of the road require that a vehicle be driven on the right side of the road (with certain exceptions not here present), but does it necessarily follow that every violation of the statute or rules makes the offender guilty of negligence so as to bar his recovery as a matter of law? In the recent case of Crawford v. Miller, 163 Kan. 718, 186 P. 2d 116, it was held:
“In an action to recover damages to property sustained in a motor-vehicle collision mere violations of an ordinance or statute regulating traffic upon the streets and highways by the plaintiff are not in themselves sufficient to make him guilty of negligence which will bar his recovery as a matter of law. To prevent his recovery it must appear that his violations of such traffic regulations were the proximate and legal cause of his injuries.” (Syl. 1.)
In Zinn v. Updegraff, 113 Kan. 25, 213 Pac. 816, it was pointed out that the fact one of the meeting vehicles is on the wrong side of the road does not necessarily show negligence on the part of the driver thereof as a matter of law, nor does it render him liable to the other unless the latter took ordinary care to avoid any accident. It was further said that the object of the rules of the road is to avoid accidents, and that one is not justified in asserting his right to use his side of the road when by not doing so he can avoid a collision.
In 60 C. J. S., Motor Vehicles, § 283, pp. 660 and 661, it is said that the fact a motorist is on the proper side of the highway does not entitle him to make an unreasonable use thereof nor relieve him of the duty to exercise ordinary care to prevent an accident and avoid injury to others, including those who may be on the wrong side of the highway. (See, also, Schroeder v. Nelson, 157 Kan. 320, 139 P. 2d 868.)
While as a general rule it may be said that a driver, absent knowledge to the contrary, may assume that an approaching vehicle will obey the rules of the road and thus get over and stay on its own side of the road (Smith v. Salts, 170 Kan. 313, 224 P. 2d 1025) yet he will not be permitted to act on the assumption where the factual basis for it has disappeared, as for example, where it appears that the driver of such vehicle on the wrong side of the road either will not or cannot turn back to his right side.
Our statute (G. S. 1949, 8-532) provides that a person shall not drive a vehicle at a speed greater than is reasonable and prudent under the conditions and circumstances then existing; that a driver is not relieved of the duty to decrease speed when special hazards exist with respect to other traffic, or by reason of weather or highway conditions; and, further, that speed shall be decreased as may be necessary to avoid colliding with any vehicle or other conveyance on the highway in compliance with the duty of all persons to use due care.
We think it hardly can be said the bus driver was faced with an “emergency,” in the strict sense of that word as used in negligence cases. All of the evidence points to the fact he saw, or could have seen, in the exercise of ordinary care, the skidding truck for a distance of at least six hundred or seven hundred feet, over in its wrong traffic lane and obviously out of control. The evidence further shows he did nothing to avoid the collision but instead proceeded right on up the hill without decreasing his speed. Further discussion of these matters would result only in repetition of what has already been said. All were fair questions for submission to the jury, under proper instructions, and that body has resolved all questions of negligence in favor of plaintiff. Its verdict is supported by the evidence.
And finally, it is argued the verdict was the result of passion and prejudice, and is excessive. Our examination of the record discloses nothing tending to incite the jury to return anything other than a fair verdict based on the evidence. True, it allowed the full amount prayed for and permitted under the wrongful death statute (G. S. 1949, 60-3203), but does that fact necessarily establish passion and prejudice and render the verdict excessive? In a case of personal injuries involving pain and suffering, extent of disability, loss of earning power, and the like, there is of course more room for speculation by a jury as to just what would fairly compensate an injured person. Here, however, the question seems simple. The deceased was a young man thirty-four years of age, in good health, earning over $4,600 per year, and was the sole support of his wife and two young children at the time of his death. The verdict was not excessive, even from a pecuniary standpoint alone.
A careful examination of this record discloses nothing approaching reversible error and the judgment of the lower court is therefore affirmed. | [
-48,
-24,
-76,
-82,
27,
66,
10,
-38,
117,
-107,
-92,
-45,
-81,
-55,
5,
97,
62,
61,
-48,
107,
-13,
-73,
87,
-93,
-110,
-77,
-7,
-49,
-77,
-38,
44,
-9,
77,
96,
-54,
85,
38,
74,
-59,
84,
-52,
22,
-87,
-16,
89,
18,
-72,
120,
114,
6,
49,
-113,
-45,
46,
26,
-61,
-87,
40,
123,
-88,
-63,
-80,
-58,
-121,
95,
18,
-79,
36,
-98,
1,
-40,
10,
-112,
-79,
40,
-4,
114,
-90,
-128,
-12,
105,
-119,
12,
-94,
99,
33,
21,
-49,
-4,
-104,
46,
122,
47,
-121,
26,
24,
1,
65,
-74,
29,
117,
50,
8,
-6,
-34,
85,
93,
104,
7,
-54,
-76,
-79,
-51,
48,
-98,
13,
-21,
-121,
51,
112,
-119,
-6,
92,
69,
123,
-77,
-49,
-74
] |
The opinion of the court was delivered by
Wertz, J.:
This was an action by the Missionary Baptist State Convention of Kansas, a religious corporation, for an order dissolving and declaring extinct the Wimberly Chapel Baptist Church of Osage City, Kansas, and transferring its property to the Missionary Baptist State Convention under G. S. 1949, 17-1713a, 17-1713b and 17-1713'c. Plaintiff has appealed from an order of the trial court holding the mentioned statutes unconstitutional.
Appellant, the Missionary Baptist State Convention, filed its application in the lower court for an order declaring the Wimberly Chapel Baptist Church extinct, its application alleging in substance that E. B. Hicks is the executive secretary of the Missionary Baptist State Convention, a religious corporation, duly organized and existing under the laws of Kansas, and authorized and empowered to transact business in this state; that he is duly authorized by the corporation to file this action asking the court to declare Wimberly Chapel Baptist Church of Osage City, Kansas, extinct, and asking for an order declaring said church extinct and vesting title to the church property in the Missionary Baptist State Convention, describing the property; that the Wimberly Chapel Baptist Church comes within the provisions of G. S. 1949, 17-1713a, 17-1713b and 17-1713c; that the membership of the Wimberly Chapel Baptist Church is so diminished in number and financial strength as to render it impossible and impracticable for said church to maintain religious services or to protect its property from depletion; that the trustees elected by said Wimberly Chapel Baptist Church at the time when the church was functioning have died or moved away and there are no qualified successors; that said church should be dissolved and declared extinct, and the title and possession of property of the church should vest in the Missionary Baptist State Convention; and continues with a prayer for the relief requested. The application was duly verified, and summonses were issued and notice served as directed by the lower court. No answer or other pleading was ever filed by the Wimberly Chapel Baptist Church or any of its alleged officers or members.
After answer day and in due time, appellant presented its evidence to sustain the application. The Reverend E. B. Hicks testified that he is the executive secretary of the Missionary Baptist State Convention, a religious corporation duly authorized and existing under and by virtue of the laws of Kansas, with headquarters located in Topeka, Kansas; that Wimberly Chapel Baptist Church is a part of the organization of the Missionary Baptist State Convention and that said Wimberly Chapel has ceased to exist as a church; that it became a part of the state convention by vote of the membership and participated in the over-all program of the state convention and as such, under the church rules and laws, the state convention had jurisdiction over it; Wimberly Chapel has not functioned as a church in accordance with the tenets of the state convention for about ten years; there still remain about five members; the church property has depreciated; some time ago, someone sold the parsonage, had it torn down and removed from the church property without authority, and there is no one to protect the church property now in dilapidated condition; that he made a personal survey of the situation and that Wimberly Chapel has made no report to the state convention as is required, nor has it recently attended the annual meetings. Wimberly Chapel has had no pastor since about 1940; when the last pastor was there, it was considered a mission station because it was unable to afford a full-time minister and the convention underwrote part of the expense, and when he left, no effort was made to secure another pastor. One of his (Hick’s) duties was to visit the churches and see if they were functioning in accordance with the usual tenets of the Baptist Church; that this church is not; when it ceased to operate as a Baptist Church and stopped making reports and attending the annual sessions, it lost its status.
I. B. Buckner, the only remaining member who appeared at the trial, testified: That Wimberly Chapel does not have regular services; that he is the only remaining member of the church he knows of; that he sold the parsonage because others were beating his time disposing of it and he knew if he didn’t get rid of it, it would soon be gone; that on request, he turned the money over to the county attorney; that he is willing for the property to be turned over to the state convention; there are no young people in the church and it is in bad repair as it has been locked up for months; he doesn’t know when the church had a meeting to transact business; it had been years; the last services were held by the Methodists. At the conclusion of his testimony, the court said:
“Now Mr. Buckner has come over, and he says that the Church is reduced to the place where he is the only authentic member, and he gives a rather gloomy outlook for the possibility of continuance, and he says that he is willing that this property be turned over to the Missionary Baptist Convention.”
No appearance was made in the lower court on behalf of Wimberly Chapel Baptist Church and as a result, nothing was filed on its behalf in this court.
The lower court took the case under advisement, and subse- ■ quently on the 18th of May rendered judgment holding G. S. 1949, 17-1713a, 17-1713b, and 17-1713c to be unconstitutional and wholly void and by reason thereof, that no jurisdiction was conferred on the court to determine the issues involved, and the cause was dismissed.
Appellant brings the case here and assigns as error the court’s ruling on the constitutionality of the mentioned statutes. Those statutes are as follows:
17-1713a. “That all property, both real and personal, belonging to or held in trust for any colored Baptist church or any colored Baptist religious society that has or shall become extinct, shall vest in and become the property of the missionary Baptist state convention of Kansas and its successors and assigns: Provided, That this act shall not affect the revisionary interests of any person or persons in such property or any valid lien thereon.”
17-1713b. “That any colored Baptist church or colored Baptist religious society in this state which has ceased or failed to maintain religious worship or services or to use its property for religious worship or services according to the tenets, usages, and customs of Baptist churches in this state for the space of two consecutive years immediately prior thereto, or whose membership has so diminished in numbers or in financial strength as to render it impossible or impracticable for such church or society to maintain religious worship or services, or to protect its property from exposure to waste and dilapidation, or to fulfill the purpose for which it was incorporated, shall be deemed and taken to be extinct, and may by an order of the district court of the county in which such society has been theretofore situated be so declared, and thereupon dissolved, and the property of such church or society, or property which may be held in trust for such church or society, be transferred to, and the title and possession thereof vested in the said the missionary Baptist state convention of Kansas.”
17-1713c. “That an application for such an order and disposition of property may be made by any member or officer of the missionary Baptist state convention of Kansas, or by any member of such church or society, when duly authorized thereto by the executive board of said missionary Baptist state convention, upon a verified petition setting forth the facts authorizing such order and disposition of property. Upon the presentation of such petition to the district court such court may proceed in a summary manner, after such notice as the court may prescribe, to inquire into the merits of such application; and if upon examination by the court it shall satisfactorily appear that the making of the order and disposition of the property applied for is necessary or proper, for any of the causes mentioned in section 2 [17-1713b] of this act, such court may make a final order, declaring such church or society extinct and dissolving the same, and transferring any property and the title and possession thereof which may belong to such church or society, or held in trust for such church or society, and vesting the same in the missionary Baptist state convention of Kansas; it being the intent and purpose of this act to preserve to the Baptist denomination aforesaid of this state all property owned by or held in trust for any such church or society for religious uses.”
At the outset, it is noted that appellant’s verified application complied with the statutes in all respects; that service of summons was had on all parties to be affected thereby, that no appearance or answer was filed on the part of defendant denying any of the allegations contained in the application. Moreover, appellant’s evidence amply sustained the allegations of the application. The question of constitutionality of the statutes in question was neither raised in the pleadings nor presented by the parties to the action at any stage of the proceedings.
It may be stated that while courts will not refuse to pass on the constitutionality of statutes in any proceeding in which such determination is necessarily involved, unnecessary consideration of attacks on their validity will be avoided and courts will not assume to pass upon constitutional questions unless they are properly before them. (11 Am. Jur. 720, §93) As a general principle, courts will not pass upon the constitutionality of acts of the legislature if the merits of the case in hand may fairly be determined otherwise without so doing. (11 Am. Jur. 723, §94) The general rule of law is well stated in 16 C. J. S. 220-225, that a court will not inquire into the constitutionality of a statute on its own motion; that only those constitutional questions which are duly raised and insisted upon and are adequately argued will be considered. Accordingly the invalidity of a statute, to be relied on, must ordinarily be specifically raised by the pleadings. Goldwater v. Superior Court, 49 Ariz. 260, 66 P. 2d 233, is authority for this point, in which case it was held that the question of constitutionality of a law will not be considered where the question was not briefed and was not suggested when application was made. See also State ex rel v. Nolte, 315 Mo. 84, 285 S. W. 501; John v. Berzon, 255 App. Div. 1023, 8 N. Y. S. 2d 640; Smith v. City of Buffalo, 191 Misc. 439, 78 N. Y. S. 2d 540; State v. McInerney, 63 Wyo. 280, 182 P. 2d 28; State ex rel. Rand v. Seattle, 13 Wash. 2d 107, 124 P. 2d 207. This court stated in The State v. Dolley, 82 Kan. 533, 108 Pac. 846:
“A court will undertake to pass upon tire validity and effect of a statute only when necessary to the determination of an actual and concrete controversy.”
We. again held in Stelling v. Kansas City, 85 Kan. 397, 116 Pac. 511:
“Acts of the legislature are presumed to be constitutional and valid and no challenge thereof should be entertained unless the particular constitutional provision alleged to be violated or the particular controlling record to prove the invalidity be pleaded.”
In the instant case, we find nothing in the record to justify the trial court in raising, on its own motion, the question of constitutionality'of the foregoing statutes. It will be time enough for the court to pass on the validity of the statutes in that regard when, in a proceeding, the question is. properly raised by some party who is hurt thereby, and when it is properly presented and briefed to the lower and appellate courts. The question of the constitutionality of these statutes was not before the lower court and as a consequence is not before this court.
The record discloses that the appellant brought itself within the provisions of the mentioned statutes in the instant case, both by its pleadings and its evidence, and that it was entitled to judgment for'the relief prayed for.
The judgment of the lower court is reversed and the case remanded with instructions to set aside the dismissal, reinstate the case, and enter judgment for appellant.
Harvey, C. J. dissents | [
-107,
108,
-16,
60,
8,
-30,
114,
30,
82,
-95,
-92,
-45,
-23,
-5,
5,
123,
-14,
45,
-16,
121,
70,
-73,
87,
-24,
-108,
-13,
-3,
-59,
-80,
95,
-90,
-2,
72,
48,
18,
-11,
-58,
-56,
-55,
92,
-114,
2,
9,
-51,
-48,
75,
-76,
122,
22,
15,
-43,
-66,
-13,
42,
28,
-61,
-23,
44,
75,
-83,
89,
-103,
-120,
-107,
92,
7,
17,
32,
-104,
-125,
104,
122,
-104,
49,
10,
-72,
115,
38,
14,
118,
79,
-7,
9,
126,
99,
50,
52,
-17,
-64,
-103,
14,
58,
-67,
-25,
-112,
72,
96,
1,
-73,
28,
117,
18,
3,
-4,
-18,
4,
-103,
110,
-123,
-50,
-44,
-91,
3,
56,
-102,
3,
-29,
-61,
48,
117,
-49,
-10,
93,
-121,
48,
23,
-114,
-112
] |
The opinion of the court was delivered by
Wedell, J.:
The plaintiff appeals from an order and judgment of the district court refusing to revive an action and from a dismissal thereof in that court.
The plaintiff, Ellen Searight, filed an action in the district court against Kate Chor, to recover the sum of $5,000 alleged to be due her under an oral compromise settlement with the defendant, a neighbor woman, for care, counsel, nursing and companionship during the lifetime of the defendant. Plaintiff presented for payment a check of the defendant in that amount which the bank refused to pay by reason of insufficient funds. This action followed. Summons was regularly served and the defendant answered denying the material allegations of the petition. Approximately five months later the defendant died intestate and Ester Radenhoop was appointed administratrix of her estate. About three months later plaintiff served the administratrix of the decedent’s estate with notice of a motion to revive the action pending in the district court. The administratrix filed objections to such revivor on the grounds:
“1. That this Court has no jurisdiction to revive this action against her as Administratrix of the Estate of Kate Chor, deceased.
“2. That this Court is without jurisdiction to hear or determine the subject matter of this action, which is now a claim against a decedent’s estate.”
The district court sustained both objections and dismissed the action. From those rulings plaintiff appeals.
Appellant contends the district court acquired jurisdiction of the action, the issues were joined prior to the death of Kate Chor, the decedent, the action survived against the personal representative of the decedent and the district court had jurisdiction (1) to revive the action and (2) to adjudicate the claim. In support of the contention appellant relies on G. S. 1947 Supp. 59-2238, which reads:
“Any action pending against any person at the time of his death, which by law survives against tire executor or administrator, shall be considered a demand legally exhibited against such estate from the time such action shall be revived. Any action commenced against such executor or administrator after the death of the decedent shall be considered a demand legally exhibited against such estate from the time of serving the original process on such executor or administrator. The judgment creditor shall file a certified copy of the judgment in tlie proper probate court within thirty days after said judgment becomes final.”
On the other hand, appellee asserts this revivor statute was thoroughly considered in connection with all other pertinent provisions of the probate code in Egnatic v. Wollard, 156 Kan. 843, 137 P. 2d 188; that the judgment therein rendered is decisive of the instant question and is contrary to appellant’s contention. Appellee concedes in that case the action to recover a money judgment for service rendered to decedent during his lifetime, pursuant to a contract which, was violated, was filed in the district court against an administrator after the decedent’s death but contends that fact is immaterial for the reason the revivor statute applies only to a situation where tire probate code makes no express or adequate provision for the establishment of a demand in the probate court. In support of this contention appellee relies on various statements in Egnatic v. Wollard, supra, one being the following:
“We realize that no one section of the probate code referred to, standing alone, is conclusive of the question we have under consideration and that some of them are merely indicative of the legislative intent. However, we feel that when considered as a whole, measured by applicable rules of statutory construction, they justify the conclusion that G. S. 1941 Supp. 59-2238 applies solely to a situation where the code makes no express or adequate provision for the establishment of a demand in the probate court. Such a conclusion is in accord with the spirit and reason of the statute and insofar as practical recognizes and reconciles all of the different provisions of the code, making them consistent, harmonious and sensible.” (p. 856.)
As previously indicated the Egnatic case was filed in the district court after the death of the decedent and while administration proceedings were pending in the probate court. The principal question presented in the Egnatic case was whether the district court had original jurisdiction over the establishment of the claim. The first sentence of the revivor statute and its purpose were not under consideration. The last sentence of the statute pertaining to judgments of the district court was considered in its relation to the second, the pertinent sentence, of the revivor statute. The statute was discussed with a view of harmonizing the various provisions of the probate code pertaining to the establishment of demands. The decision under the fact of the Egnatic case simply meant the second and third sentences of the revivor statute could have no application in that case for the obvious reason the demand was clearly against the estate and properly could have been established originally only in the probate court.
It does not follow, however, the statute is without purpose or function. Nor was the statement in the Egnatic case referred to intended to convey the idea the statute had no function to perform.
Let us examine the statute. Manifestly, the first two sentences thereof pertain only to the exhibition of demands. It will be noted they in nowise relate to the establishment, or proof, of a demand. We shall presently discuss the third sentence of the statute pertaining to judgments. For the moment, however, we shall first endeavor to ascertain only the intent and purpose of the provisions pertaining to the exhibition of demands.
It appears the framers of the act and the legislature which enacted it intended to provide a simple and direct procedure for the legal exhibition of demands, under the particular circumstances stated in the first two sentences of the statute. It appears they were intended to make unnecessary the filing of another petition in the probate court as is ordinarily required by G. S. 1947 Supp. 59-2237 for the exhibition of demands. If a reason for a legislative act is required that would appear to be a sound and sufficient one. Another reason which readily suggests itself is that the first sentence of the statute also may have been intended to prevent the running of the statute of limitations where an action has been filed in the district court before the decedent’s death and only shortly before it is barred. Except for the first provision of the statute such a claim might become barred before a petition to exhibit the demand could be filed in the probate court in compliance with G. S. 1947 Supp. 59-2237.
There may be other reasons which prompted one or both of the provisions for legally exhibiting a demand as provided by G. S. 1947 Supp. 59-2238 but we need not labor the point. We conclude the district court had jurisdiction to revive the action and should have revived it in accordance with the first sentence of the statute in order that the demand would be considered as a demand legally exhibited against the estate.
Rut what about the original jurisdiction of the district court to hear and determine the instant money demanded against the decedent’s estate? Did the district court properly conclude it had no original jurisdiction for that purpose? The answer requires consideration of the last sentence of G. S. 1947 Supp. 59-2238 with a view of ascertaining the legislative intent. In an attempt to determine legislative intent we start with the assumption the legislature did not intend to leave contrary and conflicting enactments in the statute books. The problem here is therefore one of harmonizing the various provisions of the probate code, if reasonably possible to do so.
Although, as previously stated, the action in the Egnatic case was filed after the decedent’s death what is said in the opinion in that case on the subject of original jurisdiction is helpful. While the subject was there treated at length, the. substance of it is stated thusly:
“If G. S. 1941 Supp. 59-2238 is given the construction placed on it by appellant, the original jurisdiction given to the probate court in those particulars is taken from it and placed under the control and direction of the district court. This statement, on first consideration, may seem somewhat trivial but on sober reflection it does not appear to be so fatuous. It will be noted G. S. 1941 Supp. 59-2238 provides: ‘The judgment creditor shall file a certified copy of the judgment in the proper probate court within thirty days after said judgment becomes final/ When the judgment is filed it then becomes the duty of the executor or the administrator, as the case might be, to allow the claim. Therefore, to that extent he would be acting under the direction of the district court, not the probate court which had original jurisdiction to direct his activities.
“If G. S. 1941 Supp. 59-2238, controls and the probate court is required to accept the judgment of the district court in lieu of its judgment then it does not have original jurisdiction with respect to any of the matters herein referred to.” (pp. 852, 853.)
Likewise the probate court would no longer have original jurisdiction of the unsecured money demand in the instant case, if we hold the revivor statute was intended to confer original jurisdiction over that kind of a demand on the district court.
The real question is whether the legislature by the last sentence of G. S. 1947 Supp. 59-2288 intended to withdraw original jurisdiction from the probate court and confer it on district courts in actions which the latter court is authorized to revive for the purpose of considering the demand legally exhibited. We do not think the framers of the code or the legislature which enacted it intended to produce such a divided jurisdiction. There are, of course, some actions pertaining to a decedent’s estate over which the district court retains original jurisdiction. It seems to us the more logical and consistent conclusion, in order to bring the various provisions of the probate code and our decisions interpreting them into harmony, is that the last sentence of G. S. 1947 Supp. 59-2238 was intended to confer jurisdiction on the district court to render original judgments only on the kind and character of demands over which that court now retains original jurisdiction under the provisions of the probate code.
Furthermore any other rule of statutory construction would be unsound unless we overruled the decision in the Egnatic case, which we have no intention of doing. We think it is sound. Manifestly under no rule of statutory construction could it be said the last sentence of the revivor statute pertaining to judgments was intended to apply to one of the preceding sentences of the statute and not to the other. No language of the statute permits such a distinction. We think the last sentence pertaining to judgments was intended to apply to the situation covered by both the preceding sentences but only in actions involving the kind and character of demands against decedent estates over which the probate court does not have exclusive original jurisdiction.
One other subject may be worthy of mention. We have on proper occasions applied the rule that where concurrent jurisdiction exists the court which first acquires jurisdiction retains it to the exclusion of another court which seeks to assume it. The rule has been asserted in actions including those filed in the district court against a personal representative of the decedent’s estate while that estate was in the process of administration in the probate court with the result that the probate court retained the jurisdiction. This is a sound general principle. Obviously, however, that doctrine cannot be invoked in a manner and for the purpose of nullifying the legislative intent. If tire rule were adopted in the instant case for the purpose of vesting the district court with original jurisdiction the intention of the probate code to vest the probate court with exclusive original jurisdiction over a demand such as the one here involved would be defeated.
The action is remanded to the district court with directions to revive the action in the name of the administratix in order that the demand may be considered legally exhibited from the date the action should have been revived. In other respects the judgment is affirmed. | [
-46,
-20,
-56,
-116,
-118,
-96,
34,
-102,
66,
-125,
37,
-45,
41,
-61,
16,
47,
123,
43,
113,
106,
67,
-77,
23,
9,
115,
-14,
-127,
-35,
-95,
-2,
-28,
95,
76,
32,
-126,
-43,
70,
-126,
-61,
90,
-114,
0,
-103,
105,
-7,
66,
48,
-87,
54,
15,
117,
-17,
-13,
41,
25,
-26,
73,
41,
123,
-67,
-48,
-72,
-117,
-123,
127,
23,
-125,
20,
-100,
98,
90,
-86,
-120,
-71,
0,
-24,
50,
-74,
-122,
116,
67,
25,
41,
114,
98,
0,
101,
-17,
-104,
-120,
15,
124,
-97,
-90,
-45,
56,
107,
45,
-98,
-97,
125,
68,
-121,
-12,
-114,
-108,
95,
-84,
13,
-50,
-42,
-79,
-97,
16,
-68,
74,
-26,
-95,
116,
113,
-99,
-56,
92,
-58,
59,
-101,
-50,
-78
] |
The opinion of the court was delivered by
Thiele, J.:
Defendant appeals from a decision of the trial court overruling his demurrer to the plaintiff's petition.
For purposes of information and because much of it is incorporated by reference in the petition under consideration, it is noted that in 1948 the present plaintiff, Arthur Powell, and the present defendant, Gerald D. McChesney, entered into a farming partnership agreement. In May, 1949, Adeline J. Powell commenced an action for divorce against Arthur Powell. McChesney obtained permission to file an intervening petition in that action, setting up facts concerning that partnership; that the property involved in the action was also involved in the partnership and asking that any distribution of property in the divorce action be made subject to the partnership agreement. To this intervening petition Arthur Powell filed an answer containing a series of allegations not stated in the nature of separate causes of action, but alleging an oral agreement as to a partnership between him and McChesney and a course of dealing thereunder, the execution by McChesney to Powell of a note for $3,300 and of a chattel mortgage on livestock to secure the note; the execution by McChesney to Powell of another note for $1,000; the execution of a third note by McChesney to Powell for $700 secured by a chattel mortgage on growing wheat; as well as other allegations as to violations of the partnership agreement; that the oral agreement was void and unenforceable under G. S. 1935, 33-106, and that for all reasons stated, Powell repudiated and dissolved the partnership and stated a full accounting should be had.
It appears that a trial on the issues so joined was commenced on October 3, 1949, and that the trial court at some later date made some findings of fact, including one that the defendant had not dissolved the partnership nor made any demand for an accounting other than that contained in his answer; that the oral partnership agreement violated the statute of frauds; that the several notes and chattel mortgages above mentioned were not made as a part of the partnership agreement, and were valid obligations of McChesney and that the debts had not been paid. It concluded as a matter of law that Powell was not entitled to dissolve the partnership for the reasons set forth in his answer; that the court could not therefore decree dissolution of the partnership; that a de facto partnership existed; and without setting forth all details, that a partnership at will existed, and that judgment should be entered in accordance with the findings and conclusions. As a result of some proceedings not definitely shown by the abstract some additional findings of fact and conclusions of law were made on December 14, 1949, among the latter being that a partnership at will existed between the parties and that the same might be terminated at any time by either party on proper demand therefor, and “judgment is rendered in this action and all matters and differences adjudicated in accordance with the findings of fact and conclusions of law heretofore made by the court.” If any more specific journal entry of judgment was filed the present abstract does not disclose it. It does contain a supplemental journal entry showing date of December 14, 1949, that the trial court had taken under advisement on October 22, 1949, the issues between Powell and McChesney and had made known its conclusions that a certain exhibit, not shown, was not sufficient under the statute of frauds, that the partnership agreement for the duration of three years was unenforceable and that Powell had suggested the trial court retain jurisdiction and allow him and McChesney to file additional pleadings looking toward a liquidation of the partnership and an accounting of the partnership; that the court being advised of the suggestion announced it would not be followed unless McChesney consented; that McChesney announced he would not consent, and the court thereupon decreed that an accounting of the partnership be refused in that action.
On December 27, 1949, Powell commenced the present action against McChesney, his petition alleging four causes of action. The first cause of action was for recovery on the $1,000 note of McChesney to Powell previously mentioned. The second cause of action was upon the $700 note and for foreclosure of the chattel mortgage to secure it, both previously mentioned. The third cause of action was upon the $3,300 note and for foreclosure of the chattel mortgage to secure it, both previously mentioned. The fourth cause of action alleged the formation of the partnership under oral agreement for three years, and that it was unenforceable as to that period of time under the statute of frauds. There were extended allegations of the operation' of the partnership from its inception until December 17, 1949, at which time Powell caused to be served on McChesney a written demand for dissolution of the partnership and for an accounting, a copy of the demand being attached to and made a part of the petition. Petitioner prayed at length for judgment on the notes and chattel mortgages; that the partnership be determined to be terminated and for a full accounting.
As the result of McChesney’s motion to make more definite and certain, which was sustained in part, Powell filed a supplement to his original petition alleging that the partnership agreement alleged in his fourth cause of action was the same agreement as that set forth in the case of Powell v. Powell heretofore mentioned; that the instruments alleged in his first three causes of action were the same as those set forth in his answer in Powell v. Powell, and that he adopted the journal entry showing proceedings of October 3, October 10, October 22 and December 14, 1949, with respect to the issues between him and McChesney in Powell v. Powell, by reference and as though incorporated in his petition verbatim.
After the petition had been supplemented as above stated, Me Chesney filed his demurrer to the petition and each cause of action attempted to be stated therein on the ground that facts sufficient to constitute a cause of action were not stated. This demurrer was overruled and from that ruling McChesney has appealed to this court.
In connection with his argument that the trial court erred in ruling on his demurrer to the petition, appellant presents two principal contentions, which in a summary way are (1) that the petition disclosed that the issues as to appellant’s liability on the notes and chattel mortgages set out in appellee’s causes of action 1, 2 and 3, and as to the existence of the partnership and an accounting set out in cause of action 4, were the same as those presented in the case of Powell v. Powell, above mentioned, and as the issues presented were between the same parties, the judgment in Powell v. Powell barred the present action; and (2) that the petition alleged an oral contract of partnership for a term of three years; that such an agreement was within the statute of frauds and the instant action cannot be maintained.
In support of his first contention appellant directs attention in detail to the allegations in appellee’s answer in Powell v. Powell, and in the petition now under attack and that the same notes and partnership which were involved in Powell v. Powell are presented again in the instant case.
Fundamentally, appellant’s argument is that in Powell v. Powell, the trial court had jurisdiction of the parties and of the subject matter of the partnership and that its findings, orders and judgments as to all matters which were or could have been litigated are conclusive and cannot be relitigated in the action now before us, citing in support Wharton v. Zenger, 163 Kan. 745, 186 P. 2d 287. The rule is correctly stated, but the conclusion of the appellant does not fully follow. It is true that as Powell v. Powell proceeded the trial court found that the three notes of McChesney to Powell and the two chattel mortgages were not made as a part of the partnership, and that they constituted valid obligations, and that insofar as those matters were concerned a judgment was entered. Each finding so made was favorable to Powell and against Mc-Chesney who did not appeal and those findings and judgments became final. The trial court also found that the oral partnership agreement was within the statute of frauds and therefore the partnership was not one for three years but one at will, but no judgment as to the partnership was rendered. Appellant’s complaint, however, is that Powell’s right to an accounting was also finally determined. The record has been recited heretofore, but as to that phase the trial court held that as Powell had not pleaded that prior to the filing of his answer asking for such relief he had given McChesney notice of the termination of the partnership nor made a demand for an accounting, and that McChesney refused to consent to the court’s retaining jurisdiction and allowing the filing of additional pleadings, such relief was refused in that action. After the rendition of the last judgment Powell commenced the instant action by filing the petition now under attack and in which he alleged the giving of the notice of dissolution of the partnership and a demand for accounting, thus bringing before the court a change of condition, pleading new facts and elements and presenting a situation which did not exist when judgment was rendered in Powell v. Powell denying dissolution of the partnership and an accounting of its affairs. Perhaps Powell did a useless thing in again asking for judgment on his notes and chattel mortgages but if so, it did not harm McChesney.
We find it unnecessary to mention and treat at length the various cases and authorities mentioned in the briefs dealing with the doctrine of res judicata for it is clear that under the trial court’s judgment in Powell v. Powell, the correctness of which is in no way challenged, the relief as to dissolution of the partnership and for an accounting of its affairs was denied solely because Powell had not pleaded service of a notice to terminate the partnership and of a demand for an accounting. This was in no sense a judgment on the merits nor could it have been. In effect it was a judgment that until notice and demand had been had and made, the action for dissolution and accounting was premature. In such a circumstance the judgment in Powell v. Powell was not a bar to the instant action. See Seaton v. Hixon, 35 Kan. 663, 12 Pac. 22, 50 C. J. S. (Judgments, § 628) p. 54, and 30 Am. Jur. (Judgments § 212) p. 947. Without further discussion we hold that the judgment in Powell v. Powell was not a final determination of Powell’s right to have the partnership dissolved and to have an accounting. The trial court did not err in ruling on the demurrer on the ground just considered.
Appellant’s second contention that the oral contract of partnership for a period of three years was within the statute of frauds and unenforceable and that the instant action cannot be maintained, is at variance with his first contention that all matters concerning the partnership were adjudicated in Powell v. Powell, for he now contends that notwithstanding the trial court found the contract of partnership to be one at will that it is one under the statute of frauds, is indivisible and that no action on it may be maintained. We shall not determine his contention on the ground of inconsistency nor shall we treat every question in his argument. Appellee’s petition did not allege a cause of action founded on the oral partnership contract. It alleged that such a contract was made but it also alleged that the contract was unenforceable as such and alleged facts showing that a partnership actually was formed and the activities of that partnership, and it was that partnership which the appellee sought to have dissolved and an accounting made of its affairs. The petition did not allege a cause of action founded on the unenforceable contract, and that being determined appellant’s contention fails. But we may observe that if appellant’s argument were sound it would mean that the court must leave either party without remedy against the other, and that if appellant had unjustly enriched himself, as the petition alleged he did, that nothing can be done about it. The statute of frauds is to prevent fraud and riot to promote it, and is to be enforced in its spirit and not merely as to its letter. See Hazen v. Garey, 168 Kan. 349, 212 P. 2d 288, and as bearing on the question see Longhofer v. Hervel, 83 Kan. 278, 111 Pac. 483, and Brown v. Byers, 118 Kan. 503, 235 Pac. 866, and cases cited. Appellant’s second contention cannot be sustained.
The judgment of the trial court is affirmed. | [
-112,
93,
-68,
76,
10,
-32,
42,
-100,
105,
1,
103,
115,
-21,
-33,
20,
121,
106,
109,
80,
106,
-57,
-79,
54,
65,
-13,
-45,
-55,
-35,
-79,
-52,
-11,
87,
76,
48,
66,
-43,
-62,
-118,
-59,
30,
-50,
4,
-117,
-27,
-8,
-122,
52,
31,
80,
9,
113,
-98,
-77,
40,
29,
-57,
108,
46,
-49,
77,
-48,
-8,
15,
13,
95,
18,
51,
38,
-36,
-124,
-40,
46,
-104,
49,
1,
-23,
114,
-74,
-106,
117,
65,
-87,
12,
118,
98,
0,
-63,
111,
-72,
-120,
46,
126,
-115,
-90,
-47,
72,
73,
77,
-66,
61,
97,
80,
-121,
116,
-28,
13,
28,
-20,
9,
-118,
-106,
-109,
-97,
124,
-100,
3,
-21,
7,
49,
96,
-51,
-32,
92,
-57,
59,
-101,
-98,
-126
] |
The opinion of the court was delivered by
Wedell, J.:
This is an appeal by respondent, Robert H. Hudspeth, warden of the state penitentiary, from a judgment in a habeas corpus proceeding instituted by the petitioner, Gene Laverne Patterson. The appeal is from the judgment of the district court of Leavenworth county. That court concluded petitioner was not en titled to his release from custody but not withstanding such judgment respondent nevertheless contends the court committed reversible error in certain particulars to be noted presently.
Two former judgments and sentences in felony cases formed the basis of appellee’s petition for a writ. The first judgment was rendered and sentence was pronounced under an information filed in the district court of Sedgwick county. It charged petitioner, appellee, with larceny of an automobile in violation of G. S. 1935, 21-533. For that offense petitioner was sentenced to the state industrial reformatory. While there incarcerated he and five others were charged jointly with felonious assault on a guard at the reformatory contrary to the provisions of G. S. 1935, 21-431 and in a second count with attempted escape from the reformatory by force, contrary to G. S. 1935, 21-737. The latter information was filed in the district court of Reno county. Petitioner was between eighteen and nineteen years of age and all the other five defendants were likewise minors. Without counsel they entered their pleas of guilty to the charges filed against them in the district court of Reno county. The petitioner was sentenced under the habitual criminal act.
We shall first refer to the proceedings in the district court of Sedgwick county. The trial court made findings of fact and conclusions of law with respect to the convictions and sentences in both courts. As we view this appeal it is unnecessary to encumber our reports with a complete restatement of the findings and conclusions made in the instant case. With respect to the action in Sedgwick county the court found petitioner was convicted in the district court of that county on a charge of larceny of an automobile on February 15, 1945, in violation of the grand larceny statute, G. S. 1935, 21-533, and that petitioner was sentenced to a term in the state industrial reformatory where he was “to be confined according to law from one to five years . . . The finding pertaining to sentence appears to have been based on a transcript made at the time of sentencing. The journal entry of judgment, however, does not so read. It discloses petitioner and his counsel were advised petitioner stood charged with the offense of grand larceny under the provisions of G. S. 1935, 21-533. (The information charged larceny of an automobile in violation of G. S. 1935, 21-533.) The journal entry further shows petitioner was sentenced “to the Kansas State Industrial Reformatory at Hutchinson, Kansas, there to he confined, according to law.” (Our italics.)
Sentences for grand larceny are divided into three separate and distinct classifications under G. S. 1935, 21-534. The sentence for one form of grand larceny is for a term of confinement not exceeding seven years. Another is for a term not exceeding five years. The sentence for larceny of an automobile is confinement at hard labor for not less than five years and not more than fifteen years. The petitioner has not served the maximum term of the sentence for grand larceny of an automobile. The district court of Leavenworth county also found the journal entry of judgment contained no recitation the plea of guilty and sentence imposed were for grand larceny of an automobile and that it recited only petitioner pleaded guilty to the oifense of grand larceny, contrary to the provisions of G. S. 1935, 21-533, and that the journal entry specified no minimum or maximum time. The court concluded the conviction was regular and valid but the sentence was void.
Respondent contends the court erred in concluding the sentence was void. With that contention we agree. Although it is a better practice for the journal entry of judgment and sentence to recite the particular form of grand larceny committed under G. S. 1935, 21-533, we know of no statute or decision which renders the sentence void where the information clearly 'specifies the particular form of grand larceny with which a defendant is charged and the journal entry, as here, recites the statute under which the defendant was charged and convicted. If the journal entry of judgment had actually contained a shorter sentence than provided by the statute that fact would not have rendered the sentence void. (Edwards v. Hudspeth, 159 Kan. 37, 151 P. 2d 698.) The sentence would have have been subject to correction by the court which imposed it. If that court should fail to make the correction the supreme court has power to direct its correction and has frequently exercised the power. (Edwards v. Hudspeth, supra.) When an error in the process of sentencing occurs the state should act promptly and on its own initiative to have the error corrected in order that authorities in penal institutions may have the records under which they hold a person clarified.
Moreover the sentence of the petitioner, a minor, to the state reformatory was not void or even irregular by reason of not having prescribed a fixed minimum or maximum term. G. S. 1935, 76-2306 expressly prohibits the imposing of sentences for a„fixed limit of duration for offences of male persons between the ages of sixteen and twenty-five who are confined in the state reformatory.
The district court of Leavenworth county ordered respondent to place petitioner in the custody of the sheriff of Sedgwick county and the sheriff was ordered to remand petitioner to the district court of Sedgwick county for further proceedings in harmony with the law. It also declared void petitioner s plea of guilty in the district court of Reno county, directed such plea of guilty be set aside and ordered the sheriff of Sedgwick county to place petitioner in the custody of the sheriff of Reno county. It also ordered the latter to remand petitioner to the district court of Reno couny for further proceedings.
Appellant contends the function of the district court of Leavenworth county was to determine whether petitioner was unlawfully restrained of his liberty by respondent but that it had no jurisdiction over the district court of Sedgwick or Reno county and no power to direct such courts to set aside their judgments or to alter a sentence imposed by them.
The contention must be sustained. In the first place the proper statutory sentence for larceny of an automobile has not expired. Roth parties concede the trial court was correct in concluding petitioner was not presently entitled to his freedom. That ended the purpose and function of the petition for a writ. Until the sentence for larceny of the automobile has expired we shall not determine whether petitioner may be later held by respondent pursuant to the judgment and sentence of the district court of Reno county.
The sheriffs of Sedgwick and Reno counties were not parties to the instant action in the district court of Leavenworth county. That court acquired no jurisdiction over them and its orders pertaining to them are nullities.
The district court of Leavenworth county had no jurisdiction over the district courts of Sedgwick or Reno counties or over the judges thereof and its orders directing what they should do are likewise invalid. As bearing on this general subject see State v. Start, 62 Kan. 111, 61 Pac. 394, and In re Jewett, 69 Kan. 830,77 Pac. 567.
If appellee, in addition to his petition for release from custody of the respondent, desired to obtain an order vacating and setting aside the judgments, sentences or any part thereof, rendered by the district courts of Sedgwick or Reno counties he should have in voked the jurisdiction of the supreme court which alone has authority to make such orders.
The judgment of the district court of Leavenworth county denying petitioner his release from custody is affirmed. Its orders pertaining to the sheriffs of Sedgwick and Reno counties and the district courts of such counties are reversed with directions to set them aside. | [
112,
-22,
-11,
62,
11,
-31,
42,
-98,
66,
-79,
-25,
83,
-95,
-42,
5,
121,
123,
111,
85,
121,
-54,
-73,
115,
-31,
114,
-5,
-37,
-43,
-69,
77,
-12,
-44,
10,
48,
-118,
85,
-90,
-128,
-57,
24,
-50,
-121,
9,
-6,
-39,
0,
48,
41,
-12,
15,
-15,
14,
-89,
46,
22,
-53,
41,
45,
75,
-17,
-56,
-7,
-39,
21,
91,
22,
-125,
6,
-100,
-121,
120,
63,
-100,
24,
0,
-24,
115,
-106,
-122,
-12,
107,
-69,
45,
102,
98,
33,
85,
-57,
40,
-120,
14,
-74,
-115,
-89,
-104,
16,
98,
5,
-105,
-99,
97,
-106,
39,
126,
126,
4,
93,
100,
-123,
-50,
-76,
-111,
77,
40,
-122,
-13,
-31,
37,
16,
113,
-57,
-26,
92,
71,
113,
27,
-58,
-106
] |
The opinion of the court was delivered by
Kagey, J.:
This is an appeal from a conviction of murder in the first degree.
Briefly the facts are as follows: On February 14, 1950, Preston F. McBride, appellant herein, purchased a .22 caliber revolver in Hutchinson, Kansas. The evening of that day he spent with a friend and his girl from 6:30 until after midnight, meeting no one else. The following morning, February 15, shortly after 8:00 o’clock, appellant placed an anonymous phone call to the McVay Taxi Company from a booth at St. Elizabeth Hospital, where he was working on a construction project, and asked that a message be sent to a workman named McBride that he was wanted at home at once; a cab was dispatched and on its arrival appellant asked to be taken home. The driver started to the address given by ap pellant (which was later proved to be a fictitious one) but appellant left the cab a block before he reached the address given. Later that same morning, appellant cleaned and loaded the gun and then shortly after 10:00 o’clock again called the cab company without giving his name, this time from a downtown restaurant, and asked that a cab be sent there. No specific cab or driver was requested so the operator dispatched the cab of John Watkins. After picking up the appellant and learning he wanted to go out of town, Watkins drove back to the cab company office where he exchanged his cab for a car. Appellant did not go into the office. They then drove southwest of Hutchinson, appellant being in the back seat of the car directing Watkins where to go. As they proceeded on a dirt road, appellant told Watkins to slow down as they were coming to a lane where they would turn. As Watkins did so, appellant,' without warning, shot him several times in the back of the head with the .22 caliber revolver purchased the day before. Appellant then reached over, stopped the car, got under the wheel, pushed Watkins’ body over and proceeded back to Hutchinson with Watkins’ body in the car. On the way he attempted to remove the governor from the car so that it would go faster.
In Hutchinson, appellant parked the car, went to the Y. M. C. A. where he roomed, got some clothing and personal effects, threw some expended .22 caliber cartridge cases in the window base and returned to the car. He then proceeded to drive toward Wichita, passing through the outskirts of that city to a point near Derby, Kansas, where the car became stalled. During the trip, he took four or five dollars from the billfold of deceased and threw the billfold from the car. After the car stopped, appellant attempted to remove .the body and go on with the car, but being unable to get the body out, determined to abandon the car. He threw his bloodstained jacket in a nearby thicket and walked to the home of a farmer living nearby where he hired the farmer to take him to Wichita, telling him he had burned a rod out of his car and had to be at work at Boeing’s Aircraft Company by 4:00 o’clock. Appellant paid the farmer three one-dollar bills. On his arrival in Wichita, appellant went to the home of Mr. and Mrs. Victor Casper where he showed Mrs. Casper the gun, which was fully loaded, and asked her to keep it. The gun was then placed in a dresser drawer. That evening when Mr. Casper came home, his wife told him of the gun, whereupon Casper took it from the dresser drawer, upbraided McBride for bringing it into his house, and unloaded the same, placed the shells on top of the bureau and replaced the gun in the drawer. Neither Mr. nor Mrs. Casper had previously seen the gun. That night appellant called his former wife from Casper’s residence and had an angry conservation with her after which he loaded the gun and placed it in his trousers. Upon discovering this, Casper talked him out of the gun, unloaded the same and gave it to his wife who put it under the pillow on the bed. Casper then took the appellant to the home of appellant’s sister. There appellant was found by Wichita police in the early morning of February 16, partially clothed, hiding on the ledge in the basement. Upon being questioned by Wichita officers, appellant told them he was connected with a dope ring which flew dope into Wichita by airplane; that deceased Watkins also had been connected with the ring and was “squawking” and that appellant had been ordered to kill Watkins upon threat of harm to his wife and child. Pursuant, to the order, he said, he had called the Yellow Cab office and asked them to send Watkins to pick him up.
Appellant told two stories as to where he got the gun, the first being that he had secured the gun at the home of Vic Casper the evening of the 14th to “bump off” Watkins, and the second that Casper gave him the gun at 6:30 o’clock Wednesday morning in front of the Liberty Café after having visited him in Hutchinson the night before and telling him he had a job for him to do. He said further that he had cut a slit in his jacket on Tuesday evening before the murder so he could carry the gun therein. On investigation these stories proved to be false, and the name of one of the persons supposed to have been connected with the dope ring, the asserted pilot of the plane, proved to be the name of a reformatory inmate. Upon being confronted with the fact that his story had been investigated and proved to be without any foundation, appellant stated that he had killed Watkins because he wanted to steal a car.
An information was filed by the county attorney on March 18, 1950, charging appellant with murder in the first degree. On March 22, 1950, the county attorney filed a motion in the case setting forth the fact that there was some question as to whether appellant was able to comprehend his position and make his defense, and requesting the court to appoint a commission to examine appellant and inquire into his mental competency and to determine whether appellant was able to comprehend and understand his position and to make his defense thereto. This motion was sus tained by the court and two psychiatrists were appointed as a commission to examine appellant and file their report. The commission made an examination of appellant on March 27 and returned its findings to the court on March 29, 1950. The pertinent parts of the report read:
“We, the undersigned Drs. Thomas L. Foster and M. E. Eckart, Commissioners appointed for the purpose of determining whether Preston F. McBride who now stands charged with the offense of murder in the first degree is sane or insane and whether the said Preston F. McBride is able or unable to comprehend his position and make a defense, do upon our oaths find as follows:
“That the above named party Preston F. McBride is sane and that he, the said Preston F. McBride, is able to comprehend his position and to make his defense.”
The foregoing proceedings were in accord with our law and are not questioned here.
The case came on for trial on April 17, 1950; the jury on April 22, 1950, returned its verdict of guilty of murder in the first degree, to be punished by death.
Appellant filed his motion for new trial which was by the court overruled and judgment was entered on the verdict of the jury, from which judgment and sentence appellant brings his case here on four separate assignments of error. We will treat them in their order as discussed in appellant’s brief.
First, appellant contends that the verdict is contrary to the evidence predicated on the theory that evidence was introduced fairly tending to prove insanity, both presently and as far back as 1944; that a continuing presumption of insanity was raised thereby and that there was no competent proof to rebut such presumption. That where the defense of insanity is interposed, the defendant is not required to prove that he is insane by a preponderance of the evidence. To the latter statement the state agrees. However, in this case no instruction was given by the court requiring defendant to prove insanity. On the contrary, the court in instruction No. 13 stated to the jury:
“One of the defenses advanced by the defendant in this case is that he was insane, laboring under a defect of reason from disease of tire mind so that at the time of the homicide he did not know the nature and quality of the act he was doing, or if he did, that he did not know his act was wrong.
“The jury are instructed that if you find from all the evidence in the case that at the time of the commission of the homicide that tire defendant was laboring under a defect of reason from disease of the mind so that at that time he did not know the nature and quality of the act he was doing, or if he did know what he was doing, did not know his act was wrong, then the law does not hold him responsible for his act. On the other hand, if he was capable of understanding what he was doing, and had the power to know his act was wrong, then the law will hold him criminally responsible for it.
“If this power of discrimination existed he was sane, or, in other words, a person of sound memory and discretion, and will not be exempt from punishment because he might have been a person of weak intellect or one whose moral perceptions were blunted or illy developed, or because his mind may have been depressed or distracted from brooding over misfortunes or disappointments or because he may have been wrought up to the most intense mental excitement from sentiments of disappointment, revenge or anger.
“The law of Kansas recognizes no form of insanity, although the mental faculties may be disordered or deranged, which will furnish one immunity from punishment for an act declared by law to be criminal, so long as the person committing the act had the capacity to know what he was doing and the power to know that his act was wrong.
“It devolves upon the state to prove to your satisfaction, beyond a reasonable doubt, the defendant’s sanity, as above defined, at the time of the shooting. If you believe from all the evidence in the case, beyond a reasonable doubt, that the defendant at the time and place, and in the manner charged in the information, shot and killed John C. Watkins, but do entertain a reasonable doubt as to his sanity at the time of the alleged commission of such crime, then you must acquit the defendant on the ground of insanity at the time of the alleged commission of the crime.”
The above instruction is in accord with the views expressed by this court in a long line of decisions. (State v. Nixon, 32 Kan. 205, 4 Pac. 159; State v. Mowry, 37 Kan. 369, 15 Pac. 282; State v. Arnold, 79 Kan. 533, 100 Pac. 64; State v. White, 112 Kan. 83, 209 Pac. 660.)
The question of the sanity of the accused at the time of the alleged commission of the offense is one to be determined by the jury upon the evidence introduced bearing upon such an issue. (State v. Eye, 161 Kan. 69, 166 P. 2d 572.)
An examination of the record fails to disclose any evidence that appellant was afflicted with insanity. The testimony of appellant’s mother that he had suffered an attack of spinal meningitis in 1944 after which he did not respond to normal conversation as he previously had done and that in the Reno county jail he seemed kind of blank does not go to the extent of establishing insanity. Nor does the testimony of a witness that from things appellant said at one time he appeared unusual, but that he considered him to be a normal person.
The two alienists called by appellant testified that appellant was sane both at the time of the homicide and at the time of trial. They had previously examined appellant as commissioners appointed by the court and thus had ample opportunity to observe him and to form opinions as to his mental condition.
It is true the doctors testified that appellant had a psychopathic personality, that is, mentally abnormal but not psychotic; that a person with a psychopathic personality is but illy adapted to social life, but he understands the difference between right and wrong, understands the nature and quality of his actions, and is capable of responsibility for his actions. The fact that appellant, charged with the offense of murder in the first degree, tells conflicting stories and untruths, does not prove him insane. Rather, his actions were those of a deliberate murderer: Appellant purchased the murder weapon the day preceding the murder; next day he placed an anonymous call to a taxicab company and asked that a fictitious message be sent to him calling him from work to his home; he left the taxicab which took him away from work a block from where he had said he lived; his second call for a cab was placed anonymously from a local cafe, and when the cab driver exchanged the taxicab for an automobile, appellant did not go inside the company office; he ordered the driver to take him to the country, directing the course of travel to a side country road where he shot the driver, took possession of the automobile with the body of the deceased therein, and attempted to remove the governor from the automobile so that it would run faster; as he drove from Hutchinson toward Wichita, he took from the body of deceased what money there was and threw away the identifying wallet; he skirted around the city of Wichita to a wooded section where the automobile became mired and after trying to remove deceased’s body therefrom and finding it impossible, he abandoned the car, threw away his blood-stained jacket and walked to a farmhouse where he hired a farmer to take him to Wichita.
We shall not undertake, nor is it necessary, to give a detailed statement of the mass of testimony which was taken in this case. We have examined it carefully, and readily reach the conclusion that the verdict of the jury is sustained by ample competent evidence and ought not to be disturbed.
Second: Appellant contends that the court should have given an instruction defining the words “idiot” and “imbecile” and especially the meaning and intent of the words “person of unsound mind” as the terms are used in sec. 4, ch. 323, Laws of 1949.
There is but one test by which the mental responsibility of a de fendant is to be gauged in this state and that test was properly set forth by the court’s instruction No. 13, supra. It is the condition of mind of the accused which determines whether he is criminally accountable for-the act denounced by the statute as criminal, and not the name of the mental infirmity, if such infirmity exists. (State v. Arnold, supra.) The form or species of insanity is not, in the last analysis, material, and need not be distinguished in the instructions; if the proper test of criminal responsibility for the act in question be given, the substantial rights of the defendant have been protected. (State v. Moore, 80 Kan. 232, 102 Pac. 475.) Moreover, the record fails to disclose any evidence whatsoever that appellant was afflicted with “idiocy” or that he was an “imbecile” or a person of “unsound mind”.
Third: Appellant contends that the court erred in refusing to instruct the jury on the “irresistible impulse” test for insanity. We have examined the record carefully and find no evidence sustaining appellant’s contention that his acts were motivated by any “irresistible impulse”; and the court did not err in failing to give an instruction thereon.
Fourth: Appellant contends the court erred in not permitting him to continue with examination of the witness John Fontron, county attorney.
Mr. Fontron testified that he had requested appointment of a commission to examine the mental condition of appellant. No objection appears in the record to this testimony, and no effort was made to elicit from the witness any additional testimony. There is therefore nothing for this court to review on this assignment of error.
From a careful analysis of the proceedings, we fail to find any error in the record prejudicial to the rights of appellant. The judgment is affirmed.
Wedell J., not participating. | [
112,
-22,
-16,
31,
43,
106,
34,
-72,
112,
-29,
-92,
115,
45,
-53,
1,
121,
-5,
61,
-43,
105,
-27,
-73,
7,
-31,
-14,
51,
-39,
-59,
-110,
-55,
-18,
-11,
73,
112,
10,
93,
70,
74,
35,
88,
-114,
-124,
-87,
-16,
88,
88,
-92,
106,
70,
15,
-79,
-113,
-13,
42,
26,
-61,
-87,
44,
75,
-83,
64,
112,
-53,
-123,
95,
21,
-109,
-90,
-98,
-121,
-48,
47,
-103,
49,
96,
-8,
115,
-92,
-108,
84,
109,
-119,
12,
98,
98,
3,
89,
-51,
104,
-127,
47,
126,
-123,
-89,
24,
88,
65,
36,
-98,
-99,
127,
-108,
10,
118,
-9,
63,
91,
108,
1,
-113,
-76,
-79,
79,
56,
-110,
-72,
-29,
5,
48,
113,
-50,
34,
92,
71,
122,
-101,
-118,
-46
] |
The opinion of the court was delivered by
Parker, J.:
On October 14, 1949, Robert Lee Dean, who lacked three days of being seventeen years of age, was killed as a result of an accident arising out of and in the course of his employment with Hodges Bros., one of the respondents. Thereafter, his father and mother, Page J. Dean and Helen A. Dean, instituted proceedings for compensation under provisions of the Workmen’s Compensation Act, which is conceded to govern the rights of the parties. In due time thé compensation commissioner heard the evidence and awarded the claimants a total sum of $5,000, to be apportioned one-half to the father and one-half to the mother, payable at the rate of $20 per week, on the theory such claimants were wholly dependent upon their son for support on the date of his death. On appeal, this award was approved by the district court and judgment rendered accordingly. The respondents then perfected this appeal in which the burden of their complaint relates to. the trial court’s conclusion of total dependency on the part of appellees and the amount of compensation they are entitled to recover under provisions of the act.
Pertinent provisions of the statute on which the judgment depends should be set forth at the outset. They read;
“(a) If a workman leaves any dependents wholly dependent upon his earnings, a sum equal to three times his average yearly earnings, computed as provided in section 44-511 of the General Statutes Supplement of 1945 and any amendments thereto, but not exceeding five thousand dollars and not less than twenty-five hundred dollars: . . . (b) If a workman does not leave any such dependents but leaves dependents in part dependent on his earnings, such percentage of the sum provided for total dependency in paragraph 2(a) of this section as the employee’s contributions which the deceased made to the support of such dependents during the two years preceding the injury bears to his average annual earnings during a contemporaneous period, during such two years. . . .” (G. S. 1947 Supp. 44-510 2[a], [b].)
“(1) Whenever in this act the term ‘Wages’ is used it shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, and shall not include gratuities received from the employer or others . . . (2) Where prior to accident the rate of wages is fixed by the output of the employee the daily wage shall be calculated by dividing the number of days the workman was actually employed into the total amount the employee earned during the preceding six months, or so much thereof as shall refer to employment by the same employer. . . . (3) In any case, the average yearly wage shall be found by multiplying the weekly wage, determined as hereinbefore provided, by fifty-two. (4) If a workman has suffered a previous disability and receives a later injury his average earnings as a basis for compensation for such later injury shall be such amount as will reasonably represent his earning capacity at the time of the later injury in the employment in which he was working at such time." (G. S. 1947 Supp. 44-511.) (Emphasis supplied.)
“(j) ‘Dependents’ means such members of the workman’s family as were wholly or in part dependent upon the workman at the time of the accident. ‘Members of a family,’ for the purpose of this act, means . . . parents . . .” (G.S. 1935, 44-508.)
It should also be noted, that under provisions of the act G. S. 1935, 44-556, appeals to the district court are tried upon the transcript of the evidence and proceedings as presented, had, and introduced before the commission.
’ We turn now to errors assigned by the appellants as grounds for reversal of the judgment. One of such assignments of error is to the effect the trial court erred in admitting evidence by the claimant and over objection by the respondent by the father being permitted' to state that on the 14th day of October, 1949, the date of Robert’s death, the father and mother were wholly dependent upon the decedent. In the first place an examination of the record discloses other testimony by this witness to the same effect which was not objected to. In such a situation the testimony complained of was merely cumulative and the appellants cannot now be heard to say that they were prejudiced by its admission. However, we are not disposed to base our decision on this particular point solely upon that premise.
G. S. 1935, 44-523, reads:
“The committee, arbitrator, commission, or court, shall not be bound by technical rules of procedure, but shall give the parties reasonable opportunity to be heard, and to present evidence. . . .”
In construing the force and effect of the section of the statute just quoted we have held many times the rules of the civil code are not applicable to compensation proceedings and that the commissioner should not confine the parties to strict rules of evidence.
For illustration see Freeman v. Fowler Packing Co., 135 Kan. 378, 11 P. 2d 276, where it is said:
“The commissioner as an administrative officer heard testimony concerning the subject of death resulting from accidental injury, not admissible under the rules of evidence applicable to procedure in court. He was permitted to do this by statute (R. S. 1931 Supp. 44-523). In reviewing the commissioner’s work, the courts may not nullify it by applying their own standards; and if tire commissioner’s decision be based on substantial and satisfactory evidence, relevant, reasonable, and persuasive, though not technically admissible under the rules of evidence governing procedure, the decision will be upheld. (Holt v. Peterson Construction Co., 134 Kan. 149, 151, syl. ¶ 2.)”
See, also, Walz v. Missouri Pac. Rld. Co., 142 Kan. 164, 166, 45 P. 2d 861; Souden v. Rine Drilling Co., 150 Kan. 239, 241, 92 P. 2d 74; Stanley v. United Iron Works Co., 160 Kan. 243, 255, 160 P. 2d 708.
In view of the express provisions of the act and the decisions, to which we have heretofore referred, we have little difficulty in concluding that the admission by the commissioner of the statement complained of by the appellants, even though it be assumed to be a conclusion, constitutes no sound ground for reversal of the judgment.
Another assignment of error stressed by the appellants is that there was no substantial competent evidence to sustain the district court’s conclusion that, under the evidence adduced before the commissioner, each of the claimants was wholly dependent upon the earnings of their deceased son. Let us see.
It clearly appears from the record that on December 15, 1948, Page J. Dean suffered an accidental injury, resulting in total disability, arising out of and in the course of his employment with the Rosedale Development Company. He testified that neither he nor his wife had any independent means of income thereafter until his son, Robert, quit school on or about March 1, 1949, and went to work. The mother’s testimony, although it is not as definite, is of such character that it can be said to be to the same effect. There was, as we have heretofore indicated, other testimony that Robert was the sole support of the family. In fact the father testified he was all the support the family had. It is equally clear that after Robert quit school and went to work he bought all of the groceries, provided the famly with a house in which to live, and expended all the savings he had accumulated up to that time in buying provisions for the family and in paying medical and hospital bills for his father while he was recovering from his injury. Moreover a stipulation entered into between the parties shows that when the son went to work for the appellant, Hodges Bros., in July, 1949, he claimed three exemptions under the provisions of the Social Security Act.
Appellants make much of the fact that Page J. Dean had procured an award against the Rosedale Development Company for total disability in a workman s compensation proceeding, and argue that because he had done so it cannot be held either he or his wife was wholly dependent upon their son for support, notwithstanding the testimony heretofore related. The trouble with this argument is drat this award had been appealed to the district court and that the father had never been able to obtain any payments thereon up to the date of the death of his son. It is true, as appellants point out, that this award was approved and affirmed a few days after Robert’s death. This, in our opinion, did not preclude the trial court’s finding of total dependency. Our decisions are to the effect that dependency is to be determined as of the date of the accident. See page 473 of the opinion of Proffitt v. Aldridge, 154 Kan. 468, 119 P. 2d 523, where it is said, “Appellants are correct in contending the degree of dependency must be determined as of the time of the accident [G. S. 1935, 44-508 (j), 44-510 (2c)].”
In the face of testimony such as has been heretofore related we are unwilling to hold there was no substantial competent evidence to sustain the trial court’s conclusion the claimants were wholly dependent upon Robert, the deceased workman, on the date of his death. That, under the rule laid down in all our workmen’s compensation cases, means that the trial court’s finding on the particular point under consideration cannot be disturbed. See West’s Kansas Digest, Workmen’s Compensation, § 1969; Hatcher’s Kansas Digest, Workmen’s Compensation, 139a (15).
Finally it is urged the amount of compensation allowed is not sustained by or based upon any substantial competent evidence. The gist of appellants’ argument on this point is that the trial court, in fixing the amount of compensation to which appellees were entitled, was bound to take into consideration the earnings of their son prior to the last week in July, 1949, the date on which he went to work for Hodges Bros. It must be conceded Robert was making considerably less prior to that time than he was after he went to work for such appellant. Be that as it may, we find nothing in the compensation act or in our decisions to warrant or permit the sustaining of appellants’ position on this point. The emphasized portions of section 44-511, supra, heretofore quoted, definitely indicate, and in and of themselves warrant, a conclusion the compensation authorized by the provisions of 44-510 (2), (a) is to be based upon and under the contract in force and effect at the time of the accident resulting in the death of the involved workman.
The conclusion just announcéd is not without precedent. In Workman v. Kansas City Bridge Co., 144 Kan. 139, 58 P. 2d 90, we said:
“. . . Under the workmen’s compensation act, the liability of an employer to his employee is a liability arising out of contract, and the terms of the statute are embodied in the contract. The injured employee must therefore recover upon the contract with his employer. (Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784; Johnson, Guardian, v. Milling Co., 116 Kan. 731, 229 Pac. 359; Ross v. Austin Drilling Co., 131 Kan. 824, 293 Pac. 757.)
“It follows appellants cannot recover from this employer upon the basis of a former contract deceased had with another employer. . . .” (p. 141.)
See, also, Kelly v. Lassen Hotel Co., 161 Kan. 444, 168 P. 2d 527, where in illustrating the method to be used in computing the award to dependents, under provisions of the same section of the statute to which we have just referred, the following statement appears:
“. . . For instance, if the employee worked only five weeks during the year at $40 a week, his average weekly earnings would be $40 and his ‘average annual earnings’ computed under ‘section 11’ (44-511) for the purpose of fixing the award would be fifty-two times $40. . . .” (p. 450.)
There remains only the question whether the award was excessive under the facts disclosed by tire record. From a stipulation entered into at the hearing before the commissioner it appears that during the twelve weeks, i. e., from the last week in July to October 15, 1949, Robert worked for Hodges Bros, his earnings averaged at least $35.60 per week. His “average yearly earnings” computed under section 44-511, supra, for the purpose of fixing the award would be fifty-two times $35.60 or a total of $1,851.20. Three times that sum, as authorized and required by 44-510 2(a), supra, in a case where a deceased workman leaves parents wholly dependent upon his earnings so long as the award does not exceed $5,000, would amount to more than $5,500. It follows the maximum of $5,000 was proper in the instant case.
The judgment is affirmed. | [
-48,
104,
-44,
61,
27,
98,
10,
50,
89,
-31,
39,
113,
11,
-61,
1,
105,
-14,
31,
81,
107,
17,
-77,
7,
10,
-37,
-77,
-7,
-60,
-80,
72,
-90,
-41,
77,
48,
74,
-43,
-26,
74,
-59,
82,
78,
-116,
-85,
-83,
89,
18,
48,
122,
-12,
95,
49,
-98,
-102,
42,
24,
-25,
44,
47,
89,
-85,
-48,
-80,
-118,
5,
127,
16,
-78,
-121,
-72,
-81,
-40,
14,
-116,
-71,
0,
-20,
50,
-74,
-62,
52,
115,
-103,
12,
102,
99,
32,
85,
-27,
-8,
-104,
46,
-10,
-99,
-91,
27,
121,
3,
79,
-108,
29,
126,
84,
30,
126,
-14,
20,
93,
-96,
67,
-113,
-74,
-77,
-113,
110,
-98,
-118,
-49,
-123,
50,
117,
-52,
-86,
92,
71,
115,
-111,
-105,
-104
] |
The opinion of the court was delivered by
Parker, J.:
This was an action to recover damages for personal injuries sustained by the plaintiff in a collision between two automobiles at the intersection of two public highways. The appeal is from an order sustaining a demurrer to plaintiff’s evidence.
Except as they define the issues the pleadings are of no importance and can be briefly summarized. All that need be said with respect to them is that the petition charges the proximate cause of the injuries sustained by the plaintiff in the collision at the highway intersection was the negligence of defendant in driving his motor vehicle upon the highway and into such intersection, that the answer states such injuries resulted from plaintiff’s contributory negligence and that the reply denies the allegations of the answer.
With the issues joined as above stated the cause came on for trial by a jury. The plaintiff adduced her evidence and rested. Thereupon the defendant demurred to plaintiff’s evidence on the sole ground it disclosed she was guilty of contributory negligence which barred her recovery. Thereafter the trial court sustained such demurrer and rendered judgment holding that it found as a conclusion of law from plaintiff’s most favorable evidence that she was guilty of contributory negligence barring her recovery in the action. Plaintiff then perfected this appeal, her only assignment of error being the trial court erred in sustaining the demurrer on the evidence and facts presented and the law applicable thereto.
In relating the evidence and discussing the issues we shall refer to the parties in this opinion as they appeared in the court below.
The general factual picture disclosed by the evidence, omitting for the moment versions of the plaintiff and her driver as to how the accident occurred, can be related as follows:
Approximately seven miles north of Centraba there is an intersection of two pubbc highways. The east and west highway is about 20 feet wide and the highway leading north out of Centraba is about 28 feet wide. Neither of such highways is protected by stop signs. A wide rounding corner, immediately south of the intersection, permits trafile approaching from the south to turn to the east and enter upon the east and west highway at a speed of thirty miles an hour.
On June 11, 1949, the weather was clear and both highways were dry. At about 1:30 p. m. on such day the plaintiff and Mrs. Robert Hatch, residents of Centraba, left that city on the north and south highway for the purpose of going to Seneca on a shopping expedition in an automobile driven by Mrs. Hatch, who had invited the plaintiff to make the trip as her guest. About the same time the defendant was driving his automobile, to which was attached a two wheel trailer with a stock rack, in an easterly direction on the east and west highway. The drivers of both vehicles approached and entered the intersection without stopping with the result a collision occurred in which the plaintiff was seriously injured.
We turn now to particular evidence on which error assigned as ground for reversal of the judgment must stand or fall.
Testifying as a witness in her own behalf plaintiff stated that she first saw defendant’s car when it was about 125 feet west of the intersection and the car in which she was riding was about 150 feet from the intersection at a time when her car was traveling between 30 and 35 miles per hour; that at such time she said “Oh” and thereafter did nothing more; that she was able to see defendant’s car from the time she first observed it until it entered the intersection and noticed that he was on the wrong side of the highway looking north, paying no attention to the automobile approaching from the south arid that he did not apply his brakes or slow down prior to the collision; that defendant’s car entered the intersection first and that the impact between the two cars took place in the northeast corner of such intersection. She also stated she was familiar with the roads on which all parties were traveling and knew of the rounding corner south of the intersection which turned to the right. On cross-examination she admitted she thought the road on which she was traveling just prior to the accident was a through highway and that it was protected by a stop sign. In addition the following questions and answers appear in the record as a part of plaintiff’s cross-examination:
“Q. Isn’t it a fact, as I understand Mrs. Hatch to say, there was nothing to prevent her going on east and making the turn east there? A. I suppose, but a person doesn’t usually think of those things.
“Q. That is about the only reason you know of why she didn’t turn? A. We were going north.
“Q. The question is as to you folks, if you hadn’t mistakenly assumed that you were on a through highway and that he was going to stop, the accident wouldn’t have occurred, except for that mistake? A. I don’t suppose.
“Q. You are satisfied it wouldn’t, aren’t you? Isn’t that right? A. I suppose.
“Q. And from the time you said, ‘Oh’ there, something like 150 feet south of the intersection, you just left the matter in Mrs. Hatch’s hands? A. That is right.”
Mrs. Hatch, the driver of the automobile in which plaintiff was riding, also testified as a witness. Her testimony was to the effect she first saw defendant when she was 150 to 165 feet south of the intersection; that at that time he was traveling from 20 to 25 miles per hour and she was driving between 30 and 35 miles per hour; that she saw defendant’s car from that time on and could have stopped her car in about 60 feet but did not do so because she thought she was on a through highway and had the right-of-way; that as soon as she learned defendant was not going to stop she applied her brakes, that they took hold right away and left skid marks on the highway for a distance of 40 to 42 feet south of the place where the collision occurred; that as she entered the intersection she was on her own side — or the right side of the highway— and that her car struck the right side of defendant’s car. Mrs. Hatch also knew of the turn to the east and frankly stated she could have made such turn and thereby avoided the accident but-that she did not do so because she had planned on going on north. Touching plaintiff’s contributory negligence this witness stated she and the plaintiff both saw defendant at the same time and that plaintiff said “Oh” and nothing more. On cross-examination she testified that if plaintiff had told her defendant’s car was likely to go on across the intersection and had asked her to stop her car that she would have stopped.
At the outset it must be conceded that from our legion of reported negligence cases there may be found decisions in which something has been held or said that can be construed as tending to support the respective positions of each of the parties to this appeal. Even so it must be remembered that every negligence action depends upon the factual situation disclosed by the record on which it is decided and that other decisions are of little value as legal precedents unless, as rarely occurs, the governing facts and circumstances are similar. This case is no exception. From our examination of the numerous authorities cited by diligent counsel for each of the parties we fail to find any decision which would warrant us in deciding the instant case on the basis of the factual situation therein involved. Therefore we shall make no attempt to review such decisions or distinguish them.
There are, of course, certain fundamental principles of law applicable to negligence actions generally which must be given consideration in every negligence action in order to determine whether the facts of the particular case involved warrant or preclude recovery. We therefore direct our attention to rules particularly applicable under the facts and circumstances of the case at bar.
That a plaintiff’s negligence, or his contributory negligence, will bar him from recovery in an action for damages sustained in an automobile casualty and that a demurrer to his evidence should be sustained where either negligence or contributory negligence clearly appears from his evidence cannot be questioned. (Dolloff v. City of Wichita, 147 Kan. 63, 75 P. 2d 221; Crowder v. Williams, 116 Kan. 241, 226 Pac. 774; Hanabery v. Erhardt, 110 Kan. 715, 205 Pac. 352; Houdashelt v. State Highioay Comm., 137 Kan. 485, 21 P. 2d 343; Moler v. Cox, 158 Kan. 589, 149 P. 2d 611.) This, we may add, is the rule regardless whether the plaintiff is the driver of, or a guest in, one of the automobiles involved in the accident. See Curtiss v. Fahle, 157 Kan. 226, 139 P. 2d 827, which holds:
“Although the negligence of a driver is not imputed to a guest, or passenger, it nevertheless is the duty of a guest, or passenger, to exercise reasonable care for his own safety and, where he has the same opportunity as a driver to observe the dangerous conditions and circumstances and fails to take any precautions whatsoever for his own safety until it is too late, he is guilty of contributory negligence which bars recovery.” (Syl. ¶ 5)
For other decisions adhering to the rule announced in the decision last cited see Henderson v. National Mutual Cas. Co., 164 Kan. 109, 187 P. 2d 508; Ferguson v. Lang, 126 Kan. 273, 268 Pac. 117; Naglo v. Jones, 115 Kan. 140, 222 Pac. 116; Sharp v. Sproat, 111 Kan. 735, 208 Pac. 613; Bush v. Railroad Co., 62 Kan. 709, 64 Pac. 624.
When the evidence in this case is tested by the rule announced in Curtiss v. Fahle, supra, and in the other decisions just cited, we have little difficulty in concluding the trial court did not err in sustaining the demurrer to plaintiff’s evidence. Summarized, plaintiff’s own testimony discloses that she looked and saw defendant’s car approaching the intersection. She knew that he was not looking in the direction of the car in which she was riding and she observed that he did not slow down as he neared and her car approached the intersection. Notwithstanding, except for the exclamation “Oh” which she made when she first saw the defendant’s car at a distance of 150 feet from such intersection she sat idly by, choosing to rely upon the ability of her driver to avoid a collision and her belief there was a stop sign at the intersection which would cause defendant to stop, and without protest, remonstrance or other overt act, permitted her driver to drive the automobile in which she was riding into the intersection and collide with defendant’s automobile. Such evidence in our opinion, under the rule and the decisions to which we have heretofore referred, clearly convicts plaintiff of contributory negligence which bars her recovery as a matter of law even though it be assumed defendant’s negligence was a concurrent cause of the unfortunate incident which resulted in her injuries.
It necessarily follows the trial court’s action in sustaining the demurrer to plaintiff’s evidence and in rendering judgment against her for costs of the action must be affirmed.
It is so ordered.
Smith, Wedell and Price, JJ., dissenting. | [
-16,
106,
-16,
-83,
43,
96,
48,
-102,
-15,
-77,
-91,
83,
-81,
-53,
21,
121,
-1,
63,
84,
43,
-11,
-93,
19,
-94,
-78,
-77,
-29,
71,
-110,
-56,
102,
115,
76,
49,
-118,
-43,
102,
74,
-59,
92,
-50,
22,
-55,
-19,
-39,
-118,
-76,
58,
16,
15,
-15,
-114,
-61,
42,
24,
-57,
-87,
44,
107,
-72,
-111,
-8,
-115,
13,
95,
2,
-95,
36,
-98,
-125,
-8,
24,
-104,
-75,
32,
-8,
112,
-90,
-126,
-12,
99,
-101,
12,
-32,
103,
33,
85,
109,
-24,
-103,
38,
122,
13,
-89,
50,
24,
-119,
-127,
-97,
-99,
121,
80,
3,
122,
-36,
77,
91,
108,
7,
-54,
-74,
-79,
-51,
60,
-100,
97,
-29,
15,
-78,
97,
-51,
-6,
93,
69,
27,
-101,
-33,
-126
] |
The opinion of the court was delivered by
Wertz, J.:
This action, brought by Emma Rasmussen, widow, and revived in the name of her executor, involved four causes of action: (1) To set aside and cancel plaintiff’s election to take under the will of her deceased husband; (2) for construction of the will of Niles J. Rasmussen, deceased husband of plaintiff; (3) to set aside two deeds to defendant, plaintiff’s physician, as being null and void; and (4) to quiet title in plaintiff to described land involved. Defendant’s demurrer was sustained to the first cause of action.
The second cause of action was for construction and interpretation of the will of Niles J. Rasmussen, deceased. Pertinent parts of the will are as follows:
“II. I Give and bequeathe all the remainder of my property, personal, mixed or real to my beloved wife Emma Rasmussen, for her use or employ as she may desire, during her natural lifetime.
“III. After the death of my wife, Emma Rasmussen, I give and bequeathe all of the Real Estate and what ever remains of my other property, personal or mixed to The Aged Ministers Home, at Lakemont, New York, its successors and assigns forever, and Palmer College, of Albany, Missouri, and its successors and assigns forever, the two institutions to share equally, in the property, or the proceeds therefrom, share and share alike.”
Plaintiff for her third cause of action sought to cancel deeds obtained by defendant, Dr. F. W. Tretbar, on the ground the deeds were void as against public policy for the reason that plaintiff was a patient under the care of defendant as a physician at fire time he received the deeds and the deeds were obtained without her knowledge or consent; that he concealed from her the fact he was attempting to acquire or had acquired title to the remainder interest in the property in which she had a life estate; that defendant failed to record his deeds for over five years in an attempt to conceal from his patient, then eighty-eight years of age and wholly dependent on him, the fact he had acquired title; and for other reasons set forth in the third cause of action.
The fourth cause of action was one to quiet title in plaintiff against defendant Tretbar, plaintiff alleging she was owner of the property in question and that defendant Tretbar claimed some right, estate and interest in the real estate and that same cast a cloud on plaintiff’s title and asking that her title be quieted and that defendant Tretbar be forever barred and excluded from claiming any interest in and to said property.
Defendant filed his answer admitting the contents of the will and setting up the fact that Palmer College, a corporation named ope of the remaindermen under the will, had been succeeded by Defiance College; that defendant is a duly licensed and practicing physician and surgeon in the city of Stafford, Kan., and was the physician and family doctor of plaintiff, Emma Rasmussen, who at all times since June S, 1943, has been under his care and treatment; and further alleging' that he is the legal and equitable owner of the real estate involved, subject only to the life estate of plaintiff by virtue of a corporation warranty deed dated June 3, 1943, wherein Defiance College, a corporation and successor in title to Palmer College of Albany, Mo., was grantor and defendant was grantee; and that the warranty deed conveyed to him an undivided one-half interest in the real estate described in plaintiff’s petition subject to a life estate in favor of plaintiff. Plaintiff filed a reply denying the allegations of the answer and alleging that the beneficiary named in ítem III of the will, namely Palmer College of Albany, Mo., was not in existence on March 27,1930, the date of death of Niles J. Rasmussen, deceased; that said beneficiary is not now in existence and has not been in existence since the death of said testator; and that by reason of the aforesaid, the bequest made in said Item III of the will to Palmer College has lapsed and the remainder interest and estate has vested under the laws of descent and distribution in plaintiff Emma Rasmussen' as widow and sole heir at law of the deceased.
On the issues joined, the case was tried by the court. Oral and documentary evidence was submitted on each of the plaintiff’s causes of action. Counsel orally argued the cause and filed written briefs. The cause was taken under advisement until the fifteenth day of December, 1949, at which time the court found generally in favor of the plaintiff and ordered judgment construing the will favorably to plaintiff and further ordered:
“It is by the Court considered, ordered, adjudged and decreed that judgment be, and the same is, rendered in favor of the Plaintiff and against the Defendant generally on Plaintiff’s second cause of action construing the provisions of Items II and III of the Last Will and Testament of Niles J. Rasmussen, deceased, as vesting in the Plaintiff, Emma Rasmussen, a life estate in all the real estate owned by the said Niles J. Rasmussen, at the time of his death, with tire power of alienation of said real estate and that, after the death of the Plaintiff, all that remains of said real estate togedier with any portion of said real estate which the Plaintiff, Emma Rasmussen, did not sell, dispose of, or alienate during her life time, vests in the Aged Minister’s Home of Lakemont, New York, its successors and assigns, and Palmer College of Albany, Missouri, its successors and assigns, share and share alike.
“It is further considered, ordered, adjudged and decreed that judgment be entered generally for the Plaintiff and against the Defendant; that the claims of title made by Defendant, F. W. Tretbar, in so far as they pertain to the real estate hereinafter described, are null and void, and that the Plaintiff’s title to (description of property) be quieted as against the Defendant, F. W. Tretbar, and that said Defendant, F. W. Tretbar, be, and he is, forever barred and excluded from claiming any right, title, interest or estate in and to the above described real estate.”
No special findings of fact were made by the trial court and none were suggested or requested by the parties; no exceptions were taken to the judgment of the court; and no motion for a new trial was filed. Defendant appeals and assigns as error the judgment rendered by the court:
(1) In finding and adjudging the will of Niles J. Rasmussen vested in Emma Rasmussen a life estate in all the real property of Niles J. Rasmussen at the time of his death, coupled with the power of alienation;
(2) In finding and adjudging that plaintiff’s title should be quieted as against defendant;
(3) In finding and adjudging that the deeds under which defendant claims title are void;
(4) In rendering judgment against defendant; and
(5) In refusing to render judgment for defendant.
Appellee (plaintiff below) challenges the right of appellant to be heard on the questions presented by him in this appeal, and invites our attention to the fact that appellant filed no motion for a new trial. The question therefore arises whether filing a motion for new trial herein was a prerequisite to appellate review; whether the appeal on the cause of action for construction of the will becomes a mooted issue because of appellant’s failure to file a motion for new trial as a prerequisite to appellate review of the judgment cancelling the deeds or of the decree quieting title in appellee.
Much of appellant’s argument concerns the second and fourth causes of action and the court’s rulings thereon. But the third cause of action — asking cancellation of the deeds conveying the property in question to appellant — was held for appellee and granted cancellation of the deeds, which judgment — if not reviewable since no motion for a new trial was filed — leaves appellant without any interest in the land which is the subject of this action and with no standing in this court.
Appellant contends that filing a motion for a new trial would have been superfluous, since he found no fault with the rulings of the trial court during the course of the trial, and that he is in agreement with the ascertained and undisputed facts. Appellant complains only of the conclusions of law based on these facts, i. e., that the judgment is wrong as a matter of law. But how can this court differentiate between the disputed and undisputed facts or determine from the records the facts on which the court based its judgment?
The record is silent as to any agreed statement of facts or stipulations entered into by the parties; on the contrary the record discloses that the issues to set aside appellant’s deeds as set forth in the third cause of action and to quiet title in appellee as set forth in the fourth cause of action were issues controverted by the pleadings and contested throughout the trial, and parol testimony as well as documentary evidence respecting them was introduced and considered by the court as a trier of the facts. In the absence of a motion for new trial, this court has no authority to retry those controverted issues de novo. (Brown v. Brown, 146 Kan. 7, 68 P. 2d 1105.)
Appellant’s specifications of error 2, 3, 4 and 5 amount to nothing more than a statement that the judgment of the lower court was wrong. It is a familiar rule of law that a general verdict resolves all issues of fact in favor of the prevailing party. If supported by evidence, the verdict must stand. (Fisher v. Central Surety & Ins. Corp., 149 Kan. 38, 86 P. 2d 583.) This, of course, is likewise true of a general judgment in the absence of special findings of fact which are contrary to such judgment. In the instant case, there were no specific findings of fact against appellee and the judgment generally in favor of appellee resolved all the issues in her favor. (Dinsmoor v. Hill, 164 Kan. 12, 187 P. 2d 338.)
We do not think it necessary to review the many decisions to which our attention has been directed having to do with the necessity of a motion for new trial as a condition precedent to a full review on appeal. It has been repeatedly held that in the absence of a motion for new trial, there can be no reexamination of issues of fact. (Johnson v. Best, 156 Kan. 668, 135 P. 2d 896; Union Nat’l Bank v. Fruits, 124 Kan. 440, 260 Pac. 638; Columbia Casualty Co. v. Sodini, 159 Kan. 478, 156 P.2d 524.) We have held many times that alleged error in the admission of evidence, or other trial error, can be reviewed on appeal only where the complaining party filed a motion for new trial which directed the trial court’s attention to the alleged error. (Erskine v. Dykes, 158 Kan. 788, 150 P. 2d 322, and cases cited therein.)
In view of the foregoing, it may be said that a motion for a new trial was a prerequisite to any appellate review of the trial court’s judgment declaring appellant’s deeds null and void and quieting title in appellee to the real estate involved as prayed for in appellee’s third and fourth causes of action. The judgment of the trial court declaring appellant’s deeds null and void and quieting title in appellee left him a stranger to the title with no right to complain of any interpretation which the trial court made construing the will of Niles J. Rasmussen under appellee’s second cause of action.
The judgment is affirmed. | [
-80,
108,
-48,
-68,
56,
-32,
42,
-104,
80,
-123,
55,
83,
-23,
83,
17,
45,
-13,
-115,
81,
107,
87,
-14,
15,
-94,
-10,
-45,
-79,
-59,
-80,
-51,
-26,
95,
73,
48,
2,
21,
102,
-125,
73,
20,
-124,
4,
-120,
-51,
-39,
66,
52,
123,
86,
67,
113,
-113,
-13,
40,
21,
-57,
104,
40,
91,
-71,
-60,
-72,
-119,
-115,
-39,
7,
-79,
54,
-68,
-29,
-56,
8,
-111,
49,
-120,
-24,
115,
-74,
6,
52,
67,
-103,
12,
98,
103,
49,
37,
-19,
-104,
-102,
7,
52,
29,
-89,
19,
88,
-61,
0,
-74,
-100,
125,
24,
-125,
118,
-18,
87,
28,
-20,
4,
-117,
-42,
-111,
-121,
56,
-98,
3,
-26,
-117,
32,
112,
-113,
100,
93,
101,
119,
-109,
-50,
-74
] |
The opinion of the court was delivered by
Price, J.:
This appeal arises out of a contempt proceeding, but directly involved is the validity of a judgment for permanent alimony. The parties will be referred to as in the divorce action in the court below.
In 1936 plaintiff wife and her husband, residents of Sedgwick county, were having marital troubles, and in contemplation of a divorce action entered into a written stipulation concerning their property rights and support and custody of their four minor children. The written agreement, executed on July 28, 1936, provided that, with the approval of the court, the four children should remain in the custody of plaintiff and defendant agreed to pay plaintiff the sum of $135 per month for the support of the children and plaintiff, it being clearly evident by the stipulation that such figure was based on the sum of $25 per month for each child so long as he or she, during his or her minority, remained in the custody of plaintiff, and the sum of $35 per month was to be for the support of plaintiff. The agreement further provided that in the event of plaintiff’s remarriage the payments of $35 per month for her support should cease. The agreement was silent concerning permanent alimony, as such, and as heretofore stated merely pro vided for the payment to plaintiff of $35 per month for her support until her remarriage. Certain other provisions, immaterial for our purposes, were made for the division of property owned by the parties, including two pieces of real estate.
On October 6, 1936, the divorce action came on for hearing and plaintiff wife was granted a divorce. In its judgment the court divided the real estate and other property between the parties in accordance with the stipulation heretofore referred to; awarded custody of the four children to plaintiff, and ordered the defendant to pay $25 per month for the support of each so long as he or she should remain a minor and in custody of plaintiff, and then rendered the following judgment with reference to permanent alimony:
“It Is Further Ordered, Adjudged and Decreed that the plaintiff be and is hereby awarded as permanent alimony the sum of $6400.00, and defendant ordered, adjudged and decreed to pay the same at the rate of $35.00 per month, payable on the 20th of each and every month after date of this decree, beginning October 20, 1936, until said sum of $6400.00 is paid; provided, that if plaintiff remarries or if her death occurs before said permanent alimony has been fully paid, then all payments subsequent to her remarriage or death shall cease and be of no further force or effect.”
So far as the record discloses, defendant complied with the order and judgment of the court in all respects, including the $35 monthly payments to plaintiff under the alimony judgment. In June, 1946, she remarried, at which time he ceased such payments. In other words, defendant complied with the literal terms of the court’s judgment. Apparently the plaintiff raised no question and made no complaint concerning the matter.
In January, 1950, the defendant was in the process of selling the real estate awarded to him under the divorce decree. In order to save any possible question concerning title a quitclaim deed was sent to plaintiff, then living in New Mexico, for her signature. Apparently she contacted a Wichita attorney concerning the matter and he in turn filed an affidavit and accusation in contempt, alleging that defendant was in contempt of court for his failure to make the $35 monthly payments to plaintiff since June, 1946. Defendant was cited into court and after a hearing was discharged. The evidence at this hearing, if any, other than the files, is not abstracted.
Plaintiff then filed a motion to consolidate the permanent alimony payments of $35 per month from June, 1946, until March 1, 1950, into a lump sum judgment of $1,575. This motion was denied.
Plaintiff then filed a motion to vacate that portion of the judgment rendered in the divorce action on October 6, 1936, which reads:
. . provided, that if plaintiff remarries or if her death occurs before said permanent alimony has been fully paid, then all payments subsequent to her remarriage or death shall cease. . . .”
on the ground such provision is void and has no effect upon the permanent alimony judgment. This motion was also denied, whereupon plaintiff appealed, specifying as error each of the three aforementioned rulings of the lower court.
In this court plaintiff’s position is that the divorce decree awarded permanent alimony in a fixed and definite amount of $6,400, payable $35 monthly; that the provision relieving defendant from such payments upon her remarriage or death is void and should be vacated and set aside; that she is entitled to a lump sum judgment in the amount of such monthly payments from June, 1946, until March, 1950; and that the lower court erred in not holding defendant in contempt for his failure to make such payments.
Defendant husband’s position is that the original divorce decree pertaining to permanent alimony is valid, and that since he has complied with its literal provisions he is not guilty of contempt and has completely fulfilled every obligation incumbent upon him.
In passing, it should be stated that we are in no way concerned with support payments for the children, and neither are we concerned with any provision of the judgment in the divorce action other than that concerning permanent alimony.
While neither of the parties has specifically attacked the validity of the award of $6,400 as permanent alimony, yet inherent in the contempt action and in the two motions filed by plaintiff is the question of its validity, as such.
It is to be borne in mind that nowhere in the written stipulation entered into by the parties was there any mention of alimony. The most that can be said is that it merely provided for the payment of $35 per month to the wife for her support and maintenance until her remarriage, at which time such payments were to cease. The record does not disclose that this property settlement contract, as such, was ever approved by the court or incorporated into its decree, although in three instances the journal entry of judgment, when dealing with matters other than the permanent alimony feature, does refer to the “settlement of the parties.”
Of what effect, then, is the judgment for permanent alimony in the sum of $6,400, payable $35 monthly, with the further provision that upon plaintiff’s remarriage or death prior to the time such sum has been fully paid all subsequent payments should cease and be of no further force or effect?
It has been held repeatedly that an alimony award made under the authority of G. S. 1935, 60-1511, where the divorce is granted to the wife because of the fault or aggression of the husband, must be in a definite, fixed sum, although payable in installments. (Conway v. Conway, 130 Kan. 848, 288 Pac. 566; Revere v. Revere, 133 Kan. 300, 299 Pac. 595, and Bourman v. Bourman, 155 Kan. 602, 127 P. 2d 464.)
It is true that here the sum was “definitely fixed” in the amount of $6,400, payable $35 monthly. But what about the provision that in the event of plaintiff’s death or remarriage prior to the time when such aggregate sum be paid the payments should then cease and be of no further force or effect? She might have died within a month or remarried immediately after six months from rendition of the decree, in which event further payments by defendant were to cease and all further obligation on his part would be extinguished. In our opinion this judgment for permanent alimony was void for the reason that by its very terms it was not for a definite, fixed amount as required by the statute.
The circumstances here are not to be confused with those in Feldmann v. Feldmann, 166 Kan. 699, 204 P. 2d 742, in which it was held that there is a distinct difference between what a court has authority to do under the statute with respect to alimony and what the parties may agree upon by written stipulation. As heretofore said, the stipulation here made no reference whatever to alimony, in a definite sum or otherwise. It simply provided for monthly payments of $35 to plaintiff for her support and maintenance until her remarriage. For the reasons stated, we think the alimony award was wholly void.
In conclusion, it should be stated that our decision concerns only that feature of the judgment and decree rendered in the divorce action and is not to be construed as having any bearing whatsoever on other matters adjudicated by the decree.
From what has been said, it therefore follows that the orders and judgments appealed from should be and they are hereby affirmed. | [
-15,
108,
-35,
108,
10,
48,
42,
-40,
122,
-95,
-89,
-45,
-69,
86,
16,
105,
62,
105,
81,
106,
-45,
-93,
23,
65,
-78,
-13,
-79,
-43,
-79,
93,
-10,
-42,
76,
32,
-126,
-43,
66,
-118,
-59,
20,
-50,
-113,
-87,
-20,
-63,
70,
52,
127,
80,
10,
53,
-50,
-93,
44,
21,
-22,
104,
44,
89,
41,
-64,
-88,
-114,
-123,
127,
18,
-109,
38,
-104,
36,
-40,
14,
-104,
49,
0,
-24,
122,
-122,
-42,
116,
73,
-71,
9,
100,
98,
1,
5,
-18,
-8,
-40,
6,
-10,
-115,
-90,
-100,
88,
-126,
78,
-76,
-68,
117,
16,
10,
118,
-7,
13,
29,
100,
10,
-113,
-106,
-79,
-113,
124,
-104,
0,
-21,
-29,
17,
101,
-61,
-94,
92,
-58,
51,
-69,
-121,
-98
] |
The opinion of the court was delivered by
Thiele, J.:
This is an appeal from a judgment of the district court that the will later referred to was entitled to probate.
As no question of procedure has been raised, we note briefly that petitions were filed in the probate court of Rrown county, alleging that George A. Johannes, a resident of that county, died February 17, 1948, testate, and setting forth the names of his heirs at law and the legatees and devisees under his will, and praying that the will be admitted to probate and letters testamentary be issued to the executors therein named. To these petitions the persons named as heirs filed their written objections alleging that the will had been revoked; that at the time of its execution Johannes was of unsound mind and under restraint, and also that the will was not executed as provided by statute in that it was not signed at the end thereof nor attested as so provided. At the hearing the probate court ordered the will admitted to probate and appointed the executors named. In due time the objecting heirs perfected their appeal to the district court. At the trial in the district court the issues presented by the pleadings were fully tried. That court found that the will was properly executed according to law and was unrevoked; that the sequence of writing of the will was continuous and in proper order and executed at the end thereof after the will had been completed; that tire will should be admitted to probate and of record in the probate court, and the order of the probate court admitting the will to probate should be affirmed, and it entered judgment accordingly. From the judgment the objecting heirs have appealed to this court.
Before taking up appellants’ specifications of error we note that the will in form as presented to the probate court is on a single sheet of paper at the top of which appears “Jan. 3, 1923, Horton, Kans.” following which is an opening paragraph stating that “I, George A. Johannes . . . make this my last will and testament” followed by eight numbered paragraphs, which we summarize. First, provided for payment of his debts and for his burial; second, designated his place of burial; third, provided for mausoleum; fourth, provided who was to prepare and bury his body; fifth, directed that specified real estate be transferred to the board of trustees of the State Orphans Home at Atchison for the benefit of the unfortunate inmates of the home; sixth, obliterated; seventh, left the balance of his estate to the Morrill Free Public Library of Hiawatha; eight, appointed William Schmidt and R. L. Funk, executors. At the end thereof appears the signature of the maker George A. Johannes and of three witnesses: L. Reynolds, L. W. Shannon and R. L. Funk.
During the course of the trial it was stated that Reynolds and Shannon were both dead. The proponents showed by R. L. Funk that he was the scrivener of the will and that it was completed in all its parts before being signed by the testator and attested by the witnesses. The objectors produced a handwriting expert who testified in his opinion that the seventh and eighth paragraphs were written into the will after Johannes had signed his name and the proponents produced a handwriting expert who testified to the contrary. Although recognizing the rule that this court will not review conflicting evidence to determine a fact, appellants direct attention to decisions such as In re Estate of Kemper, 157 Kan. 727, 145 P. 2d 103, holding that where the controlling evidence on an issue of fact is written or documentary in character or in the form of depositions or transcripts, it is the responsibility of this court to decide the issue, and contend that the will being in writing we are in a position to determine from the will itself whether certain paragraphs of the will were written over the signature of Johannes, and whether he signed at the end of the will. The contention cannot be sustained. On the face of the will Johannes did sign at the end. For us to reach a different conclusion we would have to resolve ourselves into handwriting experts and conclude that paragraphs seventh and eighth were written over Johannes’ signature. ' That was the issue on which Funk and the two handwriting witnesses testified. That was an issue to be determined by the trial court and it is not one which we can determine by inspection of the original will. The finding of the trial court that the sequence of writing of the will was continuous, all made at the same time and in proper order and executed according to law at the end thereof after the body of the will had been completed, is based upon substantial testimony and is conclusive on appeal.
The important question in this appeal is whether the will was revoked, and as to that phase no serious dispute of fact is involved. Mr. Johannes had never married and the objectors are his collateral heirs. On January 3, 1923, he was in a hospital at Horton, Kan., to undergo an operation. Shortly before that event his will was written by Dr. R. L. Funk and was executed by the testator as soon as it was prepared. At that time the will bore no alterations, cancellations, erasures or obliterations. Mr. Johannes recovered from the operation and returned to his farm home in Brown county, where he remained until shortly before his death on February 17, 1948, when he moved into a hotel room in Hiawatha. Mr. Johannes had left his motor car in front of his doctor’s office. After his death a search of the car was made and the will was found in the glove compartment, and in the. car were many other papers including canceled checks, postal savings certificates, insurance policies and abstracts of title. At that time the condition of the will showed soiled places along the lines where it had been folded, and that the lower quarter was soiled perhaps from contact with other papers or exposure. The sixth paragraph, which was in the lower quarter of the page, had been so obliterated by erasure that all that now appears of that paragraph is “Sixth, I”. What was originally in that paragraph cannot be determined from an inspection of the will.
The gist of appellants’ argument that the will had been revoked is that under the statute (G. S. 1947 Supp. 59-611) revocation in part is not permitted; that so far as the evidence discloses, the will was at all times in the possession of the maker; that under the authorities generally and under our decisions in Sellards v. Kirby, 82 Kan. 291, 298, 108 Pac. 73, 136 Am. St. 110, 28 L. R. A. (n.s.) 270, and In re Kemper, supra, at page 737, where a mutilated will is found among the testator’s effects the presumption arises that the mutilation was his own act done with a revoking purpose and, in effect, that the presumption was not overcome and the obliteration made was sufficient to establish intent of Johannes to revoke his will.
Appellees do not dispute the rules of law contended for by the appellants but they direct attention to the fact that Johannes kept and preserved the will along with other valuable papers; that Johannes obliterated only paragraph sixth leaving unmolested paragraphs five and seven, which disposed of his estate, and argue that had he intended revocation of the will he would have done away with the entire document; that all of the circumstances overcome any presumption that his act in obliterating paragraph six was intended as a revocation of his entire will; that obliteration of paragraph sixth of the will was. made with the intention it should be revoked, but that such act was futile, and that the will stands as it is.
Many questions have arisen with respect to alterations made in a will after its execution and whether those alterations result in a revocation of all or part of the will and exhaustive annotations may be found in 62 A. L. R. 1367 and 115 A. L. R. 710. Under our probate code a will may be revoked in whole or in part by operation of law as provided in G. S. 1947 Supp. 59-610, provisions not here applicable. Under the next section, 59-611, it is provided that except as provided in 59-610 no will shall be revoked or altered otherwise than by some other will in writing, or by some other writing of the testator so declaring and executed with the same formalities with which the will itself was required to be executed “or unless such will be burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself or by another person in his presence by his direction.” In the instant case the question is the effect of the obliteration of the sixth paragraph of the will.
In view of the fact that neither party contends that under our statute there may be partial revocation by any act specified in the language quoted above, we shall not dwell at any length on the statutes in some jurisdictions, which permit revocation in whole or in part, and on our own statute. The great weight of authority is that under statutes similar to ours, partial revocation is not permitted. See the annotations above mentioned and 68 C. J. 815; 57 Am. Jur. 346; Rollison on Wills, 250; Atkinson on Wills, 377; Page on Wills, Lifetime Ed. § 441; Schouler on Wills, 6th Ed. § 600; Underhill on Wills, § 229; and 1 Woerner (3rd Ed.) on American Law of Administration, 132. The leading case to the contrary, Bigelow v. Gillott, 123 Mass. 102, 25 Am. Rep. 32, decided in 1877, has been criticized and distinguished in other jurisdictions. Our only comment is that the conclusion there made that there could be partial revocation was predicated on an interpretation and construction that the statute immediately under consideration did not have the effect of changing previous legislation permitting partial revocation.
We hold that under our statutes there can be no revocation of a part or parts of a will by burning, tearing, canceling or obliterating such part or parts, with the effect that those portions become nullities and the remainder of the will stands.
Without elaborating, it is always to be borne in mind that the effectiveness of any act of revocation must be done by the testator or by someone at his direction, with intent to effect a revocation and that both the act and the intent must exist. Mere intent to revoke without more is not effective, and neither is the act where the intent does not exist. For a discussion on this phase see In re Kemper, supra. And it may be added that intent coupled with an act not permitted by the statute and not meeting the statutory requirement is not sufficient. On the other hand, if the act done with intention actually destroys the testamentary dispositions so that the will as altered, if enforced, could constitute a new and different will, it should not be admitted, for that in effect would recognize validity of partial revocation.
What appears to us to be the correct rule is that if the revocation attempted is only partial and the statutes do not permit partial revocation, the attempted revocation is innocuous and the will should be probated in its original form if the provision as originally existing, but attempted to be revoked, can be determined from an inspection of the will itself or can be ascertained by extrinsic proof. It would appear that ordinarily if the attempted partial revocation was by cancellation, the original wording would not be destroyed to such an extent it might not be read, but that where the original words were obliterated, extrinsic proof would be required. Authority may be found that the part of the will which remains may be probated, even if the contents of obliterated parts cannot be ascertained, unless it is observable that the missing part would affect or alter the remaining part, while other courts hold that the entire contents of the will must be proved before the will can be admitted to probate. This matter is discussed in some of the authorities previously cited.
In the will presently before us the first four paragraphs make provision for payment of debts, for burial, for a mausoleum, and for a named person to take care of burial; the fifth and seventh paragraphs make disposition of the testator’s property, and the obliterated sixth paragraph, whatever its terms may have been, was between the two paragraphs which made that disposition. To assume that if known, the provisions of the obliterated sixth paragraph did not affect the property going to the Morrill Free Public Library as the residuary legatee, is an assumption we decline to make. If we assume for the purpose that being between two paragraphs making dispositions that the sixth paragraph also made a disposition, then absent the sixth paragraph the will offered for probate-is not the will executed by the testator. If proof is available and shown, it may develop either that the obliterated paragraph was not dispositive or if it was what its terms were, and if the latter that the disposition should be carried out notwithstanding the obliteration which would be ineffective under the statute as a partial revocation. In such event the will should be admitted to probate. If such proof is not available, it would follow that the will offered for probate was not the will executed by the testator, and probate should be refused.
From what has been said, it follows that the judgment of the district court that the will be admitted to probate must be reversed, and that the cause should be remanded to that court with instructions to receive further proof, if offered by the proponents of the will, as to the content of the obliterated sixth paragraph, and if such content be established by sufficient proof to admit the entire will, and if such content be not so established, to deny probate, and
It is so ordered. | [
-15,
108,
-8,
30,
58,
98,
11,
-102,
113,
113,
-89,
115,
-17,
-38,
0,
127,
115,
45,
113,
122,
-57,
-77,
54,
33,
87,
-13,
-20,
-43,
-79,
108,
-10,
86,
76,
32,
10,
-107,
-58,
-126,
-59,
-44,
-116,
5,
-87,
-27,
-39,
64,
52,
51,
86,
11,
-47,
62,
-9,
43,
61,
-13,
-24,
60,
91,
-72,
88,
-80,
-119,
-123,
125,
7,
-126,
4,
-104,
-89,
88,
34,
-112,
57,
-120,
-24,
81,
-90,
-106,
-44,
79,
57,
44,
118,
102,
48,
-3,
-17,
-8,
-104,
15,
-10,
-107,
-89,
-110,
16,
-54,
33,
-76,
-7,
37,
112,
2,
-2,
-20,
23,
30,
-88,
0,
-113,
-44,
-79,
27,
124,
-120,
27,
-21,
37,
48,
113,
-103,
2,
93,
71,
49,
-101,
-122,
-78
] |
The opinion of the court was delivered by
Harvey, C. J.:
This action arose from the collision of two automobiles in the intersection of George Washington Boulevard, an east and west street, and Indianapolis Avenue, a north and south street, in Wichita, where normally there was a stop sign on Indianapolis Avenue as it approached George Washington Boulevard from the north, which plaintiff alleged had been removed and not replaced by the defendant Frost. Plaintiff, driving east on George Washington Boulevard, sued Smyth, who was driving south on Indianapolis Avenue, for damages to his car and personal injuries as a result of the collision of the two cars in the intersection, and joined Frost as defendant, alleging that the negligence of the two of them resulted in his injury. Smyth filed an answer denying the acts of negligence alleged by plaintiff and alleging contributory negligence of plaintiff. He also filed a cross petition against both the plaintiff and Frost, in which he alleged that the negligence of Frost was the sole cause of the collision and resulting damages. Frost demurred to the cross petition. This demurrer was overruled and he has appealed. In his brief it is argued that even though he were negligent in taking down the stop sign the same could not have been the proximate cause of the collision.
We have examined the pleadings and find they contain numerous charges, counter-charges and denials. We think we should not attempt to determine the proximate cause of the collision in advance of the trial.
The judgment of the trial court is affirmed.
Wertz, J., not participating. | [
-16,
106,
-32,
78,
15,
72,
18,
78,
97,
-127,
-73,
83,
-83,
-53,
21,
113,
-14,
-67,
80,
11,
117,
-77,
87,
-119,
-106,
-45,
-29,
-59,
-81,
-53,
101,
116,
76,
48,
-53,
-107,
102,
-118,
77,
-36,
-50,
22,
8,
-8,
-103,
-126,
-12,
122,
82,
9,
113,
-113,
-45,
46,
24,
-61,
-84,
40,
73,
-24,
-61,
-72,
-52,
5,
126,
6,
-77,
36,
-98,
11,
92,
10,
-112,
-71,
48,
120,
50,
-90,
-110,
-28,
109,
-103,
8,
-90,
102,
32,
17,
-87,
-72,
-68,
14,
-6,
15,
-91,
-70,
25,
41,
1,
-106,
-67,
121,
18,
11,
122,
-2,
69,
27,
104,
3,
-117,
-108,
-47,
-25,
114,
30,
85,
-17,
-113,
48,
65,
-53,
-10,
94,
-27,
82,
-5,
95,
-78
] |
The opinion of the court was delivered by
Price, J.:
This is an original proceeding in mandamus filed on December 30, 1949, by the plaintiff, a mutual life insurance company, against the Commissioner of Insurance of the State of Kansas, in which plaintiff seeks an order of this court requiring the defendant to withdraw a letter of disapproval sent by defendant to plaintiff in which defendant refused to accept for filing certain forms of application for insurance to which were attached forms of receipt for premium payments. Plaintiff seeks an order requiring defendant to accept the forms of application for filing, thus making them available for use by plaintiff in Kansas.
To the verified answer filed by defendant, plaintiff filed its motion to strike certain portions thereof on the grounds that such objectionable portions were irrelevant, redundant, repetitious, argumentative, conclusions, and that they constituted no defense. On March 20, 1950, we denied plaintiff's motion to strike with leave to renew at the hearing of the action on its merits.
Defendant’s motion for judgment on the pleadings adjudging that defendant acted lawfully and within his powers and duties, as such Commissioner of Insurance, has not heretofore been ruled on.
The factual background of this matter, as disclosed by the petition and exhibits attached thereto, is in substance as follows:
On December 8, 18 and 29, 1948, plaintiff submitted to the Kansas Insurance Department for filing certain forms of application blanks to which were attached forms of receipt, which forms were proposed to be used in Kansas by plaintiff. On December 22, 1948, defendant advised plaintiff by letter that he had received plaintiff’s letters of December 8 and 18, with which plaintiff had submitted the forms in question, and in this letter defendant called plaintiff’s attention to certain wording in the receipt form and advised plaintiff that the language was objectionable, with the further statement that such forms would not be accepted fpr use in Kansas. On January 10, 1949, in reply to plaintiff’s letter of December 29, 1948, defendant again advised that the form submitted by plaintiff was unacceptable for use in Kansas and attention was called to certain objectionable language in the receipt. No objection was made to the language contained in the application forms. The objection was to the so-called “not taken charge” incorporated in the forms of receipt attached to the forms of application.
Plaintiff revised its forms by placing a limitation of one dollar on the “not taken charge” in the event of there being no medical examination, and the identical forms of application with the revised forms of receipt attached were submitted to the department under date of October 7, 1949, and the letter of transmittal made reference to the previous objections raised by defendant.
On November 3, 1949, the defendant refused to accept the forms of application with the revised forms of receipt attached and stamped them “disapproved and not filed.” Defendant’s letter of disapproval under this date stated in part as follows:
“. . . and in the opinion of this Department, the use of the application in question would very likely lead to undue pressure by agents on prospects to secure the signing of the application and could lead to misrepresentation of the contract itself. Such misrepresentations are specifically prohibited in Section 40-235 of Kansas Statutes.”
Thereafter plaintiff filed this action for a writ of mandamus.
On account of our disposition of this case we do not consider it necessary to encumber this opinion with a detailed analysis and discussion of plaintiff’s motion to strike certain portions of the answer, but in passing it is sufficient to say that our examination of the answer definitely establishes that many of its allegations are subject to the criticism levelled at it by plaintiff’s motion, and were we specifically to rule on the motion much of it would have to be sustained.
From our analysis of the issues framed by the pleadings, we are of the opinion there can be no question but that the objection on the part of defendant Commissioner of Insurance is to the language concerning the “not taken charge” in the form of receipt.
Paragraph VII of plaintiff’s petition reads:
“The language objected to is contained in the receipt forms which are attached to the application forms. Said forms are proposed to be used by the plaintiff in the solicitation, sale and issuance of policies of insurance in this State. Upon completion of the application forms by the applicant the receipt is signed by the agent, detached from the application form, and given to the applicant; and said receipt does not become a part of the policy or contract of insurance issued pursuant to the application.”
In the first paragraph of defendant’s answer the allegations con tained in paragraph VII of plaintiff’s petition, supra, are admitted. In view of such admission we need search no farther for the real basis of defendant’s letter of disapproval, for in such paragraph VII, supra, it is stated that the objectionable language is contained in the receipt forms which are attached to the application forms.
This leads to the question whether the defendant has any power or authority with respect to the form óf receipt. Paragraph VII, supra, also alleges that “said receipt does not become a part of the policy or contract of insurance issued pursuant to the application.” Plaintiff contends and defendant admits (in the second paragraph of his answer) that the authority of defendant as to these matters is governed by G. S. 1935, 40-216, which reads as follows:
“No insurance company shall hereafter transact business in this state until certified copies of its charter, bylaws and amendments thereto shall have been filed with and approved by the commissioner of insurance. No contract of insurance or indemnity shall be issued or delivered in this state until the form of the same has been filed with the commissioner of insurance, nor if the commissioner of insurance give written notice within thirty days' of such filing, to the company proposing to issue such contract, showing wherein the form of such contract does not comply with the requirements of the laws of this state; but the failure of any insurance company to comply with this s'ection shall not constitute a defense to any action brought on its contracts.”
By this provision defendant Commissioner of Insurance is given authority and jurisdiction over contracts of insurance or indemnity and if he has any objection to their form as filed with him it is his duty so to notify the company within thirty days, calling attention to in what particulars such proposed contract does not comply with statutory requirements.
What, then, is the position of the parties to this lawsuit, in view of the allegations and admissions heretofore referred to? The defendant admits that the basis of his objection is the language contained in the receipt forms, and he further admits that such receipt does not become a part of the policy or contract of insurance issued pursuant to the application. Both parties concede that the authority of defendant- over the matter in controversy is derived from the statute (G. S. 1935, 40-216), supra, which provision, as we have already shown, delegates certain supervisory powers to him over contracts of insurance. Despite certain other redundant, argumentative and inconsistent allegations in defendant’s answer, which, if we felt compelled specifically tó rule on, we would strike, for the reasons stated we are of the opinion that nothing further re mains in this lawsuit. In the comprehensive brief filed by plaintiff other arguments are advanced as to why the writ should be allowed, such as that the form receipt does not involve misrepresentation offensive to G. S. 1935, 40-235, and that assuming the form of receipt in question is subject to the provisions of G. S. 1935, 40-216, supra, the letter of disapproval by the defendant did not comply with the requirement of that statute in that it did not notify plaintiff wherein the form submitted failed to meet the requirements of the laws of Kansas. We have examined in detail each of those further arguments but feel that a discussion of them is unnecessary for the correct disposition of this case.
While defendant’s motion for judgment asks that judgment be rendered in his favor, the motion itself gives us jurisdiction to render judgment on the pleadings, and from what has been said it therefore follows that judgment should be and it is hereby rendered in favor of the plaintiff, and the writ of mandamus as prayed for is hereby allowed.
Smith, J., concurs in the result. | [
-80,
-8,
-79,
-99,
10,
96,
58,
-110,
119,
-96,
39,
83,
-19,
71,
-124,
127,
-2,
45,
81,
106,
-9,
-77,
23,
-54,
-42,
-13,
-15,
-43,
49,
-33,
-18,
-42,
77,
48,
-126,
-41,
-26,
-62,
-123,
20,
-18,
14,
-119,
-32,
-47,
-56,
-80,
107,
114,
75,
85,
-113,
99,
42,
26,
-45,
-23,
44,
-5,
-88,
-56,
-7,
-117,
29,
127,
18,
49,
6,
-98,
69,
80,
14,
-112,
-79,
56,
-24,
115,
-90,
-122,
36,
47,
9,
0,
102,
98,
115,
-111,
-17,
-4,
-100,
62,
65,
29,
-90,
-78,
88,
99,
0,
-74,
-103,
117,
16,
-113,
126,
-6,
20,
30,
44,
11,
-117,
-76,
-79,
-49,
118,
28,
-113,
-17,
-109,
-128,
113,
-49,
-80,
92,
71,
58,
19,
-113,
-108
] |
The opinion of the court was delivered by
Kagey, J.:
This is an action for damages for trespass to real estate. The lower court sustained defendants’ motions for judgment on the pleadings, which were by the court and parties to the action treated as demurrers; hence this appeal.
Briefly, the facts as admitted by the parties are as follows: Appellants are the owners, as tenants in common, of the east half of section 15, township 21 S, range 12 W of the 6th P. M. in Stafford county, Kansas. Appellants’ predecessors in title, on August 9, 1938, executed a Form 88 (Producers) Oil and Gas Lease covering the mentioned real estate to Magnolia Petroleum Company as lessee, which lease was duly recorded in Stafford county. The lease was for a term of ten years from the date of the lease, and as long thereafter as oil and gas should be produced from said premises. Prior to the expiration of the lease primary term, an oil and gas well, producing oil and gas in commercial quantities, was drilled and completed on a twenty acre location in the south twenty acres of the southeast quarter of the southeast quarter of the mentioned real estate.
On November 9, 1948, appellants notified Magnolia Petroleum Company (the then owner of the lease) by letter that the above described oil and gas lease was forfeited for nondevelopment inso far as said lease covered the property first above described, except as to the south twenty acres next above described upon which there was a producing oil and gas well. This notice was received by Magnolia Petroleum Company on or before November 16, 1948, and when more than sixty days had elapsed after said date, appellants followed the procedure prescribed by G. S. 1935, 55-201:
On January 21, 1949, notice in the statutory form was given to Magnolia Petroleum Company by publication, which publication notice was given for three consecutive weeks in a newspaper of general circulation in Stafford county, and proof thereof was made;
On February 11, 1949, more than twenty days after the first publication of said notice, appellants filed with the Register of Deeds of Stafford county an affidavit setting forth that they were owners of the land described; that Magnolia Petroleum Company had failed, neglected and refused to comply with the terms of said lease insofar as it covered said real estate for failure to develop; that previous notice of forfeiture was given to Magnolia Petroleum Company, said affidavit containing a copy of the original letter of forfeiture dated November 9, 1948, as well as a copy of the original publication dated January 20, 1949, and proof thereof showing the manner and time of service of such notice;
Thirty days from the date of filing of the mentioned affidavit having expired and no notice in writing to the contrary having been given to the Register of Deeds by Magnolia Petroleum Company or its assigns, said affidavit was duly recorded in the office of the Register of Deeds. Thereafter, and on or about April 26, 1949, the appellee Virginia Drilling Company, Inc., entered the northeast quarter of the lease in question, and drilled an oil and gas test well which resulted in a dry hole.
On August 11, 1949, appellants filed their action for damages for trespass against appellees jointly. Magnolia Petroleum Company denied any trespass or that it was jointly engaged with or as an agent of appellee Virginia Drilling Company, Inc. Appellee Sam Murphy filed a similar answer to that of Magnolia Petroleum Company. Appellee Virginia Drilling Company, Inc., filed an answer admitting the entry, but alleging that its entry was authorized pursuant to the oil and gas lease hereinbefore mentioned, which was in full force and effect, and that under date of January 28, 1949, a certain written agreement was entered into between it and Magnolia .Petroleum Company providing for the assignment and transfer of said leasehold estate insofar as the same covers the northeast quarter of section 15, subject to certain conditions including an overriding royalty reservation to Magnolia Petroleum Company; that it entered upon the premises and carried on drilling operations for a test well for oil and gas under said contract which resulted in a dry hole. Appellants filed a reply alleging that the oil and gas lease was forfeited and terminated as to all property except the twenty acres developed, by statutory procedure prescribed under G. S. 1935, 55-201. Appellees each filed a motion for judgment on the pleadings. The motions of appellees were by the court and by stipulations of the parties treated as demurrers. The trial court sustained appellees’ motions for judgment on the pleadings and from that ruling appellants come here and assign as error three separate specifications:
1. That the court erred in holding that appellants did not under G. S. 1935, 55-201, forfeit and terminate the existence of the oil and gas lease which is the subject of this action.
2. That the court erred in sustaining the motions of appellees Virginia Drilling Company, Inc., and Sam Murphy for judgment on the pleadings.
3. That the court erred in sustaining the motion of Magnolia Petroleum Company for judgment on the pleadings.
The specified errors resolve themselves into one question: Were the proceedings followed by appellants under G. S. 1935, 55-201 sufficient as a matter of law to cancel the undeveloped portion of the lease in question for failure of appellees to comply with an implied covenant to diligently explore for oil and gas on the urn developed portion of the premises?
The pertinent portions of G. S. 1935, 55-201 read:
“When any oil, gas or other mineral lease . . . shall become forfeited it shall be the duty of the lessee ... or assigns, . . . within sixty days after the date of the forfeiture ... to have such lease surrendered in writing . . . and placed on record in the county where the leased land is situated without cost to the owner thereof: Provided, That if the said lessee ... or assigns, shall fail or neglect to execute and record such surrender within the time provided . . . the owner of said land may serve upon said lessee ... or assigns ... by publication for three consecutive weeks in a newspaper of general circulation in the county where the land is situated, a notice in writing in substantially the following form:
“ ‘To_: I, the undersigned, owner of the following described land situated in ---county, Kansas, to wit: (description of land) upon which a lease, dated _ day of _ 19_, was given to _, do hereby notify you that the terms of said lease have been broken by the owner thereof, that I hereby elect to declare and do declare the said lease forfeited and void and that, unless you do, within twenty days from this date, notify the register of deeds of said county as provided by law that said lease has not been forfeited, I will file with the said register of deeds affidavit of forfeiture as provided by law; and I hereby demand that you execute or have executed a proper surrender of said lease and that you put the same of record in the office of the register of deeds of said county within twenty days from this date.
“ ‘Dated this _ day of _, 19_ _’ And the owner of said land may after twenty days from the . . . first publication of said notice file with the register of deeds ... an affidavit setting forth, that the affiant is the owner of said land; that the lessee or his . . . assigns, has failed and neglected to comply with the terms of said lease, reciting the facts constituting such failure; that the same has been forfeited and is void; and setting out in said affidavit a copy of the notice served . . . the manner and time of the service thereof. If the lessee . . . or assigns, shall within thirty days after the filing of such affidavit give notice in writing to file register of deeds . . . that said lease has not been forfeited and that said lessee ... or assigns, still claim that said lease is in full force and effect, then the said affidavit shall not be recorded but the register of deeds shall notify the owner of the land of the action of the lessee ... or assigns, and the owner of the land shall be entitled to the remedies now provided by law for the cancellation of such disputed lease. If the lessee ... or assigns, shall not notify the register of deeds, as above provided, then the register of deeds shall record said affidavit, and thereafter the record of the said lease shall not be notice to the public of the existence of said lease or of any interest therein or rights thereunder, and said record sh^ll not be received in evidence in any court of the state on behalf of the lessee ... or assigns, against the lessor ... or assigns.” (Italics supplied.)
Appellees admit for purposes of this appeal that appellants followed strictly the statutory procedure above described.
The lease which is the subject of this action was a regular form 88 producer s oil and gas lease, and contained no written covenant to diligently develop for oil and gas except the provision that a well should be commenced on or before a certain date or a specified rental should be paid in lieu thereof. Notwithstanding the absence of a written covenant to further develop, it is the general rule and law in this state that a lease carries with it an implied covenant on the part of the lessee to exercise due diligence in drilling whatever additional wells may be necessary to fully develop the leased property (McCarney v. Freel, 121 Kan. 189, 246 Pac. 500; Greenwood v. Texas-Interstate P. L. Co., 143 Kan. 686, 56 P. 2d 431; Myers v. Shell Petroleum Co., 153 Kan. 287, 110 P. 2d 810; Fischer v. Magnolia Petroleum Co., 156 Kan. 367, 133 P. 2d 95).
Appellants contend that the quoted statute is applicable to and can be used with respect to any oil and gas lease or undeveloped portion thereof where it is claimed to be forfeited for any reason whatsoever, including forfeitures for failure to comply with implied covenants. Appellees contend the legislature in using the words “shall become forfeited” intended that the statute apply only to a lease which has been lost or forfeited by operation of law through a penalty which is self-executing, such as expiration of the primary term, or cessation of production after the primary term, all due to the operation of expressed covenants in the lease.
An examination of the mentioned statute will disclose that it is a forfeiture statute, penal in nature. It is a generally accepted rule of law that forfeitures are not favored; they are considered harsh exactions, odious and to be avoided when possible. A statute imposing a forfeiture should be construed strictly and in a manner as favorable to the person whose property is to be seized as is consistent with fair principles of interpretation. Courts will not search for a construction to bring about a forfeiture, nor will a constrained construction be indulged in order to create a forfeiture. For a statute to be construed so as to work a forfeiture, its language must clearly show such an intent, and forfeiture is never to be inferred from doubtful language. Courts will not force upon a forfeiture statute a construction which amounts to a reading into the law provisions not inserted therein by the legislature. (37 C. J. S. 8 to 10; 23 Am. Jur. 601-602.)
No contention is made by appellants that the lease in question became forfeited by reason of any of its expressed terms. Appellants contend that this lease became forfeited by virtue of the failure of lessee to develop the remaining acreage under an implied covenant.
A reading of the statute discloses that the title to the act refers to the duty of a lessee to have a forfeited lease released, and the body of the act refers to a lease which shall become forfeited. The act makes no mention of a partial forfeiture of a lease. It is apparent that before the proceedings may be used under the statute, the lease must have become forfeited by a breach of its expressed terms. Therefore, the lessor who seeks relief, whether in law or equity, for breach of an implied covenant to develop, must show that the covenant has been breached and that the lease has become forfeited in whole or in part, before he is entitled to follow the procedure prescribed by the mentioned statute. In Tamsk v. Continental Oil Co., 158 Kan. 747, 150 P. 2d 326, we held that the statute provides a procedure whereby a landowner may clear his title of the cloud on it caused by a lease that has been forfeited. In order for the sections to apply, however, it must appear that the lease has become forfeited. Until that happens, there is no occasion for the procedure provided in the statute.
This court in the case of Fischer v. Magnolia Petroleum Co., supra, passed on the question of what showing was necessary in order to warrant cancellation of a lease for breach of an implied covenant to develop, and there stated that a lessor who alleges breach of an implied covenant to develop has the burden of showing, by substantial evidence, that the covenant has been breached. He must prove that the lessee has not acted with reasonable diligence under the facts and circumstances of the particular situation. Neither the lessor nor the lessee under an oil and gas lease is the sole judge of what constitutes prudent development of the tract. Whatever would be reasonably expected of operators of ordinary prudence, having regard for the interests of both lessor and lessee, is what is required.
Proof of a breach of an implied covenant to reasonably develop involves the consideration of evidence on a broad range of facts and sometimes in a technical field and is a matter to be determined under proper proceedings seeking cancellation in a court of law oi equity and is never self-executing, and cannot be supplanted by an affidavit such as used by appellants under G. S. 1935, 55-201. There can be no breach of an implied covenant in a lease until there has been a judicial determination thereof and there has been none in this case. In the lower court, plaintiffs filed an action for damages in trespass against defendants; defendants answered setting up the lease; plaintiffs replied, alleging the proceedings under the above mentioned statute as the only reason for forfeiture, no request being made in the lower court for cancellation. Appellants would, therefore, have the court partially cancel this lease without any judicial proceedings or determination or request therefor.
Instances are rare where equity will enforce a forfeiture for breach of an implied covenant; it will never do so where less drastic redress will satisfy the demands of justice, and forfeitures of oil and gas leases for breach of implied covenants are seldom decreed, and never arbitrarily. (Alford v. Dennis, 102 Kan. 403, 170 Pac. 1005; Greenwood v. Texas-Interstate P. L. Co., supra, and cases therein cited.)
Appellants rely in this appeal on four cases which we will hereinafter discuss. Cole v. Butler, 103 Kan. 419, 173 Pac. 978, was an action commenced to cancel a gas lease. Nothing had been done under the lease for a thirteen-year period, and there was no intent or disposition indicated to do anything. The court held that under the circumstances of the particular case, the failure to begin operation of a well for thirteen years or to show any purpose or intent to operate entitled plaintiff to a decree of cancellation of the lease as a mere cloud on the title.
The case of Elliott v. Oil Company, 106 Kan. 248, 187 Pac. 692, was an action brought to cancel an oil and gas lease for failure to pay rent, for nonproduction, abandonment of producing operations, and failure to drill' offset wells as provided in the lease. The court held that the lease terminated by its expressed terms.
The case of Mollohan v. Patton, 110 Kan. 663, 202 Pac. 616, was an action brought to have a lease declared forfeited and to recover damages and attorney fees, for refusal to release it of record, for the failure to comply with the expressed terms of the lease in diligently drilling the initial well, resulting in its abandonment.
In the case of Nigh v. Haas, 139 Kan. 307, 31 P. 2d 28, cancellation of the lease was upheld. There a part of the lease was assigned and the lands covered by the assignment were not developed! Although demand was made for development of the remainder, nothing was done. Ten years after the lease was given, the landowner gave notice as provided by statute that the lease was cancelled on the undeveloped land. Later another lease was made on this part of the land and operations under it were successful. Assignees of the original lease then asserted claims. This court in affirming the trial court’s judgment quieting title against the original lessees held that they abandoned the lease on the tract in question when they segregated it by assignment of a part of their lease and by refusal to drill on it for about fifteen years. Moreover, we said in the Nigh case that we were not called on to pass on whether proceedings under the statute would be sufficient alone to cancel the lease in question, and the question in the instant case was not therein discussed or determined.
From an examination of the foregoing decisions, it is apparent that all were equitable actions brought by the lessor for cancellation for failure to comply with expressed provisions in the lease or for failure to comply with terms of the drilling agreement providing for forfeiture, or for actual abandonment or failure to pay rentals when due and in none of the foregoing cases was there a forfeiture for* failure to comply with an implied covenant to develop an undeveloped portion of an oil or gas lease as a matter of law by the filing of an affidavit as provided for in G. S. 1935, 55-201.
The legislature in enacting G. S. 1935, 55-201 did not intend to endow the lessor of an oil and gas lease with the power to arbitrarily forfeit a lease in whole or in part for violation of an implied covenant therein.
The judgment of the lower court is affirmed. | [
-16,
-22,
-7,
13,
56,
-32,
104,
-69,
75,
-77,
119,
87,
-23,
-56,
12,
125,
-50,
29,
-12,
121,
-89,
-77,
71,
17,
-42,
-77,
-39,
-43,
-70,
95,
-10,
-41,
72,
1,
-54,
-43,
-58,
-126,
-59,
-36,
-34,
-91,
-103,
-28,
-39,
0,
52,
43,
48,
15,
81,
13,
-14,
45,
57,
-30,
-55,
44,
-51,
41,
73,
-72,
-118,
21,
127,
17,
1,
-58,
-104,
-57,
-24,
42,
-112,
48,
8,
-24,
115,
38,
-124,
52,
15,
-101,
8,
42,
99,
35,
-75,
-17,
-20,
-104,
15,
-6,
-115,
-90,
-112,
24,
98,
96,
-105,
-99,
124,
4,
5,
-2,
-18,
-123,
95,
45,
7,
-49,
-76,
-79,
15,
-32,
-102,
27,
-21,
39,
-80,
100,
-51,
-94,
92,
7,
50,
31,
15,
-16
] |
The opinion of the court was delivered by
Smith, J.:
This is a prosecution for the alleged violation of rules of the state board of health with reference to slaughterhouses. The trial court sustained the defendant’s motion to quash what is re ferred to in the argument as the complaint. The state has appealed.
The rules of the state board of health were made pursuant to G. S. 1947 Supp. 65-6a01 to 65-6all, inclusive, which give the state board of health authority to make rules and regulations necessary for the proper administration of the act. Another subdivision of that section makes it unlawful to violate any of these rules. Such violation is made a misdemeanor.
The state attempted to charge the defendant in thirteen counts with a violation of thirteen different rules. The defendant moved to quash each of the counts on the ground that none of them stated facts sufficient to constitute a public offense and on the additional ground that each count was duplicitous and lacked the particularity required by the law to enable defendant to know what facts he was required to meet in order intelligently to prepare his defense. This motion was sustained as to each count — hence this appeal.
The first pleading filed by the state was what the county attorney called a complaint. This complaint was filed direct in the district court. Its heading is as follows:
“In the District Court of Clay County, Kansas. State of Kansas County of Clay, ss: Complaint.”
Then follow the thirteen counts, in each one of which an attempt is made to set out certain acts that constituted a violation of the rules in question. At the end this document is signed by the name of some person whom we are able to ascertain by a search of other records to be the county attorney of Clay county and was subscribed and sworn to by him before the clerk of the district court of Clay county.
The county attorney seems to have been confused between G. S. 1935, 63-201 and G. S. 1935, 62-1001 and 62-1003. G. S. 1935, 63-201 provides for instituting prosecutions for misdemeanors before justices of the peace by means of a complaint. G. S. 1935, 62-1001 provides that all criminal prosecutions shall be in the name of the state of Kansas. If it was intended that this prosecution should be in the name of the state of Kansas it does not so appear from any pleading filed in this case. The name of the state of Kansas appears only as the heading for an affidavit. G. S. 1935, 62-1002 provides that the kinds of pleadings in any criminal action in the district court and the rules by which the sufficiency of the pleadings shall be determined are those therein described. G. S. 1935, 62-1003 provides that the first pleading on the part of the state shall be an indictment or information. G. S. 1935, 62-1004 provides that the information must contain first the title of the action and the name of the court to which the information is presented and the names of the parties; and second, a statement of the facts constituting the offense in plain and concise language. The provisions of none of these sections were complied with in this case. It cannot be ascertained from the pleadings filed here whether the prosecution was brought under the name of the state or not. The document filed is not an information. An information should contain language about as follows:
Comes now John Jones, the county attorney of Clay county, Kansas, and acting before and on behalf of the State of Kansas, gives the court to understand and be informed
and then it should describe the offense. Nothing like that was done in this case. The name of the defendant should also be given in the caption by the proper name or title. See G. S. 1935, 62-1004. There is no title at all to the action. The name of neither the state nor of the defendant appears in the caption. These provisions of the statute are mandatory and are simple and plain in their provisions.
For the reasons given, the judgment of the trial court in sustaining the motion of defendant to quash the so-called complaint in this case was correct. This conclusion makes it unnecessary for us to consider the language of the various counts in which a violation of the different rules of the board of health is described.
The judgment of the trial court is affirmed. | [
-80,
-22,
-67,
-35,
15,
-31,
56,
-120,
80,
-79,
-25,
115,
-19,
-38,
5,
123,
-6,
61,
21,
121,
-59,
-73,
55,
67,
-74,
-5,
-39,
-43,
-69,
79,
-18,
-3,
78,
112,
10,
-43,
6,
-54,
-127,
-40,
-54,
7,
-119,
-48,
-47,
2,
60,
111,
86,
11,
117,
14,
-29,
40,
26,
67,
-87,
108,
91,
45,
-55,
-15,
-70,
-99,
-2,
2,
-95,
38,
-98,
-121,
-46,
62,
-104,
56,
0,
-24,
115,
-74,
6,
116,
79,
-103,
8,
34,
98,
35,
25,
-17,
40,
-87,
47,
63,
-99,
-89,
-103,
88,
99,
-118,
-106,
-71,
118,
50,
6,
120,
-27,
116,
91,
124,
0,
-114,
-80,
-109,
-113,
-91,
-102,
-33,
-17,
-74,
16,
113,
-107,
-26,
93,
-25,
48,
91,
-114,
-108
] |
The opinion of the court was delivered by
Harvey, C. J.:
This was an action to quiet title to certain described real estate in Republic county. The appeal is from an order of the court sustaining plaintiff’s 'motion for judgment on the pleadings.
In the petition the facts are clearly stated in proper sequence, but for our purposes we think we may summarize them as follows: Under date of July 29, 1931, defendants, who were then the owners of the real property, for a valuable consideration, sold and conveyed to plaintiff by warranty deed the following described real property:
“The Southeast Quarter (SEJi) and the South Half of the Southwest Quarter (S!á S WS) of Section 35, in Township Two (2) South, of Range One (1) West, excepting therefrom the right of way of the Chicago, Burlington and Quincy Railway Company, as now located across said premises, containing after said exception, 230.25 acres, more or less.”
The deed was filed for record the next day and duly recorded, and plaintiff went into possession thereunder. A copy of the deed was attached to the petition as Exhibit “A” and made a part thereof.
Plaintiff alleged that in the year 1891 the then owner of the real property caused to be platted of record the town of Haworth, which included that part of the land conveyed by the deed above mentioned lying south of the railroad right of way and east of a north and south line 572 feet west of the southeast corner of Section 35. This contained about eight acres and was described in the plat as Blocks 2, 3, 4 and 5, with streets and alleys adjacent thereto; that the town of Haworth was never incorporated as a city and the townsite never had been formally vacated; that a small village existed on the townsite for a few years, but the same became wholly depopulated, and such buildings and improvements as existed thereon have long since been destroyed or removed, so that the portion of the townsite in Section 35 reverted to its character of unimproved farm land, undistinguishable from the adjacent land described in the deed, and that this situation had existed for more than thirty years. It was alleged that when the deed to plaintiff was recorded the officials having charge of the tax rolls did not properly alter them to reflect the ownership of plaintiff in that portion of the townsite in Section 35, but continued to carry Blocks 2, 3, 4 and 5 on the tax rolls so as to reflect the ownership to be in the defendant, J. A. Pugh, and that he continued to pay the taxes on those blocks through the years 1931 to 1947; that plaintiff did not discover that condition until about a year before this action was brought, when he paid the taxes on the blocks for the years 1948 and 1949. Plaintiff alleged he was ready to do equity and to pay defendants the amount of the taxes which they had paid if the court found it necessary, but alleged that equity should not require such payments by him for the reason that they were made voluntarily by defendants with full knowledge on their part. It was alleged that defendants make some claim to Blocks 2, 3, 4 and 5 in the town of Haworth.
Plaintiff claimed title to all of the property, including Blocks 2, 3, 4 and 5 in the town of Haworth by virtue of the deed, and sepa rately claimed it by adverse possession for more than seventeen years, and appropriate allegations for that claim are made in the petition.
Plaintiff further alleged that he had agreed to sell the south half of the southwest quarter and the south half of the southeast quarter of Section 35 to one Leon Chizek, their present tenant on the property, and to furnish a clear and marketable title thereto, and for that purpose plaintiff and his wife had executed a deed in favor of Chizek, but that the delivery of the deed was being withheld pending the commencement and final conclusion of this action.
Defendants demurred to the petition upon the ground that the court had no jurisdiction of the subject of the action or of the defendants; that plaintiff had no legal capacity to sue or to maintain the action, and that the petition does not state facts sufficient to constitute a cause of action in favor of plaintiff and against defendants. This demurrer was overruled.
Defendants filed an answer admitting they are husband and wife and alleging that they had record title to Blocks 2, 3, 4 and 5 in the town of Haworth and that they claim ownership thereof, and that they had paid the taxes for the years 1933 up to and including 1947, stating the amounts of such payments. In their answer defendants further admitted that they secured and delivered to plaintiff the warranty deed to the premises, as alleged in plaintiff’s petition, a true copy of the petition being Exhibit “A”. They admitted that in 1891 the then owner of the property recorded the plat of the town of Haworth, and that the town never had been vacated; alleged that the plat of the town of Haworth shows streets and alleys as well as lots and blocks, and that when the defendant, James A. Pugh, obtained title to the land which he conveyed to plaintiff, as set forth in the petition, he likewise had conveyed to him each of the lots in the four blocks, and alleged that defendants never have made a conveyance of the lots and blocks, but are the owners thereof. They further alleged that plaintiff does not have sufficient claim' of title or right of possession to bring and maintain the action and that he had not pleaded sufficient facts to set forth a cause of action in favor of the plaintiff and against the defendants. Thereafter plaintiff filed his motion for judgment, leaving it to the court to determine the question of the payment of taxes.
The trial court gave defendants judgment against plaintiff for the amount of the taxes they had paid over the years on the blocks which had been carried on the tax rolls as blocks in the Haworth addition. We think that was proper since, at any rate, plaintiff does not complain about it. The court rendered a decree quieting plaintiff’s title to all the land described in the deed from defendants to plaintiff, including that part of the land which previously had been platted as blocks in the Haworth addition.
Defendants have appealed and contend that since plaintiff’s petition disclosed that he had sold the land to Chizek he did not have an interest in the real estate involved to bring and maintain this action, and also that Chizek is a necessary party to the action, and for these reasons the petition does not state a cause of action. The contention is not well taken. The title was still in the plaintiff, and from the petition it appears that plaintiff was still in possession of the property, the prospective purchasers being his tenants. In any event, this was a suit in equity to remove a cloud from the title. Since plaintiff had agreed with Chizek to give him a good, marketable title to the property we think that it was plaintiff’s right and duty to maintain the action, and that the purchaser Chizek was not a necessary party thereto. (See, Sutliff v. Smith, 58 Kan. 559, 50 Pac. 455; Beeler v. Elwell, 92 Kan. 586, 141 Pac. 551; Bank v. Tipton, 98 Kan. 34, 159 Pac. 1016; and annotation in 97 A. L. R. 711, where the annotator says:
“The great weight of authority supports the view that one who has conveyed real property to another by deed containing covenants of warranty may maintain an action against a third person asserting title or interest hostile to the covenants, for the purpose of removing or preventing a cloud on the grantee’s title, . . .” (Citing many authorities, including two of our own.)
Appellants state as one of the questions involved:
“Will a deed to that portion of a section of land upon which a town has been platted convey title to the lots and blocks of that town without describing such lots and blocks?”
Upon the record in this case this question must be answered in the affirmative. Defendants had alleged that when they bought the property they acquired title to all of the lots in blocks 2, 3, 4 and 5 in the Haworth addition, and that they owned the lots at the time they executed their warranty deed to plaintiff on July 29, 1931. This deed contained a description by a government survey which included those lots which made up the blocks. The deed contained no reservations or exceptions. The result is defendants conveyed the blocks and the lots described therein to the plaintiff. The description of the land conveyed was contained in the deed and there was no necessity of redescribing that portion of it which had been platted into blocks and lots. (See, Potter v. Beck, 89 Kan. 569, 132 Pac. 177.) More than that, defendants put plaintiff into possession of the property soon after the deed was executed, and plaintiff alleged that he had been in the absolute, open, notorious and exclusive possession of the property under a claim of title for more than fifteen years. These allegations were not denied by the defendants. Hence, plaintiff’s contention that he had a good title by adverse possession is well taken.
Appellant presents the question for our determination:
“May one quiet title against the owner of lots who has paid the taxes thereon for years, because such owner has conveyed the portion of the section of land from which the lots have been taken by the town plat?”
The question is confused, for as a matter of fact defendants were no longer the owners of the lots and blocks after they had conveyed them to the plaintiff on July 29, 1931. The fact the county treasurer had carried them on the tax rolls by lot number did not have the effect of destroying or modifying the deed by which defendants conveyed them to plaintiff. Indeed, the court might very well have held those payments to have been voluntary on defendants’ part. However, plaintiff is not complaining of the holding of the court with respect to the taxes and the defendants are getting their payments back.
Counsel have cited a number of cases or legal principles which have more or less of an indirect bearing upon the particular questions we have here, but we find no necessity of analyzing them carefully in this opinion. We find no error in the record. The judgment of the trial court is affirmed. | [
-12,
110,
-16,
-66,
-54,
-32,
56,
-70,
96,
-93,
-25,
87,
-19,
24,
1,
45,
118,
45,
85,
123,
-58,
-78,
87,
51,
-110,
-77,
-45,
-35,
-65,
72,
-10,
-57,
76,
52,
74,
21,
-58,
-56,
-51,
84,
-114,
-123,
-85,
-52,
-55,
72,
52,
115,
50,
94,
21,
-50,
-9,
46,
28,
-45,
41,
44,
-53,
-71,
-103,
-8,
-66,
-57,
-35,
3,
49,
32,
-100,
-125,
-24,
-102,
-112,
53,
-128,
-8,
87,
-90,
-122,
116,
13,
-117,
40,
110,
71,
1,
21,
-17,
-32,
-103,
15,
-6,
-119,
38,
-80,
24,
-22,
42,
-106,
-99,
117,
16,
7,
126,
-26,
-124,
93,
108,
11,
-50,
-76,
-111,
-49,
112,
-110,
5,
-21,
33,
-80,
80,
-49,
-42,
93,
70,
48,
59,
78,
-6
] |
The opinion of the court was delivered by
Harvey, C. J.:
This was an action to recover damages to personal property by an explosion and fire alleged to have been caused by the negligence of defendant. The appeal is from an order overruling defendant’s motion to strike one paragraph of the petition and from an order overruling its demurrer to the petition on the ground that it does not state facts sufficient to constitute a cause of action against the defendant.
The petition may be summarized or quoted from as follows:
2. The plaintiff, Mrs. H. J. Weiss, on September 1,1947, occupied an apartment, rented from Walter H. Herndon and wife, situated over the Herndon drugstore on North Main Street in Ottawa, Kan., and was the owner of various articles of personal property, household furnishings, furniture and wearing apparel situated in the apartment, which were destroyed, or partially destroyed, by an explosion and fire which occurred about 3:30 p. m. on that date.
3. That on September 1, 1947, and prior thereto, the defendant, Gas Service Company, was and had been engaged in the business as a public utility distributing natural gas for household and business uses within the city of Ottawa; that it owned and maintained distributing mains in the city and supplied natural gas for a consideration to the public and to Herndon and wife for their use in the drugstore and apartment; that for many years prior to September 1,1947, there were three services on the east edge of the property leased by Herndon and his wife, which services were connected to defendant’s main, which ran along the west side of Hickory street. That one of these services ran southwesterly from the main across the rear of the lot on which the drugstore was situated and underneath a concrete apron and underneath a stock room of the Herndon drugstore and into the basement under the store; that the valves on this service had been closed for many years prior to August 29, 1947; that on August 29, 1947, or thereafter, there were not any gas appliances connected to this service and there was no meter attached thereto; that the service had been abandoned for more than twenty years; that it had been laid at the time the defendant, or its predecessors, first laid a main on Hickory street, the date of which was unknown to plaintiffs but well known to defendant; that on August 29,1947, defendant permitted gas to enter this abandoned service without notifying the plaintiffs, or either of them, or anyone on their behalf, of its intention to do so, and that the pipe of said service on that date was in a dilapidated state of repair; that it leaked and allowed and permitted gas to escape under the Herndon drugstore, and that thereafter the gas was ignited in a manner unknown to plaintiffs and caused the explosion on the date and time hereinabove set forth.
“4. That the said explosion hereinabove described was caused by the defendant’s fault and by its negligence and carelessness in the following respects, to-wit:
“(a) That on or about tire dates aforesaid the said defendant negligently and carelessly permitted gas to enter the said old abandoned service line, which said line was not capable of preventing the escape of gas as aforesaid.
“(b) That the said defendant on the s'aid 29th day of August, 1947, turned off the gas, disconnected all of said services and thereafter reconnected said services and turned on the gas at each of the said three services hereinabove described, all without adequate or proper or careful inspection of the said services or of the gas lines underneath the stock room and drugstore, and without adequate or proper inspection of the other services and gas appliances connected thereto, and that as a result thereof the condition of the said lines was not discovered and gas leaks were not discovered and gas accumulated on the said premis'es and exploded on the date aforesaid.
“(c) That the service pipes serving the said Herndon’s drugstore and in the ground round about the Herndon’s drugstore at and before the date aforesaid were in a dilapidated condition and were old and rusty and pitted and cracked and not in a proper condition for the carrying of natural gas, and that as a result thereof gas leaked and escaped from the said pipes, but that the condition of the s'aid pipes and each of them were known to the defendant, its agents, servants and employees, or should have been known to the said defendant, its agents, servants and employees in the exercise of ordinary and reasonable care, and that as a result thereof gas' accumulated inside the said store or stock room and exploded as aforesaid.
“(d) That defendant by greatly increasing the pressure in said mains at and about the time aforesaid negligently and carelessly caused said service lines to crack and permit the escape of gas, thereby causing the explosion herein-above described.
“(e) That defendant without permission or authority permitted gas to escape into the said abandoned service line and thereby appropriated the same to its' own use, and that gas escaped therefrom and exploded and caused the fire as aforesaid.”
5. That plaintiffs’ property destroyed by the explosion and fire was reasonably worth the sum of $1,199.
6. That the plaintiff, Druggists’ Mutual Insurance Company of Iowa, prior to the fire, issued its insurance policy on the property which was destroyed in the sum of $500, and after the fire paid that sum to plaintiff, Mrs. Weiss.
The prayer was for a judgment against defendant in favor of both plaintiffs for $1,199 and costs.
Defendant attacked the petition by a motion to separately state and number, to make definite and certain in certain particulars, and to strike subdivision (e) of paragraph 4. These motions were heard by the court and overruled. Defendant then filed its demurrer to the petition, which also was overruled. An appeal from these rulings was timely taken.
In this court appellant first argues that the petition alleges no breach of any duty owed by defendant to plaintiffs, and hence it does not state a cause of action.
By its motion to make definite and certain defendant had asked plaintiffs that the phrase in paragraph 4 (c), which reads:
“But that the condition of the said pipes and each of them were known to the defendant, its agents, servants and employees, or should have been known to the said defendant, its agents, servants and employees in the exercise of ordinary and reasonable care, . . .”
be made more definite as to whether plaintiffs alleged actual knowledge of defendant, its agents, servants and employees, of the condition of the pipes, or alleging that defendant, its agents, servants and employees should have known the condition, and if not so amended it should be construed as not alleging actual knowledge. In their brief counsel for appellees concede, for the purpose of our ruling on the demurrer, that the petition should be construed as not alleging actual knowledge, but alleging that defendant should have known the condition of the pipes before it turned the gas into them. Counsel for appellant also ask that the petition be made more definite and certain by alleging whether the defendant owned the services or the service pipes. Obviously, this was asked not for the purpose of getting information, since defendant should have definite knowledge of that matter, but for the purpose of having a definite statement in the petition to be considered upon the demurrer. With respect to that, counsel for appellees, in their brief, concede that for the purpose of the demurrer the petition must be construed as though it alleged that defendant did not own the service pipes.
Appellant then argues:
“We thus have a cause of action based upon a theory that the explosion, fire and resulting damage was negligence of the defendant in shutting off gas which was already connected to three ‘services’; turning on the gas again in connecting the three same ‘services’; and obviously when the service pipes not owned or installed by defendant were in the same condition when the gas was turned back on as they had been for the preceding twenty years under the allegations of the plaintiffs’ petition.”
We think this statement goes too far. The petition, as we read it, does not allege that the service pipe, which ran in a southwesterly direction from the main across the rear of the lot on which the drugstore was situated and underneath a concrete apron and the stock room of the drugstore and into the basement of the drugstore, was serving gas to anyone prior to its detachment from a main on August 29. After the concessions of counsel for appellees, as above stated, the petition charged all of the acts of negligence charged in the petition, hereinbefore set out, except the charge in paragraph 4(c) that defendant knew the condition of the service pipe, leaving the allegation that it should have known, and the further concession that defendant did not own the service pipe. We understand these concessions to have been made for the purpose of ruling upon the demurrer; what the evidence will disclose is another matter.
Appellant argues there was no duty upon defendant to discover any defects in the customers’ service lines, citing Miller v. Johnson, 155 Kan. 829, 130 P. 2d 547, and other cases of similar import. We have examined those cases and think they are not in point here. There may be circumstances where, in making gas connections or changes in the gas pressure, it is the duty of the gas company to inspect the service lines and appliances. (See Baker v. Kansas Power & Light Co., 146 Kan. 258, 69 P. 2d 731, and authorities cited therein.) A very good statement of the principal phases of the matter is set out in 24 Am. Jur. 684, § 27, which reads:
“In accordance with the general rule considered in the preceding s'ection, it has been held that a gas company, before turning on gas, or permitting it to be turned on, for the benefit of a tenant in an apartment house who has applied for it, must use reasonable precautions to ascertain that the pipes in tire building are in such condition that gas will not flow into tire apartments of other tenants who have not applied for it, to their injury. In such a case, the company cannot deny its liability for injuries resulting from failure to use reasonable precautions, on tire ground that it has no right to enter upon the premises of the parties not applying for gas for the purpose of making an inspection of the pipes therein. This rule applies even though the gas pipes used by the gas company are old pipes that were not installed by the company and do not in fact belong to it. Similarly, a gas company, before connecting its mains with the service pipe of a house, is' bound to ascertain that the outlets in the house are closed, especially those which it has itself left open; where a third person volunteers to install a meter for a gas company and is permitted to install it and connect it with service pipes, it is the duty of the gas' company to make an inspection of the pipes and connections before it turns on the gas.”
Perhaps a more detailed discussion of the subject in its several phases is set out at 38 C. J. S., pp. 734 to 740. See, also, the annotations in 138 A. L. R. 871, referring to prior annotations, and beginning at page 874 a number of cases from our own state and other jurisdictions illustrating the text. See, also, Hebert v. Baton Rouge Electric Co., 150 La. 957, 91 So. 406; Scarborough v. Central L. & P. Co., 58 Ariz. 51, 117 P. 2d 487; Sawyer v. Southern California Gas Co., 206 Cal. 366, 274 Pac. 544; Julian v. Sinclair Oil & Gas Co., 168 Okla. 192, 32 P. 2d 31; Consolidated Gas Co. v. Connor, 114 Md. 140, 154, 78 Atl. 725; Lynchburg Gas Co. v. Sale, 160 Va. 783, 169 S. E. 577. Other cases to the same effect are collected in American Digest System, Gas, Key No. 18. We think it cannot be said here that the petition alleges no breach of any duty owed by defendant to plaintiffs.
Appellant argues that its general demurrer to the petition should be sustained for the reason that it is not based upon a single definite theory, but upon several indefinite theories, which it listed as follows:
“(a) The old abandoned service line leaked and caused the damage.
“(b) The service pipes were old, pitted, and cracked, and gas leaked.
“(c) The service lines were caused to crack and permit the escape of gas because defendant greatly increased the pressure in the mains.
“(d) The defendant knew the condition of the service pipes.” (Out for the purpose of ruling on the demurrer.)
“(e) The defendant should have known of the condition of the service pipes.
“(f) A great increase of pressure in the mains caused the old abandoned service line to crack.” [Perhaps a duplicate of (c).]
We think these allegations pertain to different acts of negligence. In Swayzee v. City of Augusta, 108 Kan. 785, 197 Pac. 208, 210, where a similar contention was made, it was said (p. 788):
“The requirement that the petition should be drawn on a definite theory does not preclude the charging of several acts of negligence, . . .”
And in the very recent case of Jerecki Manufacturing Co. v. Shields, 169 Kan. 640, 220 P. 2d 144, the pertinent rule was thus stated:
“In order to cause a petition to be subject to a demurrer because not brought on a definite legal theory, there must be such a confusion of theories that proof of one theory would tend to disprove the other.”
Here the proof of any one of the grounds of negligence charged in the petition would not tend to disprove any one of the others; therefore, the point is not well taken.
We think it well settled by our decisions that when a gas company connects service lines to its mains it has a duty to know that the service lines are capable of carrying the gas. This is upon the ground and for the reason that gas is such a dangerous thing when it escapes from service lines that due care under the situation requires such an inspection irrespective of whether the gas company, or some other person, owns such lines. We think it cannot be said that the petition alleges no breach of duty owed by defendants to plaintiffs.
Appellant complains of the ruling of the court in denying its motion' to strike subdivision (e) of paragraph 4 of the petition upon the ground that it is a conclusion of law. We think the point is not well taken. When the gas company turned the gas into a line which had been abandoned and which had no meter, and which gas it was not selling to anyone, we think it proper to say that it did so for its own purposes.
We find no error in the record. The judgment of the trial court is affirmed. | [
-16,
108,
-16,
-116,
26,
-32,
42,
-101,
67,
-93,
-91,
-45,
-23,
-55,
9,
109,
-41,
61,
-16,
121,
-63,
-77,
19,
74,
-42,
-45,
115,
-59,
-72,
-33,
-12,
-34,
76,
33,
74,
-107,
-58,
-54,
-59,
-36,
-114,
5,
-24,
96,
89,
8,
52,
58,
54,
15,
49,
13,
-13,
46,
24,
-57,
105,
44,
107,
-68,
-45,
-16,
-117,
93,
-33,
22,
33,
6,
-108,
-63,
-24,
26,
-104,
53,
1,
-84,
114,
-90,
-122,
116,
7,
-117,
12,
96,
98,
48,
5,
-29,
-24,
-88,
7,
-102,
-115,
-89,
-80,
8,
105,
-95,
-98,
-99,
125,
20,
23,
126,
-22,
5,
95,
44,
3,
-118,
-66,
-79,
15,
105,
-108,
43,
-21,
3,
48,
116,
-51,
-32,
92,
69,
122,
31,
-50,
-72
] |
The opinion of the court was delivered by
Smith, J.:
This was a replevin action. Defendants filed an answer to plaintiff’s petition and a cross petition. Judgment was for defendants on their answer and also on their cross petition. The plaintiff has appealed.
The petition alleged that defendants were in possession of property belonging to plaintiff and unlawfully retained that possession even though its return had been demanded. The property in question was household goods. A list was attached to the petition and marked exhibit “A.”
. The defendants filed an answer and cross petition, in which they alleged that plaintiff and defendants entered into an oral contract by which defendants were to convey to plaintiff real property owned by them in Kansas City, Mo., and plaintiff was to convey to them property owned by them in Lawrence, Kan., subject to $5,000 mortgage, and all furniture in the house in Lawrence was to be a part of the consideration; that warranty deeds were exchanged and defendants took possession of the property at Lawrence, together with the furniture; that shortly thereafter plaintiff, without defendants’ consent, removed certain of the personal property he had sold defendants. A list of that property was attached to the answer and cross petition and marked exhibit “A.”
Defendants prayed for an order settling all questions and for a return of the property listed in their exhibit “A.”
For a reply to defendants’ answer and answer to their cross petition, plaintiff admitted the oral contract. He pleaded further, it was agreed all household goods in two of the apartments was to remain and be the property of plaintiff, as well as all personal property located in the basement; that all the property listed in defendants’ exhibit “A” belonged to plaintiff and was delivered' to plaintiff by defendants sometime after the exchange of deeds. Plaintiff renewed the prayer of the petition and prayed for a judgment denying defendants any relief.
The transaction was one where the plaintiff traded an apartment house and the furniture in it for real estate. Three groups of furniture were involved. One group is the main furniture in the apartment house. There is no contention but that it passed to defendants by the terms of the oral contract. The second group is the furniture in two rooms of the apartment house, which rooms had been occupied by plaintiff and his mother. When the deeds were exchanged the defendants took possession of it and retained such possession claiming it passed to them with the other furniture. This is the furniture listed in plaintiffs exhibit “A.” The only question in the case with reference to it is whether the oral contract provided it should pass to defendants with the other furniture in the apartment house. That question of fact was by the trial court determined in favor of defendants. The third group of furniture is some the defendants claim was removed by plaintiff from the apartment house without their consent after title passed to them. This is the furniture plaintiff described in his reply as “all personal property located in the basement of said building and in the garage” listed in defendants’ exhibit “A.” Here again the only question before the trial court was whether this property passed under the terms of the oral contract. The trial court determined this question of fact in favor of the defendants.
The journal entry recited:
“Defendants move prior to the introduction of evidence for judgment on the pleadings for Defendants as to all matters set out in Plaintiff’s Amended Petition. The Court hears the arguments of counsel and there being no objection by Plaintiff, judgment is entered for the Defendants for the possession of all property set out in Plaintiff’s Amended Petition.”
In a succeeding paragraph after reciting the various steps in the trial, the journal entry recited that the court found the owner ship of the property mentioned in the plaintiff’s original petition to be in the defendants, with the exception of family heirlooms.
In the next paragraph the trial court found the ownership of the property listed defendants’ exhibit “A” to be in the defendants. The judgment portion of the journal entry described the property listed in the plaintiff’s exhibit “A” piece by piece and decreed defendants to have possession of that and if possession could not be had, then defendants recover its value from the plaintiff.
The next paragraph gave the defendants’ judgment for the property described in their exhibit “A” and described that piece by piece. No mention of the heirlooms was made in this portion of the journal entry.
The plaintiff’s motion for a new trial was duly overruled and it was ordered that if the parties could not agree as to the value of the property the question of values would be held for further determination by the court.
The plaintiff filed a motion for a new trial on account of erroneous rulings of the court and that the judgment was contrary to the evidence.
Plaintiff’s first argument is that the court’s judgment, as shown in the journal entry, did not finally determine plaintiff’s rights in the personal property. The basis of that claim is that the court found the property mentioned in the plaintiff’s exhibit “A” to be in the defendants with the exception of family heirlooms. The plaintiff argues that there is no provision in the journal entry for determining what were heirlooms and these rights were not established or identified by the court. It is a little difficult for us to deal with this question inasmuch as none of tire pleadings mentioned heirlooms. From an examination of the abstract we find that there was some testimony that there was a lamp and a vase that had belonged to plaintiff’s mother. The difficulty about our getting hold of this question is that in the court’s journal entry the property dealt with was set out item by item. Nowhere is there any mention in any of these lists of a vase. On one of the lists there is a mention in one place of three floor lamps and at another place in this same list there is mention of two floor lamps and one table lamp. We are informed in the brief of appellee, which is not disputed by the appellant, that the journal entry originally found the property fisted and attached to plaintiff’s petition was in the defendants, with the exception of a lamp belonging to plaintiff’s mother, considered a family heirloom, and at the argument of the motion for a new trial the court struck out the words “a lamp belonging to plaintiff’s mother” and added an “s” to the word “heirloom.” The court in that portion of the journal entry, giving the judgment, named each specific item of property, which it was decreeing to be the property of defendants. This is the identical fist attached to the pleadings of both parties. We have concluded that this judgment is definite enough so that the ownership of the property described therein passed by it.
The next argument of the plaintiff is that the court erred in not allowing him to introduce evidence showing the total value of the real estate and personal property included in the sale. This argument is not good for the reason that there was no allegation of fraud in the pleadings and no fraud testified to in the evidence. The question decided was solely the terms of the oral contract. Furthermore, the evidence offered on this point was not furnished the court on the hearing of the motion for a new trial. On that account, we cannot review any error based upon this exclusion. (See G. S. 1949, 60-3004; In re Estate of Casida, 156 Kan. 73, 131 P. 2d 644.)
The next argument of the plaintiff is that the court’s judgment was contrary to the evidence. There was evidence both ways as to the terms of the oral contract. The court heard it and found in favor of the defendants. We will not re-examine that question.
The judgment of the lower court is affirmed. | [
-111,
104,
-32,
-82,
10,
96,
42,
-72,
57,
-95,
39,
83,
109,
-54,
17,
43,
-14,
125,
81,
105,
71,
-77,
79,
42,
-46,
-77,
-15,
85,
-68,
78,
-12,
-106,
76,
32,
-62,
-99,
70,
-126,
-43,
92,
-114,
1,
8,
-28,
-7,
66,
-76,
-85,
22,
3,
117,
-98,
-13,
44,
25,
-55,
73,
44,
123,
57,
117,
-8,
-118,
7,
-33,
7,
-109,
36,
-36,
69,
-8,
72,
-112,
57,
0,
-24,
115,
54,
-122,
116,
79,
-119,
40,
38,
98,
34,
17,
-25,
-8,
-104,
46,
62,
-99,
38,
-45,
88,
3,
97,
-74,
-100,
125,
16,
41,
124,
-17,
5,
29,
108,
15,
-17,
-42,
-109,
15,
48,
-118,
11,
-18,
-125,
33,
112,
-51,
-96,
92,
87,
24,
-69,
-114,
-7
] |
The opinion of the court was delivered by
Kagey, J.:
This is an appeal by plaintiffs in the court below from a general judgment in favor of defendants, in an action brought by the plaintiffs for specific performance of an alleged family settlement and agreement and an accounting of rents and profits — proceeds received from the sale of oil and gas from 225 acres of land— and setting aside certain deeds to Melvin R. Stolp and Beulah Stolp, defendants.
Plaintiffs and defendants — except Beulah Stolp, wife of defendant Melvin R. Stolp — are the children of H. C. Stolp, also known as Henry C. Stolp, and Nora Stolp. Prior to March 8, 1935, H. C. Stolp and his wife Nora Stolp were the owners of certain personal property and real estate. The real estate consisted of one tract of 160 acres, another tract of 120 acres, and a third tract of approximately 65 acres. The first two tracts were in the name of H. C. Stolp and the third or 65-acre tract was in the name of Nora Stolp. On March 8, 1935, Nora Stolp died intestate and thereafter and on or about June 1, 1938, H. C. Stolp deeded the two tracts of land in his name to Melvin R. Stolp and Beulah Stolp, his son and daughter-in-law, and joined with plaintiffs and June Reschke, defendant, in deeding their interests in the 65-acre tract to Melvin R. and Beulah Stolp. The 120-acre tract was sold by the grantees in 1944. On May 12,1948, a producing well was drilled on the 160-acre tract and in December, 1948, two additional producing wells were brought in on the 65-acre tract. On November 12, 1948, plaintiffs filed this action against the defendants alleging (by petition and amendment thereto) that during the month of May and the first pail of June, 1938, all the parties in this lawsuit had a meeting at the home of Edna A. Rathbun and one or two meetings at the home of Shirley E. Briscoe about deeding the three tracts of land to Melvin and Beulah Stolp; and
“That it was mutually agreed by and between said parties that Henry C. Stolp and the four children were joint owners of said property and that the four children should become partners and handle tire same as a partnership as follows: That all of said four children agreed to see that their father, Henry C. Stolp, who was getting feeble and advanced in years was given good care and comfortable treatment as long as he lived and to jointly contribute for his support and care if it became necessary or furnish him a home with such of the children as he desired to stay with; that said four children, as partners to gether with their father agreed that their father and three of the children would make, execute and deliver deeds to the fourth child, Melvin R. Stolp and Beulah Stolp, his wife, on the aforesaid 225 acres and would thereby transfer the legal title to Melvin R. Stolp and Beulah Stolp, his wife, and the said Melvin R. Stolp and Beulah Stolp, his wife, as the sole and only consideration for said deeds promised and agreed with the three remaining partners, towit: Shirley E. Briscoe, Edna A. Rathbun and June Reschke, that any and all money, income and proceeds received from the sale of oil, gas, or minerals, during the lifetime of any of said partners, from any of said 225 acres of land deeded to them and described as follows, to-wit: (description of land) should belong to said partnership, if, as and when received, and should be divided as follows:
An undivided Jith to Shirley E. Briscoe;
An undivided lith to Edna A. Rathbun;
An undivided 24th to June Reschke;
An undivided 14th to Melvin R. Stolp.”
Plaintiffs further allege that they executed the deeds to the defendants Stolp because of their reliance upon the promises then made, and the confidential relationship existing between the parties; and that as a consequence, the defendants Stolp became trustees of the income received from the oil wells for the plaintiffs, and June Reschke. An allegation was made that the Stolps were guilty of fraud because of their refusal to account to the plaintiffs. Plaintiffs asked specific performance of the alleged family agreement, an accounting, and a judgment setting aside the deeds to the 160-acre and 65-acre tracts. By order of the court, plaintiffs further stated that the family settlement was partly oral and partly in writing, as evidenced by the- deeds.
To the petition as amended, defendants Melvin R. and Beulah Stolp filed an answer and defendant June Reschke answered separately. The answers were substantially the same except with reference to execution of the deeds, and admitted the residence of the parties, the death of Nora Stolp and allegations as to the heirs at law of Nora Stolp; and further answered that Nora Stolp was the owner of the 65-acre tract and there had been no administration or probate of her estate in Kansas or elsewhere; défendants admitted execution of the deeds as alleged in plaintiffs’ petition, and denied all other allegations of the petition. As additional defenses, defendants alleged the existence of another action pending in the district court of Cowley county, Kansas, involving the same parties and asking the same relief as prayed for in the petition in this action, the bar of the statute of limitations, and laches. June Reschke, in her separate answer, stated that she signed “said deed” at the re quest of her father H. C. Stolp, to avoid foreclosure of an existing mortgage upon the real estate known as the 65-acre tract and the other real estate and personal property and without any promise or agreement being made on the part of her co-defendants. It was also asserted by the defendants that H. C. Stolp was a necessary party defendant. Plaintiffs’ reply was a general denial.
Trial on the above issues was commenced on January 10, 1950, and concluded on February 13, 1950, with an intervening continuance. Argument was waived on February 20, 1950, and on February 27, 1950, the court found "generally in favor of the defendants and against the plaintiffs as to all matters of fact” (italics supplied) and rendered judgment in favor of the defendants, resulting in this appeal.
Appellants state the court erred in refusing to admit subsequent sworn and unsworn statements of H. C. Stolp in opposition to a previous deposition; in receiving incompetent evidence and evidence of a transaction and communication with a deceased person; in not setting aside the deed (to the 65-acre tract) signed by appellants and appellees, since the court found that no family settlement or agreement had been made; and that the judgment of the court was contrary to the weight of the evidence.
Evidence of the plaintiffs tended to show that prior to the death of Nora Stolp in 1935, she and her husband H. C. Stolp owned and operated the three farms consisting of 160, 120 and 65-acre tracts, and that on June 1, 1938, the defendants and Otto Reschke and H. C. Stolp came to the Rathbun home with a deed which the four children were to sign to Melvin R. and Beulah Stolp; the children were to give their father H. C. Stolp a home wherever he chose to reside, and Melvin R. Stolp and Beulah Stolp told them to go ahead and sign the deeds and they would divide the proceeds from the oil and gas, if any were found, equally among the children. Edna A. Rathbun and Shirley Briscoe both testified to conversations with the deceased, H. C. Stolp.
Testimony of the defendant Melvin R. Stolp was to the effect that he had farmed his father’s place since the spring of 1934 on a fifty-fifty basis, and that he first learned of his father’s plan to deed the farm to him in the winter of 1937 or spring of 1938. He further testified that he never discussed the matter with Edna Rathbun or the Briscoes; denied that he had gone to the Rathbun home or requested that any of the deeds be signed; and said the consideration for the deed was his assumption of the Federal Land Bank loan, stipulated as being $7,700 on June 1, 1938. Testimony of other witnesses supported that of Melvin R. Stolp.
As a part of plaintiffs’ evidence, a letter written by Edna Rathbun was introduced in evidence dated May 10, 1947 — prior to the time the suit was filed — wherein she stated her reasons for deeding the place over to Melvin R. Stolp but the reasons given in the letter were not the ones set forth in her petition.
The deposition of H. C. Stolp was taken by defendants after this case was filed in the district court, due legal notice having been given, and H. C. Stolp testified among other things that no family agreement was made as alleged in plaintiffs’ petition nor that Melvin R. Stolp and Beulah Stolp would hold any oil or gas interests in the property for the benefit of all four children; that it was deeded to the Stolps because he (H. C. Stolp) was unable to see after it, and wanted Melvin and Beulah Stolp to have it; and that no consideration was paid for the deed. This deposition was taken on December 4, 1948, and on May 2, 1949, an order was entered by the lower court making H. C. Stolp an additional party defendant. However, no praecipe was filed and as a consequence no summons issued for H. C. Stolp. On May 17, plaintiffs procured an affidavit from H. C. Stolp signed by him with an “X” mark. In this affidavit he repudiated the material testimony in his deposition and made statements which were in substance identical with the part of the petition heretofore quoted. H. C. Stolp died about a month and a half after making this affidavit.
During the direct examination of Melvin R. Stolp, he was asked the following question:
“Q. Had you made any arrangement with your father, Henry C. Stolp, or anyone else under what terms or conditions you would take the land over?”
The above question was objected to on the ground that it was hearsay, not a part of any transaction with H. C. Stolp, and that the witness'was incompetent to testify about a conversation with a deceased person. The objection was overruled, and Melvin R. Stolp then testified drat he told his father he would take the place over and assume the Federal Land Bank mortgage without any reservations; and further that his father never reported to him that he (H. C. Stolp) had ever said anything to his daughter about an agreement relative to oil money.
Because of the sale in 1944 of the 120-acre tract, no relief respecting it was asked for in the petition.
The deeds to the several tracts were executed in June, 1938, and appellants and appellees stipulated that H. C. Stolp did not have or claim to have any interest in any of the tracts after that date. This action was filed more than ten years after the transfer of the property and defendants pleaded the bar of the statute of limitations and laches. Also on June 22, 1948, a petition for determination of descent was filed in the probate court with reference to the 65 acres standing in the name of Nora Stolp, and objections were filed by the appellants to the petition to determine descent setting up the same claim as is asserted in this action.
The facts above set out, while not constituting all the evidence in the case, are sufficient for the purpose of determining the questions raised in this appeal, which we will "deal with in order.
Appellants first contend that the lower court erred in not admitting the affidavit of H. C. Stolp which he executed about one and one-half months before his death wherein he repudiated the essential parts of his testimony as given in the deposition. While plaintiffs in their heading to this question inquired whether or not the court erred in receiving and considering the testimony of H. C. Stolp by deposition, no question is raised as to the admissibility of the deposition, and the only matter presented is on the admissibility of the affidavit.
Our code of civil procedure (G. S. 1935, 60-2835) defines the limitation and scope of affidavits, particularly with reference to their use in the trial of an action; and after providing for filing the affidavit with the clerk of the court and service upon the adverse party or his attorney of record at least ten days before the day of trial, the testimony of the witness must be given orally, or by deposition if the adverse party gives notice that he desires to cross-examine the affiant. Of course in the situation presented in this case, the witness died before trial. However, the plaintiffs had open to them the same opportunity of taking a deposition before his death that the defendants had, and his testimony as set out in the affidavit could have been taken by deposition as easily by the plaintiffs as it was taken by the defendants.
The sole purpose of the affidavit sought to be introduced in evidence was to impeach the testimony of H. C. Stolp as given in his deposition. The mode of impeaching the testimony of a witness is well established in this state. (See Hatcher’s Kan. Dig., Witnesses, § 125, Pt. 2, et seq., 9 West’s Kan. Dig., Witnesses, § 388.) At the time the testimony is given, the foundation must be laid. The record does not disclose that there was any cross-examination of H. C. Stolp at the time his deposition was taken and possibly under the circumstances such a procedure could not have been followed, since the impeaching statements were made after the time of taking the deposition.
We have examined the authorities submitted by the appellants. With reference to the case of Tucker v. Welsh, 17 Mass. 160, the court in its statement said it is not necessary that the impeached witness be first inquired of as to a different statement or that he be present when his credit is to be impeached; but we also note the court in that case does state that where the evidence tends to impeach testimony given by deposition, the court would give time for the witness to appear or for other depositions to be taken relative to the facts which were to be proved to impeach him.
Gordon v. Munn, 87 Kan. 624, 125 Pac. 1, which case appellants rely on and quote from at length, deals solely with the question of establishing intent and not impeachment of the .witness and constitutes no authority for the error alleged. Other authorities cited by appellants in their brief are in general conflict with the rule in this state with reference to impeachment, to which we adhere. (Insurance Co. v. Schroeder, 48 Kan. 643, 29 Pac. 1078; State v. Bartley, 48 Kan. 421, 29 Pac. 701.)
H. C. Stolp lived one and one-half months after the procuring of the rejected affidavit and if plaintiffs’ witnesses are to be believed, no reason existed why plaintiffs could not have taken a deposition as the defendants did. Rut in any event, no compliance with the code of civil procedure relating to the taking of depositions (G. S. 1935, 60-2819 et seq.) was attempted and under G. S. 1935, 60-2835, the affidavit could not have been used as a deposition since there was no compliance with that statute either. A diligent and bona fide belief that the deceased would have testified to the facts set out in the affidavit would have enabled plaintiffs to have those facts before the court by following the comparatively simple procedure provided by our code for taking depositions. We believe the view announced in Mattox v. United States, 15 S. Ct. 337, 156 U. S. 237, 39 L. Ed. 409, to be the logical rule and pertinent parts of the opinion aré as follows:
“The cases in the state courts are by no means numerous, but these courts, so far as they have spoken upon the subject, are unanimous in holding that the fact that the attendance of the witness cannot be procured, or even that the witness himself is dead, does not dispense with the necessity of laying the proper foundation. . . . While the enforcement of the rule, in case of the death of the witness subsequent to his examination, may work an occasional hardship by depriving the party of the opportunity of proving the contradictory statements, a relaxation of the rule in such cases would offer a temptation to perjury, and the fabrication of testimony, which, in criminal cases especially, would be almost irresistible. If it were generally understood that the death of a witness opened the door to the opposite party to prove that he had made statements conflicting with his testimony, the history of criminal trials leads one to believe that witnesses would be forthcoming with painful frequency to make the desired proof. The fact that one party has lost the power of contradicting his adversary’s witness is really no greater hardship to him than the fact that his adversary has lost the opportunity of recalling his witness and explaining his testimony would be to him. There is quite as much danger of doing injustice to one party by admitting such testimony as to the other by excluding it. The respective advantages and disadvantages of a relaxation of the rule are so problematical that courts have, with great uniformity, refused to recognize the exception.” (p. 248.)
Under the facts, therefore, the court committed no error in excluding the affidavit.
Plaintiffs next contend that the testimony of Melvin R. Stolp regarding a conversation with his father H. C. Stolp was inadmissible by reason of being incompetent and a communication and transaction with a deceased person. The statute under which plaintiffs contend the testimony was not admissible is as follows:
“No person shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person, where either party to the action claims to have acquired title, directly or indirectly from such deceased person, or when the adverse party is the executor, administrator, heir at law, next of kin, surviving partner, or assignee of such deceased person, . . .” (G. S. 1935, 60-2804.)
Defendant Melvin R. Stolp testified to two matters over the objections of plaintiffs, which are in substance as follows: (a) That he had told the deceased he would take over the place and assume the loan as shown by the Federal Land Bank’s records without any reservations; and (b) that the deceased never reported to him that he (deceased) had ever said anything to witness’s sister about an agreement relative to oil money. As we interpret the record, the objection could only apply to (a) for the reason that in (b) the witness testified to the absence of a conversation rather than to a conversation itself.
This court held in Coblentz v. Putifer, 87 Kan. 719, 125 pac. 30:
“When it is alleged that a deed was procured by the undue influence of a son upon his mother, he may state whether at any time he asked or requested her to make such deed, when the manifest object of the question is to show that he did not. To state that he did not ask or request such deed is the very opposite of testifying concerning a transaction or communication with the deceased grantor.” (Syl. 2.)
The substance of the testimony of Melvin R. Stolp was also given by at least four other witnesses, three of whom were obviously impartial. Furthermore, his testimony was merely corroborative of the testimony of the deceased himself, and if the admission of the testimony had been error, which it was not, no prejudice could have resulted to plaintiffs in view of the abundance of other testimony to the same effect.
The testimony of Melvin R. Stolp was admissible; inasmuch as witnesses for plaintiffs testified to conversations with deceased, defendants had a right to present testimony as to conversations with deceased on the same subject matter.
“As stated in Corpus Juris, which statement has been quoted and cited by the courts, it frequently happens that evidence which might be inadmissible under strict rules is nevertheless introduced into the case through inadvertance or otherwise, under which circumstances it is held, sometimes as a result of statutory regulation, that the adverse party is entitled to introduce evidence on the same matters lest he be prejudiced. The party who first introduces improper evidence cannot object to the admission of evidence from the adverse party relating to the same matter. However, the admission of such evidence is not a matter of absolute right, but rests in the sound discretion of the court . . .” (31 C. J. S. 913-914.)
The trial court admitted the testimony of Melvin R. Stolp stating “some of the other testimony would be hearsay, too.” We find np error in such a ruling.
Plaintiffs finally contend that the court erred in not setting aside the deed to the 65-acre tract in view of the finding that no family settlement had been made, and that the judgment of the court was contrary to the evidence. We will consider these two questions together.
Plaintiffs apparently proceeded in this case on the theory that they and the two defendant children of H. C. Stolp owned the three mentioned tracts. We fail to find anything in the record that indicates that any of them, at any time prior to the transfer to Melvin R. Stolp, ever owned any interest therein or had any right to dictate to their father H. C. Stolp how he should dispose of his property, and it is doubtful that insofar as the two tracts in the name of H. C. Stolp are concerned, any kind of an action could have been maintained by the plaintiffs to set aside the deeds or claim any interest in the oil runs, without making H. C. Stolp a party to the suit. But whether that is true or not, it must be remembered that other defenses than a denial of the allegations of the petition were interposed, and the court’s judgment in favor of the defendants may have been based on these other defenses. Since the deeds were executed more than ten years before the suit was filed, the court’s judgment may have been based on the statute of limitations, laches, or even on the fact that the plaintiffs had unsuccessfully made the same claims in a determination of descent proceeding. This court said in the case of Stromquist v. Nelson, 159 Kan. 716, 158 P. 2d 458:
“When a trial court makes no specific findings of fact but finds generally in favor of a party the presumption is that it found all facts necessary to sustain its judgment, and the burden is on an appellant, seeking review of any question depending on evidence to produce an abstract showing evidence to establish his position or to make it appear affirmatively the trial court erred.” (Syl. 3.)
The rule is also well stated in Gas Co. v. Jones, 75 Kan. 18, 22, 88 Pac. 537, wherein tins court said:
“In the absence of special findings of fact, this court will assume that the trial court regarded as established all the facts shown by the evidence which were favorable to the successful party.”
(See, also, Kennedy v. Spalding, 143 Kan. 76, 53 P. 2d 804.) In the instant case, no findings of fact were requested and none were made.
Plaintiffs seem to think that since no money was paid, the deeds could be set aside at any time for a failure of consideration. Assuming that no consideration was paid, it still would not be grounds for setting aside the deeds in this case. The general rule is that as between the parties, their heirs or privies, a deed is good without consideration in the absence of a wrongful act on the part of the grantees such as fraud or undue influence. No contention is made of any fraud or undue influence by the defendants at the time of execution of the deeds. (26 C. J. S. 189, § 16; 16 Am. Jur. 472, § 57, and cases there cited.)
It is unnecessary, however, to resort to that rule in passing upon this question. The evidence was that all of the property was transferred to the defendant Melvin R. Stolp and Beulah Stolp because they assumed and agreed to pay the mortgage on the three tracts and that they wished to keep the property in the family and from having it “foreclosed and go to someone else.”
There was ample evidence to support the judgment and no error appears in the record upon the court’s rulings upon the admission or rejection of evidence.
The judgment is affirmed.
Wedell, J., concurs in the result. | [
113,
-18,
113,
-84,
-70,
-32,
106,
-70,
105,
-77,
-9,
83,
105,
89,
12,
125,
-29,
45,
64,
107,
-13,
-77,
23,
18,
83,
-13,
-7,
-59,
-80,
77,
-26,
87,
72,
0,
74,
85,
-26,
-30,
71,
84,
-114,
16,
-103,
-28,
73,
66,
52,
59,
86,
15,
117,
-113,
-14,
45,
29,
-54,
8,
46,
-51,
57,
73,
48,
-118,
4,
79,
2,
2,
22,
-104,
69,
-24,
30,
-104,
48,
8,
-20,
50,
38,
-42,
117,
59,
-101,
12,
34,
103,
1,
-59,
-17,
-24,
-104,
14,
-2,
-115,
-89,
-112,
24,
-112,
64,
-66,
-99,
112,
80,
3,
118,
-20,
29,
93,
-87,
36,
-113,
-106,
-111,
3,
-72,
-100,
19,
-29,
39,
54,
96,
-53,
-94,
92,
71,
112,
27,
15,
-109
] |
The opinion of the court was delivered by
Smith, J.:
This is an action to determine the respective rights of a daughter of decedent by a former marriage, and the widow of decedent. The trial court held in favor of the daughter. The widow has appealed.
The facts involve an earlier appeal to this court. (See In re Estate of Welch, 167 Kan. 97, 204 P. 2d 714.) The dispute is between the widow of decedent on the one hand and his daughter by a former marriage on the other. Decedent died on June 16, 1947. He was survived by his widow, Margret U. Welch, and a daughter by a former marriage, Carrie Bell. A petition for the appointment of an administrator was duly filed on June 20, 1947, by Carrie Bell. This petition was joined in subsequently by Margret. She claimed, however, to have a one-half interest in the estate by inheritance to be entitled to the rights of a widow. The administrator was duly appointed on July 30, 1947, first published his notice of appointment, and that persons having demands against the estate must exhibit them within nine months.
On January 24, 1948, the following agreement was filed in probate court by the attorney for the administrator:
“Agreement
“This Agreement, made and entered into this 21st day of July, 1942, by and between F. M. Welch, party of the first part, and Margret A. U. Welch, party of the second part, both of Cherryvale, Montgomery County, Kansas, witnesseth:
“That whereof the parties to this agreement are husband and wife, having been united in matrimony on the 15th day of July, 1942, and whereas each of said parties possesses property, real and personal, which he or she had accumulatéd before the said marriage took place; and whereas each of said parties have been previously married, and have a child or children by the former wife or husband, which child or children would inherit the said parent’s property had this said marriage not taken place;
“And Whereas prior to the said marriage, and in consideration thereof, the said parties entered into an oral agreement with respect to their separate properties, the terms of which oral agreement are hereinafter set forth as the terms of this written agreement.
“Now Therefore, it is agreed by and between the parties hereto in consideration of the mutual agreements, each to the other, hereinafter set out, and in confirmation of said oral agreement which was made in consideration of marriage, as follows:
“That the party of the first part has agreed and does hereby agree that he shall have and claim no right, title or interest in or to any of the property, either real or personal which the party of the second part now owns or which she may hereafter individually acquire, and to that end he hereby expressly releases, surrenders and quitclaims until the said second party, her heirs, executors, administrators, or assigns, any and all right, title or interest in or to such said property of the second part (party) which he might otherwise acquire or assert by reason of being the husband of such second party; and he further agrees that the party of the second part may own, sell, devise, bequeath, pass by inheritance, or otherwise manage or dispose of such said property belonging to her, in the same manner and to the same extent as though she were a single person.
“The party of the second part likewise agrees that she shall have and claim no right, title or interest in or to any of the property, either real or personal, which the party of the first part now owns or which he may hereafter individually acquire, and to that end she hereby expressly releases, surrenders and quitclaims unto the said first party, his heirs, executors, administrators, or assigns, any and all right, title or interest in or to such said property of the first part (party), which she might otherwise acquire by reason of being the wife of such first party; and she further agrees that the party of the first part may own, sell, devise, bequeath, pass by inheritance, or otherwise manage or dispose of such said property belonging to him in the same manner and to the same extent as though he were a single person.
“It is further understood and agreed that in the event of the death of either party hereto, the expense of his or her last illness and funeral expenses shall be paid out of the individual property of said deceased party, and shall not become a debt of the other party thereto, or a charge upon the individual property of such survivor.
“In the event that these said parties should separate and cease to live together as husband and wife, each is to have absolute control of his or her individual property, and to have and assert no claim over the individual property of the other.
“It is further agreed that the term 'individual property’ as used herein, shall refer to property of any nature whatsoever, owned by either of the parties hereto at the time of their said marriage. It is further agreed that if any additional property shall be accumulated by these parties through their joint efforts, during the period of their married life, said jointly accumulated property shall not be affected by the terms of this agreement, but on the death of either party, shall be subject to the existing laws of descent.
“In witness whereof, the parties of this agreement have hereunto set their hands the day and year first written.
F. M. Welch,
Party of the first part.
Margret A. U. Welch,
Party of the second part.”
On May 25, 1948, Margret filed a petition asking the court to set aside $750 as her statutory widow’s allowance and alleged that she was entitled to her widow’s allowance. She further stated that the agreement, which has already been set out here, was revoked during the lifetime of the parties and was not in effect at the time of decedent’s death. She asked that she be allowed the $750 and that one-half of the property of decedent be set apart to her as an heir.
On June 19, 1948, the administrator filed a petition for allowance of final account. In this petition he alleged that Carrie Bell in his belief was entitled to all of the assets of the estate and that Margret was not entitled to participate therein.
On July 3, 1948, Carrie Bell filed an answer to Margret’s petition. In this she admitted that Margret was the widow of decedent, but denied that she was entitled to a widow’s statutory allowance or a distributive share of the estate, for the reason advanced that her claim for a widow’s allowance was not filed in time and that all of Margret’s rights were fixed by the written agreement. She alleged that the written agreement had never been abrogated or rescinded and was in full force. She asked that Margret take nothing from the assets of the estate.
On July 15, 1948, Margret filed a petition in the probate court. She described a parcel of real estate in Cherryvale and alleged that it was occupied as a homestead by herself and decedent while they were husband and wife and that it had been conveyed under contract by her and decedent and that she owned the homestead inter est in it in the amount of $3,800. She prayed for an order setting aside that amount to her.
On July 26, 1948, Carrie Bell filed an answer in which she denied all the allegations of Margret’s petition of July 15; admitted that during decedent’s lifetime he owned the real estate and that it had been conveyed. She alleged further that the land in question was within the city limits of Cherryvale and comprised more than one acre; that it lay in two separate tracts and that it was not occupied by the decedent and his family at the time of his death; that Margret had not occupied it as a home for years prior to decedent’s death, but had abandoned it; that it was a part of the individual property of the decedent, which he had owned for many years prior to his marriage; that Margret had relinquished all her right to it; that the time for filing claims against the estate expired on April 28, 1948, and the claim for the proceeds of the homestead was not filed until July 8, 1948, and that Margret was barred by her own laches. Margret demurred to that answer for the reason it constituted a claim and demand against the estate of decedent and was not filed within nine months after the date of the first publication of administrator’s notice of appointment. This demurrer was overruled on July 27, 1948. On the same date Margret filed a supplemental petition and reply in which she alleged the relationship of the parties and that she and Carrie Bell were each entitled to receive one-half of the estate; that none of her rights had been barred by the nonclaim statute because her original claim had been filed on July 3, 1947. She further alleged that Carrie Bell’s allegations filed on July 3, 1948, with reference to the agreement constituted a claim against the estate which was barred by the nonclaim statute; that on June 20, 1947, Carrie Bell filed her petition for administration and alleged then that Margret was the widow and heir of decedent; that Carrie Bell knew then about the marriage contract and that she should have known that this contract had been later rescinded and that relying upon the allegations in that petition Margret waived her rights to administer the estate and consented to the appointment of an administrator and that Carrie Bell was estopped from claiming that Margret was not an heir of the estate. She further alleged that the marriage settlement entered into between decedent and her was rescinded as fully as though no such contract had been entered into in consideration of Margret’s consenting to the alienation of the homestead. She prayed the court for her statutory al lowance in the sum of $750 and for possession of the homestead property and for determination that she and Carrie Bell were the sole heirs of decedent.
On July 28, 1948, the probate court heard all the issues then set up and found generally for Carrie Bell and specifically that the contract, which has heretofore been quoted in this opinion, was in full force and effect at the time of decedent’s death and was controlling as to the distribution of the assets of his estate; that by reason of the contract Margret was not entitled to a widow’s statutory allowance or any homestead interest or to share in the distribution of the estate.
The court further found that decedent died intestate at Cherry-vale on July 24, 1947; that the estate had been fully administered; that there were no inheritance taxes due and that Carrie Bell, the daughter of the decedent, was the sole heir.
This order was appealed to the district court. Margret in the district court demurred to the part of the petition of the administrator for final settlement on June 19, 1948, as follows:
“That the claim of the above named heir of the said decedent in and the assets of this estate, which this petitioner verily believes to be correct, according to law, is as follows: That the said Carrie Bell, decedent’s daughter, is entitled to all of the assets of this estate, both real and personal, after payment of administrative expenses. This petitioner verily believes that the surviving widow of the decedent, one Margaret A. U. Welch, in no wise participates in the distribution of the assets of this estate by reason of a certain post-nuptial agreement in writing, a certified copy of which has been exhibited to this administrator, and is on file with this Court.”
The demurrer was also directed at certain parts of the answer of Carrie Bell filed on July 3, 1948, and to a certain part of the answer of Carrie Bell filed on July 28, 1948. The reason given for the filing of this demurrer was that the allegations referred to constituted a claim against decedent’s estate, which had not been filed in the probate court within nine months after the time of the first publication of the administrator’s notice of appointment and were not a legal defense to Margret’s petition. This demurrer was overruled in the district court and the case was appealed to this court. On appeal we held:
“A marriage contract, assuming it cuts off all rights of an heir, the decedent’s widow, to inheritance, to a widow’s allowance and to homestead rights, and assuming it grants the entire estate to another heir, the decedent’s daughter, takes nothing out of the estate which would otherwise be distributed to the other heir, the widow. It only determines which one of the heirs shall receive the assets of the estate and does not constitute a claim or demand against decedent’s estate which must be asserted by the daughter within the period of the nonclaim statute.
“A marriage contract such as that described in paragraph 1 may be asserted by an heir, the daughter, at the hearing for final settlement and distribution in defense to prior pleadings of another heir, the widow, in which the latter asserts the rights of an heir and widow whose husband died intestate.
“The demurrer of the widow to a petition of the administrator for final settlement and distribution and to portions of answers filed by the daughter to petitions of the widow was properly overruled in view of factual issues joined by the pleadings as set forth in the opinion.
“The motion of the daughter, appellee, to dismiss the widow’s appeal to this court examined, considered and held to be without substantial merit.” (See In re Estate of Welch, supra).
The judgment of the district court in overruling the demurrer was affirmed and the cause remanded to the district court for further proceedings.
When it came on for trial Margret demanded a jury trial. This was overruled. The cause proceeded to trial by the court. Carrie Bell introduced the written contract, which was admitted over the objection of Margret. Carrie Bell then rested.
Margret argues first that the court erred in overruling her demand for a jury trial. In support of this she points out G. S. 1947 Supp. 59-2408. That is the section providing for trials in the district court of appeals from probate court. It provides, in part:
“. . . appeals other than those from the allowance or disallowance of a demand, . . . shall be tried by the court without a jury, but the court may call a jury in an advisory capacity. . . .”
She argues that her claim for revocation of a marriage settlement was a demand against the estate and under the provisions of the foregoing statute, since she was urging in the district court that the contract had been revoked, she was entitled to a jury trial on that question. That question was settled in this case by our holding when the appeal was here before. (See In re Estate of Welch, supra.) The last sentence of the first paragraph of the syllabus reads:
“It only determines which one of the heirs shall receive the assets of the estate and does not constitute a claim or demand against decedent’s estate which must be asserted by the daughter within tire period of the nonclaim statute.”
The question was carefully considered by us and is treated at length in the opinion. No good reason is advanced why we should open the matter again. Once we concluded that a marriage con tract is not a demand under the nonclaim statute, it follows that the question of whether such a contract was rescinded does not require a jury under G. S. 1947 Supp. 59-2408.
Margret next contends that the agreement authorized decedent to convey or sell his property without her consent but did not bar her from inheriting from decedent nor from receiving the widow’s statutory allowance. She bases that argument on a portion of the contract which will be set out here now even though the entire contract has heretofore been included in this opinion. It reads, as follows:
“The party of the second part likewise agrees that she shall have and claim no right, title or interest in or to any of the property, either real or personal, which the party of the first part now owns or which he may hereafter individually acquire, and to that end she hereby expressly releases, surrenders and quitclaims unto the said first party, his heirs, executors, administrators, or assigns, any and all right, title, or interest in or to such said property of the first party, which she might otherwise acquire by reason of being the wife of such first party and she further agrees that the party of the first part may own, sell, devise, bequeath, pass by inheritance, or otherwise manage or dispose of such said property belonging to him in the same manner and to the same extent as though he were a single person.”
It is difficult to read this meaning into the language quoted. In the first clause thereof Margret agreed that she should have and claim no right to any of the property which decedent owned or which he might thereafter acquire. Then she released to his heirs or administrators any right, title or interest which she might otherwise acquire by reason of being the wife of decedent. Then she agreed that decedent might devise, bequeath or pass by inheritance any of his property to the same extent as though he were a single man. These provisions as clearly barred appellant from inheriting from decedent as words could do it. Furthermore, the pleadings filed by Margret during the course of this litigation indicate such was her intention, since she pleaded time and again that the reason she should inherit was that the contract had been rescinded by both parties. We have examined the authorities relied on by Margret to sustain her argument and find the contracts treated therein to be distinguishable. In McVicar v. McVicar, 128 Kan. 394, 278 Pac. 36, we considered a contract not nearly so clear in its terms as this and held it barred the second wife from inheriting. We distinguished the contract from the one treated in the case of Kistler v. Ernst, 60 Kan. 243, 56 Pac. 18, and Rouse v. Rouse, 76 Kan. 311, 91 Pac. 45, upon which appellant relies here. We said that no strained interpretation of language would be permitted to strip a surviving spouse of her inheritance. We said further, however:
“In the case at bar, however, the parties agreed that their respective properties should remain and be their several respective properties the same as if each of them were unmarried, and further—
“ ‘The said Hattie L. Booth shall not acquire by force of said contemplated marriage, for herself, her heirs, . . . any interest in his (George A. McVicar’s) property or estate. . . .’
“McVicar’s renunciation of interest in his affianced wife’s property was reciprocally sweeping in its terms, and this court finds it impossible to qualify or limit the fair meaning of this language. It simply means what it says. Neither George nor Hattie, nor their heirs, were to acquire any actual, potential, or inchoate rights in each other’s property as a consequence of their contemplated'marriage; and the trial court did not err in its judgment to that effect.”
We will not indulge in a strained interpretation of language to strip a spouse of her right to inherit, neither will we ignore the clear and unequivocal meaning of words used in a contract. To ascertain the intent of the parties is the fundamental rule in the construction of contracts. In such construction we look to the language employed and the conduct of the parties and all the surrounding circumstances. (See Berg v. Scully, 120 Kan. 637, 245 Pac. 119.)
Margret next contends that this agreement which she terms an antenuptial contract would not operate to bar her from receiving her statutory allowance and homestead.
On account of the unusual manner in which the issues of this case were made up, it is not clear as it might be as to what questions of fact were presented to the trial court.
At the conclusion of Margret’s evidence, however, Carrie Bell demurred to it for the reason that such evidence had not proved the recision of the contract or the existence of a homestead. This demurrer was overruled and at the conclusion of the evidence both sides requested findings of fact on those two questions. The court found:
“4. That said post nuptial agreement above referred to was at no time revoked or set aside, and was in full force and effect at the túne of the death of the said F. M. Welch.
“6. That the above described real estate was never occupied by the deceased, F. M. Welch and Margret A. U. Welch, his wife, after their marriage and during his lifetime nor was it ever occupied by his widow, Margret A. U. Welch at any time thereafter, but their homestead while they lived together was in the home of the property owned by the wife, Margret A. U. Welch.”
Following the findings, the trial court concluded as a matter of law:
"Conclusions of Law:
“1. That the widow, the appellant, Margret A. U. Welch, is barred from all inheritance rights in the estate of the deceased, F. M. Welch, or any homestead right in the proceeds of sale of said property.
"2. That the entire estate, after payment of debts, taxes, costs of administration of said estate, descends to Carrie Bell, the daughter of the said deceased by a former marriage.
“3. The former order of distribution of the estate of the deceased, F. M. Welch, by the Probate Court of Montgomery County, Kansas, is hereby approved. The costs of this appeal to be paid by the appellant, Margret A. U. Welch.”
There was ample evidence to support these findings. As a matter of fact, as to the homestead feature, there was no evidence to the contrary. Even Margret’s own witnesses testified she and deceased never at any time had occupied the premises in question. The inventory filed by the administrator shows no homestead and it was conceded at the oral argument there was no homestead. As to the widow’s allowance, that is statutory and may be waived by contract. Hence it is not necessary for us to decide whether this was a post-nuptial or antenuptial contract.
Margret next argues that the decision of the trial court was contrary to the evidence. The question of fact to be tried we have heretofore pointed out. Margret introduced some evidence tending to establish her position. Margret argued that the evidence was such as to require a finding that the contract was rescinded. But little would be added to this opinion by setting out herein the evidence. Margret sets out the evidence offered by her to show rescisión. Carrie Bell and the administrator set out the evidence offered by them to show the contract was not rescinded. The matter was settled by the trial court’s finding. (See Hughes v. Vossler, 112 Kan. 466, 211 Pac. 123; and Trager v. Elliott, 106 Kan. 228, 187 Pac. 875.)
The judgment of the trial court is affirmed. | [
-48,
108,
-11,
125,
10,
-32,
42,
24,
114,
-15,
37,
83,
105,
-50,
21,
123,
58,
13,
65,
107,
-62,
-77,
86,
-128,
-42,
-13,
-78,
-35,
-69,
92,
110,
-34,
76,
32,
10,
-43,
-58,
-54,
-123,
20,
-116,
2,
9,
-31,
-39,
66,
52,
123,
82,
12,
80,
-98,
-9,
43,
61,
-61,
40,
44,
-23,
-88,
88,
-80,
-81,
-108,
95,
30,
-111,
-124,
-36,
-91,
88,
14,
24,
57,
-128,
-24,
51,
38,
-122,
116,
79,
-71,
40,
115,
98,
35,
-67,
-1,
-8,
-104,
-113,
50,
-99,
-89,
-30,
88,
2,
96,
-66,
-100,
117,
16,
3,
116,
-26,
4,
92,
-68,
8,
-117,
-42,
-79,
87,
122,
-104,
11,
-5,
-29,
33,
113,
-39,
2,
93,
67,
51,
-101,
-57,
-80
] |
The opinion of the court was delivered by
Parker, J.;
This was an action by parents to recover damages for the wrongful death of their nine year old son, Garrold Morrison, who was killed at a point about one mile south of Iola while riding a bicycle in a northerly direction on U. S. Highways Nos. 169 and 59 at a time when the boy was being overtaken and passed by a gasoline transport truck, driven by Glenn McMillan, owned by R. C. White and insured by the Hawkeye Casualty Company, a corporation, all of whom were defendants. The plaintiffs recovered and all defendants appeal.
The pleadings are not in controversy, hence it is only necessary to refer to portions thereof vital to appellate issues involved.
Thus limited allegations of the petition read:
“. . . That the said plaintiffs’ son was struck and thereby killed by the said defendant’s, R. C. White, truck, this occurred about one-quarter (%) of a mile south of Bassett, Kansas, on highway numbers 169 and 59.
“6. That plaintiffs’ son, Garrold Orphie Morrison, was riding a bicycle in a careful and prudent manner and that his death was the direct and proximate result of the negligence of the defendant, Glen McMillan, in the operation of defendant’s, R. C. White, said truck as follows:
“(a) That plaintiffs’ son was, in company with his brother Victor Morrison and Chester Keith, riding his bicycle north on the east side of said highway Numbers 169 and 59. The three boys were riding in a single line well over to the east side of said highway. The plaintiffs’ son being the last in the line.
“(b) That defendant, Glen McMillan, negligently failed to use due care in that said truck was being driven at a high and dangerous rate of speed, approximately fifty (50) miles per hour, and that the defendant upon seeing the boys on their bicycles failed to slow down and slacken the speed of the said truck at any time in order to avoid hitting the said plaintiffs’ son although having ample opportunity to do so.
“(c) That defendant, Glen McMillan, also going north on said highway numbers 169 and 59, overtook the said boys from the rear, hitting the said plaintiffs’ son, Garrold Orphie Morrison, while said boy was on the east side of the highway and while said defendant, Glen McMillan, was attempting to pass the said boy.
“(d) That the defendant, Glen McMillan, drove the said truck on the said public highway without regard to the presence of the plaintiffs’ son and negligently failed to turn the said truck to the left and thereby avoid hitting the said boy although the defendant had ample opportunity to do so.
“(e) That the defendant, Glen McMillan, did not sound or honk his horn or give any other warning as he attempted to pass plaintiffs’ son, who was riding a bicycle on the highway, and that as a result of said negligence and carelessness of the defendants in the operation of said truck, the death of the plaintiffs’ son resulted as a direct result of the aforesaid negligence and carelessness of the defendant.”
"11. That at the time defendants’ truck hit the said plaintiffs’ son aforesaid, the defendants’ truck was being operated on the highways of the State of Kansas pursuant to a permit issued by the State Corporation Commission of the State of Kansas, as a private motor carrier of property and a contract motor carrier of property which permit number was 52-49, issued by said Commission. . . .”
Defendants’ answer includes a general denial and allegations charging plaintiffs were guilty of contributory negligence in permitting their son to travel upon a main and busy thoroughfare on a bicycle when he was too young and inexperienced to possess the requisite skill and ability required to ride such a vehicle and that the boy’s death resulted from his own contributory negligence. With respect to these charges of negligence it also avers the child lost control of the bicycle and fell therefrom near the rear wheels of the truck and that his death resulted from head injuries and fracture of the skull caused by his head having struck the concrete pavement slab.
All allegations of the answer, including those pertaining to contributory negligence, are denied by the plaintiffs’ reply.
On issues joined by the pleadings as heretofore related the case came on for trial by a jury. A demurrer to the plaintiffs’ evidence was overruled by the trial court after which defendants adduced their evidence. The cause was then submitted to the jury along with thirteen special questions. In due time the jury returned a general verdict in favor of plaintiffs for the sum of $1,750 together with its answers to the special interrogatories submitted. Defendants then requested that the court set aside the answer of the jury to interrogatory No. 9. Later they moved for judgment notwithstanding the general verdiet. Each of these motions was denied. They then filed a motion for a new trial, specifying error in overruling the demurrer to the evidence, in refusing to give instructions and submit special questions, and abuse of discretion. This motion was denied. Plaintiffs’ motion for a new trial received similar treat ment. Thereupon the trial court approved and accepted the verdict and special findings and rendered judgment in accordance therewith.
Defendants then took an appeal from the judgment and all rulings of the trial court heretofore mentioned.
The special questions and their answers must be conceded to be of vital importance to a determination of the rights of the parties to this appeal. For that reason it is fitting to quote them in toto early in this opinion. They read:
“1. Did the defendant’s truck run into Garrold Orphie Morrison? A.: No.
“2. If you should answer the' foregoing question in the affirmative, what part of the defendant’s truck ran into the deceased? A.: -.
“3. Where on the highway were the three boys riding on their bicycles when the defendant’s truck came up to and overtook them? A.: On shoulder.
“4. Where on the highway was defendant’s truck running when it came up to and overtook the three boys riding on their bicycles? A.: East side.
“5. What was the distance between the defendant’s truck and the boys riding on bicycles when said truck was passing them? A.: SV2 feet.
“6. Did the defendant’s truck run over the body of Garrold Orphie Morrison? A.: No.
“7. If you should answer the foregoing question in the affirmative, then state which wheel or wheels of the defendant’s truck ran over the body of Garrold Orphie Morrison. A.: -.
“8. At the time the front end or cab of defendant’s truck overtook and passed said Garrold Orphie Morrison riding along the east side of the highway on his bicycle and so long as he was in plain sight of the driver thereof,
“(a) Was the deceased riding off the pavement slab and on the shoulder of the road? A. Yes.
“(b) Was he having any apparent trouble or difficulty in riding his bicycle? A. No.
“(c) Did he later have trouble or difficulty in managing bicycle,, before defendant’s truck had completely passed him? A. Yes.
“(d) If you answer the foregoing question (c) in the affirmative, state what occurred. A. Hit a rough spot.
“9. If you return a verdict in favor of the plaintiffs, then state specifically what act or acts of negligence you find the defendants or any of them to be guilty? A.: Failure to yield enough right of 'way.
“10. Was the deceased, Garrold Orphie Morrison, thrown off his bicycle? A.: Yes.
“11. If you answer the foregoing question in the affirmative, then state what caused him to be thrown off his bicycle? A.: Hit a rough spot.
“12. Did the plaintiffs’ nine-year-old son, Garrold Orphie Morrison, possess sufficient skill and experience safely to- ride his bicycle on Highway U. S. 169 at the time and place where his death occured? A.: Yes.
“13. If you should answer the foregoing question in the affirmative, then state whether or not the deceased, Garrold Orphie Morrison, rode and managed his bicycle, at the place and time of his injury, and under all the cir eumstanoes disclosed by the evidence here, in a careful and prudent manner and with due regard to his own safety? A.: Yes.”
Before giving consideration to-questions raised by the appeal the issues will be simplified by pointing out that appellees failed to perfect an appeal from 'the order overruling their motion for a new trial while appellants concede that questions pertaining to negligence of the parent appellees in permitting their deceased son to ride his bicycle on the highway and the decedent’s contributory negligence in operating such vehicle at the time of the accident were disposed of by special findings Nos. 12 and 13.
A similar result will follow from early disposition of another matter. Throughout their brief and argument appellants insist that allegations of the petition, heretofore quoted, must be construed as precluding appellees’ right to recover unless the evidence discloses their truck ran into and over the body of the decedent. In fact the form of questions 1 and 6 submitted by the court on their request is indicative of their theory. Appellants’ position on this point is too narrow and cannot be upheld. While its allegations might have been more definite we believe the petition is susceptible of the construction it charges there was a collision on the highway between the truck and the boy on the bicycle resulting from negligence of the appellants as charged in the petition.
With the last point decided we have little difficulty in concluding the trial court did not err in overruling appellants’ demurrer to appellees’ evidence. One witness testified in substance that as the truck came from the south on the east side of the highway it attempted to pass the boys who were also on that side of the road without swerving or turning over to the west. One of the bicycle riders, who escaped injury, stated that the driver did not honk his horn or give any warning before attempting to pass. Another said that as he glanced to the rear it looked to him as if the back end of the truck hit Garrold and just threw him in the air. The sheriff of Allen county testified that he found a blue raveling or thread in the right back dual tire of the truck immediately after the accident. Another witness stated that Garrold. was wearing a blue shirt and blue overalls on the day he was killed. In the face of this evidence, the trial court would have erred if it had taken the case from the jury.
Neither do we have difficulty in disposing of appellants’ claim the trial court’s refusal to submit two requested special questions was erroneous. The court submitted thirteen out of fifteen questions requested by them. Our code of civil procedure (G. S. 1935, 60-2918) expressly provides that no party in any case shall be entitled as matter of right to request more than ten special questions. If appellants deemed the two questions of which they now complain so vital to their cause they should have eliminated some of those submitted. We have no doubt if they had done so the trial court would have submitted those now in question. Moreover, under the same section of the code the allowance of more than ten such questions is within the discretion of the court. Under our decisions (see, e. g., Sluss v. Brown-Crummer Inv. Co., 143 Kan. 14, 53 P. 2d 900; Cheek v. Eyth, 149 Kan. 586, 588, 89 P. 2d 11; Hamilton v. Lanoue, 145 Kan. 768, 774, 67 P. 2d 574; Davidson v. Douglass, 129 Kan. 766, 770, 284 Pac. 427; Giles v. Ternes, 93 Kan. 140, 142, 143 Pac. 491) where that number is submitted, all at the request of one of the parties, a court does not abuse its discretion in refusing his request for more.
But that is not all. Proffered question No. 14 simply inquired as to whether the appellees exercised due care and caution in permitting their son to ride upon the highway on a bicycle. By instruction No. 11 the court specifically told the jury that if appellees were guilty of negligence in that respect they could not recover for their son’s death. The result is that appellants were not prejudiced by failure to submit this question. Thus, even if it should have been submitted failure to do so did not constitute reversible error (G. S. 1935, 60-3317). By special question No. 15 appellants not only sought to ascertain what caused the death of appellees’ son but also what brought it about. This was a dual question and the court was not required to submit it under any circumstances.
Nor are we troubled with appellants’ assignment of error with respect to requested instructions. Complaint is made of the trial court’s refusal to submit an instruction to the effect that the place of the appellant, casualty company, in the lawsuit was that of an insurance company from whom appellant, White, had purchased insurance and that it was not charged with any negligence or act re-' suiting in the death of appellees’ son. Appellants do not bring up the instructions. Appellees insist that the matters included in the requested instruction were fully covered by instructions which were given and are not brought here. Under such conditions we might well dispose of this alleged error on the ground that our decisions (see Lambert v. Rhea, 134 Kan. 10, 4 P. 2d 419; Wyckoff v. Brown, 135 Kan. 467, 11 P. 2d 720; Farmers State Bank v. Crawford, 140 Kan. 295, 297, 37 P. 2d 14) require the appealing parties to bring up a complete record of all matters upon which review is sought and that where instructions are challenged on grounds of failing to cover the issues it is incumbent upon them to bring up all the instructions or make it affirmatively appear that those omitted contain nothing pertaining to the matters they seek to have reviewed. However, that is not required. From an examination of the instructions and the entire record we are convinced the jury was fully aware of the casualty company’s status as a party defendant and that failure to give this requested instruction did not prejudicially affect appellants’ substantial rights.
In Jacobs v. Hobson, 148 Kan. 107, 79 P. 2d 861, we held:
"Technical errors which do not affirmatively appear to have prejudicially affected the substantial rights of parties are not grounds for reversal. (G. S. 1935, 60-3317.)” (Syl. If 2.)
See, also, Firmin v. Crawford, 140 Kan. 370, 36 P. 2d 970; Donley v. Amerada Petroleum Corp., 152 Kan. 518, 525, 106 P. 2d 652.
The other requested instruction which was refused deals with proximate cause and need not be detailed. It suffices to say it places too much emphasis upon appellants’ version of the facts disclosed by the evidence and ignores others of equal if not of more importance. Moreover, the instructions as submitted fairly cover the subject of proximate cause. In that situation, under all of our decisions, the trial court did not err in refusing to give this instruction in the form requested. (See West’s Kansas Digest, Trial, § 260 [1]; Hatcher’s Kansas Digest, Trial, § 201.)
All remaining specifications of error are argued by appellants under the general heading that negligence found in the special verdict was not claimed by appellees in their petition. Included in their argument on this point are: (1) Refusal to set aside and strike out the answer to special question No. 9; (2) the overruling of a motion for judgment non obstante; (3) approval of the general and special verdicts and the rendition of judgment thereon, and (4) denial of the motion for a new trial.
Strange as it may seem, this is not a case where much emphasis is placed upon failure of the evidence to support the special findings and the general verdict if appellants’ general contention, as heretofore stated, is not upheld. On that account, except for informative purposes and one reason to be presently discussed, a detailed statement of the factual situation disclosed by the record is not required.
Summarized, essential features of the factual picture supporting the verdict, not heretofore mentioned, can be stated thus: All vehicles involved were proceeding in a northerly direction on a highway, the paved slab of which was eighteen feet with eighteen inches of shoulder on either side of such slab. While overtaking and attempting to pass three boys who were riding on bicycles the driver of the truck had a clear and unobstructed view for a distance of several hundred feet. Because of a motor vehicle approaching from the north the driver drove the truck, which was thirty-five feet long and approximately eight feet wide, straight down the highway on the east side of the slab at a speed of thirty to thirty-five miles per hour until he passed the on-coming vehicle at a point twenty to twenty-five feet to the rear of the bicycle riders, who, in the meantime, had turned off the slab and were on the shoulder of the highway. What happened thereafter is in conflict but there is evidence to the effect that the truck proceeded straight down the highway, without turning out, and attemptéd to pass the boys who were still on the shoulder of the road, with a clearance of not more than 3 to 3Yz feet. At or about the point on the highway where this attempt was made there was a culvert marked by a post on each side of the road. At the east end of this culvert there was a hole or depression in the shoulder which made it difficult, if not impossible, to proceed forward on the shoulder without turning to the west and toward the cement slab. As the truck was attempting to pass Garrold, who had reached the culvert, the boy hit a rough spot on the shoulder and fell from his bicycle. He fell toward the truck and, while there is some controversy as to what resulted, there can be no question his head or shoulders collided with the truck, probably its right rear dual wheel, and that he suffered injuries which resulted in his immediate death.
In support of their position on the questions now under consideration much stress is placed by appellants on a claim, heretofore rejected. Indeed in their brief they state:
“The defendants’ theory is that the plaintiffs claim in their petition, in clean-cut unmistakable language, that their son was struck by the truck and thereby killed by the truck of the defendants. . . .”
More weight is given to a claim that no allegations of negligence alleged in the petition sustained the answer “failure to yield enough right of way,” made by the jury to special interrogatory No. 9. We now direct our attention to that contention. As we do so it must, of course, be conceded, as appellants point out, that such finding acquits the appellants of all other acts of negligence charged in the petition.
Paragraph 6 (d) of the petition, which we repeat for purpose of emphasis, reads:
“That the defendant, Glen McMillan, drove the said truck on the said public highway without regard to the presence of the plaintiffs’ son and negligently failed to turn the said truck to the left and thereby avoid hitting the said boy although the defendant had ample opportunity to do so.”
Appellants insist the allegations just quoted do not support or uphold the finding that their negligence consisted in a failure to yield enough right of way. Conversely stated, they contend that such allegations are not broad enough to permit a finding of that character and that in effect it constitutes a finding of negligence other than that relied on by appellees for recovery.
It is, of course, true that a finding of negligence entirely different than the acts of negligence relied on in a petition will not sustain a general verdict. However, there is another rule equally applicable and well established. Under all our decisions (e. g., Baker v. Western Cas. & Surety Co., 164 Kan. 376, 190 P. 2d 850; Coryell v. Edens, 158 Kan. 771, 150 P. 2d 341; Waltmire v. Ford, 147 Kan. 732, 78 P. 2d 893), special findings are to be liberally construed with the view of ascertaining their intended meaning and regardless of how unskillfully expressed they are to be given the meaning intended by a jury.
We are convinced that what the jury meant by its answer to finding No. 9 was that, as charged in the petition, the driver of the truck drove it on the highway without regard to the presence of appellees’ son and negligently' failed to turn it to the left and thereby avoid the collision resulting in his death. So construed such finding supports the general verdict and it necessarily follows the trial court properly overruled the motion to set it aside as well as the motion for judgment non obstante.
In view of the conclusions heretofore announced, the only question remaining is whether the collision was the proximate or legal cause of Garrold’s death. Appellants insist that such cause was the hitting of the rough spot on the shoulder of the road and the resulting fall from his bicycle. Conceding that must have been one of the causes we point out it was not the only cause. Appellants’ driver could see and he was bound to know the hazards incurred in approaching boys while riding on bicycles. It was his duty (G. S. 1947 Supp. 8-538) to pass to Garrold’s left at a safe distance. The fact the boy fell from the bicycle and into the passing truck does not compel the result for which appellants contend. Under the statute (G. S. 1947 Supp. 8-506) persons riding bicycles have the same rights and are entitled to the same protection as other persons in vehicles upon the highway. It cannot be denied the evidence as to whether the driver of the truck in attempting to pass did so at a safe distance is a controverted question. Under such circumstances, our decisions not only hold there can be more than one legal or proximate cause of the injuries resulting in Garrold’s death, but that the question whether one of those causes was the negligence of the driver of the truck in attempting to pass him at an unsafe distance is a question of fact for decision by the jury (Flaharty v. Reed, 167 Kan. 319, 206 P. 2d 205; Phillips v. Doyle, 167 Kan. 376, 207 P. 2d 465).
We fail to find anything in the record which permits a reversal of the trial court’s judgment. It is therefore affirmed. | [
-16,
104,
-12,
14,
11,
98,
40,
90,
49,
-79,
-27,
115,
-85,
-53,
5,
105,
-1,
63,
-43,
107,
101,
-77,
19,
-126,
-110,
-77,
123,
-60,
51,
-53,
108,
-9,
76,
48,
-54,
85,
102,
74,
-59,
-42,
-114,
22,
9,
-15,
73,
2,
-80,
122,
54,
7,
-11,
-113,
-61,
42,
28,
-25,
108,
46,
121,
-67,
-47,
-16,
-53,
7,
-65,
19,
-95,
36,
-66,
-96,
88,
25,
-100,
49,
8,
-20,
50,
-92,
-122,
-12,
105,
-119,
12,
-90,
103,
33,
29,
-51,
-68,
-104,
47,
-2,
47,
-89,
-98,
49,
41,
-91,
-97,
-67,
123,
22,
10,
122,
-38,
76,
95,
-20,
1,
-53,
-108,
-127,
-49,
-96,
-100,
73,
-29,
-121,
50,
117,
-56,
-30,
93,
69,
116,
-107,
-106,
-74
] |
The opinion of the court was delivered, by
Price, J.:
This is an appeal from an order of the district court denying probate of a written instrument purporting to be the last will and testament of a decedent.
The only question presented is whether one of the subscribing witnesses heard the testatrix “acknowledge the same,” in compliance with the statute.
The purported will is as follows:
“this is my last will
“First — I want all bills my paid—
“Second — I appoint Floyd as executor of my estate, without bond.
“Third — I want Bood to buy the Ryus quarter at $25 per acre.
“4th — I want each of the heirs of John, Mary and Daisy to receive ($1000.) one thousand dollar each minus what they owe me. Ralph $75. Ruby owes $135.
“5th. — Brother Charlie to have my old home on SE Comer of block. Charlie to have my Car. Mabel to have my present home and green house & lots. Balance of my estate to be divided equally between Mabel & Charlie.
“Rosella Davis
“Witnessed — Emma E. Niquette R. N.
“Witnessed — Eleanor Schroll R. N.”
Rosella Davis, the testatrix (hereinafter referred to as Mrs. Davis), was a widow about seventy-eight years of age and lived in Ulysses. In the fall of 1947 she sustained a fractured hip and was taken to a hospital in Garden City where she died on December 27, 1947. Her heirs-at-law included a sister, Mabel, a brother, Charles, and a large number of nephews and nieces. One Barnes, a son of Mabel, operated a drugstore at Lakin, about twenty-five miles west of Garden City. He had been reared in Ulysses, however, was on very friendly terms with his aunt, and visited her frequently while she was confined in the hospital. On one such visit Mrs. Davis asked him if he would write her will on his next visit and he consented to do so. His next visit was on November 25, 1947, on which occasion the will was written. At the hearing in the probate court on the petition to admit the will to probate Barnes testified that on the day in question Mrs. Davis asked him to get some paper as she wanted to dictate her will. He secured a sheet from a desk drawer in the hospital room, seated himself beside her bed and wrote down what she dictated to him. The only other person present was one of Mrs. Davis’ nurses, a Mrs. Niquette, who was in and out of the room. At that point lunch was brought in to Mrs. Davis and the writing, not yet completed, was left lying on the bedside table. After lunch it was completed, he read it back to her, then handed it to her to read and she said it was what she wanted. She then signed the instrument in the presence of Barnes and nurse Niquette, after which there was some conversation between the latter two, in the presence of Mrs. Davis, regarding the necessity of two witnesses to her signature. Nurse Niquette suggested that they call in a Miss Schroll, another registered nurse on duty in the hospital. She then stepped out of the room into the hall where she met nurse Schroll and together they entered the room, nurse Niquette saying to Mrs. Davis, “Here is your friend, Miss Schroll, who is going to sign the will with us.”
Barnes further testified:
“A. Miss Schroll, when she came in, in her usual manner she greeted Aunt Rose, and Aunt Rose in turn greeted her. Mrs. Niquette told Aunt Rose, ‘Here is your friend Miss Schroll to sign your will with us.’ I had the bedside table sitting there, and this will was still on it, and this metal nurse’s chart that I had been writing on. The pen was lying there on the table, and I gave the pen to Mrs. Niquette, she signed the will, she handed me back the pen, I then handed it to Miss Schroll, she signed the will and handed me back the pen, and I put the pen away, and I think that is perhaps the end of that procedure, unless Miss Schroll, before she left, greeted Aunt Rose again, or something of that nature.”
Nurse Niquette testified that she had attended Mrs. Davis in the hospital; that she recalled the day in question, the circumstances of Barnes preparing the will and that she heard Mrs. Davis say “it is just as I wanted it”; that after Mrs. Davis, being propped up in bed, signed it in the presence of Barnes and her there was a discussion between the latter two, in the presence and hearing of Mrs. Davis, concerning witnesses and she then went out of the room to get nurse Schroll as a witness. That nurse Schroll and Mrs. Davis were former neighbors in Ulysses, were well acquainted with each other and that she, nurse Schroll, had visited Mrs. Davis almost daily in the hospital; that when she and nurse Schroll entered the room she said to Mrs. Davis, “Here is your friend to witness the will,” whereupon Mrs. Davis looked up and smiled and waved her hand, as was her usual custom when any friend came in; that the will was still lying on the bedside table and that she and then nurse Schroll signed the will as witnesses in the presence of Mrs. Davis and Barnes. The witness further testified that at the time in question Mrs. Davis was of sound mind and memory, recognized friends readily, could see well and was mentally alert. She identified the instrument in question and the signatures of Mrs. Davis, nurse Schroll and herself.
Nurse Schroll testified that she had formerly lived across the street from Mrs. Davis in Ulysses; that they were well acquainted and good friends, and that she had visited Mrs. Davis in her hospital room at least once or twice a day, although she was not her regular attending nurse; that on the day in question, while she was out in the hall of the hospital, nurse Niquette asked her if she would witness Mrs. Davis’ will; that upon entering the room with nurse Niquette the latter said to Mrs. Davis, “Here is Miss Schroll to sign your will with us”; that Mrs. Davis raised her hand, recognized that she was there and in response to her question as to how she was feeling replied, “about the same”; that the instrument had already been signed by Mrs. Davis, but that she didn’t see her sign it and that she and nurse Niquette signed as witnesses in the presence of each other and in the presence of Mrs. Davis and Barnes; that the will was lying in plain sight on the bedside table in front of and to the side of Mrs. Davis, who was propped up in bed and could see all that was going on. She further testified that at the time in question Mrs. Davis recognized her as “one of the Schroll girls”; that she was mentally competent and realized and comprehended what was being done. The witness identified the instrument in question and the signatures attached thereto.
Doctor Brewer, who was Mrs. Davis’ physician, testified that he had known her since childhood; that he had seen her frequently while she was in the hospital, including November 25, 1947; that on that date she was of sound mind and memory, mentally alert, able to recognize friends and acquaintances and competent to make a will.
The contestants offered no evidence, but demurred to the evidence of proponents as above set out “for the reason that said evidence is insufficient to properly prove the will.”
The probate court found that the will was duly executed in the manner provided by law and admitted it to probate as and for the last will and testament of the decedent, whereupon the contestants perfected their appeal to the district court.
In the district court it was stipulated by the parties that the cause would be submitted “upon the transcript of the record from the Probate Court of Grant County, Kansas, heretofore filed herein, and upon a transcript of the testimony had and presented before the Probate Court of Grant County, Kansas, at the hearing had on the petition on the 20th day of February, 1948.”
The district court found against the proponents of the will and denied probate, the pertinent portion of the journal entry of judgment being as follows:
“And the Court thereupon announces that it finds, under all of the evidence, that the instrument attached to the petition as Exhibit ‘A’ and offered for probate as the last will and testament of Rosella Davis, deceased, should not be admitted to probate, for the reason that the same was not shown to have been executed in strict compliance with the provisions of the statute, and for the reason that the petitioner has failed to meet the burden of proof and to establish said instrument as being the last will of Rosella Davis, deceased.”
Motion for a new trial being overruled, proponents appealed to this court.
The written defenses filed in the probate court set out a number of grounds in opposition to the admission of the will to probate, but in this court the parties have limited the issues and agree that the only question is whether the witness Schroll heard the testatrix “acknowledge the same,” in compliance with the statute, G. S. 1947 Supp. 59-606, which is as follows:
“Every will, except an oral will as provided in section 44 [59-608], shall be in writing, and signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard him acknowledge the same.”
Thus it will be seen that the proponents have the burden of showing that the testatrix signed the will at the end thereof and that it was attested and subscribed in her presence by two or more competent witnesses who either saw her subscribe or heard her acknowledge the same. It is of course conceded that Mrs. Davis signed it at the end thereof; that the witness Niquette saw her do so and that both of the witnesses subscribed in her presence. But the evidence shows that the witness Schroll did not see Mrs. Davis sign the will and the question therefore is — did this witness hear her acknowledge the same?
Since the trial court heard this case solely on the transcript of the record and evidence introduced in the probate court, the ordinary rule governing appellate review in this court does not prevail and we are in as good a position as the trial court to draw our own conclusions from the evidence introduced and to determine what the facts establish. In re Estate of Kemper, 157 Kan. 727, 145 P. 2d 103.
Appellees (contestants below) rely on a strict and literal construction of the governing statute and argue that since witness Schroll did not see Mrs. Davis sign then it was necessary for her to hear her acknowledge the same, which they contend could not have taken place for the very good reason that Mrs. Davis at no time said to witness Schroll, or in her presence, that it was her signature or that the writing was her will. They argue that the statute makes hearing the testatrix acknowledge her signature or that it is her will the only substitute for seeing her sign; that the use of the word “hear” in the statute can only mean the use of one’s vocal cords in speaking words, and our attention is directed to language contained in the quite recent case of In re Estate of Bond, 159 Kan. 249, 153 P. 2d 912, where it was said:
. . We prefer this strict construction of the statute to one which would tend to break down the formalities with which our legislature has seen fit to cloak the passing of property by devise. . . . The witnessing of a will is just as essential as writing and signing at the end. It is a solemn ceremony, involving the assembling of qualified persons who must perform prescribed acts under prescribed conditions, . . . It is undoubtedly true that from time to time an honest attempt to execute a last will and testament is defeated by failure to observe some one or more of the statutory requirements. It is better this should happen under a proper construction of the statute, than that the individual case should be permitted to weaken those provisions calculated to protect testators generally from fraudulent alterations of their wills.”
and to In re Estate of Charles, 158 Kan. 221, 146 P. 2d 395, as authority for their position that nothing less than a literal compliance with the statute will effectuate its purpose.
Appellants’ (proponents below) argument is based on the premise that an acknowledgment need not consist of formal spoken words, that it may consist of conscious acts and conduct of a testator, and that if witnesses subscribe as such at his implied request such request to them to do so necessarily includes in itself an admission to them that the instrument is his.
Some point is made in the briefs whether the last two words of the statute, “the same,” refer to a testator’s signature or to the instrument itself as being a will, but we do not consider it necessary to draw such a fine distinction for the reason that under the facts of this case Mrs. Davis either “acknowledged” both her signature and the fact that it was her will to witness Schroll — or she did not.
Few questions, if any, down through the years have given rise to more textbook authority and adjudicated cases than those pertaining to the devise of property by will, and while there is considerable variance in the statutory requirements among the several states pertaining to the execution of wills, it may be said, as a general rule, that all of the authorities are to the effect that strict com pliance with the statute is required. The difficulty arises in the determination of what constitutes strict compliance.
Our statute pertaining to the execution and attesting of wills does not require publication or that the subscribing and attesting witnesses actually know that the instrument is a will. In re Estate of Koellen, 162 Kan. 395, 176 P. 2d 544; In re Estate of Randall, 167 Kan. 62, 204 P. 2d 699. Publication is the act of making it known in the presence of witnesses that the instrument to be executed is the last will and testament of the testator. But even in those jurisdictions which require that a will be published the general rule is:
“Generally speaking, any communication of a testator’s intent to give effect to a paper as his will, whether by word, sign, motions, or conduct, is sufficient to constitute publication. In other words, the requirement that a will be published which is imposed by statute in some jurisdictions, is satisfied if the testator, by word or deed, clearly indicates to the witnesses that the instrument is his last will and testament.” 57 Am. Jur., Wills, § 283, p. 219.
And neither does our statute require a testator to sign in the presence of the subscribing witnesses. Touching this point, the general rule, with reference to acknowledgment, is:
“In the absence of a statute which requires that the manual operation of signing a will be performed by the testator in the presence of the subscribing witnesses, it is not essential to the due attestation of a will that the witnesses be present when the will is actually signed by the testator. An acknowledgment of his signature by the testator in the presence of the attesting witnesses suffices to render the attestation a witnessing of the execution of the will by the testator. . . . Generally speaking, an acknowledgment of his signature by a testator, whether in his own handwriting or not, need not be formal, nor in any set form of words. It may be by acts or conduct, provided the testator indicates to the witnesses, with unmistakable certainty, that the signature is his.” 57 Am. Jur., Wills, § 298, pp. 229, 230.
See, also, the case of Reed v. Hendrix’s Exor., 180 Ky. 57, 201 SW 482 (cited as Reed v. Whaley, L. R. A. 1918E, 423) where, under a statute similar to ours, it was held in substance that a will is sufficiently acknowledged by a testator if the witnesses are asked in his presence if they had come to sign the will, followed by an immediate affirmative answer and attestation of the instrument by them in testator’s presence, and 68 C. J., Wills, § 363, p. 699, where it is said:
“It is not necessary that the testator should by his own words acknowledge the signature, but the words of acknowledgment may proceed from another and will be regarded as those of the testator if the circumstances show that he adopted them and the person speaking them was acting for the testator with his assent.”
In Thompson on Wills, Third Edition (1947), § 125, p. 199, dealing with the question of acknowledgment, the rule is stated:
“No particular form or method of acknowledgment of his signature is required of the testator. It is sufficient if he exhibits the instrument with his signature thereon to the witnesses and refers to it as his will. Where a testator requests the witnesses to attest his will, this is sufficient to authorize the inference that he had executed the paper as a will, and is equivalent to an acknowledgment that he had signed the paper as a will. Such request need not be made by the testator personally, but it will be sufficient if made by another and acquiesced in by words or acts of the testator.”
and again in Atkinson on Wills, § 123, p. 277 (on the question of sufficiency of testator’s request to witnesses to sign):
“The courts agree that the request need not be an express oral one. It may be implied from what the testator says or does. A signing by the witnesses with the testator’s consent, or with his knowledge and approval may be considered an implied request. A request to the witnesses by the attorney who drew the will, or by some other person, acquiesced in by the testator is sufficient.”
See, also, Smith v. Holden, 58 Kan. 535, 50 Pac. 447; Colman v. Lindley, Administrator, 115 Kan. 802, 224 Pac. 912, and Kitchell v. Bridgeman, 126 Kan. 145, 267 Pac. 26, for a discussion of the general subject matter.
As applied to the facts of this case we think the language in the Bond case, supra, and the holding in the Charles case, supra, are not of much help to appellees. In the former the question was whether the alleged will had been signed at all by the testator — and it was held it had not, which of course left no room for a construction of the statute which provides that every will shall be signed at the end thereof by a testator. With respect to the Charles case we will not detail the facts, but appellees attempt to get more help from it than -its facts and circumstances justify.
There is no need again to summarize the evidence brought out in the hearing in the probate court. We think it is clear, beyond all doubt, that Mrs. Davis, by her conscious acts and conduct, “acknowledged” to the subscribing witness Schroll that the instrument in question was her will and that she had signed it. To state our reasons would be to quote the testimony. True, a skilled attorney, under the circumstances, would have been prompted to say to Mrs. Davis when nurse Schroll entered the room, “Is this your will and is that your signature?”, or words to that effect — but, do the absence of such or similar statement and affirmative reply by Mrs. Davis bring about the result sought by appellees? We think not. In so holding we do not mean in any way to relax the rule of “strict compliance” laid down in the Bond case, supra, but under all the facts and circumstances we are of the opinion the statute was complied with in this case.
It therefore follows that the judgment of the lower court is reversed with directions to admit the will to probate. | [
-15,
108,
-27,
-97,
42,
-16,
-118,
-118,
-14,
97,
39,
87,
-23,
66,
84,
75,
62,
-83,
85,
105,
102,
-74,
7,
-31,
-14,
-5,
-5,
-43,
-79,
-7,
-76,
94,
77,
40,
-86,
-35,
102,
-54,
-27,
80,
-52,
17,
-119,
-27,
-55,
114,
48,
35,
52,
13,
-43,
-98,
-13,
45,
29,
114,
44,
46,
123,
-87,
92,
-72,
-97,
-113,
-3,
3,
-112,
-90,
-108,
-95,
88,
-114,
-112,
49,
0,
-32,
115,
-90,
22,
84,
75,
-103,
12,
118,
98,
80,
-19,
-19,
-104,
-102,
23,
118,
-67,
-89,
-106,
89,
-88,
96,
-74,
-99,
120,
80,
11,
116,
-34,
-35,
60,
44,
24,
-113,
-42,
-79,
-119,
56,
-104,
-113,
-29,
-77,
48,
113,
-55,
-88,
93,
98,
113,
-101,
-114,
-74
] |
The opinion of the court was delivered by
Harvey, C. J.:
Plaintiffs brought this action to recover actual and punitive damages alleged to have resulted from salt water which defendant permitted to escape from a salt water disposal pond operated by it in connection with oil wells on plaintiffs’ land. A trial by jury resulted in a judgment in favor of plaintiffs of $1,092 for actual damages and $5,000 for punitive damages. Defendant has appealed.
In the petition, filed July 9,1948, plaintiffs alleged that they were the owners of the east half of a described quarter section of land in Barton county upon which defendant was operating under an oil and gas lease; that in doing so it was permitting large quantities of salt water to escape from a salt water disposal pond it had constructed upon the premises, to such extent that approximately ten acres of plaintiffs’ land had become saturated with salt water, destroying the land for cultivation and other farming purposes and causing a complete loss thereof; that the pollution of plaintiffs’ land is constantly spreading and increasing and thereby will prevent plaintiffs from using additional acreage of the land for farming purposes; that prior thereto plaintiffs’ land, exclusive of the mineral rights thereunder, was of the value of $12,000, but owing' to the pollution of the land the fair and reasonable market value of the land, exclusive of mineral rights thereunder, is now $6,000, and that plaintiffs have sustained damages from such pollution in the sum of $6,000. It was further alleged:
“That all of said damages complained of were caused by the defendant unlawfully permitting the salt water to escape from said oil wells and salt water disposal ponds as aforesaid and to flow over, into and upon plaintiffs’ land; that the defendant knew or had good cause to know that the salt water which it was producing from said oil wells would and was escaping as described herein and that plaintiffs would thereby be damaged; that the defendant at all times herein referred to knew all of said acts of omission or commission narrated herein were in violation of the laws of this state, including without limitation, G. S. (1935) 55-121, and that said acts constituted and were an unlawful nuisance; that said defendant did willfully and intentionally and in utter disregard of the rights of the plaintiffs and the laws of this state permit the salt water to escape and flow from said oil wells and salt water disposal ponds as aforesaid and damage plaintiffs’ land as hereinabove described; and that by reason of said harmful, willful, intentional and unlawful acts, the plaintiffs are further entitled to punitive damages in the sum of $5,000.00.”
The prayer was for damages in the sums alleged, with interest, and also that defendant be permanently enjoined from causing and permitting the salt water to escape from its wells and salt water disposal ponds located on plaintiffs’ land.
In its answer defendant admitted its corporate existence and that it was the owner and operator of an oil and gas mining lease on the land and generally denied all other allegations of the petition.
At the trial, which began April 11, 1949, counsel for plaintiffs in an opening statement briefly summarized the allegations of the petition and counsel for defendant in an opening statement pointed out that it was a suit by a lessor against a lessee, admitted that it operated the wells and that salt water escaped from the ponds and that defendant produced the water with the oil, and stated the principal question involved would be the value of the land.
The evidence disclosed that all of the eighty acres was cultivated land used for the growing of wheat. It had been leased for oil and gas and under it a well had been completed in May, 1943, and another in September, 1944. Defendant purchased the leasehold estate and took possession July 1, 1947, and began to operate the wells. At that time, in addition to the two wells on the premises, there was on the lease a tank battery located about midway from east to west and about 800 feet south of the north line. About 80 feet north of the tank battery was located a small “B. S.” pond, a term frequently used in the oil field as indicating a miscellaneous class of oil refuse. After defendant began its operation the wells began to produce salt water, which was noticed in the fall of 1947. By early in 1948 the wells were producing large quantities of salt water and defendant constructed a large salt water disposal pond. This was situated about 50 feet west and 50 feet north of the tank battery. It was constructed by scooping out the dirt and putting in ridges around the sides. The dirt was porous and the pond would not hold water. It was built to a capacity of 3,500 barrels. Into this defendant turned 5,100 barrels of salt water every thirty-day month, which water escaped from the bottom and the sides of this storage tank. Before this action was brought it had spread over several acres to the west, north and east of the tank, and perhaps some to the south, and down into the ground to a stratum of rock about 30 to 36 inches below the surface, with the shale above it several inches thick and. along the top of this stratum of rock. Some of the water came out of the sides of the pond in rivulets, and across the surface of the land. Over the area where this saturation of water was most complete all vegetation was killed except Russian thistle and some types of salt grass. Farm machinery could not be driven over it without miring down. This situation was discovered by plaintiffs as early as June, 1948, and they called upon Mr. J ohn C. McFarland, district geologist for the oil field section of the Kansas State Board of Health, to make an examination. Mr. McFarland’s qualifications were admitted. He went to the premises one time in June — the exact date not shown — but it was directly after a heavy rain and he could not make the examination. He returned to the lease on July 7 and took a number of tests and examined the premises. He took samples of water from various places and analyzed it. The water from the pipe leading from the gun barrel tested 11,000 parts per million of chlorides. The water from the west pond tested 10,800 parts, and from a little puddle to the north of the pond it tested 9,000 parts. Tests were made from other places varying in distance from the salt water pond and from water collected in holes dug by a post augur to the rock stratum, which varied from 4,000 to 10,000 parts per million of chlorides. He found that although the pond held only 3,500 barrels they were running 5,100 barrels per thirty-day month into the pond. There was no evidence that the pond had ever overflowed. It did not run over the top because the seepage was great enough to take care of the water being put in it, since it was seeping out as fast as it was running into the pond. The area impregnated with salt water was in the direction north from the tank battery to the north line of the lease and in a direction west to the west line. The extent it would spread to the south would depend upon the level of the underlying stratum of rock. Sufficient tests were not taken to determine that accurately. “If nature takes its course, it will take anywhere from 15 to 50 years for the land to clear up.” This would vary largely in the extent of rainfall and the time might be shortened by certain types of cultivation. On July 7 he went to Mr. Harry T. Black, defendant’s state superintendent of production, and told him about his examination of the premises. The witness testified:
“At that time Mr. Black stated that he knew there was a bad condition on the lease, and that they had the material for a line to put a disposal system in to take care of the waste water that was escaping.”
McFarland further testified that it is a matter of common knowledge in the oil field in that part of the state that an earthen pit would not hold the water. The porosity and permeability of the soil is such that the moisture will seep or percolate through the soil to the first impervious layer below the surface.
There was much further evidence by lay witnesses along the same line. There was also testimony that the reasonable market value of the eighty-acre tract of land, not considering the oil rights, before it was permeated with salt water, was $12,000, and after it was permeated the value was only $6,000.
Mr. Black told Mr. McFarland that the material was available and they were making plans to put the salt water in a salt water disposal well'on the Grosshardt lease approximately a mile and a half southeast of the lease in question. The salt water disposal line was laid to the Grosshardt lease and completed on September 10, 1948. After that no more salt water was put into the salt water pond on plaintiffs’ land.
The court in its instructions summarized the pleadings and told the jury:
“. . . that the defendant in the case has admitted in open court that it is liable to the plaintiffs in damages on account of the fact that salt water seeped from, its salt water ponds over and through the plaintiffs’ land, and it will thus not be necessary for the jury to decide that question. The defendant is contesting the amount of damages claimed by the plaintiffs, however, and therefore the only matters for the jury to decide in this case are first, the amount of actual damages suffered by the plaintiffs, as proven by a preponderance of the evidence in this case, and second, whether the plaintiffs are entitled to punitive damages from the defendant, and third, the amount of such punitive damages.”
The court quoted G. S. 1935, 55-121, and gave further instructions covering the question of actual damages and of punitive damages. Counsel for defendant made no objection to any of the instructions given by the court, neither did they request any instructions, and specifically asked the court to let the record show that defendant was making no request for instructions.
After argument by counsel for plaintiffs the defendant waived argument and the case was submitted to the jury. After considering the case the jury returned a general verdict in favor of plaintiffs and against the defendant for $6,092. Answering special questions they found that two acres were permanently ruined, and for that land they allowed the sum of $300. They found that four acres were temporarily ruined. The total amount allowed for actual damages was $1,092, and they allowed for punitive damages the sum of $5,000.
Thereafter defendant filed two motions — a motion for a new trial, which set out five of the statutory grounds for a new trial in statutory language, and also a motion for the court to enter an order remitting to defendant all of the award for $5,000 punitive damages for the reasons that the rights of defendant were substantially affected and prejudiced during the trial by misconduct of the jury and by accident and surprise which ordinary prudence and diligence of counsel could not have guarded against; because of erroneous rulings and instructions of the court; because of the instructions given by the court with reference to G. S. 1935, 55-121 and 55-122; because the court permitted counsel for plaintiffs to refer to the above mentioned criminal statute during his argument to the jury, and because the award of punitive damages was obviously given under the influence of passion and prejudice and that the same is contrary to the evidence and contrary to the law.
Both motions were heard and overruled. There is nothing in the record to indicate that any evidence of any character was introduced by defendant in support of either of the motions.
Counsel for appellant contend that the court erred in instructing the jury as to the criminal statute pertaining to pollution. Appellant is not entitled to be heard upon that question. In its instructions the court embodied the provisions of G. S. 1935, 55-121. It did not embody the next section, 55-122, as appellant’s argument and brief would lead us to believe. No objection was made to the instruction given. In Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P. 2d 953, at page 101, in discussing the statute, it was said:
“Such a statute was not needed, however, to make the oil companies liable for damages caused by the escape of salt water from the premises of the company. This has been the law ever since the case of Fletcher v. Rylands, supra. [L. R. 1 Exch. 265 (1866).] The statute only made it possible that the companies could be compelled to keep the salt water confined without waiting for any person to be damaged.”
We think it was appropriate for the court to embody this statute in its instructions.
Counsel for appellant next contend the court committed error “in restriéting defendant’s testimony as to good faith in preventing the damage.” There is much more in appellant’s argument and brief about its good faith in preventing damages than there was in the evidence; in fact, there was very little in the evidence. When Mr. McFarland talked to Mr. Black on July 7, among other things Mr. Black stated the company planned to put the salt water in a disposal well on the Grosshardt lease, a mile and a half from plaintiffs’ land, and that they had the material on hand to do that. This, and the fact that it did lay a pipe line to the Grosshardt lease for the disposal of the salt water in a disposal well on that lease, which was completed on September 10, is about all the evidence in the record pertaining to defendant’s good faith. While Mr. Black was giving his testimony about the kind of pipe used in conveying the salt water from plaintiffs’ lease to a disposal well on another lease he was asked by defendant’s counsel: “What was the cost of that pipe?” The question was objected to and the objection was sustained. That is the only restriction of defendant’s testimony as to its good faith shown by the record. On the hearing of the motion for a new trial it was not shown by affidavit or otherwise what answer the witness would have given to that question had he been permitted to answer. Under our statute (G. S. 1935, 60-3004) the appellant has not made a sufficient record to be entitled to have the ruling of the court reversed.
Counsel for appellant present the question: “Was the evidence sufficient to support an allowance for punitive damages?” As framed, it is a question more properly to be submitted to the trial court. It was not submitted to the trial court until after the verdict. In the petition plaintiffs had claimed to be entitled to punitive damages and alleged the facts which they felt would sustain such damages. The trial court submitted the question of punitive damages to the jury in a lengthy instruction, to which defendant made no objection. We have examined it and find that it is not inherently defective. A special question was submitted to the jury as to the amount, if any, they allowed for punitive damages. Whether the court was requested by defendant to submit this question, or the court submitted it on its own motion, is not disclosed, but it is clear that defendant did not object to it. At no time during the trial did defendant, by motion or otherwise, object to the trial of the ease for both actual and punitive damages. After the verdict defendant filed a motion asking the court to enter an order remitting to defendant all of the award of $5,000 for punitive damages made by the jury. We regard this as a motion addressed to the sound discretion of the court. It was denied. In the brief in this court counsel for appellant point out that in answering special questions the jury found two acres of land, of the value of $300, to have been permanently ruined. They found that four acres were temporarily ruined, but were not asked and did not place the amount of damages on that four acres. They did allow plaintiffs $1,092 for permanent damages and $5,000 for punitive damages. Without raising any question as to the amount of actual damages allowed by the jury counsel stated this fact as indicating prejudice of the jury, in allowing punitive damages. We think that inference untenable. Reading the record, we are inclined to the view that if the allowance to plaintiffs for actual damages indicated a leaning toward one party or the other it was against the plaintiffs, not the defendant. In their petition plaintiffs had alleged that the value of the tract of land, exclusive of mineral rights, was $12,000 before it was polluted by defendant by the salt water and only $6,000 after its pollution, and by reason thereof plaintiffs had sustained actual damages in the sum of $6,000. Several witnesses sustained that allegation by their testimony. The court in its instructions advised the jury that the measure of actual damages suffered by plaintiffs would be the difference between the fair and reasonable value of the land, exclusive of the mineral rights, just prior to the pollution and such value after the pollution. Hence, the jury might have found the actual damages to have been $6,000 instead of $1,092. However, plaintiffs filed no motion for a new trial and have filed no cross-appeal, hence the question whether the jury erred in its allowance of actual damages is not before us.
In view of the fact that defendant joined in submission of the question of punitive damages to the jury, and raised the question only after the verdict, and then by a motion which was simply addressed to the sound discretion of the trial court, we might very well say that appellant does not have the question now presented before us. Passing, without deciding that question,- we find an abundance of evidence in the record for submitting to the jury the question of punitive damages. Some of this evidence has already been set out or referred to in this opinion. We shall not repeat what has been said nor enlarge upon it further than to say the record discloses defendant built the salt water pond in January, 1948, by simply scooping out some dirt and placing it around the edges of a pool. The character of the soil was such that it would not hold water, a fact of which defendant was well aware. Although its capacity was but 3,500 barrels there was put into it 5,100 barrels per month. It never overflowed. The water seeped out through the bottom and sides of the pool and permeated the soil. Defendant knew that was being done. It was done intentionally. It had continued about five or six months when McFarland talked with defendant’s superintendent, Mr. Black, on July 7. Mr. Black was frank enough to say that he knew the situation was bad. But defendant continued that for more than two months thereafter. When defendant found that the wells were producing large quantities of salt water with the oil it might have stopped pumping until it had a proper place to dispose of the salt water without damage to plaintiffs. Perhaps it was getting enough oil out of the wells to justify it in continuing to produce oil and salt water, even though it damaged plaintiffs’ land. Certainly defendant took no effective steps to prevent such damage. The jury was justified in concluding that the turning of the salt water on plaintiffs’ land was intentional, that defendant knew damage to the land was being caused and apparently was indifferent as to the consequences. We cite but a few cases of the many which might be cited holding that such conduct justified punitive damages. (Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P. 2d 953; rehearing denied, 141 Kan. 6, 40 P. 2d 359; Donley v. Amerada Petroleum Corp., 152 Kan. 518, 524, 106 P. 2d 652; Rusch v. Phillips Petroleum Co., 163 Kan. 11, 180 P. 2d 270.)
Since defendant intentionally emptied salt water on plaintiffs’ land, knowing it would cause serious damage thereto, the case is an appropriate one for the allowance of punitive damages. (Stoner v. Wilson, 140 Kan. 383, 36 P. 2d 999; Motor Equipment Co. v. McLaughlin, 156 Kan. 258, 133 P. 2d 149, and Glass v. Brunt, 157 Kan. 27, 31, 32, 138 P. 2d 453.) However, we think the allowance in this case for punitive damages was excessive by as much as $2,500 in view of the fact that plaintiffs made no complaint to defendant until a few days before the action was brought, and the further fact that similar salt water disposal ponds were used at many of the wells in that area. If the plaintiffs will accept a remittitur of the sum of $2,500 in the punitive damages, and so notify the clerk of this court within fifteen days after this opinion is -filed, the judgment will be affirmed for the permanent damages of $1,092 and for punitive damages in the sum of $2,500. Unless such remittitur is consented to the judgment of the trial court will be reversed with directions to grant a new trial on all issues.
It is so ordered.
Smith and Arn, JJ., dissent as to the order of remittitur. | [
-16,
110,
52,
-83,
58,
-32,
10,
-102,
73,
-69,
-25,
83,
-91,
-37,
12,
97,
111,
41,
116,
123,
-58,
-94,
83,
-110,
-103,
-5,
-7,
-43,
-80,
76,
-26,
-41,
12,
-128,
-54,
-43,
70,
24,
-57,
-44,
-58,
7,
-71,
-27,
-39,
10,
52,
43,
98,
11,
53,
14,
-29,
45,
29,
-61,
-115,
44,
-37,
61,
73,
-72,
-102,
13,
13,
16,
-95,
70,
-100,
-61,
-38,
58,
-112,
49,
8,
-20,
115,
38,
2,
-12,
11,
-71,
8,
32,
103,
1,
-19,
111,
-24,
-71,
7,
-1,
9,
-90,
-112,
104,
106,
64,
-76,
29,
124,
24,
-121,
114,
-17,
-124,
-35,
44,
3,
-49,
-106,
-71,
7,
-87,
-98,
1,
-53,
3,
52,
100,
-51,
-78,
84,
7,
112,
27,
13,
-102
] |
The opinion of the court was delivered by
Parker, J.:
This was an action for damages for conversion of farm machinery. The plaintiff recovered and the defendant appeals.
In order to fully understand the all-decisive issue involved it will be necessary to summarize the pleadings, the opening statements of the parties and the proceedings resulting in the rendition of the judgment.
The petition alleges the plaintiff was the owner' of certain farm machinery which was sold by the defendant and therefore, wrongfully converted by her. The answer contains a general denial and other allegations to the effect plaintiff’s brother was a tenant who, upon the termination of his tenancy on defendant’s land, left farm machinery having the physical form of that described in the petition on her premises from August 1, 1947, to September 7, 1948. Defendant also filed a cross petition charging plaintiff was negligent in failing to remove such property from her premises and that as a result she was deprived of the use of two acres of land for a thirteen-month period of time and entitled to recover rental for its use as well as punitive damages. Plaintiff joined issues in a reply by denying all material allegations of defendant’s answer and cross petition.
After a jury had^ been empaneled to try the cause an opening statement was made on behalf of the plaintiff which fully supported the cause of action set forth in his petition. In relating the circumstances under which the involved property was left on defendant’s premises counsel for plaintiff stated that plaintiff’s brother had farmed defendant’s land for several years, that they farmed together, used the machinery in question, stored it on such land, and that when the brother’s tenancy on the farm was terminated he moved from the premises but failed to remove such machinery.
Counsel for defendant then made his opening statement. It was not as clear and concise as it might have been. However, it must be conceded that in such statement defendant admitted plaintiff owned the machinery on the date his brother left it on her premises and that after it had remained there from August 1, 1947, until September 7, 1948, she sold it to a junk man who hauled it away, cut it up, and paid the sum of $82 for it. In making such statement the defendant’s reasons for selling the property and removing it from her premises were outlined at length by her counsel who stated, in substance, such personalty was abandoned property and junk and that he would not attempt to detail all the facts relied on by defendant as a defense but would adduce evidence respecting them during the course of the trial. A close analysis of the statement compels the conclusion that the principal defense on which defendant was relying was abandonment of the property.
Plaintiff moved for a directed verdict upon defendant’s opening statement on grounds that it wholly failed to establish a defense or a cause of action against him. Thereupon, the trial court announced plaintiff was entitled to judgment against the defendant on the pleadings and opening statement and that the only question remaining in the case and for decision by the jury was the amount or value of the machinery. Since this motion contemplated and actually resulted in an adjudication fixing the rights of the parties to the property involved in the action it will hereinafter be referred to and treated as a motion for judgment. Plaintiff then adduced his evidence as to the value. Defendant did likewise. Thereafter the cause was submitted to the jury which returned a general verdict for plaintiff and answers to special questions, fixing the value of the respective items of the involved personalty in accord with his evidence.
Appellant’s principal contention on appeal is that the trial court erred in its ruling on the motion for judgment on her opening statement which, for all practical intents and purposes, found her guilty of conversion and limited the jury’s consideration of the issues solely to the question of damages sustained by the appellee as a result of her sale of the machinery.
Except to say appellee was entitled to judgment on the pleadings and opening statement the trial court gave no reason for sustaining the appellee’s motion for judgment. We shall therefore assume, as appellee states, that it was sustained on the theory the answer and cross petition and appellant’s opening statement tendered no issue of fact for the jury except as to the amount of damages. In his effort to uphold the judgment appellee contends the trial court was correct in concluding the pleadings and the opening statement disclose no other issue of fact for the jury’s consideration. On the other hand appellant insists the question whether appellee abandoned the machinery was raised by her answer and relied on in her opening statement and that the trial court was required to submit that issue to the jury for decision. The issue thus raised requires a review of principles applicable to the doctrines of conversion and abandonment.
The answer, as we have heretofore indicated, contains a general denial of each and every allegation of the petition except one to the effect appellant caused junk to be removed from her premises on September 7, 1948, having the physical form of property described in the petition. We note it does contain a further averment to the effect that any loss sustained by appellee was due to his negligence in failing to remove such property from her land prior to that date. This last allegation cannot be construed as an admission the machinery was not abandoned at the time appellee’s brother moved from the premises.
In this jurisdiction our decisions, relating to actions for damages for conversion, although they are few in number, all hold that under a general denial a defendant may make any defense that will defeat a plaintiff’s claim.
Long ago in Kerwood v. Ayres, 59 Kan. 343, 53 Pac. 134, we held:
“Under a general denial in an action for damages for the conversion of personal property, the defendant is not limited to evidence of controverting the conversion charged, but may impeach, as fraudulent or otherwise unfounded, the plaintiff’s claim of title to the property.” (Syl.)
See, also, Campbell v. Drug Co., 7 Kan. App. 501, 54 Pac. 287; Warner v. Carter, 109 Kan. 285, 288, 198 Pac. 960; and Sweeney v. Finney, 112 Kan. 9, 209 Pac. 821.
A further analysis of the opinions in Kerwood v. Ayres, supra, and Campbell v. Drug Co., supra, discloses language expressly stating that the rule is the same in an action for conversion as in replevin. The same process reveals that in Warner v. Carter, supra, we said that under such decisions a general denial in an action for conversion is placed on the same footing with a general denial in replevin. That the rule announced in the foregoing cases is in accord with the great weight of authority will be found upon resort to the following well recognized legal treatises and digests. See 53 Am. Jur. 938 § 169; 65 C. J. 87 § 146; West’s American Digest System, Trover and Conversion, § 34 (5).
Having noted the legal principles to which we have heretofore referred apply with equal force to both replevin and conversion actions it is proper to observe that there are many decisions to be found in our reports announcing the rule in replevin cases. To illustrate, at page 288 of the opinion in Warner v. Carter, supra, we said “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.”
For a few of our earlier cases enunciating this principle see Holmberg v. Dean, 21 Kan. 73; National Bank v. Barkalow, 53 Kan. 68, 35 Pac. 796; Street v. Morgan, 64 Kan. 85, 67 Pac. 448. Numerous other decisions of like import, some early and others later in point of time, can be found by reference to West’s Kansas Digest, Replevin, §§ 63, 69 (4) and Hatcher’s Kansas Digest, Replevin, §§ 29, 31.
See, also, White v. Gemeny, 47 Kan. 741, 28 Pac. 1011, holding that since, in replevin, any defense may be proved under a general denial, a motion by plaintiff for judgment on the pleadngs, where there has been a general denial, is properly overruled. Analogous reasoning compels the conclusion that the rule in this case is applicable in a conversion action.
If, perchance, it should be suggested the answer in the instant case, or the cross petition, contains more than a general denial, we pause to point out that this court has said—in a replevin case—(see Bailey v. Bayne, 20 Kan. 657) that where there is a general denial in an answer, even though that pleading attempts to set out in detail the defenses on which he relies, a defendant may, nevertheless, prove under his general denial any defense that he may have had so long as there is nothing admitted or stated in the detailed allegations that destroys the force or sufficiency of the denial. In the instant case nothing is to be found in appellant’s answer which can be construed as precluding her from, making any defense available under her general denial.
We know of no Kansas cases which hold that abandonment of the property involved is a complete defense to a conversion action. However, we have little difficulty in concluding that it is, if for no other reason than that there is inherent in the completed act itself a relinquishment of right, title and interest to property, particularly so far as personalty is concerned.
Conversion has been defined as an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another to the alteration of their condition or the exclusion of an owner’s rights (65 C. J. 11, § 1, and Howell v. Scott, 44 Kan. 247, 24 Pac. 481). It has been said that the characteristic element of abandonment is the voluntary relinquishment of ownership whereby the thing so dealt with ceases to be the property of any person and becomes the subject of appropriation by the first taker, also that abandonment divests the former owner of title to the property so that it becomes as to him as if he had never had any right or interest therein (1 Am. Jur. 2, § 3; 53 Am. Jur. 876, § 81). It has likewise been stated that since abandonment divests the former owner of title, as fully and completely as would a conveyance, abandoned property becomes that of the first person who possesses it or appropriates it to his own use and purposes. (1 C. J. S. 13, 18, §§ 5[b], 9; 1 Am. Jur. 2, 4, §§ 3, 5.) If, as we have seen, a person must be the owner of personal property to recover damages for its conversion and if, once he has abandoned that same property, he ceases to own it and it becomes subject to appropriation by another, a conclusion that abandonment is a complete defense to a conversion action is inescapable.
See 53 Am. Jur. 876, § 81, which states that the fact a plaintiff has abandoned his property before defendant took possession of it is a complete defense in such an action. See, also, 53 Am. Jur. 926, § 149, stating in effect that the liability of an owner of real estate for the conversion of personal property placed thereon depends largely upon the attendant circumstances and that one of the circumstances entitled to weight in determining whether the landowner is liable is the apparent abandonment of the personalty by its owner.
There can be no doubt that in an action for conversion, except where evidence respecting it is so clear a trial court is justified in instructing the jury as a matter of law, that abandonment vel non is a question of fact to be determined by the jury under all the circumstances of the case as revealed by the evidence. For general statements to that effect see 1 C. J. S. 17, § 8; 1 Am. Jur. 12, § 18. For decisions adhering to the rule see West’s American Digest System, Abandonment, § 6.
In our review of the ruling on the motion for judgment we are concerned only with the question whether abandonment was an issue for the jury and hence need not refer to or discuss the many decisions dealing with the nature and extent of the evidence required to sustain it when involved as a defense.
Thus it appears the only question remaining is whether the trial court was justified in sustaining the motion for judgment on the opening statement.
This court is committed to the rule that no judgment should be entered on an opening statement unless in the making of such statement it apears the party making it has admitted facts which necessarily and absolutely preclude recovery or defense, as the case may be, under the issues made by the pleadings. (Caylor v. Casto, 137 Kan. 816, 22 P. 2d 417; Speer v. Shipley, 149 Kan. 15, 85 P. 2d 999; Wilson v. Holm, 164 Kan. 229, 188 P. 2d 899.) In applying the rule we have held that where there is doubt or ambiguity in such a statement the counsel who makes it is entitled to the presumption he did not intend to make an admission that would be fatal to his case. (Hall v. Davidson, 73 Kan. 88, 84 Pac. 556; Smith v. Insurance Co., 108 Kan. 572, 196 Pac. 612; Caylor v. Casto, supra; Greep v. Bruns, 160 Kan. 48, 159 P. 2d 803.)
Heretofore we have said the opening statement made by appellant compels the conclusion she was relying upon abandonment as a defense. Upon further examination of such statement we fail to find that her counsel made any admissions therein which would necessarily preclude her reliance on that defense in the trial of the case. It necessarily follows, under the decisions to which we have heretofore referred, that the trial court should have denied appellee’s motion for judgment and that the sustaining thereof requires the granting of a new trial.
Since the case must be retried a review of the trial errors relied on by the appellant as grounds for reversal of the judgment would serve no useful purpose and is not required on this appeal.
The judgment is reversed with directions to grant a new trial. | [
-16,
108,
-35,
13,
10,
96,
42,
-6,
65,
-91,
39,
87,
-87,
-62,
20,
105,
114,
125,
85,
106,
-41,
-78,
82,
-22,
-46,
-13,
-15,
-36,
-72,
76,
-28,
87,
76,
52,
-54,
87,
-26,
-128,
69,
84,
-114,
7,
11,
109,
-55,
64,
52,
43,
118,
11,
113,
-114,
-93,
46,
93,
-58,
41,
44,
107,
61,
113,
-72,
-86,
13,
95,
18,
35,
39,
-100,
101,
-8,
42,
-112,
49,
-128,
-24,
115,
-76,
-122,
116,
3,
-103,
8,
102,
99,
19,
77,
-17,
-24,
-104,
46,
59,
-99,
-90,
-112,
88,
19,
96,
-67,
-99,
100,
48,
55,
126,
-4,
13,
28,
108,
7,
-121,
-106,
-77,
-113,
96,
-104,
11,
-21,
-89,
48,
113,
-51,
-22,
93,
103,
120,
-103,
-114,
-98
] |
The opinion of the court was delivered by
Price, J.:
This appeal involves the interpretation of the provisions of a joint and mutual last will and testament.
Lon and Ethel Berry were married in 1931. Each had been married before and each had three children by such former marriages.
On March 1,1945, one Brandenburg and his wife conveyed eighty acres of real estate situated in Shawnee county to Lon and Ethel as joint tenants with right of survivorship, and not as tenants in common. On September 5, 1945, Lon and' Ethel executed their joint and mutual last will and testament, the pertinent portions of which are as follows:
“Whereas, we are both mindful of the uncertainty of life and it being our desire to jointly dispose of our property in accordance with an agreement reached between, us, we, Lon Berry and Ethel Berry, husband and wife, being of sound mind and disposing memory, do hereby make, publish and declare this to be our joint and mutual and irrevocable will and we hereby declare it to be contractual.
“We each agree and direct that upon the death of the first one of us the survivor shall take a life estate in all the property of the deceased, both real and personal and upon the death of the survivor, all the property, both real and personal, shall descend and be divided among the respective children of each. That is to say: one-half of said property shall be divided share and share alike among the three children of Lon Berry and one-half of said property, share and share alike, among the three children of Ethel Berry. The respective parties to this will have been married before and each have three children by former marriages. . . .”
Lon died on November 9, 1945, and the will was duly admitted to probate by the probate court of Shawnee county. Ethel, as administratrix with the will annexed, administered the estate and upon final settlement the court entered its order and finding to the effect that upon the death of Lon the full title to the eighty acres in question “was vested immediately in the surviving joint tenant, his wife, Ethel Berry, and that such real estate so owned in joint tenancy was subsequent to the death of Lon Berry, the sole property of the surviving joint tenant, Ethel Berry, wife of the decedent.”
Walter Berry, appellee here, a son of Lon by his former marriage, appealed to the district court, alleging that by the provisions of the joint and mutual will Ethel took only a life estate in the real estate in question. In the district court the matter was heard on a stipulation of facts, substantially as above set out, and Ethel introduced oral evidence with reference to the alleged execution and delivery by Lon to her of a quitclaim deed on or about September 25, 1945, by which it is alleged Lon quitclaimed to her all of his right, title and interest to the real estate in question. This evidence showed this alleged quitclaim deed to be lost and neither had it been recorded.
On September 17, 1948, the district court entered its order and filed a memorandum in the nature of findings of fact and for its conclusion of law ruled that upon the death of Lon the joint and mutual will became of full force and effect and that under it Ethel took a life estate in the eighty acres in question, with the remainder in fee to the two sets of children mentioned in the will.
Ethel filed a motion for a new trial, one of the grounds being “that the decision of the court is in whole and in part contrary to the evi dence.” This motion was argued by counsel, taken under advisement, and was on December 16, 1948, denied. Notice of appeal from the order and decision of September 17, 1948, and from the order overruling the motion for a new trial was served on February 10,1949.
Appellee has filed his motion to dismiss the appeal for the reason that it was not taken until more than two months after September 17, 1948, that being the date when the trial court rendered its judgment. We will not labor the question, but in our opinion the appeal was taken in time.
At the trial in the lower court oral evidence with reference to the execution, delivery and provisions of the alleged quitclaim deed was introduced, and while it is true that the lower court’s written memorandum does not make it clear as to what the trial judge actually thought about the execution of the quitclaim deed, yet we are of the opinion that the motion for a new trial clearly called for a reexamination by the trial court of the facts in controversy. It should be noted that the evidence concerning the provisions of this deed — that is, whether it purported to convey a fee to Ethel or merely a life estate was conflicting and during the trial the court said:
“I think from all this oral evidence here I will make one finding right now and that is if there was such a deed that had the description to this eighty acres' on it, . . . that all in the world it did was to create a life estate in Mrs. Berry, and that’s all.”
The appeal was taken within two months from the date the motion for new trial was overruled and appellee’s motion to dismiss is therefore denied.
In her brief appellant advances several different theories and grounds for reversal of the trial court’s decision, and contends that the correct solution to the problem presented is that the joint and mutual will did not work a severance of the joint tenancy nor a destruction of the right of survivorship and that Lon quitclaimed his interest in the property to Ethel before his death. In order to adopt this theory we would have to upset the trial court’s findings with reference to the alleged quitclaim deed, and, as heretofore stated, while it is not exactly clear just what the trial judge actually thought about the execution and delivery of this deed yet we are confronted 'with the fact that nowhere in this record is there an affirmative finding that the deed was ever executed and delivered as claimed. The court took the position that the provisions of the joint and mutual will are controlling and thus Ethel took a life estate in the real estate in question. The lower court saw and heard the witnesses and in announcing its decision stated:
. . The deed was not introduced in evidence. There was no evidence of its having been recorded. There was evidence that the deed could not now be found. The evidence is very meager as to why the deed was made except that there was testimony that the decedent said he wanted to straighten up his business. . . . The evidence concerning the lost quitclaim deed is not clear and convincing enough to me to make me believe that such quitclaim deed made' after the execution of the joint and mutual will had any effect upon the will at all. The evidence does not convince me that such quitclaim deed, if there was one, amounted to a revocation of the joint and mutual will, nor that it had the effect of setting aside the testamentary contract contained in the will. . . .”
We have examined in detail the evidence with reference to the deed and in our opinion the trial court’s failure to make an affirmative finding as to its execution and delivery is fully supported by the evidence and will not be disturbed on appeal. The same is true with respect to the court’s findings as to its provisions, if indeed there was such a deed.
Such being the case, we therefore have the one question before us — upon the death of Lon did Ethel take a life estate in the eighty acres or did she take full title by virtue of the joint tenancy deed of March 1, 1945?
Under this deed the survivor would take full title and if appellant’s contentions are to prevail it would follow that the three children of Lon would be left without any interest in the property. The authorities are virtually unanimous in agreeing that a joint tenant may at his pleasure dispose of his share and convey it to a stranger and that such conveyance will result in a severance or termination of the joint tenancy. McDonald v. Morley, 15 Cal. (2d) 409, 101 P. 2d 690, 129 A. L. R. 810, and Annotation commencing at 129 A. L. R. 813. See, also, 14 Am. Jur., Cotenancy, § 14, p. 86, where it is said:
“A joint tenancy may be severed, either voluntarily, as by a partition of the property, or a conveyance of the interest of any joint tenant, or involuntarily, as by an execution sale of any interest that is subject thereto.”
The question then arises — did the provisions of the joint and mutual will of Lon and Ethel bring about a severance of the joint tenancy created by the deed?
The respective briefs of the parties contain interesting discussions of estates by entirety, joint tenancies and tenancies in common, but in our view of the case the correct solution of the question presented is to be found in the very terms and language of the will itself. There is authority to the effect that in the very nature of things a joint and mutual will is contractual (Lewis v. Lewis, 104 Kan. 269, 178 Pac. 421) but in the case at bar there is no occasion to speculate as to the contractual nature of the will for the reason that the parties executing it specifically declared it to be so. They owned certain property which had been accumulated during the fourteen years of their married life and obviously decided that the fair and equitable manner of its disposal would be for the survivor to take a life estate in all of it with remainder over to the two groups of children mentioned in the will — that is one-half, share and share alike, among Lon’s children and the other one-half, share and share alike, among the children of Ethel. And neither is there any occasion here, as is necessary in so many cases involving the interpretation of wills, to concern ourselves with the intention of the testators. We think there can be only one answer — that is, the survivor is to take a life estate in all property with remainder over, as above set forth.
Appellant relies heavily on the case of National Life Ins. Co. v. Watson, 141 Kan. 903, 44 P. 2d 269, as supporting her contentions. In that case the husband and wife executed a joint, mutual and reciprocal will in which they devised and bequeathed to each other, as the survivor may be, a life estate in all the real property of which either may die seized or possessed, with remainder over to their children, share and share alike. Three years later the wife died. The husband remarried and subsequently mortgaged 100 acres of land, the title to which stood in his name at the time the joint will was executed and at her death. Default occurred and suit was brought to foreclose the mortgage. The children intervened, claiming that the father had only a life estate in the 100 acres in question. Both the trial court and this court held that the joint and mutual will imposed no restriction upon the husband’s right of alienation of any property owned by him and that the mortgage was a first lien thereon, and in the decision it was said:
“By the joint will Martin Childers impliedly agreed that whatever property he may die seized of shall pass under that will to the seven children named in its fifth paragraph quoted above. He did not bind himself not to alienate or dispose of any of his property during his life as his own wants, needs or convenience might require. When Martin Childers joined in the execution of the mutual and reciprocal will of himself and his first wife, he did not thereby intend to disable himself to exercise dominion over his own property. . . . The joint will of Martin and Beatrice is still a perfectly good will. When in the fullness of time Martin is gathered to his fathers, the real estate of which he dies seized will pass to the seven children named in the fifth clause of the will, as both their parents intended.”
We think that the Watson case, supra, is distinguishable from the case at bar on at least two grounds, one being that in that case the controversy involved title to real estate standing in the name of the husband, who survived, as of the date of the joint and mutual will and as of his wife’s death. We have no such situation in the case at hand, but rather we have a case in which the joint and mutual will operates on property held in joint tenancy by the testators at the time the will was executed. We think that the contractual provision, together with the other language employed, readily distinguishes the present case from the Watson case. Here the testators specifically stated:
“. . . it being our desire to jointly dispose of our property in accordance with an agreement reached between us, we, ... do hereby make, publish and declare this to be our joint and mutual and irrevocable will and we hereby declare it to be contractual. We each agree and direct that upon the death of the first one of us the survivor shall take a life estate in all the property of the deceased, both real and personal and upon the death of the survivor, all the property, both real and personal, shall descend and be divided among the respective children of each. . . .”
While it is, of course, true that a will speaks as of the date of death of the maker, yet as a general rule and we think here, the intention of the testators is to be arrived at from a consideration of all the facts and surrounding circumstances as of the date of making, and we experience no difficulty in ascertaining the expressed intention of the parties in this case. This is not a case of a joint tenant attempting a severance of the joint tenancy by a testamentary devise to a third party, but rather we think it to be an agreement and contract, testamentary in form, that the survivor should take a life estate in all property however owned by the parties, with remainder over. In In re Estate of Adkins, 161 Kan. 239, 167 P. 2d 618, it was held:
“Where a husband and wife made a joint and mutual will wherein each bequeathed to the survivor a life estate in all his property with a provision that the remainder should go to a third person, and one of the testators died and the survivor secured the probate of the will and took under it pursuant to its terms, and the will on its face showed it was made as the result of a contract between the two testators, the property of both passed according to the terms of the joint and mutual will.”
We have examined and carefully considered each and every contention advanced by ingenious counsel in the very able and interesting brief of appellant, but in our opinion the lower court was correct in holding that upon the death of Lon his widow, Ethel, became vested of a life estate in the eighty acres in question, with remainder over to the two sets of children named in the will, and the judgment is therefore affirmed. | [
82,
108,
-3,
28,
-104,
96,
11,
88,
114,
-95,
37,
83,
-21,
-38,
17,
105,
51,
13,
65,
105,
117,
-73,
23,
-128,
-46,
-13,
-31,
-44,
-79,
95,
-90,
86,
73,
32,
10,
93,
-30,
-64,
-51,
84,
-114,
1,
-119,
120,
-47,
82,
52,
43,
20,
25,
69,
63,
-13,
-85,
61,
-32,
104,
46,
73,
58,
80,
-72,
-114,
-122,
93,
22,
-110,
-122,
-112,
-123,
72,
-22,
-104,
57,
8,
-4,
51,
54,
22,
52,
11,
73,
12,
-26,
99,
48,
69,
-17,
-112,
-118,
6,
59,
-99,
-89,
-74,
88,
-78,
65,
-74,
29,
125,
117,
-113,
126,
-26,
21,
12,
-23,
-124,
-49,
-42,
-77,
3,
58,
-110,
19,
-5,
47,
34,
113,
-55,
42,
93,
71,
116,
-109,
-34,
-10
] |
The opinion of the court was delivered by
Arn, J.:
This is an appeal from an order sustaining a demurrer to plaintiff’s petition. It is difficult to ascertain from the lengthy petition whether it was intended to plead a cause of action predicated upon malicious prosecution or false arrest or both. The petition alleges:
“1. Plaintiff is now and has been for more than six years a resident of the City of Salina, in Saline County, Kansas, and his correct post office address is Salina, Kansas, and during all of the time aforesaid, and at all of the times mentioned herein, plaintiff was and is now engaged in business at 209 North Santa Pe Avenue, in Salina, Kansas.
“2. Defendant L. H. Day was at all of the times hereinafter mentioned the Chief of Police of the City of Salina, Kansas, duly appointed, qualified and acting as such officer, and was at all of such times a duly appointed, qualified and acting Police Officer of said City, and of the Police Department of said City, which is and was at all of such times a city of the first class, in Saline County, in the State of Kansas, and all of the acts of the defendant hereinafter set forth and complained of were done and performed by him under color of and by virtue of his authority as a Police Officer of said City.
“3. On the 10th day of June, 1947, at about 10:00 o’clock, a. m. of said day, plaintiff entered a cafe in the City of Salina, known as the Cafe Casa Bonita, located at the northeast corner of Santa Fe and Ash Streets in said City, at which time the defendant, L. H. Day, who was then the Chief of Police of the City of Salina, Kansas, and a duly appointed and acting Police Officer of the Police Department of said City, was in said cafe; that at or about said time, after some conversation between plaintiff and defendant, which on the part of the plaintiff was conducted in a quiet and orderly manner, the defendant, acting as a police officer as aforesaid, and wrongfully and illegally exercising the authority vested in him as such Police Officer, without any provocation or excuse whatsoever, and in the presence of numerous patrons and employees of said cafe whose names are unknown to the plaintiff, and without the plaintiff having in any manner committed any offense or crime of any kind or nature, in the presence of said defendant or otherwise, and without any warrant having been issued for the arrest of the plaintiff, arrested the plaintiff and took the plaintiff in custody, without in any manner stating or informing the plaintiff as to the cause of said arrest or the charge upon which he was arrested, and without stating anything to the plaintiff except that he was under arrest, the defendant took hold of the plaintiff’s arm and forcibly took him to the Police Station of said City, which is located in the City Hall of said City about one block distant from said cafe; that while he was so being forcibly taken by the defendant to said Police Station, in the custody of defendant, the plaintiff and defendant who were on foot were in full view of members of the public who were then using the public street and the sidewalks adjacent thereto, which were crossed and traversed by the plaintiff and defendant as aforesaid in the course of said trip, so that the fact that plaintiff had been arrested and was in the custody of the defendant as a police officer could be seen and was seen by such members of the public, and during such time the defendant refused, though asked by the plaintiff, to state why the plaintiff had been arrested and placed in custody by the defendant; that when the plaintiff was taken into the police station by defendant as aforesaid, he still was not advised of the charge upon which he had been arrested and taken into custody by the defendant; that the police officer at said police station who was in charge of booking prisoners who had been arrested asked the defendant what was the charge against the plaintiff, and the defendant said, ‘I guess it will be disorderly conduct’, or words to that effect, and the plaintiff was then, at the direction of the defendant, booked on the police blotter, which is a record kept by the Police Department of said City in said Police Station, showing the names of persons arrested by police officers and the nature of the charge on which they are arrested and the date of arrest, amount of bond required and posted, and other information, and was by a notation written on said blotter, charged with disorderly conduct, but no complaint on oath, written or oral, was then or at any other time made against the plaintiff by the defendant and no warrant for his arrest was at any time issued or served on plaintiff prior to his trial in the Police Court of said city as hereinafter referred to; that after said notation had been made on said blotter, the plaintiff was searched and his personal belongings were removed from his pockets by the defendant, and he was advised by the defendant that his trial on said charge of disorderly conduct would be held before the Police Judge of said City at four o’clock p. m. on that day and that he would be confined in the City Jail until that time unless he posted cash bail in the amount of $25.00; that plaintiff did not have that much money on his person at that time, but offered to deposit his check for that amount as bond for his appearance, but defendant refused to accept defendant’s [plaintiff’s] check for that purpose; that plaintiff asked permission of defendant to call certain acquaintances on the telephone to arrange for the posting of such cash bond required by defendant as aforesaid, and was permitted to call two persons for the purpose of making such arrangements; that one person so called could not be located, and the other one so called could not immediately come to the Police Station, and the defendant then stated to the plaintiff that until such bond was furnished, the plaintiff would have to go to jail, and the plaintiff was then by the defendant or under his direct order removed to and placed in the City Jail, which is in a building adjacent to the City Hall in which said Police Station is located, and was locked in said jail with other prisoners then imprisoned therein, for a period of about fifteen minutes, when he was removed therefrom and again taken into said Police Station, where one Earl Roberts, who had been previously called by the plaintiff on the telephone, deposited with the defendant, in his capacity as Chief of Police of said City, the sum of $25.00, in cash or by means of a check, as bond for the release of plaintiff from custody and for his appearance in the Police Court of said City on June 13, 1947, to answer to said charge of disorderly conduct; that on said June 13, 1947, at about four o’clock p. m., the plaintiff was brought to trial in said police court before the Police Judge of said City in a case in said court entitled ‘The City of Salina, Plaintiff, vs. Thomas Hill, Defendant,’ on the charge placed against him by the defendant as aforesaid, of disorderly conduct, at which time the plaintiff and the defendant were present; that up to the time of the commencement of said trial, no complaint on oath had ever been made against the plaintiff charging him with disorderly conduct or any other offense against the ordinances of the City of Salina; that at the conclusion of said trial, the Police Judge of said City made an order finding plaintiff guilty of a charge that he, the plaintiff, did on the 10th day of June, 1947, unlawfully and wilfully conduct himself in a riotous and disorderly manner and did commit a nuisance in a public place, and said Police Judge did order and adjudge that the plaintiff pay a fine to the City of Salina in the sum of $25.00 and the costs of said action which he taxed at $17.00 and that the plaintiff be imprisoned in the City Jail until said fine and costs were paid, and the said Police Judge then entered said charge and the finding and judgment of the Police Court as aforesaid on the docket of said Police Court; that no costs of said action in the amount of $17.00 had then accrued in said action or could accrue in said action in said Police Court under the ordinances of said city or the laws of Kansas applicable thereto; that thereupon the plaintiff duly appealed from the said judgment of said Police Court to the District Court of Saline County, Kansas, and was required by the Police Judge of said city to give an appeal bond in the sum of $200.00 for his appearance at the next term of said District Court, which bond the plaintiff did give in said amount with one Bert Lamb as security thereon, on the 16th day of June, 1947, on which date said police' judge approved said bond and filed the same, •and on June 17, 1947, said bond and a transcript of the proceedings in said Police Court was filed by said Police Judge in the office of the Clerk of the District Court of Saline County, Kansas, and said case was duly docketed in said District Court under the title of ‘The City of Salina, Plaintiff, vs. Thomas Hill, Defendant, No. 3240.’
“4. That the next term of the District Court of Saline County, Kansas, following the giving of said appeal bond by the Plaintiff as aforesaid, commenced on September 9, 1947, on which day the Plaintiff appeared in said Court pursuant to the provisions of his said bond, and the City Attorney of said City announced that said case would not be tried at said term and the same was continued until the next term of said Court, and on December 2, 1947, which was the first day of the next ensuing term of said' District Court, the plaintiff appeared in said District Court and the City Attorney of said City announced that said case would not be tried at said December term of said court and the same was continued until the next term of said court, and on January 19th, 1948, which was one of the days of the December, 1947, term of said court, the City Attorney of said City on behalf of the City of Salina filed in said court a motion to dismiss said case, and on said day the said case rvas dismissed by the court.
“5. That on June 10, 1947, when the plaintiff was arrested and taken into custody by the defendant as aforesaid, and placed in the City Jail by the defendant as aforesaid, the plaintiff was not guilty of disorderly conduct, or of conducting himself in a riotous and disorderly manner or of committing a nuisance in a public place, or of any other offense and had committed no offense or crime of any kind in the presence of the defendant or otherwise; that the acts of the defendant, as aforesaid, in arresting the plaintiff and taking him in his custody as a Police Officer, and in confining and imprisoning the plaintiff in the City Jail, were done without any provocation or justification or lawful authority whatsoever, and the plaintiff was so arrested and taken into custody and confined and imprisoned in the City Jail by said defendant without any warrant for the arrest of the plaintiff having been issued by any court, judge, magistrate, or other officer having authority to issue a warrant for plaintiff’s arrest, and without the plaintiff having committed any crime or offense in the view of said defendant, and without the plaintiff having conducted himself in the view and presence of said defendant in a riotous and disorderly manner and without the plaintiff having committed any nuisance in a public place, or having in the view and presence of said officer violated any ordinance of the City of Salina, or any law of the State of Kansas, of any kind whatsoever.
“6. That the unlawful and unjustified arrest and imprisonment of the plaintiff by the defendant as aforesaid caused the plaintiff to suffer great humiliation, shame and mental distress and personal injuiy resulting from the force used on plaintiff by defendant, and damaged and injured his reputation and character, and disgraced him in the eyes of his friends, acquaintances and others in the community where he resided and caused him great worry, mental distress and mental and physical suffering, and inconvenienced and interrupted him in carrying on his business, and caused him great loss in his business, and caused him loss and expense by reason of money expended in defending himself against said unlawful, unjustified and malicious charge brought against him by the defendant as aforesaid, all to the plaintiff’s damage in the sum of $5,000.00.
“7. That all of the acts of the defendant as aforesaid were done maliciously, on account of the malice and ill will of the defendant against the plaintiff, and for the purpose of humiliating, shaming, disgracing, and worrying the plaintiff, and injuring his character, reputation, and business, and causing him mental and physical suffering and distress and expense, by reason of which plaintiff is entitled to recover' from defendant the further sum of $5,000.00 as exemplary damages.
“Wherefore, plaintiff prays that he have and recover from the defendant the sum of Ten Thousand Dollars, and his costs herein incurred and expended.”
Plaintiff resisted defendant’s motion to make the petition more definite and certain by stating the substance of the conversation between the parties prior to the arrest, and for an order requiring plaintiff to separately state and number his causes of action for false arrest and malicious prosecution. This motion was overruled in its entirety and defendant demurred on the ground that the petition did not state facts sufficient to constitute a cause of action. The trial court, upon sustaining the demurrer, gave plaintiff forty days within which to file an amended petition and ordered that if plaintiff did not do so, judgment for costs would be rendered against him. An amended petition was not filed and in due time the trial court ordered plaintiff to pay the costs of the action.
Perhaps this appeal could be disposed of following the rule announced in the syllabus of Sharp v. Cox, 158 Kan. 253, 146 P. 2d 410, as follows:
“In an action for damages against one defendant Jor false arrest and imprisonment and against three others for malicious prosecution, or perhaps for false arrest and imprisonment, the court correctly sustained demurrers on behalf of the three defendants because of lack of allegations of issuable facts as to them, and also because as to them the petition was not drawn upon a single and definite theory.”
The opening statement of appellant’s brief to this court, supported by his oral argument, describes this action as one “for false arrest and imprisonment.” The petition (¶ 3) alleges that plaintiff was tried and convicted in the police court of the city of Salina of the offense for which he was arrested and charged. Does this fact satisfy the rule that a showing of probable cause for such an arrest and prosecution is a complete defense to an action for malicious prosecution or false arrest where there is no showing of fraud or perjury in the conduct of the trial and obtaining the conviction? We think so, and have so held in a malicious prosecution case:
“The third count of the petition is held to state no cause of action, because it shows that the prosecution of plaintiff resulted in his conviction; notwithstanding his appeal and acquittal in the district court, the conviction in the police court is conclusive of probable cause.” Smith v. Parman, 102 Kan. 787 [Syl. ¶ 3], 172 Pac. 33.
The police court of Salina had jurisdiction to try the merits of the charge against plaintiff and to convict or acquit him. He was convicted, and that was a final judgment unless appealed from. It is not like a justice court’s preliminary examination for the purpose of determining only probable cause and binding over to another court for trial upon the merits. This distinction was noted in Ross v. Hixon, 46 Kan. 550, 554, 26 Pac. 955, thus:
“In the one case there is a solemn judgment, rendered by a court having full and complete jurisdiction both of the parties and subject matter, binding on all until reversed on appeal or error. In the other case there is a finding in effect that sufficient facts have been developed that justifies a magistrate in sending the parties before a court competent to ultimately deal with the question of guilt or innocence.”
Where a court possesses the power and jurisdiction to hear the evidence and determine the guilt or innocence of the defendant and to punish if found guilty, a judgment of conviction in such court obtained without perjury, fraud or corruption, is a conclusive determination that there was probable cause for the arresting and prosecuting officers to believe the defendant guilty of the alleged offense.
Having concluded that such a judgment of conviction amounts to a conclusive determination that probable cause for the arrest and prosecution existed (absent any showing of perjury, fraud or corruption in obtaining the judgment), it is well settled law that a showing of such probable cause as to the guilt of the person arrested is a proper and legal defense to an action for malicious prosecution or for false arrest and imprisonment. (Torson v. Baehni, 134 Kan. 188, 5 P. 2d 813.) Therefore, when the petition shows upon its face that there has been such a judgment of conviction, it fails to allege a cause of action for either malicious prosecution or unlawful arrest and imprisonment.
Appellant contends the majority rule is that a showing of probable cause is not a defense to an action for false imprisonment, and cites Comer v. Knowles, 17 Kan. 436; Garnier v. Squires, 62 Kan. 321, 62 Pac. 1005; Bank v. McDowell, 7 Kan. Ap. 568, notes in 19 A. L. R. 671 and 137 A. L. R. 504. Appellant concedes that Torson v. Baehni, supra, holds that a showing of probable cause is a defense to such an action, but points out that in the Torson case the alleged unlawful arrest was for a felony. But false arrest and imprisonment is a wrongful restraint and interference with the personal liberty of an individual, and it would seem to matter little what the remote reasons for that restraint might be — whether an alleged felony or misdemeanor — provided there was probable cause to believe the individual guilty of the offense for which he was arrested. It then becomes a question as to whether there was probable cause — and the trial on the merits conclusively determined that fact.
A properly qualified officer of the law has authority to arrest either a felon or the perpetrator of a misdemeanor involving a breach of the peace without a warrant when he has reasonable grounds — and probable cause — for believing the person arrested is guilty.
None of the Kansas cases relied upon by appellant, listed above, go quite as far as appellant suggests. The Gamier case, swpra, states the rule thus:
“An arrest by an officer of the law without a warrant will not constitute false imprisonment if the officer arresting has reasonable grounds to believe that a felony has been committed; but a private person arrests without a warrant at his peril, and it will be a false imprisonment unless it can be shown that a felony has actually been committed.” (p. 325.)
The term “felony” is stressed in the Tors,on case because the court was there concerned with a felony. As we have already stated, there is no reason for making a distinction between a felony and a misdemeanor in again announcing the rule that a showing of probable cause for making the arrest is a complete defense to an action for unlawful arrest.
Appellee also cites City of Wichita v. Hibbs, 158 Kan. 185, 146 P. 2d 397, as another argument that the petition does not state a cause of action. It was there held that the giving of a bond for bail and an appeal bond constitute a waiver of any right to object to the legality of an arrest without warrant. The petition before us alleges (¶ 3) the making of both such bonds, and the Hibbs case seems to be somewhat in point. See, also, State v. Miller, 87 Kan. 454, 124 Pac. 361; Mitchell v. Kemp & Burpee Mfg. Co., 218 Fed. 843, 846; Marine Iron Works v. Wiess, 148 Fed. 145, 153; Southwest Cotton Co. v. Valley Bank, 26 Ariz. 559, 227 Pac. 986, 988; Ohio Valley Buggy Co. v. Anderson Forging Co., 168 Ind. 593, 81 N. E. 574, 578; Ford v. Ott, 186 Ia. 820, 173 N. W. 121, 124; Colbath v. Lumber Co., 127 Me. 406, 144 Atl. 1, 4; Marquette County Sav. Bank v. Koivisto, 162 Mich. 554, 127 N. W. 680; Wolf v. Shulz Folding Box Co. (Mo.), 44 S. W. 2d 866, 869; Manufacturing Co. v. Building Co., 177 N. C. 103, 97 S. E. 718, 720; The Liverpool, etc., Ins. Co. v. Richardson Lumber Co., 11 Okla. 585, 625, 69 Pac. 938, 951; Eichelbaum v. Klaff, 125 Va. 98, 99 S. E. 721, 722.
The petition did not state a cause of action and the demurrer thereto was properly sustained. The judgment of the trial court is affirmed. | [
-16,
-18,
-24,
-52,
58,
96,
50,
-88,
113,
-79,
-25,
115,
-19,
-53,
4,
123,
126,
61,
84,
121,
-57,
-73,
6,
42,
-46,
51,
-40,
-59,
-78,
79,
-26,
-42,
77,
48,
-118,
-43,
102,
74,
-43,
92,
-50,
33,
-119,
-48,
-45,
0,
-80,
121,
50,
11,
49,
46,
-13,
42,
24,
-46,
-23,
44,
-38,
52,
-15,
-15,
-117,
29,
-35,
22,
33,
36,
-102,
-121,
120,
58,
-112,
49,
0,
-24,
114,
-90,
-126,
-76,
103,
-39,
0,
-90,
98,
39,
-71,
-86,
-88,
-83,
78,
58,
-99,
39,
-111,
89,
107,
41,
-106,
-103,
61,
20,
3,
118,
-13,
21,
27,
108,
15,
-54,
-76,
-111,
-113,
52,
22,
-35,
-17,
49,
48,
97,
-59,
102,
92,
71,
114,
27,
-20,
-108
] |
The opinion of the court was delivered by
Arn, J.:
Appellee instituted this action by filing a petition in probate court for specific performance of an oral contract alleged to have been entered into between appellee and the deceased. The probate court denied appellee’s petition, but on appeal the district court upheld her claim and decreed specific performance of the contract. The court determined that by such oral contract the deceased had agreed to deliver to appellee certain real property located at 1323 N. Poplar street in Wichita. The district court made rather comprehensive findings of fact and conclusions of law. From its orders overruling motions to set aside these findings and conclusions and for a new trial, and from the judgment rendered in favor of appellee, the administrator appeals.
Geraldine Spark Brown is the daughter of Otto H. Spark who was a brother of the deceased, Henry J. Spark. Geraldine was born January 4, 1920, and her mother died as a result thereof. Shortly after her mother’s death, Geraldine was taken to the home of deceased where she was reared by deceased and where she continued to live for more than twenty-two years. In 1921 or 1922, the natural father, Otto Spark, was approached by the Henry Sparks, who asked him to sign an agreement that in the event of his death, the Henry Sparks were to have custody of Geraldine. Otto Spark executed such an agreement, but after his remarriage in 1925, he apparently made some attempt to regain custody of Geraldine. This attempt was abandoned upon the promise of the Henry J. Sparks that they desired to raise Geraldine as their own child and to leave all their property to Geraldine and a son of Mrs. Henry J. Spark. Mrs. Henry J. Spark died in 1936. Continuing to live with Henry J. Spark, Geraldine graduated from the public schools in 1939 and enrolled in business college where she completed a business course about one year later. In 1940, she had a desire to leave the home of Henry J. Spark, deceased, and go to work, but was encouraged to stay, and did stay, upon the promise that Henry J. Spark would give her the residence property located at 1323 N. Poplar street in Wichita. At various times through the years his intention to give this property to Geraldine was indicated and she continued to make her home with Henry J. Spark. She worked in the home, assisted him in the operation of his café, and drove his car for him. Geraldine married in 1942, but her husband went into the military service and she remained with the deceased, Henry J. Spark, until after her husband’s discharge. Her uncle and foster father, Henry J. Spark, died in October, 1946.
Plaintiff’s petition purported to allege an oral contract between Geraldine Spark.and Henry J. Spark to the effect that if Geraldine would continue to live in the Henry J. Spark home, keep house for Henry J. Spark, and do all other things necessary to be done, that he would give her the home place at 1323 N. Poplar street in Wichita; that Geraldine forbore obtaining a job and leaving the home and continued to reside with Henry J. Spark, making a home for him, devoting her time to his comfort, and extending to him the companionship, care and obedience of a daughter while she relied upon his promise to giye her the North Poplar street property.
There was evidence on behalf of claimant to support this oral agreement between Geraldine and deceased. Geraldine’s father, Otto Spark, testified that in 1941 the deceased, Henry J. Spark, told him that Geraldine had wanted to leave home, get a job and go to work, but that Henry Spark did not want her to do that and if she did stay with him and take care of the house and of him, he, Henry J. Spark, would give her the place on North Poplar street. Another witness, Nellie Krantz, testified that she was told by Henry J. Spark, the deceased, in 1943 that he had an agreement with Geraldine that if she would stay there with him he would let her have the property at 1323 N. Poplar, and that Henry J. Spark told her he was going to let her have that property if she stayed at the house and did things for him; that he was going to give the property to Geraldine as soon as he could get the present tenants out. She also testified as to the services rendered to Henry J. Spark by Geraldine, the doing of general work around the house, working in Henry J. Spark’s restaurant, and driving the car for him. These and several other witnesses testified pertaining to statements made by the deceased at various times from 1940 to 1946 that he “was" going to give the Poplar street property to Geraldine,” and that he “would give the Poplar street property to Geraldine,” and that “the Poplar street property belonged to Geraldine,” and that he “gave the property to her.” There was other substantial testimony that Geraldine did various household chores, the laundry work, et cetera, and that Geraldine obtained supplies, conducted business for deceased, worked in his café, and acted as chauffeur for him. There was also evidence that she referred to the deceased as her “Dad,” and in writing to Geraldine, the deceased referred to himself as “her Pa.”
In addition to the foregoing evidence on behalf of claimant, there was some evidence of a contract between the deceased, Henry J. Spark, and appellee's natural father Otto Spark, to the effect that the deceased would leave Geraldine and her foster brother all of his property if Otto Spark would permit Geraldine to live with Henry J. Spark as his daughter. No allegation of such a contract was contained in the petition, so at the close of all the evidence, appellee was permitted to amend her petition to conform to the proof by including an allegation as to such a contract between Otto Spark and Henry J. Spark.
After hearing all of the evidence, the trial court made findings of fact, those pertinent to the issues here involved being as follows:
“2. Claimant’s father agreed with deceased and his wife in the office of I. N. Williams in 1921 or 1922 in writing that claimant would not go to any of her mother’s family in case of the death of claimant’s father.”
“4. Claimant’s father remarried in 1925, at which time he requested possession of the claimant and was told by the deceased that he had more to give claimant and after his death he would leave his property to claimant and the stepson Charles Spark, if claimant’s father would leave claimant with the deceased and his wife. The deceased at this time also told claimant’s father that claimant’s father was not going to take claimant to live with any stepmother; that she was going to stay in his (deceased’s) home, and if the claimant’s father obtained possession of claimant it would cost him a great deal of money. As a result of and in reliance on said promises, and the threats made by deceased, the claimant’s father forebore exercising the rights of a father, and deprived the claimant of being reared in the home of her natural father by leaving said claimant in the home of the deceased.
“5. Claimant’s father, wishing to help in the time of bereavement, came to the home of the deceased in November, 1936, at the time of the death of deceased’s wife, and had conversations with the deceased. At which time deceased stated to claimant’s father that claimant and deceased’s stepson were all that deceased had to live for, and that he was going to continue the home and leave everything to said kids after his death.
“6. Deceased met claimant’s father in a barber shop in approximately 1941 or 1942. At which time claimant had finished a business college course and wanted to get a job, leave deceased’s home and build a business career for herself. Deceased told claimant’s father that he (the deceased) had promised claimant the Poplar Street place if she would stay with the deceased, take care of the house, drive the car, help with the Cafe business, and assist with the rental properties which deceased then owned. In reliance on these further statements claimant remained in the home of the deceased and forebore her desires and rights and privileges as above set out.
“7. Deceased had later conversation with claimant’s father in which he stated that the North Ash property had been deeded to deceased’s stepson, Charles, and that he had told the claimant he was going to deed the North Poplar place to claimant as soon as he (the deceased) could get possession thereof from a tenant with whom deceased was having trouble.
“8. Deceased died in October, 1946. At which time he was owner of the legal title to the property known as the Poplar place which is now in question.
“9. Claimant’s evidence and the evidence of her father is corroborated by witnesses who have no interest in the case and are not related to claimant. Fred Johnson, Charles Spark, Roy F. McGuire, James Norris, Myra Johnson, and Nellie Crance.
“10. Claimant by reason of and in reliance on the promises and statements made by deceased was as a daughter to the deceased, both during her single and married life, and deceased was in the same relationship as a father to her. Claimant’s father was deprived of the love, affection, companionship, and association of his own daughter, and by the same reasons claimant was deprived of knowing her natural father, having his love, affection, companionship, and association, and the experience of a.natural child in the home of their natural parent.”
The court’s conclusions of law are in part as follows:
“1. There was a valid contract entered into between deceased, claimant, and claimant’s father beginning in 1926 when claimant was first deprived of the right of going with her natural father. Which contract was reaffirmed down through the years by performance on the part of claimant in remaining with the deceased. More particularly when claimant refrained from and fore-bore the obtaining of a position and career of her own, and at the same time being deprived of knowing her own natural father’s home and affection.
“2. There is no standard whereby love, affection and services such as claimant rendered to the deceased; association and obedience of a daughter to deceased, instead of to her own natural father, whereby claimant could be compensated in money.”
“4. Plaintiff is entitled to specific performance of the contract entered into as set out by her petition.
“5. Claimant is a legal owner in fee simple and entitled to immediate possession of the following described real property:
“Odd Lots 21 to 35, inclusive, on Mona, now Poplar Street in Fairmount Park Addition to the City of Wichita, Sedgwick County, Kansas, known as 1323 North Poplar.
“6. Claimant is entitled to an accounting of the administrator de bonis non for all rents and profits derived from the above described property from the time of the filing of the claim in Probate Court until the possession of said property is turned over to the claimant, and is entitled to judgment against the estate and the administrator for all sums received from said property after deduction of taxes, insurance, and repairs and upkeep on said premises, as is shown in the accounting of said administrator.”
Appellant contends and argues at some length in his brief that the demurrer to plaintiff’s testimony should have been sustained. The notice of appeal to this court recites that appellant is appealing from (1) the judgment of the district court rendered on December 18, 1948, whereby the district court adjudged that the property described therein belonged to Geraldine Spark Brown by reason of an alleged oral contract; (2) from the order of the district court made January 13, 1949, overruling the administrator’s motion to set aside the findings of fact and conclusions of law; and (3) an order of the district court overruling the administrator’s motion for a new trial. There being no appeal from the trial court’s order overruling respondent’s demurrer to claimant’s evidence, it is not a proper matter for review by this court.
Appellant next argues that the evidence fails to support a finding that there was an oral contract between (1) appellee and Henry J. Spark, deceased, or (2) Henry J. Spark, deceased, and the appellee’s natural father, Otto Spark. From the testimony heretofore referred to, we conclude that there was substantial evidence that the appellee Geraldine Spark Brown remained in the home of Henry J. Spark, deceased, gave up her desire and opportunity to obtain employment and continued to work for Henry J. Spark in his home and in his place of business in reliance upon the oral promise made in 1940 by Henry J. Spark, deceased, to give her the real property described as 1323 N. Poplar street in Wichita. The evidence heretofore related supports the trial court’s finding and conclusion that such an oral contract was entered into between this appellee and Henry J. Spark, deceased. Such a contract between the appellee and deceased having been properly pleaded, and having been established by substantial evidence, the trial court’s finding thereon is conclusive upon appeal to this court. On appeal, we are concerned with substantial evidence which supports the findings of the trial court, and not with such evidence as may be contrary thereto. It is not our function to weigh the evidence — that is the prerogative of the trial court; and we must assume that the trial court considered all the evidence. Although the evidence to establish such an oral contract must be clear and satisfactory, it is the trial court'which must be satisfied and convinced (Jones v. Davis, 165 Kan. 626 [Syl. ¶ 2], 197 P. 2d 932).
Having thus determined that the evidence and the findings and conclusions of the trial court with respect to the oral contract between appellee and deceased support the judgment rendered, it is not necessary for us to labor the question as to whether another contract existed between Otto Spark and the deceased or whether such a contract was properly brought into the issues of the case by claimant’s motion to' amend her petition to conform to the proof offered at the trial in the district court.
In connection with his argument that appellee failed in the court below to establish a contract between herself and Henry J. Spark, deceased, appellant relies upon the case of Woltz v. First Trust Co., 135 Kan. 253, 9 P. 2d 665. In that case the trial court found that an oral contract was made between the deceased and the plaintiffs Woltz whereby the deceased agreed to leave her property to Mr. and Mrs. Woltz in consideration of their taking care of deceased for the remainder of her life. The findings also stated that the evidence did not disclose just what was to be done by the Woltzes by way of their performance, but that the Woltzes’ conduct toward-deceased was that of dutiful children. On appeal the trial court was reversed on the ground that the alleged oral contract was not clearly pleaded nor definitely established by clear and satisfactory proof, and that it was indefinite in its terms both with respect to the property it was to cover and with respect to what the promisees were to do under it.
Many cases have been before this court seeking to establish and enforce contracts to devise property in consideration for the performance of personal services of one kind or another. In some cases the contract has been established and upheld, and in others the existence of a contract denied. (See cases pro and con cited on pages 260-261, Woltz v. First Trust Co., supra. See, also, Smith v. Nyburg, 136 Kan. 572, 16 P. 2d 493; Bray v. Cooper, 145 Kan. 642, 66 P. 2d 592; Popp v. Wilhelm, 150 Kan. 753, 96 P. 2d 620; Johnson v. Soden, 152 Kan. 284, 103 P. 2d 812; Paton v. Paton, 152 Kan. 351, 103 P. 2d 826; and In re Estate of Bond, 158 Kan. 776, 150 P. 2d 343, upholding such contracts; and Cunningham v. Cunningham, 135 Kan. 571, 11 P. 2d 749; Laupheimer v. Buck, 135 Kan. 631, 11 P. 2d 721; Heine v. First Trust Co., 141 Kan. 370, 41 P. 2d 767; Trackwell v. Walker, 142 Kan. 367, 46 P. 2d 603, holding such contract was not established.)
In the instant case, as distinguished from the Woltz case relied upon by appellant, there was substantial evidence that the deceased agreed to give appellee the property specifically described as 1323 N. Poplar street in Wichita, Kan., if she would give up her desire to get a job where she could use her business training, and would continue to live in his home as a devoted daughter and to work for him in the home and in his business. Appellee performed her part of the oral contract, in addition to giving the deceased the devotion and companionship of a daughter for a period of several years. In the instant case the oral contract was definite in its terms as to the specific property involved and as to just what performance it required of this appellee. It was established by substantial evidence and the trial court so found.
Finally, appellant contends that it was error for the trial court to decree specific performance even though the oral contract between appellee and the deceased was established by competent testimony, for the reason that appellee had an adequate remedy at law, and for the reason that the performance by appellee was grossly inadequate to justify a transfer to her of the North Poplar street property. No special finding was made by the trial court, and none was requested, as to the value of the North Poplar street property— but the testimony as to its value varied from $8,000 to $9,500. The trial court’s conclusion of law number two was that “there is no standard whereby love, affection and services such as claimant rendered to the deceased — association and obedience of a daughter to deceased instead of to her own natural father — whereby claimant could be compensated in money.” That conclusion is justified from the evidence adduced and the findings made by the trial court. It is true that the love, companionship and a daughter’s devotion for the period prior to the actual making of the oral contract between appellee and deceased (1940) cannot be regarded as consideration for that oral contract (In re Estate of Henry, 156 Kan. 788, 137 P. 2d 222 [Syl. ¶ 3]); but that filial relationship continued from the time appellee came to deceased’s home as a four-months-old baby— it existed both before and after the actual oral agreement between appellee and deceased concerning the North Poplar street property —and it continued along with the other actual services as a part of the consideration for deceased’s promise.
We again distinguish the facts in Woltz v. First Trust Co., supra, from those of the instant case. There the plaintiffs were man and wife who lived apart from the deceased promisor. They performed odds and ends of tasks for deceased which could have been performed by any third party not living under deceased’s roof, and could have been compensated in money. The Woltzes themselves claimed their services to be worth $15,000. However, deceased’s property which the Woltzes asked the court to turn over to them was valued at $75,000. Thus in the Woltz case the services involved were strictly of a business nature, and also were grossly inadequate when compared to the value of deceased’s property.
This court has recognized that love, companionship and devotion along with services in the performance of household duties and other beneficial tasks, are difficult — if not impossible — to measure by pecuniary standards (Bray v. Cooper, supra; Dent v. Morton, 148 Kan. 97, 79 P. 2d 875). On the other hand, we have also held that equity will not enforce a decedent’s contract to devise land in return for services of a strictly business nature which can be compensated in money (Dixon v. Fluker, 155 Kan. 399, 125 P. 2d 364). However, the instant case also involved a filial relationship rather than one of a strictly business nature — and being so, the performance by appellee could not be compensated in damages. The filial relationship in the case at bar is so obviously one that cannot be compensated in terms of dollars, that it is not necessary to go as far as the rule announced in In re Estate of Henry, supra, where the court said at page 803:
“It is next contended that the value of claimant’s services could readily have been compensated in money, consequently specific performance should not have been granted. A majority of this court rejects this contention— holding that there never was any contract that claimant should be compensated in money; he was to be paid in land; and if the oral contract is to be enforced at all, it should be enforced as nearly as practicable in accordance with the obligations of the promisors. (Hoppas v. Bremer, 114 Kan. 609, 220 Pac. 251, syl. ¶ 3.)
Under the facts disclosed by the record and heretofore summarized in this opinion, we cannot say that the trial court erred in concluding, as it must have concluded, that the consideration by way of appellee’s services, love and devotion, was adequate. The oral contract was an equitable one, and should be enforced by specific performance. The statute of frauds (G. S. 1935, 33-106) is not a bar to enforcement of the oral contract which has been fully performed on the part of appellee (Paton v. Paton, supra, syl. ¶ 4; Meador v. Manlove, 97 Kan. 706, 712, 156 Pac. 731; Smith v. Cam eron, 92 Kan. 652, 141 Pac. 596, syl. ¶ 1; Gemmel v. Fletcher, 76 Kan. 577, 92 Pac. 713).
In accordance with the views herein expressed, the judgment must be affirmed. It is so ordered. | [
-48,
104,
-16,
76,
8,
96,
10,
-112,
119,
-95,
55,
-41,
-23,
-46,
20,
109,
51,
93,
64,
104,
115,
-78,
7,
-119,
-46,
-13,
-72,
85,
-79,
92,
-27,
-34,
76,
32,
10,
-107,
-26,
-126,
-59,
84,
-50,
15,
73,
-31,
-39,
-46,
52,
57,
114,
77,
69,
-18,
-77,
40,
21,
-42,
110,
62,
-7,
-72,
64,
-72,
-85,
-115,
125,
19,
50,
-124,
-98,
111,
120,
42,
-100,
61,
0,
-24,
50,
-74,
-122,
-12,
43,
-119,
40,
102,
102,
48,
-123,
-19,
-24,
-104,
38,
-66,
-115,
-89,
-110,
88,
-126,
105,
-65,
-99,
121,
84,
39,
-4,
-1,
-51,
22,
-84,
8,
-53,
-108,
-79,
-123,
-16,
-112,
-109,
-17,
-89,
50,
112,
-53,
112,
92,
70,
59,
-69,
-50,
-70
] |
The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Kichard Bradshaw, before a justice of the peace of Mission township, Neosho county, under the railroad stock law of 1874, (Comp. Laws of 1879, pp. 784, 785, ¶¶4915 to 4919,) and at common law for negligence, to recover damages for a hog, belonging to the plaintiff, alleged to have been killed by the defendant in the operation of its railway.
It appears from the evidence and the findings of the court below, that the plaintiff, Bradshaw, owns and occupies a farm through which runs the unfenced railway of the defendant. One of the plaintiff’s hogs, a sow, which was confined in a pen on his own premises, accidentally escaped, and without any negligence on his part, strayed upon the defendant’s railway, within the limits of the plaintiff’s farm, and was there killed by the- railway company in the operation of its road. The general hog law of 1868 and the herd law of 1872 were then in force in that county and in that township. Bradshaw made due demand, and brought suit before a justice of the peace in that township, seeking to recover under the railroad stock law of 1874, and at common law for negligence. After judgment before the justice of the peace, the case was appealed to the district court, where it was again tried, before the court without a jury, and the court made special findings of fact aud conclusions of law, and rendered judgment thereon in favor of the plaintiff and against the defendant for $20 damages, $20 attorney-fees, and costs of suit; and this judgment the defendant below, plaintiff in error, now seeks to have reversed, by petition in error in this court.
The court below found, among other things, that —
“The defendant was guilty of negligence in the killing of said hog; said negligence consisted in not having its road inclosed with a sufficient fence where its said road ran through plaintiff’s farm, and where said hog was killed. It does hot appear whether said hog was killed by a freight train or by a passenger train, and it was not shown that defendant company was guilty of any negligence in killing the hog other than not fencing its road as hereinbefore found and stated.”
Bradshaw’s farm was cultivated on both sides of the railway track; but whether it was inclosed with a fence of any kind does not appear either in the pleadings, findings, or the evidence. As a conclusion of law, the court found “that the defendant is liable in this action for the value of said hog aud the aforesaid attorney-fee, and that the plaintiff is entitled to recover the same of and from the defendant.” The company excepted to the findings of fact and conclusion of, law, and filed its motions to set aside the conclusion of law, and for judgment upon the findings of fact, and fora new trial; all of which motions were overruled by the court, and judgment was rendered against the company for damages and attorney-fee as aforesaid.
The plaintiff in error, defendant below, claims that the judgment of the court below should be reversed for the reasons: First, that the findings of fact do not show that the defendant was guilty of any wrong; second, but even if they do, still that the plaintiff was equally at fault with the defendant, and cannot recover. The plaintiff in error claims that a railroad company is not required to construct fences as against hogs; and cites the following cases in support thereof: A. T. & S. F. Rld. Co. v. Yates, 21 Kas. 613; K. C. Ft. S. & G. Rld. Co. v. McHenry, 24 id. 501.
The plaintiff in error also claims that the plaintiff below was guilty of wrongdoing in permitting his hog to run at large in -violation of article 7, ch. 105, of the act relating to stock, (Comp. Laws of 1879, pp. 927, 928,) and was therefore guilty of contributory negligence, and cites the following cases in support thereof, to wit: C. B. Rld. Co. v. Lea, 20 Kas. 353; K. P. Rly. Co. v. Landis, 24 id. 406.
Chapter 94 of the Laws of 1874 .provides that a railroad ♦ company shall be liable to pay the owner-the full value of “each, any [and] every animal killed,” and damages for'“each and every animal wounded,” in the operation of its road, except where its “road is inclosed with a good and lawful fence, to prevent such animals from being on such road.” No animal is excepted from the provisions of the statute, and of .course the railroad company is required to fence as against all animals against which “a good and lawful fence” would be any protection. As against animals against which no good and lawful fence would be any protection, of course a railroad company is not required to fence; and it was with reference to this class of animals that the cases of Yates and McHenry were decided. It was not held in those cases that a railroad company need ’ not fence as against any hogs, but only as against the hogs mentioned in those cases; that is, against hogs against which a lawful fence would be no protection. Where a good and lawful fence will protect a railroad track against any particular bogs, the railroad company is bound to fence as against such hogs; and as the statute expressly requires that railroad companies shall fence their roads to prevent animals — that is, all animals, without any exception — from getting on their roads, it necessarily follows that whenever it is shown that a railroad has not been fenced, and that an animal, whether a hog or some other animal, has passed upon the track and has been killed, we think a prima facie case has been made out against the railroad company. (R. R. I. & St. L. Rld. Co. v. Lynch, 67 Ill. 149.) And if the defendant railroad company in such a case claims that it was not bound to fence its .road as against the particular animal in question, it devolves upon the railroad company to show it. (U. P. Rly. Co. v. Dyche, 28 Kas. 200; same case, 11 Am. & Eng. Rich Cases, 427; same case, 1 Pac. Rep. 243; A. T. & S. F. Rld. Co. v. Shaft, just decided; I. P. & C. Rld. Co. v. Lindley, 75 Ind. 426; same case, 11 Am. & Eng. Rld. Cases, 495; Flint & P. M. Rly. Co. v. Lull, 28 Mich. 510.)
While the burden of proving that the animal passed upon the railroad track where the railroad was not fenced, and was killed or injured, rests upon the plaintiff, yet the burden of proving that the animal was such that a good and lawful fence would have been no protection against it rests upon the defendant. Presumptively, a good and lawful, fence would have been a protection in the present case. Nothing was shown to the contrary, and the hog in question was a large one.
The claim that the plaintiff cannot recover because he was guilty of contributory negligence, is entirely untenable. (A. T. & S. F. Rld. Co. v. Riggs, 31 Kas. 622; same case, 3 Pac. Rep., 305; same case, 15 Am. & Eng. Rld. Cases, 531; Gooding v. A. T. & S. F. Rld. Co., 32 Kas. 150; same case, 4 Pac. Rep. 136; A. T. & S. F. Rld. Co. v. Shaft, just decided; P. P. & J. Rld. Co. v. Barton, 80 Ill. 72; Ewing v. C. & A. Rld. Co., 72 id. 25; Cressly v. N. Rld. Co., [N. H. Sup. Ct.,] 15 Am. & Eng. Rld. Cases, 540, and note, p. 544; Bellefontaine Rld. Co. v. Reed, 33 Ind. 476; McCoy v. Cal. Pac. Rld. Co., 40 Cal. 532.)
The judgment of the court below will be affirmed.
All the Justices concurring. | [
-16,
110,
-36,
-81,
12,
-22,
48,
-104,
67,
-95,
-26,
83,
-49,
-61,
1,
61,
118,
-67,
85,
59,
70,
-77,
55,
-93,
-109,
-13,
-13,
-51,
-71,
75,
-28,
-57,
77,
0,
74,
29,
-26,
-24,
-63,
92,
-114,
6,
-85,
-24,
85,
72,
60,
105,
22,
78,
49,
31,
-21,
42,
25,
-61,
40,
40,
107,
45,
81,
-7,
58,
-57,
95,
2,
-94,
0,
-100,
35,
90,
43,
-104,
53,
5,
-8,
115,
-92,
-106,
116,
13,
-39,
12,
38,
103,
33,
28,
-49,
104,
-120,
14,
-4,
-115,
-90,
-104,
92,
-109,
6,
-98,
-99,
16,
80,
-122,
126,
-25,
13,
-39,
108,
4,
-50,
-76,
-77,
-49,
36,
-110,
-75,
-21,
39,
51,
117,
-51,
-14,
73,
69,
114,
31,
-113,
-74
] |
Per Ouriam:
This case was tried by the court without a jury. The court made its findings of fact and conclusions of law upon the evidence introduced, and no evidence is preserved in the record. The complaint is, that this court should have construed the following words of the contract: “ But it is expressly agreed between the parties that if at any time during the said period of three years either of these parties shall have just cause so to do, he may annul this contract.” The contention of plaintiff is, that under the terms of the contract either party had the right to annul the contract for any cause assigned in good faith, and that the plaintiff, acting in good faith, did annul the contract before the commencement of this action; and therefore that he was entitled not only to immediate possession of the sheep in controversy, but also entitled to recover all his costs. The findings of the trial court do not render it necessary for us to construe the words “just cause so to do.” The court in its tenth finding of fact stated: “Said contract had not been annulled previously to the commencement of this suit.” This finding is somewhat modified by the other findings, but not to the full extent of showing any annulment of the contract by the plaintiff, or that he gave any notice to the defendant that he had or would annul the contract. By the fifth finding of fact, it appears that on September 8, 1882, the plaintiff told the defendant that he was not satisfied with the way the latter was treating the sheep, and that they had better settle up, but at that time there was no annulment of the contract. By the eighth finding of fact, it appears that on November 28, 1882, the defendant left Kansas for Ohio, and' did not return until after this action was commenced, and that in his absence the plaintiff went to his residence and demanded of his wife, Mrs. Fannie Greenleaf, and his hired man, Dick Nickerson, the sheep. The finding does not show that he made the demand of these parties as the agents of the defendant^ or that he gave any reason for the demand. On the other hand, the record shows that he made Mrs. Fannie Greenleaf and Dick Nicker-son parties to his action, and therefore his demand upon them was the same as if they held the sheep independently of any •claim, right or possession of the defendant. The conclusion of law based upon the findings was, “that said contract had not been annulled before the commencement of this suit.” If the plaintiff was not satisfied with the findings of fact, he should have asked the trial court to make further findings, or modify those made. Nothing of this kind was done.
The motion for rehearing will be overruled. | [
-80,
-24,
-12,
109,
8,
-32,
42,
-102,
69,
-85,
55,
83,
-19,
-58,
4,
121,
100,
125,
81,
107,
64,
51,
6,
64,
-46,
-45,
-47,
-51,
-79,
77,
-26,
-1,
76,
48,
66,
-99,
-25,
-53,
-63,
-36,
-114,
-122,
-120,
-28,
-48,
-54,
56,
123,
82,
79,
1,
-90,
-93,
42,
21,
67,
107,
60,
111,
61,
65,
112,
-69,
5,
109,
2,
-111,
38,
-68,
7,
-56,
62,
-112,
17,
11,
-24,
123,
-74,
-128,
116,
15,
-119,
40,
118,
98,
33,
-92,
-51,
124,
-36,
47,
-9,
29,
-89,
-112,
72,
75,
65,
-74,
-99,
100,
16,
-90,
114,
-11,
-99,
28,
-28,
3,
-113,
-42,
-29,
15,
62,
-102,
9,
-25,
-93,
49,
113,
-49,
-94,
88,
71,
112,
-101,
-113,
-97
] |
The opinion of the court was delivered by
Arn, J.:
This action was brought under the wrongful death statute (G. S. 1945 Supp. 60-3203) by a widow seeking to recover for herself and minor children for the death of the husband and father. Defendants bring the case here on appeal from the order of the trial court overruling their motion to strike plaintiff’s amended petition from the files and their demurrer to plaintiff’s amended petition.
The amended petition alleges that on the night of November 26, 1946, the decedent’s car collided with a house which was being moved along the highway by the defendant Mohl, one of the appellants here. Commercial Standard Insurance Company, the other defendant and appellant, carried the liability insurance upon Mohl’s housemoving equipment which Mohl operated under a contract carrier’s permit issued by the state corporation commission. It is further alleged that the house being moved was twenty-four feet five inches wide and the highway was twenty-three feet wide; that defendant’s truck, dollies and the house thereon blocked the entire highway and the shoulders thereof; that decedent’s car crashed into said truck, dollies and house as a direct and proximate result of the negligence of defendant and his agents, representatives and employees. Specific acts of negligence on the part of the defendant were then alleged, nine of them in all, including:
“5. In suddenly flashing a spot-light, located on the defendant’s truck, directly across the windshield of the automobile then being driven and operated by the said Fred S. Fowler, thereby suddenly blinding the said Fred S. Fowler and making it impossible for him to see objects in front of him.”
On January 20, 1948, the separate demurrers of the defendants to plaintiff’s amended petition were sustained. The journal entry does not indicate the specific reason, but counsel advise us that the trial court sustained the demurrers to the petition on January 20, 1948, because paragraph 5 quoted above affirmatively showed that deceased was guilty of such contributory negligence as would bar plaintiff’s recovery.
On April 14, 1948, and still within the January, 1948, term of the Russell county district court, plaintiff asked and obtained leave of court to amend her petition. The amendment was made instanter by interlineation by adding additional language to paragraph 5 so that said paragraph then read as follows:
“5. In suddenly flashing a spot-light, located on the defendant’s truck, directly across the windshield of the automobile then being driven and operated by the said Fred S. Fowler, thereby suddenly blinding the said Fred S. Fowler and making it impossible for him to see objects in front of him at a time when the said Fred S. Fowler was too close to the truck and house upon said highway to permit him to avoid a collision, the exact distance from said truck and house being now unknown to plaintiff(Portion added by April 14th amendment italicized.)
Defendants objected to the amendments thus made on April 14, 1948, but were overruled and were granted twenty days to further plead to plaintiff’s petition as amended. On May 5, 1948, defendants filed their motion to strike plaintiff’s amended petition (as amended and filed on April 14, 1948), which motion set forth the following grounds:
“1. That on the 20th day of January, 1948, the court rendered a judgment in said cause wherein the court sustained the defendants’ demurrers to plaintiff’s second amended petition.
“2. That at said time, the plaintiff made no request of the court for leave to file an amended petition in said cause, and plaintiff did not file an amended petition within any time fixed or allowed by the court, or even ask for an extension of time, and did not appeal from the judgment of the court sustaining such demurrers.
“3. That judgment rendered by the court at said time was a final judgment.
“4. That subsequent thereto and more than 60 days thereafter, the plaintiff asked leave of the court in said cause for permission to file a third amended petition, which permission, over objection of the defendants, was by the court granted, and plaintiff thereupon filed her third amended petition in said cause.
“That, by reason of all the above and foregoing, the judgment of the court in said cause sustaining defendants’ demurrers has become and is a final judgment in said cause, and that all of the matters and things therein contained are now res adjudicata.”
The motion to strike the amended petition was overruled on November 9, 1948, and the defendants were given twenty days to further plead. On November 29, 1948, defendants filed their joint and separate demurrers to said amended petition, stating as grounds therefor:
“1. That the court has no jurisdiction of the persons of the defendants or the subject of this action.
“2. That several causes of action are improperly joined.
“3. That the petition does not state facts sufficient to constitute a cause of action.
“4. That on the 20th day of January, 1948, the court rendered a judg ment in said cause wherein the court sustained the defendants’ demurrers to plaintiff’s second amended petition; and that at said time, the plaintiff made no request of the court for leave to file an amended petition in said cause, and plaintiff did not file an amended petition within any time fixed or allowed by the court nor did the plaintiff ask for an extension of time in which to file an amended petition; nor did plaintiff appeal from the judgment of the court sustaining such demurrers.
‘That the judgment rendered by the court at said time was a final judgment; that subsequent thereto and more than 60 days thereafter, the plaintiff asked leave of the court in said cause for permission to file a third amended petition which permission, over objection of the defendants, was by the court granted; and plaintiff thereupon filed her third amended petition in said cause.
“That by reason of all of the above and foregoing the judgment of the court in said cause sustaining defendants’ demurrers has become, and is, a final judgment; and that all of the matters and things in plaintiff’s amended petition as of April 14, 1948, are now res adjudicata.”
On December 16, 1948, the last mentioned demurrer to said amended petition was overruled and on January 5, 1949, defendants perfected their appeal, both from the November 9, 1948, order of the trial court overruling their motion to strike plaintiff’s amended petition, and the December 16,1948, order overruling their demurrer to said petition.
Let us consider appellants’ first specification of error — the overruling of their motion to dismiss the amended petition as it was further and finally amended on April 14. By this motion the right of the trial court to reconsider its ruling on a demurrer to a petition and to modify that ruling or permit an amendment within the same term was challenged. The trial court has some discretion in such matters. G. S. 1935, 60-761, provides:
“If the demurrer be sustained, the adverse party may amend, if the defect can be remedied by way of amendment, with or without costs, as the court or judge in its discretion shall direct.”
Perhaps not conclusive, but of some interest, is the fact that the trial court was called upon to permit an amendment to a petition within the period of limitation during which a new action could have been commenced by plaintiff (Penquite v. General Accident & Life Ass’n, 126 Kan. 511 [Syl. ¶ 1], 268 Pac. 851). Furthermore, although the record does not so indicate, the trial court may have concluded that it erred in previously sustaining a demurrer to the petition and sought to correct his error by his action on April 14. It is essential that district courts have such power within the term. Then, too, the trial court was no doubt familiar with the rule that courts will whenever possible favor rulings that will allow cases to be disposed of on their merits, and when plaintiff offered an amendment which fortified the petition as against demurrer, the trial judge exercised his sound discretion within the purview and purpose of section 60-761. Whatever his reasons for exercising his discretion as he did here, the trial judge had absolute power over the judgment rendered during the term (Kansas City P. & L. Co. v. City of Elkhart, 139 Kan. 374, 31 P. 2d 62; Burnham v. Burnham, 120 Kan. 90, 242 Pac. 124). We conclude it was not error for the trial court to permit an amendment to a petition to which a demurrer had been sustained nearly three months previously and within the same term. The sustaining of the demurrer in January did not render plaintiff’s cause res adjudicata so as to preclude the amendment of April 14. In Burris v. Burris, 140 Kan. 208, 34 P. 2d 127, we said:
“Where a demurrer is sustained to a petition for want of a material allegation, it will not prevent a subsequent judgment in the same cause or the maintenance of a new suit on the same cause of action, the material amendment being supplied either in an amended petition or in a newly filed petition.” (Syl. ¶5.)
See, also, Penquite v. General Accident & Life Ass’n, supra. We have examined the cases cited by appellants upon this question, but conclude that those cases are either not in point with the issue before us, or they are not in conflict with our disposition of it. The trial court did not err in overruling the motion to strike from the files the amended petition as amended on April 14, 1948.
Appellants next assign as error the overruling of the demurrer to the amended petition as further amended on April 14. The only additional argument made under this specification of error is that paragraph 5 of the specific allegations of negligence affirmatively shows that deceased was guilty of contributory negligence as a matter of law, such as will preclude plaintiff’s recovery. We have quoted this paragraph 5 in full above. While contributory negligence is an affirmative defense, it may, when brought into the case by plaintiff himself, defeat plaintiff’s case upon demurrer to the evidence. Likewiée, if plaintiff affirmatively alleges upon the face of his petition facts which clearly establish his own contributory negligence, the petition may be demurrable. But under our well-established rule as to the liberal interpretation and construction to be given a petition when challenged by demurrer, it cannot be said that the act of negligence set out in the fifth paragraph quoted above affirmatively established contributory negligence on the part of the deceased such as will preclude plaintiff’s recovery as a matter of law. Appellee argues, and with considerable merit, that this fifth allegation of negligence brings the case much in point with Drennan v. Penn. Casualty Co., 162 Kan. 286, 289-290, 176 P. 2d 522, and Towell v. Staley, 161 Kan. 127, 166 P. 2d 699. The amended petition states a cause of action.
We find no error in the orders of the trial court overruling (a) the motion to strike plaintiff’s amended petition from the files, or (b) the demurrer to the amended petition. The judgment is affirmed. | [
-16,
106,
-16,
-116,
43,
-30,
74,
26,
115,
-75,
-91,
83,
-87,
-37,
69,
101,
-10,
17,
-15,
43,
-10,
-93,
19,
42,
-109,
-77,
-31,
-59,
-78,
-53,
100,
-9,
76,
32,
-54,
93,
-26,
72,
-59,
84,
78,
4,
-71,
-27,
-39,
82,
48,
120,
68,
15,
-15,
-97,
-25,
46,
63,
66,
41,
110,
91,
-87,
-40,
-80,
-118,
13,
111,
7,
-95,
-124,
-102,
-127,
120,
59,
-100,
-79,
32,
-4,
115,
-90,
-106,
-12,
107,
-103,
8,
102,
103,
32,
69,
-25,
-24,
-104,
14,
54,
45,
-89,
62,
17,
11,
1,
-65,
21,
120,
48,
7,
126,
-4,
85,
89,
40,
5,
-117,
-74,
-79,
-49,
-96,
-108,
-125,
-21,
-125,
50,
113,
-55,
-10,
93,
70,
115,
-69,
-57,
-128
] |
The opinion of the court was delivered by
Wedell, J.:
This original proceeding, in the nature of quo warranto, was instituted by the state, on the relation of the county attorney of Shawnee county, to test the validity of chapter 262, Laws 1939 (G. S. 1947 Supp. 72-1757). The act reads:
“An Act relating to elections by boards of education in cities of the first class and providing for the cost of such elections.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. The expense of all elections held for school purposes in cities of the first class having a population of more than 70,000 and less than 100,000, shall be paid by the board of education of such city, except that when an election is held for both city and school purposes at the same time, then, the expense shall be paid in equal parts by the city and board of education.
“Sec. 2. This act shall take effect and be in force from and after its publication in the statute book.”
Various facts are stipulated. The stipulation discloses the population of the city of Topeka was 73,655 at the time of the 1941 elec tion, the first year the city held an election to which the act applied; 68,938 in 1943; 76,188 in 1945, the year there was no election of school board members in the school district (see ch. 133, laws 1945); 79,154 in 1947 and 87,001 in 1949.
The school board paid one-half of the election expenses in 1941 and 1947, the two years during which school board elections designated by the act were held prior to 1949. In May, 1949, the city billed the board of education for one-half of the 1949 election expenses. The latter refused to pay and authorized its attorney to institute legal proceedings to establish it was not liable for such expenses. This action followed.
It was also stipulated the populations of other cities in 1939 nearest in population to the city of Topeka were as follows: Hutchinson, 32,263; Kansas City, 149,342, and Wichita, 111,718. In 1949, ten years later, the population of those three cities was Hutchinson, 31,814, Kansas Ctiy, 176,413, and Wichita, 185,134. It will be observed the population of the city of Hutchinson remained substantially the same from 1939 to 1949 while the population of Kansas City increased 27,071 and that of Wichita 73,416.
Plaintiff emphasizes the fact that during such ten year period the act was operative only as to elections in the city of Topeka. Plaintiff contends (1) the act contravenes article 2, section 17, of our state constitution for the reason it has no uniform application among cities generally, or cities of the first class; and (2) the classification, based on the designated population bracket, is not germane to the purpose of the act and constitutes an unreasonable and arbitrary classification. That constitutional provision reads:
“All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state.”
In support of the contention plaintiff relies primarily on State, ex rel., v. Wyandotte County Comm’rs, 161 Kan. 700, 171 P. 2d 777, and cases therein cited; Carson v. Kansas City, 162 Kan. 455, 177 P. 2d 212 and City of Kansas City v. Robb, 164 Kan. 577, 190 P. 2d 398. The reader is referred to the facts and statutes involved in those cases. We think those cases due to dissimilarity of facts and statutes involved are not controlling in the instant case. They will be considered later.
The instant act applies to elections in all cities described in the designated classification. The act has a uniform 'operation within the designated class. In other words the act applies uniformly to elections in every city now within, or which may hereafter come within, the population limitations of the act. It is, therefore, a general and not a special law. (Beck v. Shawnee County, 105 Kan. 325, 182 Pac. 397; Harling v. Wyandotte County, 110 Kan. 542, 546, 204 Pac. 763; Rural High School v. Brown County Comm’rs, 153 Kan. 49, 51-53, 109 P. 2d 154.)
The mere fact that under circumstances existing at the time a statute is enacted it applies to only one city, one county or one school district, does not mean the act is a special law and, therefore, violates article 2, section 17, of our constitution, if it is reasonable that in the ordinary course of things other governmental units may come within the operation of the act. A few of the cases so holding are: State v. Downs, 60 Kan. 788, 793, 794, 57 Pac. 962; Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781; Baird v. City of Wichita, 128 Kan. 100, 104-105, 276 Pac. 77; Harling v. Wyandotte County, 110 Kan. 542, 546, 204 Pac. 763; State, ex rel., v. Board of Education, 122 Kan. 701, 707, 253 Pac. 251; Rural High School v. Brown County Comm’rs, 153 Kan. 49, 50, 109 P. 2d 154.
Was the classification based on population invalid? As applied to various subjects we have held a classification based solely on one population requirement does not constitute special legislation and does not contravene article 2, section 17, of our constitution. Some of the cases are: State v. Downs, Parker-Washington Co. v. Kansas City, Harling v. Wyandotte County, omnia supra; State, ex rel., v. Russell, 119 Kan. 266, 237 Pac. 877; State, ex rel., v. Kansas City, 125 Kan. 88, 262 Pac. 1032; State, ex rel., v. North Wichita Drainage District, 127 Kan. 207, 272 Pac. 177; Baird v. City of Wichita, supra; Connolly v. Bourbon County Comm’rs, 128 Kan. 452, 278 Pac. 714; State, ex rel., v. McCombs, 129 Kan. 834, 284 Pac. 618; State, ex rel., v. Kansas City, 134 Kan. 157, 4 P. 2d 422.
It is important to bear in mind the instant act is not based on a number of qualifying factors but only on the single requirement of the city’s population. The instant case is unlike Berentz v. Comm’rs of Coffeyville, 159 Kan. 58, 152 P. 2d 53, in which there was not only a city population requirement but also a requirement that the city be located in a county having a population of more than 47,000 and less than 51,000, thus making it highly improbable any other city could ever qualify under the act. The present case also differs widely from State, ex rel., v. Wyandotte County Comm’rs, Carson v. Kansas City, and City of Kansas City v. Robb, omnia supra, in which it clearly appeared the acts involved were special for the reason they contained two qualifying factors, one being a stated population and the other property of specific assessed valuation for tax purposes. Nor is Barker v. Kansas City, 149 Kan. 696, 88 P. 2d 1071, controlling here. While the act in that case was based only upon a city’s population of 120,000 or more it gave other cities only two years after its passage to qualify. Other cases relied on by plaintiff are of similar import to those just distinguished from the case before us.
The instant act is also challenged on the ground it contravenes article 12, section 1, of our constitution which reads:
“The legislature shall pass no special act conferring corporate powers. Corporations may be created under general laws; but all such laws may be amended or repealed.”
It does not appear the purpose of the instant act was to confer corporate powers. Rather it was a direction to pay designated expenses. In any event, having held the act is a general law, article 12, section 1, of the constitution does not apply. That constitutional provision prohibits only the conferring of corporate powers by a special act.
The constitutionality of acts involving various subjects has been challenged frequently under article 2, section 17, and article 12, section 1. We do not deem it necessary to quote extensively from the various cited cases holding a classification based solely on a single population requirement is not special legislation unless it clearly appears it could not in the normal progress of events become applicable to any other city, county, school or other subject to which the act pertains. One quotation will suffice to illustrate the often repeated rule. The 1929 decision in Baird v. City of Wichita, supra, involved a street widening and paving statute enacted in 1921. It applied to cities of the first class having a population of more than 95,000. When enacted only Kansas City qualified thereunder. This court said:
“Another objection to the act is based upon its being limited to cities of more than 95,000 population, but that classification is manifestly not unreasonable. Under the inhibitions of our state constitution it was and is impossible to confer corporate power upon a single city by special act (art. 12, § 1), yet of necessity our leading metropolis, Kansas City, does require much legislative attention not demanded by smaller municipalities, so a classification of cities is resorted to, quite properly, which satisfies the constitutional requirements of article 2, section 17, and article 12, section 1, although but one city may come within the legislative classification at the time the statute is enacted. This was precisely' the situation when R. S. 13-1041 was enacted in 1921. At that time only Kansas City had more than 95,000 population. But now the city of Wichita has grown into the same class, and doubtless Topeka will attain thereto ere long. With the passing years there is no reason to doubt that other Kansas towns will reach the same standard.” (p. 104.) (Our italics.)
The statement in the Baird case was correct. Since the passage of the 1921 act there involved the city of Topeka attained a population of 89,810 in 1949. In view of its rapid growth it may soon far exceed the population of 95,000 required by the 1921 act involved in the Baird case. So in the present case we have no reason to doubt that in the passing years cities other than Topeka will reach the population- of 70,000 required under the instant act. The act contains no limitation of time within which other cities may qualify.
Plaintiff argues general laws pertaining to election expenses were in effect prior to the enactment of the instant statute and that such fact is proof a general law could be made applicable and, therefore, a special law could not be enacted. We have already indicated this is not a special law. The fact some general laws previously may have been in force does not constitute a legislative bar to the enactment of a subsequent general law on the same subject.
Defendant argues the instant act is a school law and cites decisions of this court in which it has been held such laws are to be liberally construed in favor of constitutionality. It appears the subject of the act is one pertaining to elections in first class cities and to a division of the expenses thereof rather than to the subject of education. We need not, however, determine that contention. In view of what already has been said it is unnecessary to seek additional reasons for sustaining the constitutionality of the act.
A great many city and county laws based on a single population requirement have been enacted pursuant to our earlier decisions. The validity of most, if not all, of them would be rendered highly doubtful under a contrary decision in the case before us.
We think the act is not invalid on any ground asserted. The writ is denied. | [
-16,
-22,
-76,
127,
26,
98,
74,
-118,
122,
-79,
39,
83,
-23,
-55,
5,
125,
27,
45,
16,
120,
-27,
-73,
19,
-54,
-74,
-33,
-33,
-43,
-65,
93,
-76,
-1,
78,
48,
10,
-43,
-122,
66,
-59,
-36,
-114,
6,
-117,
-63,
-33,
-62,
54,
113,
50,
9,
-111,
10,
-5,
44,
26,
115,
-24,
36,
-37,
-96,
65,
-15,
-102,
-105,
126,
86,
17,
7,
-114,
-121,
72,
-82,
-40,
56,
-88,
-20,
75,
-90,
18,
-11,
5,
-119,
40,
-26,
107,
115,
-80,
-21,
-68,
-115,
30,
83,
-115,
-25,
23,
88,
99,
8,
-74,
17,
117,
16,
11,
-2,
-29,
5,
31,
44,
5,
-114,
-92,
51,
-33,
-92,
2,
26,
-17,
32,
17,
116,
-64,
-74,
95,
70,
18,
27,
79,
-68
] |
The opinion of the court was delivered by
HortoN, C. J.:
It is claimed by the trustee and guardian of Harry Rigg and Dora Rigg, minors, that upon the pleadings, evidence and conclusions of fact, they are entitled to a decree that under the trust deeds executed March 14, 1881, and April 25, 1881, the debt intended to be secured thereby is a prior lien to the attachment liens of T. G. Bush & Co. and the Planters and Merchants Mutual Insurance Company upon all the lands in controversy. The judgment rendered by the trial court was in effect that the trustee and guardian of Harry and Dora Rigg, minors, had a prior lien upon the lands of A. H. Bush and E. T. Bush jr., correctly described in the trust deed of March 14, 1881, and as to the lands intended to be, but which were not, correctly described therein, that the attaching creditors had the first lien. We think the claim of the trustee and guardian of the minor children well founded. 0 The trust deed or mortgage of March 14, 1881, as against A. H. Bush and E. T. Bush jr., the grantors therein named, was valid without recording; and although there was a mistake made in the description of the land intended to be mortgaged, the same might have been reformed at any time before the land had passed to purchasers for a valid consideration without notice. If the attaching and judgment creditors, without notice of the defect in the first trust deed, had become the purchasers of the land, a different question would be presented ; but the lands have not yet been sold under the orders of sale. The only liens that T. G. Bush & Co. and. the Planters and Merchants Mutual Insurance Company obtained under their attachments were upon the lands and tenements of the debtors they sued, and such attachments were not liens upon the lands and tenements not in fact belonging to the debtors at the date of the attachment. (Holden v. Garrett, 23 Kas. 98; Comp. Laws 1879, ch. 22, §§ 20, 21; Code, §§ 190, 193 ; Harrison v. Andrews, 18 Kas. 542; Swarts v. Stees, 2 id. 236; National Bank v. Wentworth, 28 id. 183.)
After the execution of the trust deed of March 14, 1881, which was followed up by the execution of the trust deed of April 25, 1881, to correct the description in the original trust deed, the lands in controversy were in equity the lands of the grantees therein for the purpose of securing the payment of the $5,000 mentioned in the deeds. The evidence, we think, clearly shows that the trust deed of March 14, 1881, was intended to transfer for the security of the debt therein named, all the real estate in Atchison county, in which E. T. Bush jr. and A. H. Bush had any interest. Upon this point, it was in substance as follows:
“In making the trust deed of March 14,1881, to James C. Bush, E. T. Bush jr. and A. H. Bush intended to convey the northeast quarter and the southeast quarter of section 21, and the southeast quarter and the northeast quarter and the northwest quarter of section 20, all in township 7, of range 19, in Atchison county, Kansas. In making such deed, they took the description from a tax receipt, and by mistake described one of the quarters as being in township 7, of range 18; and one as being in township 7, of range 17; but it was the intention of the grantors and James C. Bush, the trustee, to make the trust deed convey the lands in said county, formerly owned by E. T. Bush sr., deceased.”
There are some decisions that a mistake concerning matters as to which the parties had “means of knowledge,” or “might have ascertained the truth,” will not be relieved from; and the trial' court seems to have decided the case upon this theory, as one of its findings shows that “the work of securing preferred creditors was done in such haste as not to admit searching for all papers necessary to insure correctness.” These decisions have been expressly overruled, and the conclusion from the best authorities seems to be, that every negligence will not stay the hand of a court and prevent a reformation or •correction of a written contract, deed, or mortgage. The neglect must amount to a violation of a positive legal duty. The highest positive care is not demanded. (2 Pomeroy’s Eq. Jur., §856.)
On the part of T. G. Bush & Co. and the Planters and Merchants Mutual Insurance Company, attaching creditors, it is urged that there was no consideration for the note of $5,000, executed on March 14, 1881. The findings are otherwise. On the books of the firm of Bush, Yates & Co., E. T. Bush jr., as guardian, was charged with the sum of $7,000; this was money which came into his hands as guardian, and had been used iu the business of the firm. It is immaterial whether any share of the minors had been set apart to them, or not. The findings show that the amount of their distributive share had been estimated at a sum in excess of $20,000, and if the guardian of the minors had received $7,000, or any other sum in excess of $5,000, from the administrators of the estate of E. T. Bush sr., and held the same as the guardian of the minor children, or had used the same in the firm of Bush, Yates & Co. as the money of said minor children, such minors were certainly entitled to such money so received and used as their property.
It is next insisted by the attaching creditors that the words “gd. Harry and Dora Bigg,” in the note of March 14, 1881, are descriptive only of the said E. T. Bush jr., and that the note conclusively shows that E. T. Bush jr. attempted to withdraw his property from the reach of the creditors of Bush, Yates & Co.; in other words, that E. T. Bush jr. executed the note to himself, and the mortgage on his individual property to the trustee to secure the note he had executed to himself. The lien of the trustee aud guardian of Harry and Dora Bigg is based not merely upon the note of March 14, 1881, but upon the trust deed executed upon that date, and upon the later trust deed of April 25, 1881, correcting the description in the original trust deed. These trust deeds are to James C. Bush as trustee of Harry and Dora Bigg, and recite that said conveyance is made in trust for the. folio wing purposes only, namely:
“The first parties [A. H. Bush and E. T. Bush jr.] are justly indebted to the third parties [Harry Bigg and Dora Bigg] in the sum of $5,000, evidenced by the promissory note of Bush, Yates & Co. bearing even date herewith and due and payable January 1st, 1882 — said A. H. Bush and E. T. Bush being members of said firm — said note being payable to E. T. Bush, guardian of Harry and Dora Bigg, which indebtedness the first parties desire and intend by this deed the more effectually to secure and make certain the payment thereof. Now if the first parties shall pay off and discharge said indebtedness at maturity, with all interest and cost and expenses then incurred, said deed is to be entirely void, and the second party [James C. Bush] is to take such steps as may be necessary in law to effectually recover said property to the first parties. If default should be made in the payment thereof, the second party, as trustee aforesaid, shall, at the request of said third parties, take possession of said property,” etc.
These trust deeds therefore show that the purpose of their execution was in effect to secure the indebtedness due to Harry and Dora Bigg, and not to withdraw the property of E. T. Bush jr. from the reach of his creditors. Further, it appears that on June 8, 1881, said E. T. Bush jr. was removed as guardian of Harry and Dora Bigg. On June 9,1881, M. A. Bush was appointed as his successor, and this note of $5,000 was transferred to her as the property of her said wards.
It is urged further, that there was no consideration for the trust deed, because E. T. Bush jr. as guardian had no authority to loan funds in his hands belonging to Harry and Dora Bigg to the firm of which he was a member; that the note executed by him could not take the place of the official bond given by him to protect his wards; and that if he did loan to Bush, Yates & Co. any moneys of his wards, it was a misappropriation of trust funds, for which he alone is responsible ; that as a guardian, E. T. Bush jr. had no right to substitute his note for his official bond. This point is not well taken. If a guardian, or other trustee, who is a member of a firm, uses the trust funds in the partnership business, with the knowledge of the other partners, it becomes a partnership debt to the cestui que trust, and the latter may follow the trust fund so used and recover the same. (Ellicott v. Barnes, 31 Kas. 170; Market v. Smith, ante, p. 6,6.) If the loan to Bush,Yates & Co. by E. T. Bush jr. was improper, the guardian of the wards who succeeded E. T. Bush jr. had the right to elect to consider the money so used as a loan, or to hold the former guardian responsible on his official bond. (Gully v. Dunlap, 24 Miss. 410; Wood v. Stafford, 50 id. 370.) In this case it appears that the amount due the minor children was $22,782.51; the official bond of E. T. Bush jr. as guardian was $15,000 only, and said guardian is insolvent. Under these circumstances it was the duty of M. A. Bush, as guardian ,of the minors, to elect in favor of the securities executed by A. H. Bush and E. T. Bush jr.
It is finally insisted, that as the indebtedness to the minors was a little over $22,000, and as one note for $19,540 was executed and another for $5,000, that there was included in the notes $2,540 more than was due to the minors, or their guardian ; and therefore the trust deed must be regarded as fraudulent, as tending to hinder and delay creditors. Bump on Fraudulent Conveyances is cited to the effect that there is no difference in principle between fraud in fact and fraud in law; and it is sought to apply this principle to the trust deeds executed to secure the minors. The cases cited by Bump are voluntary assignments, with an unlawful intent appearing on the face of the instruments. (Bank v. Talcott, 19 N. Y. 146; Gere v. Murray, 6 Minn. 305.)
The rule stated in those cases is, that—
“When upon the face of the assignment any illegal provision is found, the presumption at once conclusively arises that such illegal object furnished one of the motives for making the assignment; and it is upon this ground adjudged fraudulent and void. The result is the same when the illegal design is established by other evidence. The inquiry is as to the intention of the assignor. When it appears that among the inducements operating upon him, there was an intention'to violate any of the duties owing by him to any of his creditors, the whole instrument is tainted, and will be set aside at the suit of any creditor: the rule applied to instruments of this character being, that they must be wholly valid or they are entirely void.”
This rule is not applied in case of a mortgagor securing the debt of a bona fide creditor, where by mistake merely the amount of the debt secured by the mortgage is slightly overestimated. Mr. Jones, in his work on Chattel Mortgages, says: “But the mere fact that the mortgage secures a greater sum than was actually due, is not conclusive of fraud.” (Sec. 339.)
In Wood v. Scott, 55 Iowa, 114, it is held that where a mortgage is given by an insolvent person for more than is due, and the fact of the insolvency is known to the mortgagee, such mortgage is a badge of fraud, but is not conclusively presumed to be fraud. In that case, Chief Justice Adams, speaking for the court, says:'
“Now while such a transaction is not to be commended, it is evident that there might have been no actual intent upon the part of the plaintiff to defraud the creditors of his mortgagor. It is insisted, however, that as this mortgage had the effect to conceal Lovetf s property and hinder and delay his creditors, no honesty of intention on the part of the plaintiff should prevent a court from holding the mortgage fraudulent and void. Whatever the rule may be in other states, we think that such cannot be held to be the rule in this.”
(See also Hughes v. Shull, ante, p. 127; Minor v. Sheehan, 30 Minn. 419; Tulley v. Harloe, 35 Cal. 302; Willison v. Desenberg, 41 Mich. 156; Berry v. O’Conner, 31 Alb. L. J. 357.)
In Wallach v. Wylie, 28 Kas. 138, the mortgage was held void because of the intention participated in by all the parties to overstate the amount of the debt secured, with the fraudulent intent to hinder, delay and defraud creditors. For the same reason, the written instrument in Winstead v. Hulme, 32 Kas. 568, was held void.
In regard to the execution of the mortgage of March 14, •1881, a reasonable explanation may be found for the overstate ment of the debt secured, owing to the haste in which it was executed; and it is clearly apparent to us, from the record, that there was no actual intent on the part of any of the parties executing this trust deed to overstate the debt to defraud any creditors. The judgment of the district court will be modified so as to make the trust deed executed to James C. Bush, as trustee, on March 14, 1881, a first and prior lien upon all the lands in Atchison county intended by the parties thereto to be described therein.
All the Justices concurring. | [
-80,
46,
-39,
-66,
74,
96,
40,
-102,
107,
-32,
-93,
87,
-7,
67,
16,
109,
-14,
109,
-59,
-22,
-41,
-77,
39,
-117,
-46,
-13,
-5,
-35,
-79,
-43,
-10,
87,
76,
40,
-118,
-43,
102,
-22,
-27,
80,
-114,
-123,
-87,
101,
-103,
112,
48,
-17,
52,
73,
85,
-98,
-13,
44,
49,
82,
104,
44,
107,
57,
-48,
-79,
-117,
-122,
111,
7,
17,
103,
-68,
3,
-56,
46,
-112,
50,
-120,
-8,
122,
-90,
22,
118,
5,
25,
9,
38,
102,
1,
101,
-17,
-71,
-104,
62,
-1,
15,
-89,
-74,
88,
-94,
64,
-76,
-99,
108,
16,
-90,
118,
-26,
21,
28,
108,
5,
-113,
-42,
-95,
-121,
-76,
-101,
11,
-9,
33,
-80,
69,
-49,
-94,
93,
99,
123,
-111,
14,
-82
] |
The opinion of the court was delivered by
HobtoN, C. J.:
It is claimed that the district court of Sedgwick county had no power or jurisdiction to enjoin the judgments rendered by the district court of Harvey county, on September 26, 1883, in favor of John A. Busenbark and Josephine Underwood against Henry Busenbark; and further, that the court erred in finding these judgments to be fraudulent and void. A wife residing in this state is entitled, upon the death of her husband, to the half of all the real estate owned by bira during the marriage which has not been sold on judicial sale, and is not necessary for the payment of debts, and of which the wife has made no conveyance; so that there is an inchoate interest to the extent of one-half given to the wife in the real estate of the husband. It is true that this interest in the real estate of the husband is inchoate and uncertain, yet, according to the authorities, it possesses the element of property. It is an interest and right of which she can be - divested only by her consent, or crime, or her dying before her husband. It is an interest which may be, in connection with the husband, the subject of contract and bargain, and is by many of the authorities denominated a contingent but i valuable interest. It has been decided by this court that the wife has an estate in the homestead occupied by herself and husband, although the title to the same be in the husband, and that it is such a present and existing estate that it will be protected by the courts. (Helm v. Helm, 11 Kas. 19; Jenness v. Cutler, 12 id. 500.) We now go further, and declare that although the wife’s right and interest in the real estate of her husband not occupied as a homestead is inchoate and uncer- \ tain, yet it possesses the element of property to such a degree that she may maintain an action during the life of her husband for its protection, and for relief from fraudulent alienation by her husband. (Busick v. Busick, 44 Iowa, 259; Thayer v. Thayer, 39 Am. Dec. 211-220, and the note and authorities there cited.)
Now it is well settled, that fraud invalidates judgments, as well as contracts or other acts, and that a court of equity has power to grant relief against judgments fraudulently obtained. Whenever a judgment is procured through fraud of the parties thereto, for the purpose of defrauding a third person, such third person may escape from the injury thus attempted, by establishing in a separate and independent suit the fraud or collusion by which the judgment was obtained. (Freeman on Judgments, §336.) The fraudulent judgments in this case were rendered in Harvey county, but executions were issued to the sheriff of Sedgwick county, and the prem ises of the husband in Sedgwick county were levied upon and were about to be sold in pursuance of a fraudulent scheme concocted between the husband and his children, with the object and for the purpose of defeating the wife’s rights. When the parties to the fraudulent judgment sought to enforce it in Sedgwick county, it was competent for the wife to relieve herself from the injury thus attempted, by her action in Sedgwick county to prohibit the sale of the real estate. (Chambers v. Bridge Manufactory, 16 Kas. 270.)
The cases of Meixell v. Kirkpatrick, 28 Kas. 315, and Galbreath v. Drought, 29 id. 711, are confidently cited to support the propositiomthat the district court of Sedgwick county had no jurisdiction over the judgments in Harvey county, or power to enjoin the executions issued from the district court of Harvey county on the judgments rendered therein. Those cases are bottomed upon irregular and erroneous judgments — not upon fraudulent and void judgments — and therefore are not applicable. It was said in Meixell v. Kirhpatrich, supra, that “a void judgment may be treated’ as void everywhere, and collaterally as well as directly, while a judgment that is merely irregular, or erroneous, or voidable, cannot be so treated.” It was also said in Klemp v. Winter, 23 Kas. 699, that “fraud vitiates everything it touches — final judgments, final orders, final settléments and contracts, as well as things of less consequence, and that courts possessing general equity or chancery jurisdiction have the power to grant proper relief in all cases of fraud.” Upon the record, we perceive no error in the finding and the conclusion of the trial court, that the judgments of the district court rendered against Henry Busenbark in favor of his children were fraudulent and void.
It is next claimed that the judgment giving the wife certain personal property and also the rents and profits of a quarter-section of land was improper. The statute controls. This provides:
“ When the parties appear to be in equal wrong, the court may, in its discretion, refuse to grant a divorce1; but in any such case, or in any other case where a divorce is refused, the court may, for good cause shown, make such order as may be proper for the custody, maintenance and education of the children, or the control and disposition of the property of the parties as may be proper.” (Code, § 643.)
Its provisions are broad enough to sustain the court in its judgment relating to the disposition of the property of the parties. Its constitutionality is not challenged. The husband and wife had been married about fifteen years. The wife was a very industrious and hard-working woman; she had not only performed the customary household work, but had also assisted her husband at his labors upon the farm and in his business, upon various occasions, and in various ways; she herded cattle, spaded ground, butchered hogs and cattle, etc. Her labors must have aided him in accumulating property, and before he commenced disposing of his personal and real estate he was in good circumstances, having, besides his personal property, over five hundred acres of valuable land. The evidence shows that Henry Busenbark gave as the reason for marrying his wife, “that she was a German, and he thought they could do more work than any other class of people.” Prior to the trouble that grew up between them on account of the refusal of the wife to join in conveying the real estate to her husband’s children, the husband had no complaint to make that his wife did not do all the work he expected of her when he married her. He had cause, perhaps, to complain of her tongue, but not of the work of her hands. If the power existed in the trial court to make any disposition of any part of the property of the husband for the benefit of the wife, the order of the court was just and reasonable.
It is also claimed that the trial court erred in requiring the husband to pay $50 attorney’s fees. Section 644, among other things provides: “ On granting a divorce in favor of the wife, or refusing one on the application of the husband, the court may require the husband to pay all reasonable expenses of the wife in the prosecution or defense of the action.” The husband filed a cross-petition for a divorce. It is true that he withdrew this by leave of the court after the evidence had closed, but the expense to the wife in resisting this application for divorce had already accrued at the time of the withdrawal of such petition. We suppose it was withdrawn in anticipation that the court would refuse the application of the husband for a divorce. Within the spirit of the law, if not within its exact letter, the ■court committed no error in. requiring the husband to pay all reasonable expenses, including attorney’s fees of the wife in ■defending against such cross-petition.
Other alleged errors are referred to in the arguments; but, believing that the findings of the court are sufficiently sustained by the evidence, and that, none of the said alleged errors were prejudicial to the rights of the parties complaining, the judgment of the district court must be affirmed..
All the Justices concurring. | [
-13,
106,
-7,
-2,
8,
-32,
42,
-104,
98,
-75,
-91,
-41,
-7,
-38,
17,
45,
50,
41,
113,
121,
-46,
-77,
23,
-31,
82,
-77,
-111,
-33,
-69,
-40,
119,
-41,
76,
32,
-54,
-11,
70,
-62,
-63,
16,
-114,
-59,
-87,
-56,
-39,
66,
52,
-85,
84,
11,
113,
-82,
-9,
47,
61,
71,
44,
47,
95,
-81,
-48,
-72,
-66,
-105,
79,
7,
-111,
38,
-120,
-93,
-56,
10,
-112,
53,
8,
-24,
123,
-106,
-122,
116,
77,
-103,
41,
102,
98,
33,
20,
-17,
-32,
-104,
15,
118,
-99,
-89,
-112,
88,
106,
73,
-74,
-99,
117,
116,
6,
-12,
-25,
84,
28,
108,
13,
-50,
-42,
-75,
-115,
122,
-112,
3,
-29,
7,
49,
81,
-113,
-78,
93,
37,
91,
59,
-114,
-80
] |
The opinion of the court was delivered by
Harman, C.:
Defendant-cross petitioner appeals from an adverse judgment rendered in an action brought by plaintiff for monies due on contract, defendant’s cross petition being one for damages for alleged breach of that contract.
The background of this controversy may be stated thus: Plaintiff manufactures and installs elevator equipment; defendant purchased and commenced operating two elevator buildings at Milan, Kansas, about May 1, 1959. Desiring to enlarge his storage capacity substantially defendant arranged for construction of a new storage steel tank to be completed by June 1, 1959, which construction is not involved in this controversy. On May 18, 1959, plaintiff and defendant entered into a written contract whereby plaintiff undertook to furnish and install a twelve inch screw conveyor eighty-four feet long to extend from the headhouse of one of the old elevators to the top of the new steel tank, its purpose being to convey grain from the smaller to the much larger facility. The contract executed was on a printed form denominated “Purchase Agreement,” with certain blanks filled in, salient parts of which were price, a description of component parts to be furnished by plaintiff with the notation, “No starter or elect, boxes,” the further notation: “Installed except for wiring” and a provision stating “Delivery June 1, 1959.” Rewiring of the elevator electrical system being necessary to handle the new equipment, defendant first attempted to get local third parties to do this but being unsuccessful, on May 28, 1965, entered into an oral contract with plaintiff for plaintiff to do the necessary electrical work. No time was expressly fixed for completion of this work. Plaintiff does not ordinarily do electrical work but accepted this under the circumstances with the understanding, according to plaintiff, that he would do the best he could.
In his petition plaintiff alleged execution of both contracts; that plaintiff furnished material and completed said work under the contracts, defendant thereby becoming indebted to him for $4,080.54, which defendant refused to pay, and plaintiff claimed judgment for that amount.
In his answer and cross-petition defendant admitted the execution-of the written contract and the employment of plaintiff for additional labor and electrical material as alleged and further alleged that time was of the essence and that performance on the part of the plaintiff and installation of all equipment was promised by him by June 1, 1959; defendant further alleged the 1959 wheat harvest in the area of his elevator occurred primarily during the days of June 10 to-June 15 but plaintiff failed to complete and deliver the installation to be made by him for use during said wheat harvest, by reason of which defendant was unable to receive and store grain which he otherwise could have, and his business reputation was damaged, all to his total damage of $28,852.96, for which he prayed judgment-
Plaintiff’s reply and answer to defendant’s answer and cross petition, filed under our former code of civil procedure, consisted of a general denial. With issues thus joined trial was had to the court without a jury in July, 1964, at the conclusion of which the following findings of fact were made:
“1. The Plaintiff was engaged in the business of manufacturing equipment for the operation of grain elevators in the year 1959 and during the month of May, 1959 the Defendant was engaged in the ownership and operation of a grain elevator at Milan, Kansas.
“2. On May 18th, 1959 an instrument in writing, designated as a purchase agreement, was entered into between the Plaintiff and Defendant whereby the Plaintiff was to furnish certain equipment in the construction of certain improvements at the west Milan grain elevator owned by the Defendant. This called for certain equipment manufactured by the Plaintiff, but provided for no electrical boxes or starters, and in said purchase agreement it was provided that delivery date of June 1, 1959 was set forth.
“3. On May 28, 1959 an oral agreement was entered into between Plaintiff .and Defendant for the doing and furnishing of certain labor and materials in the construction of certain electrical improvements,—wiring and installation •of other equipment which was essential to the operation of the machinery •and equipment provided by the written contract. This oral contract for the electrical work provided no time for the doing of the work except to have it done, as the parties understood, as soon as possible and to the best of the ability of the workmen to get the job done.
“4. There was certain work also to be done on the building in the nature of carpentry and strengthening of the wooden structures in the elevator for the carrying of the equipment to be installed. The electrical contract had originally been negotiated with persons other than the Plaintiff which contract was terminated by the parties and was taken over by the Plaintiff and a contract made on May 28, 1959 between Plaintiff and Defendant for that work. Work on the electrical contract began on the date of May 28, 1959 through a checking of the required materials needed for the job by the superintendent of the Plaintiff, and other work was commenced on June 1, 1959 in the electrical and carpentry work.
'“5. The work contracted by the Plaintiff in this action was subject to completion of the building of a storage tank which, according to the evidence, was completed on the 1st or 2nd day of June, 1959. On the 9th day of June, 1959 the conveyor provided for in the written contract was assembled and on June 18th it was installed, or placed in position. On June 20th, 1959 certain electrical equipment, including a starter for the conveyor motor was received and was on that date installed, and on the 21st day of June, 1959 the work was completed on the entire job.
"6. The Court finds that none of the work and material provided by the written contract could be operated, or could be used until the completion of the electrical work for there would be no power transmitted to the conveyor motor.
“7. The Court finds that by the oral contract for the electrical work no time was agreed upon for the completion of the work but it was to be done to the best of the ability of the contractor who was on the job to do the work and furnish the materials.
“8. The Court further finds that any loss occasioned by the Defendant by reason of inability to handle grain during the 1959 wheat harvest was due to no lack of performance on the part of the Plaintiff in the execution of the oral contract, and that no liability arises by reason of any failure in the purchase agreement of the written contract as to the lack of certain electrical equipment, especially a starter, that prevented the placing of the equipment in operation.
“9. The Court finds that by the invoices of the Plaintiff the amount payable on the written contract totals $3185.00, and the amount payable on the oral contract on the electrical invoice is $998.14.”
The trial court made general conclusions of law and rendered judgment for plaintiff in accordance with these findings. Thereafter defendant filed his motion for new trial, which was overruled. Defendant appeals from these adverse orders.
Defendant specifies several trial errors but they all relate to the general contention that the trial court erred in receiving plaintiff’s evidence of an affirmative defense to defendant’s cross petition,' when plaintiff pleaded only a general denial thereto, and in considering such evidence in rendering its judgment. Defendant refers to certain testimony concerning a motor starter and switch. To-better understand this contention it is necessary to go into the evidence. Plaintiff’s evidence showed that after the execution of the written contract and the subsequent oral agreement, necessary work on the storage tank was not completed until the first or second day of June, 1959 and work on the tank had to be completed prior to work on the conveyor; that immediately after entering into the oral contract of May 28, 1959, he had ordered certain electrical equipment including a starter for the conveyor motor but that this starter was not received until June 20, 1959, and therefore it was not installed and the job was not finally completed until the next day, June 21, 1959, which was after the 1959 wheat harvest, said harvest having been completed at the earliest time on record; the conveyor equipment covered by the written contract could not be operated without the electrical equipment, including the starter, being installed. It should be stated the evidence did indicate certain conveyor parts and the crane necessary to erect it were not at the elevator site by June 1,1959, and until several days thereafter, twelve or thirteen days actual work being necessary to install the conveyor exclusive of the electrical work. Plaintiff further testified that defendant knew the missing electrical equipment was not there, and that on June 13 while he was waiting on the electrical starter and a switch, he had a conversation with defendant in which it was conceded harvest was over and defendant said “take your time and get the job completed.” In other words, defendant claims plaintiff should not have been permitted under his general denial in his reply to introduce evidence as to the missing electrical equipment as any reason for nonperformance of the contract, since this was in the nature of an affirmative defense, that of confession and avoidance, which must be specifically pleaded before evidence thereof can be received. Plaintiff refuses to concede that he relies on confession and avoidance, which assumes a breach of contract; rather he claims full performance of his contracts, both written and oral, contending that the only date fixed in the written contract referred to delivery of the equipment (which the trial court found) and there being no completion date specified in the subsequent oral •contract, plaintiff had a reasonable time within which to perform it, and plaintiff denies there was any variance between his pleadings and proof.
Defendant raises these contentions for the first time in his motion for new trial, there having been no objection made to the evidence concerning the missing electrical equipment at the time it was received, or during or at the conclusion of the trial; there was no claim of variance made during the trial, there was no request for continuance at any time during the trial, and in fact no complaint of any kind by defendant until after judgment was rendered against him.
Under this state of the case it becomes unnecessary to determine whether or not there was any material variance between plaintiff’s pleadings and proof and the effect thereof. It has long been the rule that any variance between pleading and proof is waived if the opposing party does not make timely objection. In Woodard v. Timms, 113 Kan. 413, 215 Pac. 456, it is stated:
“A variance between pleading and proof is waived when no objection •thereto is clearly and specifically raised at the time the evidence is presented in the trial court.” (Syl. ¶ 1.)
It has also been the rule that where parties submit evidence on issues that are not strictly presented in the pleadings without objecting to the variance and the trier of fact determines such issues the pleadings will be treated as amended. In Blex v. Flack, 121 Kan. 431, 247 Pac. 640, this court said:
“Where a pleading is defective in its allegations, and in the trial the parties submit evidence on an issue without objection and try it out as if it were fully pleaded, and the issue is submitted to and determined by the jury, the pleading will be treated as amended and the finding on the issue to be binding upon the parties.” (Syl. ¶ 2.)
These rules have now become substantially embodied in our code of civil procedure (K. S. A. 60-215 [b], under which this case was tried, as follows:
“(b) Amendments to conform to the evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”
A party impliedly consents to the introduction of issues not raised in the pleadings by his failure to make timely objection to the admission of evidence relating thereto (1A Barron and Holtzoff, Federal Practice and Procedure, Conforming to Evidence, § 449).
Thus we have this situation: Without objection the parties went to trial on certain disputed issues of fact. While there were others, mention of two will serve to illustrate: Defendant claimed that time was of the essence of the contract by necessary implication from the circumstances; plaintiff denied this. Defendant claimed the necessary wiring was all completed by June 4, 1959; plaintiff’s evidence showed that certain equipment necessary for the wiring and the consequent operation of the conveyor did not actually arrive until June 20. 1959. Evidence pro and con was received by the court in a vigorously contested two day trial on these and other questions of fact, the case was submitted for determination and there was such determination on the merits. The court’s findings were all substantiated by the evidence, and the judgment rendered necessarily followed.
Defendant’s other claims of error relate to the court’s refusal to order a new trial. In addition to what has already been discussed, defendant claimed surprise on the basis of the evidence concerning the missing electrical equipment and its unavailability, and newly discovered evidence respecting availability of electrical equipment. It is difficult to see how defendant could claim surprise or that diligence is shown. The record reveals plaintiffs counsel in his opening statement at the beginning of the trial disclosed his position about the missing electrical equipment. As heretofore stated, no objection was made to this evidence or any issue raised based on surprise. The case proceeded to trial without any request for continuance or other relief.
In Thompson Co. v. Foster, 101 Kan. 14, 165 Pac. 841, plaintiff brought suit on a written contract. After an adverse judgment he claimed surprise when defendant introduced a letter purporting to modify the contract. No objection was made to the letter. This court said:
“. . . in any event the plaintiff did not show such diligence as to entitle it to a new trial. The evidence regarding the contents of the letter went in without objection ... No request was made for a continuance to enable the plaintiff to meet this evidence, and having taken its chances with the jury as the matter stood, without objection, it is not in a position to demand a further opportunity for a trial of the facts.” (p. 17.)
In Bank of Pleasanton v. Howard, 131 Kan. 616, 293 Pac. 407, being a suit for money loaned, appellee offered evidence as to erasures appearing on a bank deposit slip. On the question of new trial the court said:
“The appellant contends that this testimony, coming as it did on the last day of the trial and without any warning and without having been sufficiently indicated in the reply of plaintiff, found him entirely unprepared to meet it; that he did not have time to obtain the services of an expert on questioned documents. On the hearing of the motion for a new trial appellant offered the affidavit of J. C. Shearman, of Wichita, an expert on questioned documents, and this affidavit stated that from a careful examination of the deposit slip the witness could say positively that there was no erasure or alteration in the figures on the slip.
“In view of the state of the pleadings it is apparent that this testimony could not reasonably have been anticipated. However, the defendant did not make any objection on the ground of accident or surprise, nor did he ask for a continuance on that ground. This being the case, this.court feels its cannot sustain the contention of appellant.” (p. 618.)
In Wagon Co. v. Wilson, 79 Kan. 633, 101 Pac. 4, we find this:
“One who submits a case tried without a jury, without asking opportunity to procure further testimony, is not in a position to ask as a matter of right a new trial on the ground that he was surprised by the evidence of the adverse party." (Syl. f4.)
Lastly, defendant complains that the trial court refused to hear evidence and to receive his affidavit submitted in connection with his motion for new trial. Offers of proof were made on the material in question and the record seems clear the court was fully aware of everything proffered and did in fact consider it, and we see no error in its ruling on the motion for new trial. The judgment of the trial court is affirmed.
APPROVED BY THE COURT. | [
-48,
104,
-8,
13,
-118,
-30,
58,
-102,
121,
-96,
39,
87,
-19,
94,
20,
105,
-11,
125,
81,
122,
69,
-77,
67,
-24,
-46,
-13,
-15,
-63,
-71,
79,
-28,
-58,
76,
0,
-126,
21,
-26,
-62,
68,
28,
-114,
6,
12,
-20,
-7,
0,
-76,
106,
54,
65,
49,
14,
51,
44,
24,
-61,
105,
46,
123,
109,
113,
-15,
-126,
13,
95,
6,
3,
38,
-98,
69,
-56,
60,
-112,
-71,
34,
-24,
115,
-90,
-122,
-12,
99,
-119,
8,
98,
98,
2,
-59,
-25,
-36,
-72,
63,
-33,
-115,
-89,
-109,
24,
11,
97,
-65,
-99,
112,
22,
-91,
-66,
-4,
5,
31,
-19,
3,
-49,
-10,
-109,
-17,
114,
-98,
-97,
-17,
-126,
16,
96,
-49,
-90,
93,
103,
59,
-101,
-97,
-70
] |
The opinion of the court was delivered by
Fontron, J.:
This is an appeal by Elizabeth Markham Staplin, both as an individual and as executrix of the estate of Chester A. Markham, deceased, from an order of the Sedgwick County District Court dismissing her appeal from a judgment of the probate court of that county.
The material facts are not in dispute. Pugh and Barr, the appellees herein, were attorneys for Mrs. Staplin, in the administration of the Markham estate. Under date of April 9, 1964, a statement from the office of Mr. Pugh was addressed to Mrs. Staplin setting forth the amount claimed due Pugh and Barr for legal services rendered in the probate proceedings and listing also an item of $29.95 due as probate court costs.
On May 18, 1964, an order of final settlement was entered by the probate court. This order included an allowance to the executrix of $4,838.00 for the services of her attorneys, Pugh and Barr, and also ordered that the executrix pay the sum of $29.95 court costs. On May 22, 1964, Mrs. Staplin, individually and as executrix, ap pealed to the district court from the order of final settlement and, particularly, from the allowance of fees therein.
On June 10, 1964, Mrs. Staplin, as executrix, paid the court costs of $29.95 and obtained a receipt therefor from the probate judge. Thereafter, Pugh and Barr filed their motion in district court to dismiss Mrs. Staplin’s appeal from the probate court on the ground that, by reason of her payment of court costs, Mrs. Staplin had acquiesced in the probate court’s judgment. This motion was sustained by the trial court and the instant appeal was then perfected.
Both in their briefs and on oral argument the parties to this appeal have presented but one issue to be determined, namely, whether Mrs. Staplin, because of her payment of court costs, is precluded from appealing the order of the probate court allowing attorney fees. We proceed directly to this question.
As the appellees correctly point out, this court, on more than one occasion, has held the payment of court costs by a defeated litigant to bar his right of appeal. Illustrative of our decisions to such effect is Anderson v. Carder, 159 Kan. 1, 150 P. 2d 754, wherein we said:
“. . . Whatever the rule may be elsewhere, it is well settled in this jurisdiction that anything that savors of acquiescence in a judgment cuts off the right of appellate review, and that the payment of costs by a defeated litigant falls in that category. (Paulsen v. McCormack, 133 Kan. 523, 1 P. 2d 259; Paul v. Western Distributing Co., 142 Kan. 816, 52 P. 2d 379; Muckey v. Baehr, 158 Kan. 19, 145 P. 2d 164, and cases therein cited.)” (p- 5.)
See also Gehring v. Goering, 181 Kan. 994, 317 P. 2d 424, and Benson v. Wiley, 182 Kan. 403, 320 P. 2d 827.
We find no fault with those authorities but we do not consider them relevant under the facts of this case. The decision in each of the foregoing cases finds its rationale in the legal principle that one who acquiesces in a judgment is thereby foreclosed from exercising his right of appeal and that the voluntary payment of costs by a losing litigant constitutes evidence of such an acquiescence.
But such is not the case before us. Mrs. Staplin, in her capacity as executrix of the Markham estate, was not a litigant in any sense of that term. She was acting in a representative capacity, having been appointed by the probate court to administer the estate. In the execution of her duties she was subject to the control and direction of the court which appointed her. Both K. S. A. 59-301 and its predecessor statute, G. S. 1949, 59-301, provide in pertinent part:
“The probate courts shall be courts of record, and, within their respective counties, shall have original jurisdiction:
“(3) To direct and control the official acts of executors and administrators, to settle their accounts, and to order the distribution of estates.”
Ry the plain words of the statute, an executor occupies a status different than that of an ordinary litigant, and we believe that the mere payment by him of the ordinary costs of administration, out of funds of the estate, cannot be equated with the payment of costs assessed against a defeated party to a lawsuit. In our judgment, no inference of acquiescence is justified under the facts of this case.
We have not overlooked our decision in Newsome v. Anderson, 164 Kan. 132, 187 P. 2d 495, but find it not in point. In that case, Newsome brought a proceeding in probate court seeking to revoke a former order of the court probating his grandfather’s will. The probate court held against Newsome and dismissed the proceeding, and Newsome’s attorney (or a relative of Newsome at the direction of Newsome’s lawyer) paid the accrued court costs. Thereafter, Newsome attempted to appeal from the probate court’s order of dismissal, and this court held that his right of appeal was barred on the basis of acquiescence.
We believe the facts in Newsome clearly distinguish that case from the present action. The court costs which had accrued in that matter resulted from an action begun in probate court by a private litigant to set aside a prior judgment upholding a will. Newsome’s posture was essentially hostile to that of the executor, and when he failed to prevail in his contention, costs were assessed against him as the defeated party in a lawsuit he himself had initiated. The ordinary costs of administration doubtless had been paid from the estate long before that. In the case now before us, ordinary costs of administration were paid by the executrix from estate funds. The record shows that the items which composed the costs were of the usual, garden-variety type of statutory fees routinely charged against and paid from every estate administered in Kansas. The factual situations in the two cases have little, if anything, in common.
We hold that the facts shown to exist in this case do not evidence acquiescence on the part of Mrs. Staplin, and that her right to appeal from the judgment of the probate court allowing attorney fees was not foreclosed by her payment of probate costs. The judgment of the court below is reversed with directions to reinstate Mrs. Staplin’s appeal. | [
-16,
110,
-3,
-84,
-118,
32,
50,
-104,
81,
-95,
-73,
87,
-85,
-46,
16,
107,
115,
45,
65,
107,
-45,
-73,
87,
-24,
-45,
-5,
-89,
-44,
-79,
-20,
-12,
-41,
76,
32,
-62,
85,
102,
4,
69,
80,
-50,
4,
-87,
-19,
-7,
-62,
48,
57,
54,
13,
49,
-34,
-9,
42,
85,
67,
104,
44,
-37,
41,
16,
-80,
-82,
-123,
127,
26,
16,
52,
-104,
-127,
88,
46,
-112,
53,
2,
-24,
51,
-90,
-122,
84,
99,
-71,
12,
102,
98,
48,
-92,
-17,
-16,
-84,
46,
28,
-99,
-89,
-102,
17,
-53,
5,
-76,
-97,
117,
16,
7,
-12,
-18,
-97,
28,
-20,
-51,
-113,
-106,
-69,
-49,
94,
-108,
-109,
-22,
-115,
84,
113,
-119,
98,
93,
-57,
59,
-69,
-114,
-80
] |
The opinion of the court was delivered by
Fontron, J.:
This is an action to recover the balance due on a promissory note and to foreclose a mortgage given to secure its payment. The trial court sustained the defendants’ motion for summary judgment, and the plaintiff has appealed.
The essential facts, as disclosed by the pleadings, supporting affidavits and findings made by the trial court, are not complicated. In August 1947, the defendants, C. C. McQueen and Florence McQueen, purchased an Edwards County farm from Steve and Genevra Williams, making a cash down payment and executing a $6,000.00 note and mortgage to Mr. and Mrs. Williams for the balance of the purchase price. This indebtedness was thereafter increased to $9,480.00, and to secure its payment, the McQueens, in March 1955, executed a new note and mortgage to the Williamses, as joint tenants with right of survivorship. On March 2,1960, after the indebtedness had been reduced to $5,000.00, another note and mortgage in that amount, bearing six percent (6%) interest, were executed by the McQueens and delivered to Mr. and Mrs. Williams, also as joint tenants with right of survivorship.
The Williams and McQueen families became fast friends, the former frequently visiting and spending their evenings at the McQueen farm home where they were respected as members of the family, and Steve Williams often accompanying C. C. McQueen on business trips to surrounding cities. On many occasions, Steve Williams said that before he died he intended to make a new mortgage arrangement whereby the McQueen debt would be extinguished upon his and Genevra’s deaths, and both Steve and Genevra stated their desire to extinguish any such debt outstanding at the death of the last of them.
On November 27, 1960, Steve Williams died, without having made any new arrangement, at which time the McQueens still owed the full $5,000.00 indebtedness. This obligation had been reduced to $4,500.00 by January 19, 1961, when Genevra Williams, the survivor, called the McQueens and asked them to go with her to the office of a Kinsley insurance agent to make a new note and mortgage.
The McQueens thereupon proceeded to the city of Kinsley, where they executed and delivered to Genevra Williams a new note and mortgage dated January 19, 1961, in the principal amount of $4,500.00, bearing no interest and payable in annual installments of $500.00 on January 19 of each succeeding year. The following provisions were contained in the note and mortgage respectively:
“In the event of the death of Genevra Williams all remaining payments are to cease and this note shall be considered paid in full.
“If the said second party shall become deceased prior to the payment of the total amount due under this mortgage, then all remaining due payments shall become null and void and this mortgage shall cease and be released upon said first parties furnishing a written proof of death of the second party.”
Subsequent to the making of this note and mortgage, the former note and mortgage of March 2, 1960, were released.
Genevra Williams died November 14, 1963, at which time $3,-500.00 was still owed on the last note and mortgage. The McQueens refused to make further payments on that debt and the executor of Genevra’s estate thereupon filed the present action.
It has been the plaintiff’s position throughout the entire proceedings that the above-quoted provisions in the note and mortgage of January 19, 1961, are void and unenforceable on three grounds: first, that the transaction is not a valid testamentary disposition of the property; second, that it does not constitute a gift inter vivos; and third, that the provisions form no part of a valid contract because they are not supported by consideration. The trial court, in ruling upon motions for summary judgment filed by both plaintiff and defendants, agreed with the plaintiff’s first two contentions. The court did find, however, that the note and mortgage of January 19, 1961, was a separate and distinct contract from that of March 2, 1960, and concluded that the challenged provisions constituted a valid contract enforceable against the estate of Mrs. Williams. This ruling is challenged by the plaintiff on this appeal.
Although the specific point has not heretofore been before this court, the prevailing view in this country supports the validity of an agreement made contemporaneously with a debt, that the debt or obligation shall be extinguished by the creditor’s death. This predominant rule is typified by the holding in Twyman v. Wood, 61 Ohio App. 229, 22 N. E. 2d 495:
“An agreement to sell real estate, the purchase price to be paid in installments evidenced by notes bearing different dates of maturity and secured by mortgage, and providing that upon the vendor’s ‘death at any time the debt is paid in full,’ is a valid contract and not an attempt to make a testamentary disposition of property.” (Syl. f 1.)
The principle also finds clear expression in Moore v. Brinkley, 200 N. C. 457, 157 S. E. 129, where it was held:
“A written agreement made with consideration contemporaneously with the execution and delivery of notes secured by a mortgage, that the obligor be absolutely released as to the obligee or her estate upon her death is valid.” (Syl. ¶[1.)
Other cases of like import are collected in an annotation in 127 A. L. R., commencing on page 634, to which the reader is referred if he desires to research or ponder the question further.
But the plaintiff insists that the challenged provisions in the note and mortgage in this case are not supported by consideration. We do not agree. The note and mortgage were made and delivered to Mrs. Williams at her specific behest and, it must be assumed, for her personal gratification. The McQueens were under no legal obligation to travel to Kinsley and there execute new documents in which, at least, the dates of payment were changed, presumably by being advanced, and Mrs. Williams was named the sole instead of a joint obligee.
It is true, as the plaintiff has pointed out, that the indebtedness evidenced by the note and mortgage given Genevra Williams on January 19,1961, remained the same as the balance which was then due on the prior note and mortgage which had been executed to Steve and herself on March 2, 1960. However, the consideration for an agreement need not redound to the obligor’s financial betterment, in order that it be valid. The applicable rule is stated in 17 Am. Jur. 2d, Contracts, pp. 438, 439, where it is said:
“It is widely held that a benefit to the promisor or a detriment to the promisee is sufficient consideration for a contract. The terms “benefit’ and ‘detriment’ are thus used in a legal or technical sense and have no necessary reference to material advantage or disadvantage to the parties, or to any actual pecuniary gain or loss. . . .”
In passing upon the adequacy of consideration in Wolford v. Powers, Administratrix, 85 Ind. 294, the Indiana Supreme Court spoke as follows:
“Where a party contracts for the performance of an act which will afford him pleasure, gratify his ambition, please his fancy, or express his appreciation of a service another has done him, his estimate of value should be left undisturbed, unless, indeed, there is evidence of fraud. . . .” (p. 303.)
The rule is followed by this court. Speaking in In re Estate of Shirk, 186 Kan. 311, 350 P. 2d 1, we said:
“. . . Generally speaking, consideration is not insufficient merely because it is inadequate. To be sufficient, the consideration agreed upon must be a legal benefit or detriment, and need not be a thing of pecuniary value or reducible to such value. . . .” (p. 321.)
We are of the opinion that, under the facts shown hy the record in this case, it may not be said that the provisions in the note and mortgage of January 19, 1961, terminating the McQueens’ liability in the event of Genevra Williams’ death, were based on insufficient consideration. They were part and parcel of a new and separate agreement induced hy Mrs. Williams herself, in which changes were effected from previous agreements. For more than two years the terms of this new arrangement were followed, the McQueens making the payments as called for, and Mrs. Williams accepting them. We hold the agreement to be valid.
The conclusion we have reached does not conflict with cases cited by plaintiff. Adequacy of consideration was not involved in either Fourth National Bank v. Hill, 181 Kan. 683, 314 P. 2d 312, or Potwin State Bank v. Ward, 183 Kan. 475, 327 P. 2d 1091. Roth cases dealt with the rights of mortgagees as against third parties, where time for payment of the mortgage indebtedness had been extended by renewal notes. In neither case had the mortgage been released. Nor do we find the factual situation to be the same in either Gonder v. Dodge, 97 Kan. 562, 155 Pac. 937, or Cron v. Zimmerman, 160 Kan. 78, 159 P. 2d 400, as in the present proceeding. We consider neither of these cases to be in point.
The plaintiff urges that the provisions terminating the McQueens’ obligation at the death of Mrs. Williams constitute a valid gift inter vivos. While there is authority supporting such a premise, we find it unnecesary to determine the question here.
For the reasons outlined above, the judgment of the lower court is affirmed. | [
-16,
108,
80,
-84,
10,
-32,
10,
-102,
74,
32,
-77,
-41,
-23,
-62,
20,
109,
-12,
45,
69,
97,
117,
-78,
21,
9,
-29,
-13,
125,
-51,
-15,
93,
-10,
87,
13,
32,
-118,
-35,
-30,
0,
-123,
92,
-50,
-123,
-72,
101,
-39,
0,
52,
59,
52,
13,
85,
15,
-61,
46,
53,
126,
45,
40,
123,
45,
-48,
-72,
-117,
7,
-33,
19,
-111,
37,
-100,
7,
-6,
42,
-108,
53,
0,
-8,
114,
-74,
-122,
116,
73,
-117,
9,
38,
102,
0,
69,
-17,
-4,
-104,
6,
-1,
-99,
-122,
-46,
89,
3,
39,
-97,
-98,
124,
65,
-105,
-36,
-2,
-107,
29,
-20,
7,
-49,
-106,
-77,
-115,
120,
28,
10,
-13,
47,
33,
97,
-49,
-14,
93,
7,
25,
-101,
-114,
-42
] |
The opinion of the court was delivered by
O’Connob, J.:
This is a direct criminal appeal which reaches this court in the following manner: In December 1958 the defendant was convicted by a jury of murder in the second degree (G. S. 1949, 21-402). Defendant filed a motion for new trial, which was denied. Having been twice convicted of felonies on previous occasions, he was sentenced under the habitual criminal statute (G. S. 1949, 21-107a) to a term of sixty years in the state penitentiary. De fendant filed notice of appeal and requested this court to appoint counsel, which request was denied. He then presented his brief pro se on appeal. The judgment and sentence of the trial court were affirmed in State v. Stubbs, 186 Kan. 266, 349 P. 2d 936, cert. den. 363 U. S. 852, 4 L. Ed. 2d 1734, 80 S. Ct. 1632. A detailed statement of facts is set forth in the opinion. In November 1964 present counsel was appointed, and upon defendant’s application this court recalled the original mandate and ordered his appeal reinstated. This matter has also been before us in an original proceedings in habeas corpus. (See Stubbs v. Crouse, 192 Kan. 135, 386 P. 2d 227.)
Defendant raises several points not advanced in his original appeal. These pertain to the alleged violation of his constitutional rights, and more specifically, to (1) the admissibility of his written statement at the trial, (2) the delay between the time of his arrest and the time he was brought before an examining magistrate, during which period his written statement was obtained, and (3) the lack of notice that he would be sentenced under the habitual criminal act.
It appears from the record defendant surrendered to the police on the morning of Friday, September 5, 1958, at approximately 1:00 a. m., but was not interrogated until 1:15 p. m. He was upset, and at his request was returned to jail. He was questioned no further until approximately 10:00 a. m., Saturday, September 6, when he agreed to give a statement. The statement was given at 11:45 a. m., transcribed, and signed about 4:30 p. m. Thereafter, the defendant was detained until he was taken before an examining magistrate on Monday, September 8, on which date counsel was appointed to represent him.
Defendant first contends his statement constituted illegal testimony and was inadmissible because he was not furnished counsel after he had requested it prior to making the statement and thus was denied due process of law and assistance of counsel in violation of the sixth amendment of the United States Constitution. The basic question involved on this point is whether or not while under arrest an accused’s statement made during a pretrial interrogation by law enforcement authorities is rendered involuntary and inadmissible because of the absence of counsel at the time it is made.
Defendant relies primarily upon Massiah v. United States, 377 U. S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199, and Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758, to support his con tention. In the Massiah case the defendant was indicted, arrested and freed on bond after employing an attorney. Federal agents, with the assistance of the defendant’s confederate, installed a radio transmitter in the confederate’s automobile and overheard the defendant’s unguarded admissions, which were later used against him at trial. These admissions were made in the absence of retained counsel. The court held the admissions were inadmissible. The facts of the case are not analoguous to those of the instant case.
In the Escobedo case a suspect in a murder case made certain incriminating statements after he had requested and had been denied an opportunity to consult with his retained counsel and without being warned of his right to remain silent. Mr. Justice Goldberg, speaking for a majority of the court, said:
“The critical question in this case is whether, under the circumstances, the refusal by the police to honor petitioner’s request to consult with his lawyer during the course of an interrogation constitutes a denial of ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ . . . and thereby renders inadmissible in a state criminal trial any incriminating statements elicited by the police during the interrogation.
“. . . We hold only that when the process shifts from investigatory to accusatory—when its focus is on the accused and its purpose is to elicit a confession—our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.” [Our emphasis.]
The facts presented in the Escobedo case are in sharp contrast to those of the instant case. Escobedo was a twenty-two-year-old boy of Mexican extraction with no previous police record, while Stubbs was a forty-four-year-old man with several prior criminal convictions, and who was no stranger to the “Halls of Justice.” Escobedo had employed a lawyer and repeatedly requested the opportunity to consult with him; his request was denied, although his lawyer was in an outer room seeking permission to speak to his client. There is no evidence that Stubbs was denied counsel or was refused a request to see or call his attorney. No one advised or inquired whether or not Escobedo understood his constitutional rights, while in the instant case the county attorney inquired whether or not Stubbs fully understood his constitutional rights and received an affirmative reply prior to Stubbs’ giving the statement. In Escobedo the “petitioner had become the accused, and the purpose of the interrogation was to ‘get him’ to confess his guilt despite his constitutional right not to do so,” while Stubbs was only one of two suspects under investigation at the time he made his statement.
The defendant would ask this court to declare that an accused has a constitutional right to have counsel provided at the investigative stage of the proceedings when a written statement is given by him to the police in order for the statement to be admissible. Neither Escobedo nor any other decision called to our attention has held that statements or admissions to police officers are inadmissible solely because they are made at a time when the accused did not have counsel. (Latham v. Crouse, 320 F. 2d 120 (10th Cir. 1963), cert. den. 375 U. S. 959, 11 L. Ed. 2d 317, 84 S. Ct. 449; Otney v. United States, 340 F. 2d 696, (10th Cir. 1965).
In Powers v. State, 194 Kan. 820, 402 P. 2d 328, a written confession was made by the accused prior to arraignment and before he was represented by counsel. The accused was advised of his right to consult with an attorney prior to the taking of the statement, but he made no request for counsel. In holding that the accused’s rights were not violated by the absence of counsel, this court said:
“. . . the Federal Supreme Court has never said one accused of crime is an incompetent person and entitled to counsel as such at every stage in a criminal proceeding.
“No case is cited which states or suggests that counsel must be provided at the investigation stage, or preliminary hearing stage, of a criminal case in Kansas, where the defendant has not requested counsel, has been informed of his rights to counsel, and makes an intelligent waiver, as the appellant did in the case presently before the court.” (p. 824.)
Stubbs contends he had requested and had been denied the opportunity to consult with an attorney prior to the giving of his statement. This contention is based on an isolated portion of his direct examination where he testified: “Mr. Phillips asked me if I had money for an attorney. He asked me if I could get an attorney. I said, ‘No, I would like to have one.’ There was nothing else said about an attorney until after they had got their confession. Then I had appointed attorneys.”
The following testimony was elicited on cross-examination of the defendant by the county attorney:
“Q. Is it not true before you signed this you read that statement?
“A. Did I have any choice? I never had no counsel.”
In our opinion a fair reading of the defendant’s uncorroborated testimony can hardly be construed as a request for and denial of counsel. Further, a search of the record fails to reveal anything that would amount to an affirmative request by the defendant to consult a lawyer or a denial of such a request.
Defendant further contends his constitutional rights were not effectively explained to him prior to his making the statement. The statement was taken by a court reporter in question-and-answer form, with questions being propounded by the county attorney. The pertinent portion of the statement relating to this point is as follows:
“Q. And Jim, you understand what we are doing right now is taking a court reporter statement?
“A. Or a confession, either way you want to call it.
“Q. And you have not been promised anything, isn’t that right?
“A. That’s right.
“Q. And we have made no threats whatsoever?
“A. None whatsoever.
“Q. And you fully understand your constitutional rights?
“A. Yes, sir.”
The record is devoid of any further evidence indicating the defendant’s rights were not explained to him. The defendant does not assert in what way he failed to understand or be advised of his constitutional rights. Under similar facts this court held in State v. Haught, 180 Kan. 96, 299 P. 2d 573, that one cannot later complain he was not apprised of his constitutional rights after stating to law enforcement officers that he had previously been arrested on felonies and knew these rights. Defendant’s complaint on this point has no merit.
Defendant’s contention that his statement was rendered inadmissible because it was given under coercion and was involuntary is based on his testimony that during the interrogation the county attorney and a law enforcement office:; threatened to file a second degree murder charge against the defendant’s wife if he did not tell them a story they liked. As revealed in the original opinion, this evidence was controverted by the officer’s testimony. The trial court made an independent determination out of the presence of the jury, as required by our decision in State v. Seward, 163 Kan. 136, 181 P. 2d 478, and determined that the statement was freely and voluntarily made. The court’s finding was supported by substantial evidence. What was said in the original opinion is controlling on this point, and defendant’s contention deserves no further consideration.
Defendant’s second point relates to the delay between the time of his arrest and the time he was brought before the examining magistrate. He contends that the delay was such as to deny him due process of law, thereby rendering his statement inadmissible.
Defendant relies upon Mallory v. United States, 354 U. S. 449, 1 L. Ed. 2d 1479, 77 S. Ct. 1356, which, in effect, applied the rule established in McNabb v. United States, 318 U. S. 332, 87 L. Ed. 819, 63 S. Ct. 608, and held that illegal detention of an accused resulting from noncompliance with Rule 5(a) of the Federal Rules of Criminal Procedure, which requires a federal officer making an arrest to take the arrested person “without unnecessary delay” before the nearest available commissioner, rendered inadmissible a confession obtained during such detention.
The McNabb rule was later tempered somewhat in United States v. Mitchell, 322 U. S. 65, 88 L. Ed. 1140, 64 S. Ct. 896. In that case a housebreaking suspect, after being taken into custody, voluntarily admitted his guilt and consented to the officers’ recovering the property from his home. The defendant on appeal contended the oral admission and the recovered property were barred by the McNabb rule. The court held, however, that the admissions of guilt and the property thus recovered were admissible in a criminal prosecution in a federal court, and that the admissibility of the evidence was not affected by subsequent illegal detention of the suspect for eight days before arraignment. The court, in its opinion, carefully distinguished the facts of the case from McNabb and concluded there were no disclosures by the accused induced by illegal detention.
Defendant recognizes that Kansas has no similar statute to Rule 5(a) of the Federal Rules of Criminal Procedure; however, he contends that state courts are nevertheless bound by the requirements of due process of law and fair play to adopt the federal rule.
The state courts generally have refused to apply the McNabb rule in criminal prosecutions and have followed the rule that the illegal detention of an accused does not of itself render a confession involuntary and inadmissible. In other words, a confession obtained during a period of illegal detention is admissible if voluntarily made and not the product of the detention. For example, see Thacker v. State (Okla.), 309 P. 2d 306; State v. Hodge, 252 Iowa 449, 105 N. W. 2d 613; State v. Jordan, 83 Ariz. 248, 320 P. 2d 446; State v. Johnson, 43 N. J. 572, 206 A. 2d 737. See, also, Anno., 19 A. L. R. 2d 1331, et seq., and 23 C. J. S., Criminal Law, § 817 (6).
In this state we have consistently rejected the McNabb rule. In State v. Smith, 158 Kan. 645, 149 P. 2d 600, the defendant was arrested on August 1, 1943, and held in jail without a complaint being filed until August 4. During this period the defendant, on August 2, made admissions to A. R. Blunk. When Blunk was called as a witness at the trial the defendant objected to any of his testimony with respect to conversations had with the defendant on the ground it was apparent the conversation inquired about took place prior to the time the defendant was brought before a magistrate, and that any statements or admissions made by him prior to that time or prior to the time he had been given an opportunity to consult with counsel, irrespective of their voluntariness, were inadmissible. This court, after rejecting the McNabb rule, adhered to our former decisions which held confessions or admissions against interest were admissible if freely made without inducement or duress or obtained by some other improper means.
In Converse v. Hand, 185 Kan. 112, 340 P. 2d 874, we said that Mallory v. United States, supra, was applicable only to federal rules of criminal procedure and not to state criminal proceedings. In State v. Latham & York, 190 Kan. 411, 375 P. 2d 788, 373 U. S. 919, 10 L. Ed. 2d 418, 83 S. Ct. 1310, we refused to apply the McNabb rule, saying it applied only to a federal prosecution. We therefore conclude the holding of the Mallory case has no application to this, a state criminal proceeding.
We now pass to Stubbs’ third point that his opportunity for a full and fair trial was denied by lack of notice he would be sentenced under the habitual criminal act. He claims no notice was given him prior to or during trial, and in fact, he had no notice until the very time the judge pronounced sentence. Stubbs contends the lack of notice constituted a denial of due process of law.
An examination of the record reveals the defendant testified on direct examination that in 1934 he was sentenced to two years’ imprisonment in the reformatory in the state of Missouri for larceny and that in 1938 he was sentenced to the Missouri State Penitentiary to a term of four years for burglary and larceny from Joplin. At the time of sentencing the trial court stated that the testimony in the case showed the defendant had been convicted for two previous criminal offenses and had served time. The journal entry of judgment recites a finding by the trial court that from the records and from the evidence testified to by the defendant himself, as well as other competent evidence, the defendant had been previously convicted of a felony on two different occasions. Then followed a detailed description of the convictions about which the defendant had also previously testified. Such findings satisfy the requirements of K. S. A. 21-107a. Further, it appears from the record that at the time of allocution, and after the court’s statement mentioned above, the defendant replied, “I have nothing to say.”
Defendant, in support of his contention of denial of due process, cites numerous cases from the federal courts, and particularly relies on Browning v. Hand, 284 F. 2d 346, cert. den. 369 U. S. 821, 7 L. Ed. 2d 786, 82 S. Ct. 833. A similar contention was raised by the petitioner in a habeas corpus proceeding in Sanders v. Hand, 190 Kan. 457, 375 P. 2d 785. In holding that the petitioner was not denied due process, the court said:
“. . . We are of the opinion that the case before us is controlled by Browning v. Hand, 284 F. 2d 346, cert. den. 369 U. S. 821, 7 L. Ed. 2d 786, 82 S. Ct. 833, and fully ascribe to what was said and held in that opinion. There, as here, the petitioner was not informed of the state’s intention to request sentencing as an habitual criminal until he was before the court for judgment and sentence. In upholding the increased sentence against a charge of denial of due process because of lack of notice, the court said:
“ . . One convicted of a felony in Kansas is entitled to notice of the hearing held to determine whether he is subject to the provisions of the habitual criminal statute, and due process requires notice. This is, however, a right which can be waived. Cf. Michel v. State of Louisiana, 350 U. S. 91, 76 S. Ct. 158, 100 L. Ed. 83; Hawk v. Olson, 326 U. S. 271, 66 S. Ct. 116, 90 L. Ed. 61; Adams v. United States, 317 U. S. 269, 275, 63 S. Ct. 236, 87 L. Ed. 268; Yakus v. United States, 321 U. S. 414, 444, 64 S. Ct. 660, 88 L. Ed. 834; United States ex rel. Jackson v. Brady, 4 Cir., 133 F. 2d 476, certiorari denied 319 U. S. 746, 63 S. Ct. 1029, 87 L. Ed. 1702, rehearing denied 319 U. S. 784, 63 S. Ct. 1315, 87 L. Ed. 1727; United States v. Gill, D. C. N. M., 55 F. 2d 399. Assuming that prior notice of the hearing was not given, the defendant was present at the hearing with his attorney, and no contention is made that he did not have full opportunity to be heard on all matters under consideration and to controvert the allegation that he had been convicted of previous felonies which would make him subject to the penalties of the habitual criminal statute. The time for complaint was then, not now. Cf. Williams v. State of Oklahoma, 358 U. S. 576, 583, 79 S. Ct. 421, 3 L. Ed. 2d 516.’ (p.347.)” (p.459.)
Also, see State v. Messmore, 175 Kan. 354, 264 P. 2d 911, and Johnson v. Crouse, 191 Kan. 694, 383 P. 2d 978, where no notice was given until the time of sentencing that the habitual criminal act would be utilized.
In the instant case the court undeniably had sufficient, competent evidence before it by the defendant himself to support its findings that the defendant had twice before been convicted of felonies. The facts are strikingly similar to those in State v. Graham, 172 Kan. 627, 242 P. 2d 1067, in which we stated that documentary evidence of prior convictions was not necessary when the defendant admitted the convictions and made no claim that his testimony in that respect was not true. Also, see State v. Watkins, 190 Kan. 446, 375 P. 2d 634, and the numerous cases cited in State v. Ralph, 194 Kan. 356, 399 P. 2d 548.
The defendant argues further that he would not have taken the stand had he had notice he was to be sentenced under the habitual criminal act. His statement in his brief that without his testimony there would have been no evidence upon which the court could have predicated the increased sentence is purely speculative. The cases heretofore cited reveal that evidence of prior convictions may be brought before the sentencing court by means other than the defendant’s own testimony.
We have further examined the defendant’s various other arguments concerning the trial court’s authority to pronounce an increased sentence under the circumstances, and they are without merit.
In the instant case the defendant was present in court in person and by counsel at the time of sentencing. He was fully informed by the court of his two prior convictions. In fact, he had testified about them on his direct examination at the trial. Neither he nor his attorney raised any objection at the time of allocution. The time for complaint was then, not now. The defendant’s claim that he was denied due process of law because of lack of notice under the circumstances is rejected.
The remaining points on appeal advanced by the defendant through his court-appointed counsel pertain to alleged trial errors and were all treated in the original opinion, with the exception of the admissibility of photographs of the deceased victim. We ascribe to what was said in State v. Turner, 193 Kan. 189, 392, P. 2d 863, and the admission of the photographs did not deny the defendant a fair trial in the instant case. Inasmuch as nothing new in the way of argument or authority has been brought to our attention by industrious counsel, we are satisfied with what was said and decided in our original opinion on these points.
In this appeal the defendant has had the benefit of a competent member of the bar of this state who has thoroughly presented the various points heretofore discussed. We have carefully reviewed the record and conclude the trial court did not err in any of the particulars of which complaint is made.
The judgment of conviction and sentence is affirmed. | [
-80,
-22,
-43,
31,
43,
96,
58,
-72,
2,
-29,
36,
115,
-95,
-57,
0,
121,
58,
111,
84,
121,
-52,
-105,
118,
65,
-90,
-5,
-119,
-43,
-9,
73,
-2,
-35,
73,
48,
-118,
85,
102,
-128,
67,
88,
-114,
5,
-87,
-60,
81,
26,
48,
41,
28,
15,
49,
30,
-93,
42,
26,
-54,
105,
40,
75,
-91,
80,
-79,
-87,
-97,
-65,
22,
-93,
-121,
-100,
5,
120,
63,
-104,
49,
1,
-20,
115,
-106,
-122,
116,
111,
-103,
12,
98,
99,
3,
93,
-49,
-72,
-87,
46,
58,
-115,
-89,
-104,
17,
73,
68,
-100,
-99,
127,
20,
47,
120,
117,
84,
21,
108,
-127,
-114,
-108,
-77,
79,
121,
-74,
-117,
-21,
37,
80,
49,
-113,
-30,
76,
-41,
121,
91,
-106,
-112
] |
The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from a controversy over the construction of an oil and gas exception or reservation in a deed. The action was in the nature of a suit to quiet title.
There are no disputed facts. In 1926, Charles F. Moser and Lizzie, his wife, executed a deed to Margery Boston covering a quarter section of land:
“. . . containing 160 acres more or less, according to Government Survey, except a one Sixteenth (1/16) Royalty interest of all oil, gas, or minerals in place on the West half of said Northwest Quarter (NW K) of said above described land, which oil, gas, and mineral is reserved to grantors; and also except the mineral rights on the East Half of said quarter, which have been heretofore conveyed away by grantors.”
It will be noted that the reservation in question covers only the west one-half of the quarter section. At the time the reservation was created the land was covered by an oil and gas lease. Following some five conveyances by deed the plaintiffs became the owners of the land. It will be mentioned, for what it is worth, that only two of the five deeds referred to the reservation.
Charles F. Moser died on April 25, 1944, leaving a last will and testament which did not specifically mention any royalty interest in the real estate in question, nor were any royalty interests or other mineral interests inventoried or appraised in the estate. Elizabeth Moser died on the 4th day of March, 1960, without a will, and the inventory listed “a one sixteenth royalty interest of all oil, gas, or minerals in place on the West Half (W M) of the Northwest Quarter (NW U) of Section 26, Township 26 South, Range 4 East. . . .”
The trial court found that the Moser deed reserved a mineral interest in the land and “that through mistake or inadvertence the mineral interest should be one-half rather than the one-sixteenth mentioned. . . .”
The plaintiffs, the present landowners, have appealed.
Before considering the merits of the appeal we must give attention to the appellees’ motion to dismiss the appeal because of appellants’ alleged failure to comply with K. S. A. 60-2103 (a) and 60-258.
At the risk of unduly extending this opinion, it is necessary to state the procedural facts which brought about the dispute.
On October 16,1963, the case was tried to the court. Later briefs were filed and on February 10, 1964, the trial court mailed a letter to counsel of record which read, insofar as material here, as follows:
“The court further finds that the deed of the date of September 23, 1926, wherein Charles F. Moser and Lizzie Moser, his wife, were grantors and Margery J. Boston was the grantee, said warranty deed being recorded in Volume 157 of Deeds at page 603 in the office of the Register of Deeds of Butler County, Kansas, reserved a mineral interest in the real estate. The court further finds that through mistake and inadvertence the mineral interest should be one-half rather than the one-sixteenth mentioned herein and that because of this Charles F. Moser, his heirs and assigns own an undivided one-half in the minerals under the West half of the property. . . .
“Costs are to be assessed against Plaintiff.”
On March 9, 1964, the trial court addressed another letter to counsel which read:
“As attorneys for the respective parties and supplementing my written memorandum opinion of February 10, 1964, I hereby direct that the form of the judgment rendered herein on February 10, 1964, is to be settled by a journal entry to be prepared by the parties who shall submit the same to me for signature, and I shall then file it with the Clerk of the District Court. In view of the fact that this is a quiet title action and will appear on abstracts, I am directing that the judgment be entered in this manner.”
It appears this letter was mailed only to local counsel.
On July 9, 1964, the journal entry of judgment was filed. The notice of appeal was filed August 4, 1964. The appellees contend that the letter of the court dated February 10, 1964, constituted the judgment of the court and that the appeal was not taken in time.
We must examine the statutes. The time for appeal is governed by the provisions of K. S. A. 60-2103 (a) which, with certain exceptions not material here, reads:
“Appeal to supreme court, (a) When and how taken. When an appeal is permitted by law from a district court to the supreme court, the time within which an appeal may be taken shall be thirty (30) days from the entry of the judgment, as provided by section 60-258, . . .”
K. S. A. 60-258 (a) provides in part:
“. . . When the judge directs that a party recover only money or costs or that all relief be denied, the clerk shall enter judgment forthwith upon receipt by him of the direction; but when the court directs entry of judgment for other relief, the judge shall promptly settle or approve the form of the judgment and direct that it be entered by the clerk.”
K. S. A. 60-258 (b) further provides:
“If judgment is to be entered on the verdict of a jury, or by direction of the judge forthwith, the clerk shall make a notation of the judgment on the appearance docket as provided by section 60-2601, and such notation shall constitue tire entry of judgment, and no journal entry or other document shall be required to render the judgment effective. If the judge directs that the form of the judgment is to be settled by a journal entry or other document, it shall be prepared in accordance with the directions of the judge who shall then sign the same and cause it to be filed with the clerk. Such filing shall constitute the entry of the judgment, and it shall not be effective before such filing. The clerk shall forthwith note the filing of the journal entry on the appearance docket together with a brief abstract of the nature of the judgment.”
It will be noted that the only instance in which the clerk enters judgment without the direction of the trial judge is on a jury verdict. Otherwise the judge is to direct the clerk as to the judgment to be entered. The judgment cannot be entered until the judge directs, and the judgment is not effective until entered on the appearance docket.
The entry in the appearance docket governs the effective date of all judgments, except judgment by journal entry becomes effective when filed with the clerk but the clerk is directed to docket such judgments immediately.
A simple examination of the appearance docket would have determined this procedural question. The record is silent as to what disposition was made of the February 10, 1964, letter.
We have requested the clerk of this court to contact the clerk of the district court for the purpose of determining what disposition was made of the letter. We are informed that the decision indicated in the letter was never entered on the appearance docket and that the judge never directed the clerk to so enter it. No judgment was entered in the appearance docket until the journal entry was filed July 9, 1964. Until that time there was no judgment from which to appeal. It necessarily results that an appeal filed within thirty days from that date was in time.
The purpose of K. S. A. 60-258 is to fix a time certain when a judgment becomes effective and to fix a place certain where counsel may determine the effective date.
There is no merit in appellees’ motion to dismiss the appeal.
We now reach the merits of the appeal and have for determination a single question—what interest is expected or reserved by the language “a one-sixteenth royalty interest of all oil, gas, or minerals in place?”
When one not familiar with the language of the oil and gas industry attempts to convey an interest in oil or gas, ambiguities and confusion usually result and we are left without a guide to the scrivener’s intention. We search previous decisions for aid in construction. However, we seldom find the same confusing language twice used and previous cases are of little assistance. This court has on many occasions defined both oil and gas royalties and mineral interests. However, the definitions are of little assistance when the scrivener comingles the words which are used in distinguishing the two interests.
The difference between a mineral interest and a royalty interest is discussed in Hickey v. Dirks, 156 Kan. 326, 133 P. 2d 107. We stated:
“As we have had frequent occasion to observe, terms relating to conveyances of off and gas interests have often been loosely and inaccurately used. (Volker v. Crumpacker, 154 Kan. 403, 405, 118 P. 2d 540, and cases there cited.) This is particularly true with reference to the term ‘royalty.’ A mineral deed is one which involves a severance, from the fee, of a present title to minerals in place. It either effects such severance of title in the first instance or conveys a part of such mineral ownership previously carved from the fee. It is a realty conveyance. (Rathbun v. Williams, 154 Kan. 601, 604, 121 P. 2d 243, and cases there cited.) ‘Royalty’ is that part of oil and gas payable to the lessor by the lessee out of oil and gas produced. It is sometimes referred to as part of the compensation to the title owner for the privilege of exploring, developing, and producing oil and gas from the tract. Under our statutes and decisions it is regarded as personal property. (G. S. 1935, 79-329, 79-330; Rathbun v. Williams, supra; Davis v. Hurst, 150 Kan. 130, 90 P. 2d 1100, and cases there cited.)” (p. 327. See also, Shepard, Executrix v. John Hancock Mutual Life Ins. Co., 189 Kan. 125, 368 P. 2d 19.)
We have no difficulty in determining the extent of the royalty interest reserved. The landowner’s royalty is customarily considered as one-eighth of all of the oil or gas produced. This is commonly styled the landowner’s one-eighth royalty. If the landowner conveyed a one-sixteenth of his one-eighth royalty he would have conveyed a one-sixteenth of one-eighth or a one-one-hundred and twenty-eighth of all the oil and gas produced. However, if he had conveyed a “one-sixteenth royalty interest,” this would be one-half of the landowner’s royalty. Such was done in this case. The distinction between “one-sixteenth royalty interest” and “one-sixteenth of the royalty interest” is the decisive factor. We do have a precedent for this conclusion. In Bellport v. Harrison, 123 Kan. 310, 255 Pac. 52, this court considered an instrument which read:
“Received of A. J. Bellport, $2,400, payment for 1/16 royalty [on land described] . . .” (p. 311.)
We stated in the opinion:
“. . . There is no controversy in this case as to the meaning of the fraction one-sixteenth. It is one-half of the land owners’ one-eighth provided for in the lease.” (p. 315.)
Appellants next contend that the trial court erroneously concluded that the language of the reservation created a mineral interest in the oil and gas. We are forced to agree with appellants’ contention.
The language “except a one-sixteenth royalty interest of oil and gas” clearly constitutes an exception of a royalty interest and there was an oil and gas lease on the land to support the excepted royalty. However, we cannot see how the addition of the phrase, following a comma, “or minerals in place” could be interpreted as a reservation of a one-half mineral interest.
The trial court’s statement “that through mistake and inadvertence the mineral interest should be one-half rather than one-sixteenth mentioned” is rather a violent presumption. There is no substantial evidence supporting any particular presumption.
The language creating the reservation makes no reference to a right to operate or develop, or any right of ingress or egress to and from the premises. These are rights that tend to reflect a mineral interest and are necessary adjuncts to its full enjoyment. In Shepard, Executrix v. John Hancock Mutual Life Ins. Co., supra, we stated:
“. . . Likewise, the remaining portion of the second clause, ‘or operations for any such mineral are being conducted thereon by grantees or grantor (their Successors or assigns),’ tends to confirm that conclusion. Unless that language is meaningless, it constitutes further evidence that the defendant reserved minerals in place with the right of either party or their successors or assigns, upon the expiration of the Jennings leases, to conduct operations for the production of the minerals, jointly or individually, and if conducted by the defendant individually, the ‘right of ingress and egress’ reserved in the first clause afforded it a means to enter upon the property for that purpose. As previously noted, a royalty interest does not carry the right to explore for and remove the minerals in place, and the right to conduct operations upon the land would be a useless right if all that was reserved was only royalty or a share of the proceeds of the production from the land.” (p. 182.)
Both parties have cited numerous cases for our consideration. This is a situation, however, where comments in judicial opinions on language not identical cannot help us much.
Insofar as we hold that a royalty interest was reserved there is no particular ambiguity in the language used. It is only when we attempt to extend the reservation to cover a mineral interest that the language used becomes inadequate and ambiguous.
Since the parties to the deed are dead and there is no aid outside the instrument for discovering the intention of the parties, we are forced to apply the general rule that where an ambiguity exists so that a deed is capable of two possible constructions the one most ' favorable to the grantee will be selected. We find the rule stated in 16 Am. Jur., Deeds, § 165, p. 530, as follows:
“The general rule is well settled that if there is any ambiguity in a deed so that it is capable of two possible constructions, one of which will be more favorable to the grantee, the other of which will be more favorable to the grantor, that method of construction which will be more favorable to the grantee will be selected and the deed will be construed against the grantor. All doubts, therefore, are to be resolved against the grantor. This rule is statutory in some jurisdictions. The rule is predicated upon the reasoning that since a grant is expressed in words of the grantor’s own selection, it is, prima facie, an expression of his intention, and he is therefore chargeable with the language used. If, therefore, the deed can inure in different ways, the grantee, it is said, may take it in such way as will be most to his advantage.” (See, also, C.J.S., Deeds, § 140 [2], p. 1010.)
In Keller v. Ely, 192 Kan. 698, 391 P. 2d 132, we stated at page 702 of the opinion:
“Generally speaking, a deed is to be construed strictly against the grantor, and to confer upon the grantee the greatest estate that its terms will permit. Our statute, G. S. 1949, 67-202, provides:
“ \ . . and every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant.’ ”
We are forced to conclude that the language in the deed reserved a royalty interest in the grantor and not a mineral interest.
The judgment is reversed.
APPROVED BY THE COURT. | [
-13,
106,
-47,
60,
8,
96,
42,
-69,
105,
-85,
-75,
83,
13,
-38,
-108,
57,
-5,
61,
69,
106,
-42,
-78,
87,
-62,
84,
-77,
81,
-51,
-72,
77,
-26,
-57,
76,
32,
-54,
-43,
-58,
-30,
69,
92,
-114,
5,
-103,
69,
-39,
56,
60,
123,
82,
75,
113,
-114,
-13,
40,
29,
-61,
-115,
46,
-37,
61,
-47,
-8,
-85,
12,
91,
18,
0,
68,
-108,
-121,
-40,
74,
-112,
48,
8,
-19,
87,
-90,
-106,
116,
11,
27,
40,
34,
103,
33,
125,
-17,
-24,
56,
30,
-38,
13,
-91,
-10,
24,
99,
96,
-98,
-99,
120,
0,
71,
126,
-26,
5,
94,
-68,
7,
-117,
-10,
-95,
15,
120,
-104,
3,
-53,
-121,
48,
116,
-51,
-22,
92,
71,
49,
31,
-113,
-72
] |
The opinion of the court was delivered by
JOHNSTON, J.:
The main question in this case arises upon the validity of the ante-nuptial contract which was entered into by the decedent, Godfrey Hafer, and the defendant, "Virginia Hafer, on the day of and immediately preceding their marriage. She now contends, and the court below held, that an ante-nuptial contract was unauthorized by the law of this state. To this we cannot agree. It is true that our statute of “ descents and distributions” provides what disposition shall be made of the property of an intestate, and what share the widow shall take in his estate in the absence of any contract regulating the disposition of their property interest,- but there is no statutory provision which, either expressly or by implication, forbids the making of such a contract. Indeed, while there is no express authorization for making an ante-nuptial contract that will vary the rule provided by law for settling the property rights of the parties after the decease of either, yet. our statutes clearly recognize the right of parties to make and enter into such agreements. Section 6 of the statute of frauds provides that—
“No action shall be brought ... to charge any person upon any agreement made upon consideration of marriage, . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.” (Comp. Laws of 1879, ch. 43, §6.)
This provision of our statute is substantially the same as § 4 of the English statute of frauds, which, under the interpretation of both the English and American courts, has been held as referring to and affecting marriage settlements and ante-nuptial contracts based upon the consideration of marriage. (Bishop on the Law of Married Women, §806, and authorities cited.)
Recognition of such contracts is also found in the act respecting the rights of married women, which took effect at the same date as the statute relating to descents and distributions. There it is provided that “nothing in this act contained shall invalidate any marriage settlement or contract now made or to be hereafter made.” (Comp. Laws of 1879, ch. 62, §6.)
In many of the states there are statutes concerning jointure, and prescribing the method by which parties contemplating marriage may bar the right of dower and curtesy, and some of the decisions relied on as authority by the defendants were made in those states, and where jointures were held to be insufficient as a statutory bar, because they failed to follow the statute. But even in these cases it is generally held that an ante-nuptial contract, entered into in good faith by competent parties, and which is fair and equitable in its terms, will be upheld and enforced as an equitable jointure by courts of equity. Independent of any such statute, it is generally ruled that the parties may provide a rule by an ante-nuptial agreement changing the one provided by law in settling the property rights of parties entering the married condition. It has been said that—
“Such a contract is not a release of any right, but it is doing what is done every day in other things, namely: providing a rule by agreement, to be applied instead of the rule which the law would furnish in the absence of an agreement. Where this rule by agreement exists, dower on common prin ■ciples ought to be held not to attach.” (2 Bishop on the Law of Married Women, §418.)
The same author states—
“That before the statute of uses, and therefore independently of the sections concerning jointure, if a husband and his wife had entered into an ante-nuptial agreement whereby she accepted any provision therein made by him in lieu of dower, this undertaking bound her in equity, and she could not have dower on his death. The same law prevailed after the statute was enacted, whence may be traced the doctrine in part, of what is called equitable jointure, in distinction from jointure under the statute of uses, and the rules thereon by the common-law tribunals. And it is said that while legal jointure rests on the statute, equitable jointure rests on the rule of equity as existing before the statute was enacted.” (Id. § 420.)
And again, he says:
“From these views it follows that if a man and wopian about to marry choose, they may arrange their property rights between each other in almost any manner, differing however much from what the law in the absence of contract would direct.” (Id. §28.)
In speaking of the policy of such contracts, the supreme court of Ohio, in Stilley v. Folger, 14 Ohio, 649, says:
“Ante-nwptial contracts have long been regarded as within the policy of the law, both at Westminster and in the United States. They are in favor of marriage, and tend to promote domestic happiness by removing one of the frequent causes of family disputes, contentions about property, and especially allowances to the wife. Indeed, we think it may be considered as well settled, at this day, that almost any bona fide and reasonable agreement, made before marriage to secure the wife in the enjoyment either of her own separate property, or a portion of that of her husband, -whether during the coverture cr after his death, will be carried into execution in a court of chancery.”
It would seem from the authorities, that agreements of this kind are generally looked upon by the courts with, favor, and are to be liberally interpreted with a view of carrying out the intentions of the persons engaging in them. We entertain no doubt, in the present state of our statutes, of the validity of an ante-nuptial contract, entered into in good faith by parties competent to contract, and which, considering the circumstances of the parties at the time of making the same, is reasonable and just in its provisions, and that the rule thus agreed upon will take the place of that prescribed by the statute, in the distribution of their property upon the death of either. (1 Bishop on the Law of Married Woman, §§ 24-29, 360, 363, 418, 420, 422, 427, 805; 2 Bishop on the Law of Married Women, §§334, et seq.; 1 Bishop on Marriage and Divorce, §§ 14, 15; Scribner on Dower, p. 385; Naill v. Maurer, 25 Md. 532; Jacobs v. Jacobs, 42 Iowa, 600; McGee v. McGee, 91 Ill. 548; Stilley v. Folger, 14 Ohio, 610; Mintier v. Mintier, 28 Ohio St. 307; Andrews v. Andrews, 8 Conn. 79; Findley v. Findley, 11 Graft. 434; Charles v. Charles, 8 id. 486; Pierce v. Pierce, 71 N. Y. 154; 17 Cent. L. J. 384, and cases cited.)
It was also held in the court below, that the contract was without consideration. Clearly, this is not so. In addition to the reciprocal agreements therein, it has for its support the consideration of marriage, which is not only a valuable consideration, but has been held to be “the highest consideration known in law,” and is undisputably sufficient to sustain an ante-nuptial contract. (1 Bishop on the Law of Married Women, §§ 775, 805, 806; Naill v. Maurer, 25 Md. 532; Johnston v. Dilliard, 1 Bay, 232; 4 Kent’s Com. 464.)
Another reason given why the contract should be held invalid was, that it was inequitable. Wherein its inequity consists, we cannot see. At the time the contract was made, Godfrey Hafer was a widower, fifty-six years of age, with seven children, all of whom had reached majority except the youngest one, who was fourteen years of age. They, together with his deceased wife, had by their labors accumulated a property of the value of $14,000 and upwards. Virginia Bowser was a maiden of twenty-six years, and the only property she could bring to the union, aside from her clothing, was two cows and $40 in money. It was his duty, under these circumstances, to make suitable provision for the children by his first wife. By the terms of the contract, Virginia was given the sole control of her own property, together with the increase and profits thereof, and in case she survived him she was to share equally in the estate with his children. Considering his age, his expectancy of life, under the ordinary rules of computing its dú-ration, was but short. And the fact is, that he died in less than three years after the marriage. At the time of his decease his property had increased to the value of $19,000.
In view of these considerations, we are all united in the opinion that adequate provision was made for Virginia, and that the contract, as far as it concerned her, at least, was fair and highly equitable. (1 Bishop on the Law of Married Women, §§ 422, 423; Naill v. Maurer, supra.) Nor do we think that it can be held to be invalid upon the alleged ground of uncertainty. An examination of its provisions convinces us that they could not well be misunderstood. The chief complaint in this regard is, that the proportion of his estate which she could take under the agreement is uncertain. It is provided therein that during coverture each shall have the untrammeled control of his or her property, as well as the profit thereon, and if she should outlive him she will receive a child’s part; “that is, his estate shall be divided into an equal number of parts, equal to the number of children of the said Godfrey Hafer, plus one, and the said Virginia Bowser shall receive one of the said parts and no more.” The rule of division prescribed by the contract is as definite and certain as the rule provided by the legislature for the distribution of the estate of an intestate; and applying the maxim, “That is sufficiently certain which can be made certain,” we hold the contract to be unobjectionable by reason of uncertainty. The same strictness is not required in these contracts as in the case of a statutory or legal jointure. (See authorities heretofore cited.)
It is further claimed that the contract is invalid because “it was not shown that, at the time of the signing thereof, the financial condition of said Godfrey had been disclosed to or was known by said Virginia, and that it was not understood by said Virginia when she signed it.” Transactions of this kind should be characterized by frankness and the good faith of the parties. Any imposition or designed concealment by which either of the parties might be misled or defrauded, would operate to defeat the contract.. We search the record in vain, however, for any testimony that will sustain the finding that there was any deceit practiced by Godfrey Hafer, or that his conversation and conduct in the transaction were other than open, honest, and fair. She had reached mature years, and the testiinpny shows her to be fairly intelligent, and capable of understanding the provisions of a contract so plain and intelligible as were those in the one under consideration. She testified that “ Godfrey Hafer spoke to her about entering into a written contract of marriage about fifteen or twenty minutes before they were married; that they went together to the residence of J. T. Price, the probate judge of Jackson county, who had a contract already drawn up; it was read over once, and signed by them a few minutes before they were married.” No other testimony was given regarding the conduct of Mr. Hafer at the time the contract was executed, except that of the probate judge who drew the contract. He says that before the contract was signed he read it over and explained its provisions to the parties before they signed it; and that some portions of the contract were, read over and explained to them more than onee. It is true, as she states, that at the time they were married he was indebted to his sister for money which he received from the estate of his brother, George Hafer, and to which the sister was entitled as the heir, and that she did not know of this indebtedness at the time of the marriage. No claim is made by her that he misrepresented his financial condition in any respect, nor that he purposely concealed any fact in relation thereto from her, nor does it appear that any complaint or dissatisfaction was ever expressed by her in this regard after the marriage and before his death. The mere fact that he may not have disclosed his assets and liabilities in detail to her, will not, in the absence of anything showing fraud or deceit, invalidate the contract, nor will it raise a presumption of fraudulent concealment; and especially is this so where the terms and provisions of the contract are so manifestly fair and reasonable as in this case.
It is further claimed that the contract ought not to be held valid, because the conduct of the parties after it was executed showed that they had abandoned and abrogated it. We see nothing in the testimony brought up in the record which warrants this assumption. On the other hand, it appears to-us that their conduct was entirely consistent with the theory that the instrument was always regarded by both as a subsisting and valid agreement.
Upon the trial, some testimony was offered by Virginia Hafer in her own behalf concerning communications which she had personally with Godfrey Hafer in respect to the making of the ante-nuptial agreement, and which was objected to by the plaintiffs. It clearly came within the prohibition of §322 of the code, which provides that “No party shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with the deceased person when the adverse party is . . . heir-at-law, . . . where they have acquired title to the cause of action immediately from such deceased person,” and therefore to that extent her testimony was inadmissible and should have been excluded.
Plaintiffs finally complain of the ruling of the court in finding that the home farm was occupied by the family as a homestead at the time of trial, and its conclusion that it was-not subject to partition. The finding of fact upon this question is as follows:
“The southeast quarter of sec. 23, T. 7, R. 15, except the-three acres sold therefrom, had for many years before said marriage been the homestead of said Godfrey, after said marriage remained, and at the time of his death was, the homestead of himself and family, and since his death has been and now is occupied as the family homestead by said Virginia and. two of said Godfrey’s sons and the said Emma B. Hafer.”
This finding, we think, is sufficiently supported by the testimony, and the court rightly held that partition of the home .stead could not be made. The ante-nuptial contract in question does not in terms refer to the homestead privilege, nor do we think any of the provisions of the contract embrace what was intended by the parties as a release or waiver of such privilege. But independent of the contract, we remark that the homestead is not made alone for the husband and wife, or of •either one, but it is also designed as a protection for the family who may be dependent upon them for maintenance. ■Considerations of public policy also entered into the enactment, by making such provision as will prevent their helpless ■children and dependents from becoming a public charity. To this end, and with a view of carrying out these purposes, guards have been thrown around the homestead. Strict constitutional and statutory restrictions have been placed upon its alienation. When it is occupied by the family it can only be alienated by the joint consent of husband and wife, when that relation exists; and at the death of the owner, if the homestead is still occupied by the widow and children, the law prohibits its distribution under any of the laws of the state and from the payment of the debts of the intestate, and provides that partition shall not be made until such time as the widow shall again marry, or when all of the children arrive at the age of majority.
In view of these considerations, and of the policy of the law which has been so frequently stated by this court, we think the right of occupancy of the homestead by the family of the intestate is not affected or disturbed by the ante-nuptial contract. We are not without authority upon this question. The supreme court of Illinois held in a case analogous to this one, that the policy of the law in relation to the homestead privilege is to preserve the same for the benefit of the family as well as the owner, and could not be abrogated by an ante-nuptial contract theretofore entered into between the husband and wife. (McMahill v. McMahill, 105 Ill. 596; Phelps v. Phelps, 72 id. 545; McGee v. McGee, 91 id. 548.)
It has been contended by plaintiffs that the minor child, having appeared in court and asked partition of the homestead, has thereby waived her right to the homestead privilege. But keeping in view the policy of the homestead laws and the motives of public concern which led to their enactment, we cannot agree to a construction of the homestead law that would permit a homestead, occupied by the widow and minor child, to be defeated and the family relation broken up by a wayward child appearing in court, and through, perhaps, a meddlesome friend asking for a partition of the property. We •conclude that so long as the homestead is occupied by the family of the deceased, and until the widow again marries, or the children arrive at the age of majority, no partition of the homestead can be made.
Prom the views herein expressed, it follows that the order .and decree of the district court must be reversed.
All the Justices concurring. | [
49,
110,
-47,
-19,
-86,
-32,
-86,
-70,
-16,
-91,
55,
83,
-3,
90,
-112,
121,
-31,
45,
64,
98,
87,
-77,
6,
96,
-10,
-77,
-31,
-39,
49,
67,
-12,
86,
76,
32,
-62,
-43,
102,
-118,
-127,
-38,
78,
-128,
-117,
104,
-39,
82,
52,
-33,
84,
75,
65,
-97,
-13,
46,
21,
-13,
104,
46,
79,
123,
-64,
-16,
-114,
-124,
125,
6,
-112,
38,
-46,
37,
-56,
14,
-100,
17,
8,
-16,
115,
-90,
86,
116,
107,
-69,
-119,
114,
34,
0,
97,
-1,
-40,
-104,
47,
-10,
-115,
-89,
-112,
88,
35,
9,
-66,
-99,
126,
16,
-83,
118,
126,
29,
29,
-20,
8,
-113,
-42,
-91,
-113,
118,
-100,
7,
-25,
-93,
49,
112,
-53,
34,
92,
114,
59,
27,
-113,
-30
] |
The opinion of the court was delivered by
Habman, C.:
This is an appeal by Una O. Vaughan from the trial court’s order sustaining in part appellees’ demurrers to her second amended petition wherein she claims to state causes of action for damages, for breach of fiduciary relationship, inducing breach of fiduciary relationship, slander and for malicious prosecution of a civil action, all allegedly committed by appellees pursuant to a conspiracy.
Demurrers were sustained on the basis that said petition did not state a cause of action on any ground except for the malicious prosecution of a civil action. By way of cross-appeal defendant appellees challenge the correctness of the trial court’s order overruling the demurrers to the cause of action alleging malicious prosecution of a civil suit.
For convenience appellees, defendants in the district court, can be divided into three groups: Fred E. J. Hornaman, Richard Gris-wold, Robert L. Klehr, Richard Erickson, Charles W. Hess and Ray Hodge may be referred to as the Hornaman group; Blake A. Williamson, James K. Cubbison, Doctor J. G. Evans, Joe F. Jenkins, J. E. Tobin and Norman C. Christiansen may be referred to as the Williamson group; and City Wide Mortgage Company, Incorporated, may be referred to as City Wide.
A prelude to the instant case appears in Hornaman v. Vaughan, 191 Kan. 42, 379 P. 2d 257, wherein the Hornaman group brought suit against this appellant and others, to which the reader is referred for a more complete background. This is the proceeding upon which appellant based her cause of action for malicious prosecution.
On April 10, 1962, appellant filed her original petition to which appellees directed various motions as a result of which appellant filed her amended petition on October 20, 1962. On January 28, 1963, the trial court sustained appellees’ demurrers thereto on the ground that the amended petition did not state facts sufficient to state a cause of action. Appellant did not appeal from these orders. On March 6, 1963, she filed her second amended petition in which she alleges in substance that in her own right and through the estate of her deceased husband, William Lee Vaughan, she owns a majority of the permanent stock of the General Savings and Loan Association, namely, 145 of the 250 authorized shares; that she is and has been a member of the board of directors, secretary-treasurer and one of its active business officers; that prior to August 1, 1961, the minority stock was owned by the Williamson group together with one Grant Barcus, and the directors of said corporation were appellant, Charles C. Vaughan, R. J. Breidenthal, Barcus, and defendants Williamson, Evans, Jenkins, Tobin and Christiansen. She further alleges:
“5. Prior to the death of plaintiff’s husband, William Lee Vaughan, Jr., on the 3rd day of March, 1960, said William Lee Vaughan, Jr., was a partner with the defendants Williamson and Cubbison in the practice of law in Wyandotte County, Kansas, and upon his death these two defendants were retained by the plaintiff to probate his estate and were the attorneys of record in said estate in the Probate Court of Wyandotte County, Kansas; that said defendants represented the Association in all matters requiring the advice and services of an attorney and further, they did represent the plaintiff individually and personally in all of her business and personal dealings requiring the services of an attorney, the plaintiff placing her complete trust and confidence in them and their judgment and advice. That as a result of the aforestated relationships the defendants Williamson and Cubbison owned this plaintiff a duty to honestly and faithfully reveal to the plaintiff any activities on their part which might adversely affect any of the plaintiff’s rights.
“6. Under the by-laws of said Association as they existed during the months of August through December, 1961, the affairs of said Association were managed and controlled by a board of nine directors elected from and by the members at the annual meeting of the members; that pursuant to the same by-laws and the General Statutes of the State of Kansas each depositor was entitled to cast one vote at said annual meeting of members which was set by said by-laws for the first Thursday after the first Monday in January of each year. That from and after the organization of said Association in 1953, it was the custom and practice of the various boards of directors not to solicit proxies, and to give notice of annual meeting of members by publication, a practice authorized by the General Statutes of the State of Kansas; that as a result thereof very few if any depositors or borrowers other than those who also owned permanent stock ever voted at the annual meetings and it resulted that the holders of a majority of the permanent stock shares being present and entitled to vote, controlled the Association through their election of the directors. That all of the defendants, and particularly the defendants Williamson, Christiansen, Evans, Jenkins, Tobin, and Cubbison were aware of the aforesaid custom and practice. That plaintiff’s husband before his death, and with knowledge of and in contemplation of said practice and custom, had attempted to arrange his affairs so that upon his death the majority of the permanent stock shares of said Association, and thus effective control and management of the Association, would pass to the plaintiff, Una O. Vaughan, and furnish the said Una O. Vaughan, as his widow, and his minor children with a means of earning an income. That at the time of his death, plaintiff’s husband was the record owner of 45 shares of the permanent stock of said Association and he also owned an additional 100 shares which were on the books of said Association in the names of other individuals but which stock certificates were signed in blank by the record owners thereof and found in plaintiff’s husband’s lock box after his death of his former law partner, the defendant Williamson. That his attempt to arrange his affairs in such a way that the control and management of said Association would pass to the plaintiff, consisted of leaving his entire estate, including the said 145 shares of permanent stock, to the plaintiff Una O. Vaughan. That under the provisions of his last will and testament, the plaintiff now has the entire right, title and interest in and to the aforesaid majority of the permanent stock of said Association. That the defendants Williamson and Cubbison as plaintiff’s attorneys were at all times fully aware of these facts and that the major part of plaintiff’s and the children’s inheritance from their deceased law partner, the plaintiff’s husband, was this majority interest in the permanent stock of said Association and further than said defendants knew the future welfare and income of plaintiff and her children depended almost wholly upon the future welfare and prosperity of said Association.
“7. That the par value of the permanent stock was and is $100.00 per share and each of the original subscribers of said stock paid $150.00 per share therefor at the time of the original purchase in 1953.
“8. That subsequent to March 1960, and prior to October 6, 1961, the exact time being unknown and therefore not stated, the defendants Williamson and Cubbison secretly and in violation of plaintiff’s confidence and in breach of the fiduciary relationship which they owed to the plaintiff as her attorneys, conspired with the defendants Fred E. J. Homaman, Richard Griswold, Robert L. Klehr, Richard M. Erickson, Charles W. Hess and Ray Hodge, and the defendant City Wide Mortgage Co., Inc., to sell the latter their positions on the board of directors of said Association and thus turn over to said defendants the complete operation, control and management of the General Savings and Loan Association and to oust plaintiff from her management and control of said Association. At the time of said conspiring, the defendants Williamson and Cubbison further agreed to deliver to the other defendants the entire minority stock of said association for a consideration which was greatly in excess of the true value of said stock and represented a consideration of their seats on the board of directors as well as for the stock. Said secret negotiations culminated in the signing of an agreement which was also kept secret from the plaintiff which is attached to the first amended petition on file herein as Exhibit ‘A’ and made a part hereof as though fully set forth. That the defendants, Jenkins, Tobin, Evans and Christiansen were drawn into said conspiracy and in pursuance of its objectives and purpose did thereafter actively and knowingly co-operate with and assist the defendants Williamson and Cubbison in attempt- mg to achieve the illegal and fraudulent objective and purpose of said conspiracy by, among other things, agreeing to sell their stock according to the terms of the agreements; by signing letters addressed to the plaintiff requesting a meeting of the board of directors in order that they might complete the transfer of their positions on the board of directors to their co-defendants; by attending a meeting which was illegally called by the defendants on October 20, 1961, at which time defendant Klehr was purportedly elected to the office of director and voting for him; and by attending and participating in another such meeting illegally called by the defendants at which time they each resigned as directors and purportedly elected their other co-defendants to the office of director. That defendant City Wide Mortgage Co., Inc., did knowingly and purposely, and in furtherance of the objective and purpose of said conspiracy, advance money to some of the defendants for the purchase of the aforementioned minority stock. That all of the aforestated actions were illegal and in violation of this plaintiff’s rights and to her damage as hereinafter set forth, and by virtue of the conspiracy herein set forth each of the defendants is liable for the acts of the others.
“9. That the sole objective and purpose of said conspiracy and the actions of the defendants in pursuance thereof was to make it possible for the defendants Williamson, Cubbison, Evans, Jenkins, Tobin and Christiansen to reap immediate and exorbitant profit, in excess of the true value, upon the sale of their minority stock interest in said Association and their positions on the board of directors of said Association to the defendants Homaman, Griswold, Klehr, Erickson, Hess and Hodge with the agreement to thus deliver complete control and management of the Association of the Association to said defendants and the defendant City Wide Mortgage Co., Inc., in order that these latter defendants might manipulate the Association to their own personal advantage by, for example but not by way of limitation, selling the good seasoned loans out of the Associations’ folio and using the Association as a dumping ground for sub-standard loans with minimum or insufficient security; that under date of November 9, 1961 the stock of the selling directors was transferred to the purchasing defendants; that on October 20, 1961 the defendant Klehr was purportedly elected to the office of director and on November 9, 1961 the remaining purchasing defendants were purportedly elected to the office of director.
‘TO. . . . That the defendants did, without probable cause and with a malicious intent unjustly to vex and trouble this plaintiff, file an action in the District Court of Wyandotte County, Kansas, Cause No. 9699-B, in an effort to force her to convey her majority stock interest in said Association to the defendants Homaman, Griswold, Klehr, Erickson, Hess and Hodge, and thus insure their complete unfettered control of the Association and the exhorbitant and excessive profit of defendants Williamson and Cubbison, Evans, Tobin and Christiansen from the sale. . . , that said action has been brought in the names of defendant Homaman, Griswold, Klehr, Erickson, Hess and Hodge on behalf of all of the defendants in an effort to coerce plaintiff into selling her majority stock interest and in pursuance of the objective and purpose of said conspiracy. Further that said action has terminated favorably to plaintiff by virtue of the decision of the Supreme Court of the State of Kansas rendered March 2, 1963.
“11. That said action was brought and said defendants did make certain false and malicious statements in connection therewith and at the time thereof for the purpose of weakening and destroying the business, influence, financial credit and standing of plaintiff in violation of the plaintiff’s rights and the express provisions of Kan. G. S., 1949, 21-2452 and to her damage as hereinafter set forth. That in May, 1961, the defendant Blake Williamson, spoke the following slanderous and defamatory words of and concerning this plaintiff, to-wit: T have no confidence in what she is doing.’ ‘Una doesn’t know what she is doing.’ T don’t know why she doesn’t stay at home, all she does is play around the window.’ That at about the same time the defendant Joe F. Jenkins, spoke the following slanderous and defamatory words of and concerning this plaintiff, to-wit: ‘Una doesn’t know what she is doing.’ ‘She doesn’t know anything about business.’ That said statements were made in die furtherance of the objective and purpose of the conspiracy herein alleged, and that said statements were repeated from time to time from May, 1961, up until the aforementioned action No. 9699-B was filed.
“12. That as a direct and proximate result of the sale and ultimate transfer of the defendants’ Williamson, Jenkins, Christiansen, Tobin, and Evans seats on the board of directors of the General Savings & Loan Association and their sale and ultimate transfer of their minority stock therein to the defendants Homaman, Griswold, Klehr, Erickson, Hess and Hodge and their purported election to the office of director as aforesaid; and as a direct and proximate result of the breach of fiduciary duty and relationship in connection therewith and pursuant thereto all as aforesaid; that as a direct and proximate result of the filing, without any just or reasonable cause, of the action numbered 9699-B in the District Court of Wyandotte County, Kansas as aforesaid; that as a direct and proximate result of the false and malicious statements of the defendants made against her and the manner in which she has been conducting the business of said Association, in violation of plaintiff’s rights and the express provisions of Kan. G. S. 1949, 21-2452 as aforesaid, the plaintiff has been hampered, hindered and harassed in the operation of the business of the said Association; she has been prevented from transacting her lawful and legal affairs as a director and the secretary-treasurer of said Association; her capacity and opportunity to earn a living for herself and her family in the savings and loan business has been diminished; she has been greatly injured in her personal standing and reputation; she has been greatly injured in her business standing and reputation; she has become physically and emotionally upset and suffered great anxiety and pain of mind; and her personal business has suffered and depositors have threatened to withdraw and have actually withdrawn funds from said Association, to her disadvantage individually and as holder of the permanent stock, all in and to her damage in the sum of $250,000.00.
"13. . . . That by reason of the wilfull, wanton and malicious nature of said acts, plaintiff is entitled to exemplary damages in the amount of $250,000.00.”
The filing of this petition gave rise to what is described as a “plethora of motions, demurrers and special appearances,” principal of which was a motion, pursuant to K. S. A. 60-2608, to apply to the action parts of our former procedural act, namely, Article 3 pertaining to commencement and limitation of actions and Article 7 pertaining to pleadings. The trial court granted this latter motion, and thereafter sustained appellees’ separate demurrers to appellant’s second amended petition as to her purported causes of action based on breach of fiduciary relationship, inducing breach of fiduciary relationship and slander, and overruled them as to the alleged cause of action for malicious prosecution of a civil suit. From these rulings on demurrer the appeal and cross-appeal are perfected.
Appellant contends she has pleaded a cause of action as to all of the three torts allegedly committed by all appellees pursuant to a conspiracy to which the demurrers were sustained, namely, breach of fiduciary relationship, inducing breach of fiduciary relationship and slander. Appellees contend the second amended petition contained no material changes from the amended petition to which a demurrer was sustained on January 28,1963, the ruling on demurrer thereby becoming a final order from which no appeal was taken, and that hence the matter is res judicata.
This principle of law is set forth in Sanik v. Shryock Realty Co., 156 Kan. 641, 135 P. 2d 545, as follows:
“We note, in conclusion, appellant’s contention that the fourth amended petition is in no essential particular different from the third amended petition as to which a demurrer had previously been sustained and that therefore the instant demurrer should have been sustained under the doctrine of res judicata. Under our code a ruling upon a demurrer is appealable, whether the demurrer be sustained or overruled (G. S. 1935, 60-3302, second) and we have repeatedly held that a ruling upon a demurrer from which no timely appeal has been taken, becomes—under the general doctrine of res judicata—the law of the case [citing cases].” (pp. 645, 646.)
It was recently applied in Grohusky v. Atlas Assurance Co., 194 Kan. 460, 399 P. 2d 797, wherein a demurrer was sustained to plaintiff’s amended petition and she thereafter filed a second amended petition which except for immaterial additional allegations was identical to her previous petition. This court said:
“. . . on July 26, 1963, the trial court sustained the demurrer to the amended petition on the ground that plaintiff was not the real party in interest. Right or wrong—that ruling, from which no appeal was taken, became the law of the case (Sanik v. Shryock Realty Co., 156 Kan. 641, 645, 646, 135 P. 2d 545; Neuvert v. Woodman, 185 Kan. 373, 378, 343 P. 2d 206) and, for all practical purposes, disposed of the law suit. Instead of appealing, plaintiff filed a second amended petition which, for all material purposes, was identical to her two previous petitions. This being so, the court properly struck the second amended petition.” (p. 462.)
This leads to a consideration of appellant’s amended and second amended petitions. The trial court went over the two meticulously, line by line, and paragraph by paragraph, and in a well-considered memoranda opinion concluded there were no essential changes made in the second from the allegations of the first. We have done the same, noting the additions, deletions and enlargements in certain paragraphs which are otherwise identical, and we come to the same conclusion with respect to the purported causes of action for breach of fiduciary relationship and inducing breach of fiduciary relationship. Therefore, the ruling on the instant demurrer was correct under tihe doctrine of res judicata.
With respect to the slander cause of action, the amended petition stated only by way of vague indirection that someone had made false statements concerning her. She did not allege who made the statements, what the statements were, to whom or when they were made. In her second amended petition the deficiencies were partially supplied. (See f 11 above-quoted.) She states the dates of such statements as being from May, 1961, up to the time of the filing of the Hornaman petition, No. 9699-B in the Wyandotte County District Court, which petition was filed December 4, 1961. Thus a cause of action for slander was stated for the first time, if at all, on March 6, 1963—the date of the filing of the second amended petition. This was approximately fifteen months after the alleged defamatory statements. The trial court had these facts before it and it concluded this cause of action was barred by the one year statute of limitations (G. S. 1949, 60-306, Fourth). Agreeing with the premises stated, we must, therefore, agree with the conclusion.
Turning now to the cross-appeal, appellees and cross-appellants argue the second amended petition failed to state a cause of action for malicious prosecution and that their demurrers should have been sustained. First they claim that since this court reversed the trial court in the action which was the basis of the malicious prosecution action (Hornaman v. Vaughan, supra) the plaintiff was left unmolested in her position as stockholder and officer and has not suffered any damages because nothing was taken from her. This argument is untenable because it overlooks certain elements of damages she seeks and which are proper in what is commonly known as malicious prosecution of a civil action. (See Restatement of the Law, Torts, § 681.) Appellees cannot proscribe by demurrer any proper elements of damage pleaded. Necessarily she could not recover for any damage other than that sustained by her.
The Williamson group and City Wide urge that since they were not parties to the Hornaman suit, and City Wide further urges that since it was not a party to the written agreement the Williamson group and the Homaman group respecting the transfer of stock and selection of directors, the malicious prosecution action will not lie against them. These arguments overlook the fact that a conspiracy among appellees is alleged.
In 15 C. J. S., Conspiracy, § 18, p. 1028, it is stated:
“. . . where two or more persons enter into a conspiracy, any act done by either in furtherance of the common design and in accordance with the general plan becomes the act of all, and each conspirator is responsible for such act.”
In Nardyz v. Fulton Fire Ins. Co., 151 Kan. 907, 101 P. 2d 1045, this court quoted with approval from 15 C. J. S., Conspiracy, § 25, p. 1037, thus:
“ ‘An allegation of conspiracy becomes important only as it may affect the means and measure of redress. It may be pleaded and proved only in aggravation of the wrong of which plaintiff complains, or for the purpose of enabling him to recover against all the conspirators as joint tort-feasors, or for the purpose of holding one defendant responsible for the acts of his co-conspirators.’” (p. 911.)
The trial court considered that there was pleaded a conspiracy by all appellees to acquire appellant’s stock wrongfully and that pursuant thereto the action No. 9699-R was maliciously filed in an effort to force conveyance of the stock. We agree, not being concerned here with what the proof may show.
Appellees point out that want of probable cause is an essential element to a cause of action based on malicious prosecution and they urge there was probable cause shown for the Homaman group bringing suit No. 9699-B inasmuch as the trial court in that case ruled in part in favor of Homaman. They cite and rely on a rule set forth in an annotation in 58 A. L. R. 2d 1418 (Goldstein v. Sabella, [Fla.] 88 S. 2d 910) as follows:
“In an action for malicious prosecution based on an eviction suit previously brought by the defendant against the plaintiff, the rendition in that suit of a judgment for the present defendant conclusively establishes the existence of probable cause for bringing the suit, notwithstanding reversal of the judgment on appeal, in the absence of fraud, perjury, or other corrupt means in obtaining the judgment." (Headnote 1, p. 1419.)
There is a further qualification to this rule which is stated in 34 Am. Jur., Malicious Prosecution, 1964 Cumulative Supplement, § 57, as follows:
“The effect of a prior judgment or decree against a malicious prosecution plaintiff as evidence of probable cause may be counteracted or rebutted by showing that the judgment or decree was obtained by fraud, perjury, or other improper means, or by showing that the judgment or decree was void, or that the court granting it had no jurisdiction.” (pp. 124, 125.) (Our italics.)
Reference to the Hornaman v. Vaughan case, supra, reveals that for the reasons set forth therein, this court ruled that the trial court did not have jurisdiction either of the plaintiffs or the subject matter in that case. Hence the rule sought by appellees cannot be applied.
The Williamson group raises as an issue in their statement of points the question of the statute of limitations as to the malicious prosecution cause of action but does not mention it in their brief, hence it is deemed abandoned. Neither the Hornaman group nor City Wide mentions this issue in their statement of points and, although City Wide does mention it in their brief, it cannot be considered by this court. (Rule No. 6 [d], 191 Kan. xiv.)
Finding no error in the rulings of the trial court its orders are affirmed as to both the appeal and the cross-appeal.
APPROVED BY THE COURT. | [
-76,
108,
-72,
-82,
10,
96,
34,
-104,
99,
-95,
-89,
83,
-23,
-61,
4,
109,
123,
13,
-48,
106,
-45,
-77,
23,
-118,
-46,
-109,
89,
-43,
-79,
95,
-12,
87,
12,
32,
-54,
95,
70,
-118,
-63,
28,
-114,
6,
-118,
68,
-39,
-54,
-112,
123,
60,
73,
117,
-66,
-13,
41,
27,
-58,
104,
42,
91,
60,
88,
-15,
-117,
13,
95,
6,
51,
52,
-72,
37,
104,
62,
-104,
48,
1,
-24,
18,
-122,
-126,
52,
115,
-71,
8,
38,
98,
1,
-91,
-17,
-68,
-72,
62,
92,
-99,
-89,
-110,
72,
43,
41,
-73,
-103,
117,
20,
-121,
-2,
-18,
-115,
28,
105,
9,
-113,
-10,
-111,
-99,
-11,
26,
17,
-25,
-123,
48,
112,
-55,
96,
93,
-90,
26,
59,
-108,
-112
] |
The opinion of the court was delivered by
YaleNTINE, J.:
This was an action brought by-Clay Shaft against the Atchison,.Topeka & Santa Fé Railroad Company, in the district court of Chase county, to recover damages for the killing of a steer belonging to the plaintiff. The allegations of the plaintiff’s petitition were such that he. might have recovered either under chapter 94 of the statutes of 1874, because of a want of a legal fence inclosing the defendant’s railroad, (Comp. Laws of 1879, pp. 784,785, ¶¶ 4915 to 4919,) or under chapter 93 of the Laws of 1870, for negligently killing the plaintiff’s animal, (Comp. Laws of 1879, p.784, ¶4913, or under the rules of the- common law for negligently killing the same.
It is admitted in the present case that the defendant killed the plaintiff’s animal in the operation of its railroad, and that the defendant’s railroad was not inclosed with a good and lawful fence, or any fence, where the animal was killed; and while the defendant claims that the railroad should not have been inclosed where the animal was killed, and that the defendant was not guilty of any negligence in killing the same, and that the plaintiff was guilty of contributory negligence in permitting his animal to run at large,.the plaintiff on the other hand claims that the railroad should have been inclosed, and also that the defendant killed his animal not only through negligence, but through gross negligence, and that the plaintiff was without fault on his part.
Sections 1 and 5 of said statute of 1874 read as follows:
“SECTION 1. Every railway company or corporation in this state, and every assignee or lessee of such company or corporation, shall be liable to pay the owner the full value of each any [and] every animal killed, and all damages to each and every animal wounded by the engine or cars on such railway, or in any other manner whatever in operating such railway, irrespective of the fact as to whether such killing or wounding was caused by the negligence of such railway company or corporation, or the assignee or lessee thereof, or not.”
“Sec. 5. This act shall not apply to arty railway company or corporation, or the assignee or lessee thereof, whose road is inclosed with a good and lawful fence to prevent such animals from being on such road.”
Section 1 of said statute of 1870 reads as follows:
“Section 1. That railroads in this state shall be liable for all damages done to person or property, when done in consequence of any neglect on the part of the railroad companies.”
There is no exp-ess exception to, or limitation upon, or modification of, any of the provisions of the foregoing sections by any other statute, and none except such as is found in said § 5;. and if there is any exception, limitation or modification of any of the foregoing sections, other than that contained in said § 5, it must be such only as arises by implication, or by judicial construction or interpretation. In other words, under chapter-94 of the statutes of 1874, and upon its face, a railroad company is liable in all cases for injuries done to animals in the operation of its railroad, except where the railroad is inclosed with a good and lawful fence; and expressio wnius est exclusio-alterius. And upon the face of chapter 93 of the Laws of 1870, a railroad company is liable for “any neglect” on its part which causes injury. The words “any neglect” have been construed to mean “ ordinary negligence,” and the language of' the act does not overturn or destroy, or even disturb, any of the rules of the common law with regard to “contributory negligence.” (St. J. & D. C. Rld. Co. v. Grover, 11 Kas. 302; K. C.. Ft. S. & G. Rld. Co. v. McHenry, 24 id. 501.)
In the nature of things, however, there must be some limitations upon the terms of the language used in said chapter-94 of the Laws of 1874. It would be improper for a railroad company to inclose its road where the same crosses a public street or highway, for such a thing would do violence to other-provisions of the statutes of the state. This is also true even where the place crossed is only a highway defacto. (A. T. & S. F. Rld. Co. v. Griffis, 28 Kas., 539; same case, 13 Am. &. Eng. Rld. Cases, 532.)
It has also been held by some of the courts that even a railroad depot or station is of such a public character that it would be-improper for a railroad company to fence its road at such place. (Davis v. R. & M. R. Rld. Co., 26 Iowa, 549; Durand v. C. & N. W. Rly. Co., 26 id. 559; Smith v. C. R. I. & P. Rld. Co.,. 34 id. 506; Cleveland v. C. & N. W. Rly. Co., 35 id. 220; Latty v. B. C. R. & M. Rly. Co., 38 id. 250; Kyser v. K. C. St. J. & C. B. Rld. Co., 56 id. 207; G. & C. U. Rly. Co. v. Griffin, 31 Ill. 303; I. & St. L. Rld. Co. v. Christy, 43 Ind. 143; Lloyd v. Pac. Rld. Co., 49 Mo. 199; Swearingen v. M. K. & T. Rld. Co., 64 id. 73; Robertson v. A. & P. Rld. Co., 64 id. 412; F. & P. M. Rly. Co. v. Lull, 28 Mich. 510; C. & G. T. Rly. Co. v. Campbell, 47 id. 265; same case, 7 Am. & Eng. Rld. Cases, 545.) And tliere are other cases which go even beyond this, and hold that a railroad company is not required to fence its road where it adjoins mills or machine-shops, or some other kind of property belonging to the railroad company or to private individuals. (8 Ind. 402; 35 id. 515; 50 id. 349; 20 id. 231; 45 id. 496; 82 id. 593.) The great weight of authority however is, that railroad companies are not absolved from complying with the express terms of the statutes requiring them to inclose their roads with good and lawful fences, except where some paramount interest of the public intervenes, or some paramount obligation or duty to the public rests upon the railroad companies rendering it improper for them to fence their roads. (Tracy v. T. & B. Rld. Co., 38 N. Y. 433; Bradley v. B. N. Y. & E. Rld. Co., 34 id. 427; C. & P. Rld. Co. v. McConnell, 26 Ohio St. 57; Rld. Co. v. Newbrander, 40 id. 15; same case, 11 Am. & Eng. Rld. Cases, 480; Whitewater Valley Rly. Co. v. Quick, 30 Ind. 385; C. C. C. & I. Rly. Co. v. Crossley, 36 id. 370; T. W. & W. Rly. Co. v. Chapin, 66 Ill. 504; Latty v. B. C. R. & M. Rly. Co., 38 Iowa, 250; Mundhenk v. C. I. Rld. Co., [Sup. Ct. of Iowa,] 11 Am. & Eng. Rld. Cases, 463; Flint & P. M. Rld. Co. v. Lull, 28 Mich. 510.)
No private interest or convenience or inconvenience on the part of a railroad company will alone be sufficient to absolve it from fencing its road, where the statute in express terms requires that the road shall be fenced. (Tracy v. T. & B. Rld. Co., 38 N. Y. 433; Comstock v. DesM. Val. Rld. Co., 32 Iowa, 376; Morris v. St. L. K. C. & N. Rld. Co., 58 Mo. 78; Beliefontaine Rly. Co. v. Reed, 33 Ind. 476; P. C. & St. L. Rly. Co. v. Laufman, 78 id. 319; Mundhenk v. C. I. Rld. Co., [Sup. Ct. Iowa,] 11 Am. & Eng. Rld. Cases, 463.)
Nor will any private interest or convenience on the part of individuals be sufficient to absolve a railroad company from fencing its railroad in like cases. (I. C. Rly. Co. v. Leamon, 18 Ind. 173; Indianapolis &c. Rld. Co. v. Thomas, [Sup. Ct. of Indiana,] 11 Am. & Eng. Rld. Cases, 491; P. &c L. E. Rld. Co. v. Ounnington, [Sup. Ct. of Ohio,] 13 Am. & Eng. Rld. Cases, 529; R. P. &c J. Rld. Co. v. Barton, 80 Ill.72; McKinley v. C. R. I. & P. Rld. Co., 47 Iowa, 76; Mackie v. C. Rld., 54 id. 540.)
The cases last cited have reference to the crossings of railroads over private roads. There are numerous cases holding that railroad companies- are required to fence their roads in cities, towns, and villages, except where the railroads cross some public street, alley, or other public place, and where it would be improper to fence the roads, notwithstanding any inconvenience to the railroad companies, or to others. (U. P. Rly. Co. v. Dyche, 28 Kas. 200; same case, 1 Pac. Rep. 243; Crawford v. N. Y. C. & H. R. Rld, Co., 25 N. Y. S. C. Rep. 108; Brace v. N. Y. C. Rld. Co., 27 N. Y. 269; Ells v. Pac. Rly. Co., 48 Mo. 231; Iba v. H. & St. J. Rld. Co., 45 id. 469; J. M. & I. Rld. Co. v. Parkhurst, 34 Ind. 501; T.W. & W. Rly. Co. v. Howell, 38 id. 447; I. P. & C. Rld. Co. v. Lindley, 75 id. 427; Wabash Rly. Co. v. Forshee, 77 id. 158; P. C. & St. L. Rly. Co. v. Laufman, 78 id. 319; C. & P. Rld. Co. v. McConnell, 26 Ohio St. 57.)
Under the statutes, railroads must be “inclosed.” In the language of the statute, they must be “ inclosed with a good and lawful fence,, to prevent such animals from being on such road.” (Laws of 1874, ch. 94, § 5.) Building fences along the sides of the railroad is not alone sufficient. The railroads must be “inclosed” as aforesaid, with fences or other barriers; and whenever for that purpose cattle-guards are necessary at the crossings of public highways or other public places, cattle-guards must be put in. (U.P. Rly. Co. v. Harris, 28 Kas. 206; Mo. Pac. Rly. Co. v. Manson, 31 id. 337; same case, 2 Pac. Rep. 800; Mo. Pac. Rly. Co. v. Morrow, 32 Kas. 217; same case, 4 Pac. Rep. 87; N. A. & S. Rld. Co. v. Pace, 13 Ind. 411; P. C. & St. L. Rly. Co. v. Eby, 55 id. 567; Bradley v. B. N. Y. & E. Rld. Co., 34 N. Y. 427; Tracy v. T. & B. Rld. Co., 38 id. 433; P. P. & J. Rld. Co. v. Barton, 80 Ill. 72; Flint & P. M. Rly. Co. v. Lull, 28 Mich. 511; Cleveland &c. Rld. Co. v. Newbrander, 40 Ohio St. 15; same case, 11 Am. & Eng. Rld. Cases, 480; Mundhenk v. C. I. Rld. Co., [Sup. Ct. of Iowa,] 11 Am. & Eng. Rld. Cases, 463.)
“The fact that a railroad-crossing is at or near a depot, and that to construct a cattle-guard there would inconvenience the company, will not excuse it from complying with the positive requirement of the statute requiring such protection to be provided.” (Tracy v. T. & B. Rld. Co., 38 N. Y. 433; Bradley v. B. N. Y. & E. Rld. Co., 34 id. 427.)
“ Where stock is killed on a railroad switch at a point where it is unnecessary to keep the road open in order to transact business, the company will be liable without proof of negligence.” (Morris v. St. L. K. C. & K. Rld. Co., 58 Mo. 78; Comstock v. DesM. Val. Rld. Co., 32 Iowa, 376.)
Upon all the foregoing propositions, valuable notes may be found in the American and English Railroad Cases, especially in 7 Am. & Eng. Rld. Cases, 577, et seq.; 11 Am. & Eng. Rld. Cases, 496, et seq.; and 13 Am. & Eng. Rld. Cases, 533.
In the case of the P. C. & St. L. Rly. Co. v. Laufman, 78 Ind., 320, it is said that —
“ The statutory rule is, that railroad companies shall be liable for injuries done by their locomotives or cars to animals at places where the roads might be, but are not, fenced; and it is not the province of the courts to create exceptions to the rule, or to interfere with legislative policy.”
This meets with our approval. But whenever it appears from the general course of legislation that the public have a paramount interest in having particular portions of the railroads of the state unfenced, we shall hold that the statutes requiring railroads to be fenced have no application to such places, and that the railroad companies are not required to fence their roads at such places. This exception to the general rule requiring railroad companies to fence their roads, will apply to all public highways, including streets and alleys in cities, towns and villages; and, for the purposes of this case, we shall assume that it will also apply to all railroad depots and stations where the public generally do business with the railroad com- pañíes; and yet the railroads themselves, or in other words the railroad tracks, might very well be fenced at the companies’ depots and stations. All the railroad tracks might be located on one side of the depots or stations, and the public have access to such depots or stations from the other side — the depots or stations forming a part of the inclosure. This would prevent stock from getting on the railroad tracks.
This brings us to the question whether the defendant’s railroad should have been fenced where the animal in the present case was killed. The court below upon the evidence found that—
“At Crawford station, in Chase county, Kansas, the defendant owns a strip of land 250 feet wide and 2,400 feet long, which is used as its station grounds at that point. That the part of this land upon which the animal was killed was not necessary for the use of defendant as part of its station grounds.”
In the present case the plaintiff’s animal passed from the public highway upon this tract or strip of land used for station purposes, and wandered along the strip until it passed upon the company’s right-of-way and upon the railroad track, where it was killed; and neither the railroad track, nor the right-of-way, nor the strip of land, was inclosed with a fence. A fence, however, extended along one end and a part of the two sides of this strip of land, but this made the wrong of the railroad company in the present case greater — if it committed any wrong — for by reason thereof the animal could not escape from the passing train. Assuming, for the purposes of this case, that land necessarily used for station grounds need not be fenced, then the question arises, is it necessary for a railroad company to inclose a tract not necessary for the use of the railroad company as a part of its station grounds, but in fact so used ? Under the circumstances of this case, we think we must answer this question in the affirmative. To say that railroad companies are not required to fence their roads in such cases, would be to create an exception to an express statutory requirement, and to create such exception without any good reason therefor. This does not come within the province of. the courts. Courts may say that where some other statute, or some paramount duty or obligation absolves railroad companies from fencing their roads, they need not do so; but where the statute expressly requires railroad companies to fence their roads, in order to exempt the ■companies from liability, and no other statute or paramount ■obligation or duty or any good reason exists to relieve them from so fencing, the courts cannot say that they need not fence; but if for any reason they are relieved from fencing their roads ■at some particular place or places, then they must construct fences or other barriers as near thereto as is reasonably practicable. (Cleveland &c. Rld. Co. v. Newbrander, 40 Ohio St. 15; same case, 11 Am. & Eng. Rld. Cases, 480; Morris v. St. L. K. C. & N. Rld. Co., 58 Mo. 78; Bradley v. B. N. Y. & E. Rld. Co., 34 N. Y. 427; Tracy v. T. & B. Rld. Co., 38 id. 433; Comstock v. D. M. V. Rld. Co., 32 Iowa, 376.) And if for any reason a railroad company is relieved from fencing its road at any particular place, it devolves upon the railroad company to show that it is so relieved. The burden of proof in all such cases rests upon the railroad company. (U. P. Rly. Co. v. Dyche, 28 Kas. 200; same case, 11 Am. & Eng. Rld. Cases, 427; same case, 1 Pac. Rep. 243; I. P. & C. Rld. Co. v. Lindley, 75 Ind. 426;. same case, 11 Am. & Eng. Rld. Cases, 495; R. R. I. & St. L. Rld. Co. v. Lynch, 67 Ill. 149; Flint & P. M. Rly. Co. v. Lull, 28 Mich. 510.)
In some states there are express exceptions by statute, as in Illinois, for instance, railroad companies are not required to fence their roads at the crossings of public roads and highways, or within the limits of cities and incorporated towns and villages; and in some states increased damages by the way of penalties are imposed for failures to fence, as in Iowa, the party recovering because of a want of a sufficient fence is entitled to recover double damages. Of course decisions rendered upon such statutes have no application in this state, where no exceptions are found in the statutes, and no damages or penalties are imposed except the value of the animal killed, or damages for the animals wounded, and an attorney-fee.
The plaintiff in this case permitted his animal to run at large, but by so doing we do not think that he was guilty of such contributory negligence as will prevent his recovery. Numerous cases might be cited, but- we' think it is necessary to cite only a few of them, as follows: Flint & P. M. Rly. Co. v. Lull, 28 Mich. 511; Ewing v. C. & A. Rld. Co., 72 Ill. 25; Bellefontaine Rly. Co. v. Reed, 33 Ind. 447; Cressly v. N. Rld. Corp., [Sup. Ct. of N. H.,] 15 Am. & Eng. Rld. Cases, 540, and note, p. 544.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
-16,
100,
-108,
-81,
14,
106,
34,
-102,
81,
-95,
-91,
83,
-115,
-55,
1,
33,
-17,
-67,
-43,
59,
86,
-77,
83,
-30,
-110,
-13,
-15,
-51,
-77,
75,
102,
-41,
73,
16,
74,
85,
102,
-24,
-63,
92,
-50,
44,
-117,
-19,
-103,
8,
56,
127,
54,
87,
49,
-83,
-29,
42,
28,
-29,
41,
44,
-21,
45,
-80,
121,
-86,
7,
116,
2,
51,
34,
-100,
39,
-52,
46,
-112,
53,
1,
-24,
115,
-92,
-126,
84,
109,
-119,
8,
102,
99,
33,
29,
-51,
4,
-120,
47,
-3,
-115,
-25,
-112,
17,
35,
1,
-98,
29,
86,
82,
7,
126,
-19,
12,
25,
124,
21,
-113,
-76,
51,
-49,
36,
-106,
1,
-53,
-89,
18,
97,
-51,
-94,
93,
71,
124,
-101,
-113,
-68
] |
The opinion of the court was delivered by
Price, J.:
Plaintiff has appealed from an order dismissing his action for an order of mandamus.
Highly summarized, the background of the matter—as alleged in the petition—is this:
Plaintiff, a former member of the fire department of the city of Salina, was injured in line of duty as a result of which he became partially disabled. At all times in question city ordinances substantially identical to the provisions of K. S. A. 40-1707 were in full force and effect. Defendant corporation, through its officers, in recognition of its liability to plaintiff for his injuries, paid plaintiff’s hospital and doctor bills. On April 15, 1964, plaintiff caused to be served on defendants a—“Demand for Payment of Loss Due to Injuries and Physical Disability Sustained while Discharging Duties as a Fireman.”
The demand set forth the facts of the injury, that plaintiff had been discharged as a fireman, and made claim for loss of past wages together with payment for the future on a 15% partial disability life expectancy basis. The demand totaled $27,933.91. The petition further alleged that plaintiff waited for more than thirty days for defendant corporation and its officers to comply with his demand, but that they failed and refused to do so. This action was brought shortly thereafter. The prayer of the petition was that the court
“. . . award against said defendants an order of mandamus, commanding them to pay to plaintiff his said loss so caused by his said injury and his said physical disability from the funds in the possession of defendant, The Firemen’s Relief Association of Salina, a corporation in the sum of $27,-933.91, . . .”
together with a reasonable attorney’s fee, and for equitable relief.
Defendants filed a motion to dismiss the action on the ground the petition failed to state a claim against them upon which the relief sought could be granted for the reasons that defendant corporation had paid all medical expenses which plaintiff was obligated to pay as a result of his injury, that defendant corporation had paid on behalf of plaintiff 85% of the premiums on health and accident policies carried by plaintiff while a member of the fire department, and that payment of benefits under the provisions of K. S. A. 40-1707 and the city ordinances is discretionary with the governing body of defendant corporation.
In sustaining the motion to dismiss the trial court noted that plaintiff was asking the court to direct the Firemen’s Relief Association of Salina to pay plaintiff from its funds the lump sum of $27,933.91, and ruled—
“Before the court can issue a writ of mandamus it must find a clear legal right has been violated and that the acts of the defendants were arbitrary.
“This court has no authority to direct the payment of $27,933.91 as prayed for, and the motion is hereby sustained August 17, 1964.”
Plaintiff has appealed from the order of the dismissal and contends (1) that defendants act only in a ministerial capacity and thus are compelled, but refused, to pay him; (2) that he has no plain and adequate remedy at law but does have a clear legal right to the relief sought, and (3) this court has jurisdiction to award him the amount prayed for in his petition.
Defendants, on the other hand, citing rules applicable to mandamus, contend that under the provisions of K. S. A. 40-1707 and the corresponding ordinances of the city of Salina, all monies collected and received by the Firemen’s Relief Association shall be held in trust and used as a fund for relief of any member of the fire department when injured or physically disabled; for the relief or in payment of gratuities to the widow or those dependent on any member; for the payment of the necessary funeral expenses of any member; or for the further purpose of paying a pension to members, or for the purchase of insurance which would provide for any and all of the foregoing purposes for which such fund is authorized. It is argued that while the duty to hold the funds in trust is mandatory —the association is given discretion to determine for which of the specific purposes enumerated the funds are to be used and the respective amounts thereof, and that in the exercise of such discretion it had purchased insurance providing hospitalization, surgical and disability benefits for the members—including plaintiff. Defendants further contend that if plaintiff is correct in the assertion of his demand, then it must naturally follow that any time a member of the association is injured the association must pay such member his demands made upon it regardless of the reasonableness, method of computation of damages or legitimacy of the demand—thus bringing about a result contrary to the obvious spirit and intent of the statute and corresponding ordinances.
With respect to the substantive law of mandamus the provision of the new code of civil procedure is substantially identical to that (G. S. 1949, 60-1701) of the old code, and former decisions are equally applicable. K. S. A. 60-801, reads:
“Mandamus is a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.”
It has uniformly been held that the remedy of mandamus is available only for the purpose of compelling the performance of a clearly defined duty; that its purpose is to require one to whom the writ or order is issued to perform some act which the law specifically enjoins as a duty resulting from an office, trust, or station; that mandamus may not be invoked to control discretion and neither does it lie to enforce a right which is in substantial dispute, and further, that resort to the remedy may be had only when the party invoking it is clearly entitled to the order which he seeks. (Drainage District v. Wyandotte County et al, 117 Kan. 369, 232 Pac. 266, Gray v. Jenkins, 183 Kan. 251, 254, 326 P. 2d 319.)
At the oral argument of this appeal counsel for plaintiff stated that to date he had been unable to ascertain the “status of things” with respect to plaintiff’s “demand.” Be that as it may, the record does not show that plaintiff had requested a hearing or that a hearing had been denied to him. His petition merely alleges that he waited for more than thirty days for payment of his demand and that defendants have refused to pay it. If in fact and in law he is entitled to receive more than what already has been paid by defendants in his behalf, we have no doubt that the matter will be adjusted and that upon proper request his rights will be fully explained to him.
The question here, however, is whether plaintiff is entitled to an order compelling defendants to pay the amount of his demand— $27,933.91, together with interest, costs and attorney’s fee. We agree with the trial court that before an order of mandamus may be issued it must be found that a clear legal right has been violated. The record does not show that plaintiff is clearly entitled to the order which he seeks. Mandamus lies only to enforce a right in a clear-cut case. The order dismissing the action was correct and is affirmed. | [
-48,
-6,
-8,
-100,
11,
96,
48,
2,
83,
-93,
-73,
83,
-19,
65,
5,
107,
-2,
61,
-47,
107,
-41,
-77,
87,
106,
-34,
-77,
-7,
-59,
-69,
-50,
-28,
-44,
77,
48,
2,
-107,
-90,
-62,
-59,
84,
-50,
5,
-87,
-15,
-47,
8,
-80,
123,
50,
3,
49,
14,
-5,
42,
24,
-62,
77,
40,
-37,
-87,
-63,
-79,
-54,
13,
127,
17,
-95,
34,
-100,
71,
80,
62,
-112,
49,
48,
-20,
114,
-74,
-122,
52,
43,
-103,
-124,
38,
98,
35,
-107,
-19,
-8,
-72,
14,
-103,
-97,
-90,
-73,
88,
42,
9,
-74,
-71,
116,
22,
7,
124,
-1,
21,
93,
108,
11,
-118,
-108,
-15,
-49,
36,
30,
-105,
-17,
17,
36,
113,
-113,
48,
94,
71,
123,
-101,
47,
-98
] |
Arnold-Burger, J.;
James L. Taber was in arrears on his child support payments when he received a favorable ruling on his request for Social Security disability insurance (SSDI) benefits. Because SSDI benefits were retroactive, both Taber and his minor child, G.T., received lump-sum payments to cover the back benefits. G.T. was already receiving monthly Supplemental Security income (SSI) due to his own medical condition. G.T/s SSDI lump-sum award was reduced by the amount of SSI benefits he received during the same time frame. Taber filed a motion asking the district court to apply G.T.’s total lump-sum award to Taber’s past due child support. The district court denied the motion. We reverse and remand with directions to calculate a credit to Taber’s child support arrearage consistent with this opinion.
Factual and Procedural History
James and Molly Taber were divorced in 1996. Taber was ordered to pay $300 per month for child support. Throughout the years, Taber paid his child support obligation sporadically at best. As of May 31, 2010, he was $10,974.75 in arrears.
In September 2007, Taber became disabled and ultimately was deemed eligible to receive disability benefits on May 14, 2010. However, due to a required 5-month waiting period, the Social Security Administration (SSA) determined his “entitlement” began in March 2008. Taber received a lump-sum SSDI payment for back benefits for the period of March 2008 to May 2010. G.T. also received a lump-sum SSDI payment for the period of March 2008 to May 2010. Because G.T. was already receiving SSI due to his own health problems, pursuant to federal law his lump-sum SSDI award of $17,154 was reduced by his personal SSI payments for the same time period ($13,747), such that G.T. only received a net award of $3,406.
Taber filed a motion asking that the district court apply G.T.’s total lump-sum award of $17,154 to Taber’s child support arrearage that accumulated between September 2007 and May 2010. The district court denied the motion. Taber timely appeals.
The sole issue on appeal is whether Taber receives any credit toward his child support arrearage as a result of the lump-sum SSDI payment to his minor child, G.T. Because the material facts are not disputed and only the district court’s legal conclusion is challenged, our review is unlimited. See In re Marriage of Galvin, 32 Kan. App. 2d 410, 413, 83 P.3d 805 (2004).
Crediting SSDI Payments to Child Support Arrearage
Our court, along with the majority of other courts in the country which have considered this issue, has recently held that lump-sum SSDI benefits for back benefits received by Mother on behalf of her minor child because of Father s disability may be credited toward Father’s child support arrearage that accumulated during the months covered by the lump-sum payments. See In re Marriage of Hohmann, 47 Kan. App. 2d 117, 274 P.3d 27 (2012), pet. for rev. filed April 16, 2012 (pending).
However, the Kansas Department of Social and Rehabilitation Services (SRS) contends that our decision in Hohmann and die majority view of other courts are wrong for three distinct reasons. We disagree and stand by the reasoning of Hohmann. We will, however, address each claim made by SRS.
The child’s need is current and must be met monthly.
SRS argues that parents are obligated to support their child on a timely basis as ordered by the court. If the courts allow lump-sum SSDI payments for back benefits to result in credits toward arrearages, even if only for the months covered by the lump-sum payments, it encourages obligors to delay any payments until their SSDI claims are decided, leaving the nonobligor parents to shoulder the entire financial burden of childrearing. This argument fails for several reasons.
First, the custodial nonobligor parent always has the ability to call upon the court’s contempt powers to enforce child support payment orders. In fact, both Molly and SRS, as the assignee of child support rights in this case, took advantage of the contempt process on several occasions, resulting in payments, income withholding orders, threats of incarceration, and finally Taber’s application for public assistance and disability benefits. Therefore, any failure to pay child support is at the obligor parent’s own risk and subjects him or her to the court’s broad powers to punish for contempt.
Second, there is no dispute that Taber receives credit for current monthly SSDI payments toward his current monthly child support obligation. This is clear from Andler v. Andler, 217 Kan. 538, 544, 538 P.2d 649 (1975). So in this case, Taber’s monthly child support obligation is erased because G.T. receives more in SSDI payments ($647 per month) than Taber is required to pay in child support ($300 per month), and the monthly excess inures to the benefit of G.T. See 217 Kan. at 542-44. Further, the timing of the receipt of a lump-sum payment for previously earned SSDI benefits is entirely due to the inherent delay in navigating the federal SSA process. Had a timely decision been made by SSA, Taber would have received credit in those months that are now covered by the lump-sum award. There is no allegation presented by the parties here that the delay in receiving benefits was due to any actions on the part of Taber. If we hold that Taber should not receive credit, we penalize Taber for the SSA’s delay.
Finally, it is clear that even though a nonobligor parent or others may be supporting the child, the remaining parent’s obligation is not reduced. Thompson v. Thompson, 205 Kan. 630, 633, 470 P.2d 787 (1970). But the sole reason a parent applies for SSDI benefits is because he or she is unable to work and provide personal or family support. When a disability befalls one parent, the burden of support, at least temporarily, unfortunately falls upon the other parent. This same burden exists whether the parents are married or divorced. SSDI payments are not considered gratuitous but are instead insurance benefits paid on the condition of disability, a condition that was met in this case. See Andler, 217 Kan. at 542.
Federal regulations prohibit the nonobligor parent from applying lump-sum payments to anything other than current maintenance.
The SSDI benefits payable to G.T. are payable through Molly as the “representative payee” under federal regulations. SRS argues that federal regulations, specifically 20 C.F.R. § 404.2040 (2011), prohibit Molly from reimbursing herself from the lump-sum SSDI payment for child expenses she incurred and paid while Taber was in arrears. She would clearly be allowed such discretion, she argues, if Taber paid his arrearage or paid the child support due in a timely manner. Instead, as a representative payee, federal law unduly restricts how she can spend the money.
However, the regulation cited does not support this position, nor is SRS able to cite to any legal authority in support of its position. The regulation upon which SRS relies simply states that it “will consider that payments we certify to a representative payee have been used for the use and benefit of the beneficiary if they are used for the beneficiary’s current maintenance.” 20 C.F.R. § 404.2040. It does not address lump-sum payments of back benefits. SRS directs us to the SSA website and a brochure entitled A Guide for Representative Payees (2009), http://www.ssa.gov/pubs/ 10076.html. Although this brochure has no legal effect and would certainly not be adequate authority upon which to grant or deny Taber credit for tire lump-sum SSDI payment, it states, in pertinent part:
“How to handle a large payment of past benefits
“Sometimes benefits take awhile to be approved. When this happens, back benefits may be paid all at once, in a large payment. First, you must spend the money on the beneficiary’s current needs such as rent and a security deposit, food or furnishings. After these expenses are paid, you may spend the money to improve the beneficiary’s daily living conditions or for better medical care. It is important that you spend the money wisely. You should keep in mind that the money must be used in the beneficiary’s best interests. If there is money still left over, it must be saved
We find nothing in this language that would prohibit Molly from reimbursing herself for actual childrearing expenses incurred and paid during the months for which the lump-sum benefits were received, as long as she could document the expenditures to the SSA’s satisfaction.
The brochure then goes on to state that the money can be used for a variety of things including medical and dental expenses, wheelchairs, insurance premiums, houses, cars, furniture, home improvements, movies, concerts, and magazine subscriptions. It concludes this topic with the following: “If you are not sure whether it is okay to use the money for a specific item (for example, paying a bill the beneficiary owed before you became payee), contact your local Social Security office before you spend the money.”
This language leaves open the possibility that paying a bill incurred before the money was received by the representative payee may be appropriate, but further discussion with the SSA is necessary. So, although SRS’s argument is at first blush compelling, SRS presents no legal support for its position. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010).
When there is no arrearage, crediting a lump-sum payment would result in a requirement that the nonobligor parent reimburse the obligor parent for the timely child support paid.
Finally, SRS argues that if a child support obligor has timely paid his or her child support and subsequently the child receives a lump-sum payment covering months already paid by the obligor, the nonobligor parent would have to repay the obligor for the “overpayment.” This issue was also raised in Hohmann, and although we declined to address it, we did note, as we do here, that the majority of courts take the view that no reimbursement is required and deem the excess to be a voluntary overpayment that inures solely to the benefit of the child. See, e.g., Child Support Enforcement Agency v. Doe, 92 Hawaii 276, 285-86, 990 P.2d 1158 (Hawaii App. 1999); Brown v. Brown, 849 N.E.2d 610, 616 (Ind. 2006); Newman v. Newman, 451 N.W.2d 843, 844 (Iowa 1990); Holmberg v. Holmberg, 578 N.W.2d 817, 827 (Minn. App. 1998), aff'd 588 N.W.2d 720 (Minn. 1999); Keith v. Purvis, 982 So. 2d 1033, 1038-39 (Miss. App. 2008); Steel v. Hartwick, 209 W. Va. 706, 708-09, 551 S.E.2d 42 (2001). Our Supreme Court also addressed this issue in Andler. Andler made four child support payments after his SSDI payments started. So for 4 months, Mother received both the child support payment and the SSDI payment. The Supreme Court found that those four child support payments “must be regarded as gratuities for the children.” 217 Kan. at 545. We believe this reasoning to be sound and we can find no basis to depart from it.
Therefore, because G.T.’s lump-sum SSDI payment covered the time frame from March 2008 to May 2010, Taber should be given a credit towards his child support arrearages for those months in an amount equal to the amount of G.T.’s SSDI payment in each specific month. For any month in which the SSDI payment exceeds the amount Taber owes for that month, the excess inures to the benefit of G.T.
The Effect of the SSI Payments Made to G.T.
SRS argues that if this court decides Taber is entitled to credit toward his child support arrearage, he should only be entitled to a credit of $3,406 — the net amount that G.T. received after the SSA withheld the SSI payments G.T. received during the same time period. To fully address this issue, we must first examine the difference between SSI and SSDI benefits.
Pursuant to the Social Security Act, the federal government provides benefits to disabled persons under two distinct programs administered by the SSA. Subchapter II of the Act, through the SSDI program, provides for the payment of insurance benefits to persons who have previously worked and contributed to the program by paying taxes on earned income through the Federal Insurance Contributions Act (FICA). 42 U.S.C. §§ 401-433 (2006); State ex rel. Secretary of SRS v. White, 42 Kan. App. 2d 756, 758, 216 P.3d 727 (2009); Horwitz v. Hoewitz, 897 So. 2d 337, 342 (Ala. Civ. App. 2004). When insured persons suffer from a physical or mental disability and are no longer able to work, they are entitled to benefits from the SSA insurance program in the form of SSDI payments to themselves and their minor children. 20 C.F.R. § 404.330 (2011). The amount of the benefit is directly related to the amount the insured has paid into the program. 42 U.S.C. § 415 (2006).
In contrast to the quasi-insurance nature of the SSDI program, SSI is a welfare program covered under 42 U.S.C. §§ 1381-83d (2006). It is funded by general tax revenues, not Social Security taxes. Eligibility for benefits is entirely unrelated to past earnings. It is available to all individuals whose income is below specified levels. 42 U.S.C. § 1381a (2006); White, 42 Kan. App. 2d at 758; Martin v. Martin, 70 Mass. App. 547, 550, 874 N.E.2d 1137 (2007).
In In re Marriage of Emerson, 18 Kan. App. 2d 277, Syl. ¶ 1, 850 P.2d 942 (1993), our court held that SSI benefits being paid to a minor child may not be claimed as credit towards the payment of court-ordered child support. The court reasoned that SSI benefits are designed to supplement the income of the disabled person and are not related to the disability of any other members of the family. The resources available to the child are taken into consid eration when the SSI benefits are determined. The court reasoned that SSI benefits are more in the nature of a gratuity from a governmental agency, unlike SSDI which is an earned insurance proceed. 18 Kan. App. 2d at 280-81 (citing Andler, 217 Kan. at 544). The court cited Thompson, 205 Kan. at 633, for the proposition that gratuitous contributions from governmental agencies are not to be used to reduce or diminish a father’s obligation to furnish child support. Emerson, 18 Kan. App. 2d at 280. This appears to be the majority view. See Martin, 70 Mass. App. at 551 n.6 (enumerating other states that have adopted this view).
But this case is distinguishable from Emerson and presents an issue of first impression in Kansas. In Emerson, SSDI was not involved in the child support equation at all. The child support obligor was simply requesting a credit for the child’s SSI payments. In this case, however, because SSI is a gratuitous, income-based program, federal law requires that the income of the recipient be evaluated regularly and an increase in income or benefits from other sources may offset, reduce, or eliminate the SSI payment. See In the Matter of Lister & Lister, 162 N.H. 48, 51-52, 27 A.3d 673 (2011). In the case of an SSI recipient who receives a lump-sum SSDI payment for back benefits, SSA looks at whether the SSI benefits would have been reduced if the SSDI benefits had been paid when regularly due. 42 U.S.C. § 1320a-6 (2006) (also known as the “windfall” offset provision); 70A Am. Jur. 2d, Social Security and Medicare § 643, p. 701. Here, G.T.’s SSDI lump-sum benefit was offset by what he had been paid in SSI benefits that would not have been paid had the SSDI benefit been paid in a timely manner. In essence, the government reimbursed itself for the gratuitous payments out of the SSDI lump-sum award. Would giving Taber credit for the entire SSDI payment, in effect, diminish his child support obligation based on a gratuitous payment from a governmental agency, as prohibited by Emerson? We do not believe it would. The fact remains that he is only receiving credit for SSDI back benefits, which we have already outlined is proper.
The result in this case would have been no different if Taber had simply paid his back child support. Molly, G.T.’s representative payee, would have been required to report the increase in income from the child support payment, and SSA could have sought reimbursement for SSI paid during the same time frame and, if appropriate, eliminated future SSI payments. 20 C.F.R. Subpart G (2011); 20 C.F.R. § 416.708 (2011). There would have been no “windfall” to G.T. Likewise, if the SSA had paid Taber’s SSDI benefits in a timely manner G.T. would not have been eligible for SSI benefits, or at least not as much in SSI benefits. Basically, in this case, the SSI benefits allowed G.T. to receive some current assistance at a time when his income was minimal due to his father’s failure to pay child support. But when his father was able to pay, he had to first reimburse SSI for these “advances.” If there had been no payment of arrearage, either through direct payments or SSDI reimbursement, according to Emerson, Taber would not receive any credit because neither he nor his earned insurance benefit was responsible for the payment. But once the arrearage is paid, the fact that SSI must first be reimbursed does not detract from the fact that father has paid the arrearage. To deny him credit would be to deny him credit for both the SSI payment, which he reimbursed, and his SSDI payment. This is unlike the situation discussed above where an obligor parent has both paid child support and received a lump-sum SSDI payment, because the obligor parent is at least getting full credit toward child support. To adopt the reasoning of SRS would be to deny Taber full credit. Accordingly, we find that Taber is entitled to credit for the SSDI back benefits assigned to G.T. to the extent they are contemporaneous with his support obligation.
Our review of the record leads us to the conclusion that from G.T.’s total lump-sum award of $17,154, Taber is entitled to a credit toward his child support arrearage for the months of March 2008 through May 2010 in the amount of $7,600. This represents the amount he owed for those 27 months ($8,100) minus the amount he paid during those months ($500). The balance, which would include the $3,406 net award to G.T., is a voluntaiy overpayment that inures to the benefit of G.T. and cannot be applied to any pre-March 2008 arrearage.
We reverse the district court ruling denying any credit toward Taber’s child support arrearage that was specifically attributed to the months between March 2008 and May 2010 and remand with directions for the district court to credit Taber s arrearage consistent with this opinion.
Reversed and remanded with directions. | [
-48,
94,
-43,
124,
10,
-96,
10,
8,
101,
-81,
55,
87,
-13,
102,
29,
61,
-32,
107,
113,
121,
83,
-77,
55,
64,
-7,
-77,
-71,
-42,
-15,
109,
100,
-42,
76,
48,
-94,
-43,
102,
-128,
-27,
16,
-50,
-122,
27,
-19,
89,
-126,
48,
109,
-48,
11,
49,
-89,
-110,
44,
57,
73,
40,
15,
89,
-69,
-48,
-94,
-113,
5,
-21,
81,
-79,
84,
-70,
6,
-48,
30,
-124,
57,
0,
-24,
50,
-74,
-126,
52,
107,
-103,
-123,
102,
102,
-96,
37,
-43,
-8,
-56,
-34,
-97,
31,
-90,
-101,
121,
2,
14,
-90,
-68,
124,
4,
46,
92,
120,
68,
1,
108,
11,
-114,
-108,
-109,
-51,
80,
12,
-125,
-10,
-107,
-78,
97,
-49,
-90,
92,
86,
123,
59,
-89,
-98
] |
Hill, J.:
Introduction
This is an appeal from the order of the Kansas Corporation Commission, referred to as the Commission in this opinion, granting the inclusion of $4.5 million for consultant and attorney fees as rate case expenses for Kansas City Power and Light Company, commonly called KCP&L, a public utility regulated by the Commission.
In 2005, KCP&L agreed with the Commission and its staff (Staff), along with other interested parties, to provide for the future energy needs of Kansas energy users by making substantial improvements in the company’s capacity to generate and transmit electricity. The parties refer to this agreement as the Plan. When the agreement was made, the parties recognized that KCP&L needed to “make substantial investments in its electric infrastructure over a five-year period” to meet the projected future energy demands of its customers in an environmentally friendly way. This meant that the company would make major improvements to its generating station at latan I in Missouri and construct a new coal-fired plant called latan II at the same location. The Plan contemplated that KCP&L would recover tire costs of its investments through a four-step rate increase application process. The rate application that is the subject of this lawsuit is the fourth and last of that series of applications.
The Citizens’ Utility Ratepayer Board, known by its acronym CURB, is a watchdog group formed by the legislature to represent the interests of residential and small commercial ratepayers in such proceedings. See K.S.A. 66-1222(a). CURB entered its appearance in the rate case and made it known that it opposed granting KCP&L any money in excess of $2.1 million for rate case expenses, die amount initially claimed by KCP&L.
In due course, the Commission approved $4.5 million in rate case expenses to KCP&L. Bodi CURB and KCP&L asked the Commission to reconsider its award. CURB contended that the approved amount was too high, while KCP&L thought the amount was too low. After taking additional evidence and entertaining argument on die matter, the Commission once again approved $4.5 million to KCP&L for rate case expenses.
CURB now appeals that award, seeking our review under the Kansas Judicial Review Act, starting at K.S.A. 77-601. CURB attacks the rate case award on three fronts, claiming: (1) The award is not supported by substantial competent evidence when viewed in die light of the record as a whole; (2) the award is unreasonable, arbitrary, and capricious; and (3) the award results in an erroneous interpretation or application of the law.
The Commission appears in defense of its rulings and KCP&L intervenes in support of the Commission’s award.
Given the standard of review and the extensive legislative power of the Commission to set utility rates in Kansas, our review of this administrative record reveals no good reason to overturn or modify it in any way. Indeed, the Commission did not roll over and play dead here but instead, vigorously challenged KCP&L to prove the necessity and reasonableness of its expenses. We begin by giving a brief history of the events leading up to this controversy. In our view, CURB tries, unreasonably, to restrict the Commission. Using the Commission’s own findings that explain why it quit analyzing billing statements for want of detail and used a lodestar calculation instead, CURB unsuccessfully contends the Commission could not award a sum for expenses that was greater than the original estimate.
Prior rate proceedings led to this lawsuit.
Citing K.S.A. 66-117, KCP&L filed an application with the Commission in December 2009 seeking to change its rates for electricity provided to Kansas consumers. KCP&L requested an 11.5 percent increase in its rates to cover a claimed gross revenue deficiency of over $55 million dollars for a test year ending September 30,2009.
The December 2009 rate application, found at Commission Docket No. 10-KCPE-415-RTS (called the 415 docket by the parties), was the fourth in a series of rate cases anticipated as part of a regulatory plan for KCP&L adopted by the Commission in 2004. That plan was part of a stipulation and agreement entered into by KCP&L, Staff, CURB, and other interested parties. (Docket No. 04-KCPE-1025-GIE). We note the parties settled the first three rate cases in 2006, 2007, and 2009.
As a part of the settlement in the third rate case, the parties agreed that certain issues would be raised in a later docket. Those issues addressed the prudence of certain upgrade costs of KCP&L’s latan I electrical generating facility and other latan common plan improvements. The parties needed to resolve how much of those costs would be included in KCP&L’s rate base. As that docket progressed, other parties also asserted that KCP&L imprudently incurred substantial costs in building the latan II facility and tiróse imprudent costs should be excluded from KCP&L’s rate base.
After approving a partial settlement, the Commission held evidentiary hearings on KCP&L’s rate application from August through September 2010 to resolve any remaining issues. Widr respect to the latan II construction and improvements, the Commission reviewed prefiled testimony and heard the cross-examination of Walter Drabinski, Staff s expert witness. It was Drabinsld’s opinion that KCP&L had been imprudent in many of its decisions made during the construction of latan II and certain environmental upgrades installed at latan I. Drabinski recommended that a substantial part of the construction costs be excluded from KCP&L’s rate base. The Commission also considered the prefiled testimony and cross-examination of at least six witnesses presented by KCP&L to challenge Drabinski’s opinions about the imprudence of KCP&L’s actions.
In its initial rate case application, KCP&L requested $2.1 million in rate case expenses to be included in its operating expenses. CURB objected later at the evidentiary hearings to any amount of increase in rate case expenses in excess of that requested in the application. CURB asserted that if any additional rate expense was being claimed, CURB had a right to examine the evidence supporting any increase and oppose it. During testimony, CURB’S expert witness gave the opinion that tire original amount of rate case expenses requested was reasonable due to the complexity of the case. However, she testified that if the amount finally requested exceeded the original figure, CURB would not say the larger amount was reasonable. She emphasized the high number of attorneys KCP&L had working on the case and the high hourly rates of those attorneys. The witness offered that some states “have a 50/50 rate case sharing routinely” between the shareholders and rate payers.
Then, in posthearing responses to discovery requests (called data requests in the vernacular of rate cases) KCP&L asserted that rate case expenses for this docket exceeded $8.3 million dollars. This total included $1,169,712 for estimated costs incurred by the Commission and CURB, and $7,149,711 in costs incurred by KCP&L.
The initial Commission order and subsequent petitions for reconsideration.
The Commission issued its initial rate case order on November 22, 2010. It addressed several issues, including prudence in the construction of the latan II facilities’ rate of return, operating expense issues dealing with maintenance, employee incentive and pension programs, depreciation rates, and rate case expenses. The Commission also addressed issues relating to the cost of service to different customer classes, rate design, and tariff issues. The Commission’s final decision authorized a $21,846,202 revenue increase. In reaching this result, the Commission specifically rejected in toto Staff s claim that significant costs incurred by KCP&L during construction of latan II should be excluded from KCP&L’s rate base. The Commission did reduce the requested rate base increase in tire Kansas jurisdiction by slightly over $5 million based upon KCP&L’s own expert’s testimony regarding imprudent costs.
At this point, the Commission faced the dispute between CURB and KCP&L about rate case expenses. Although CURB had opposed any rate case expenses in excess of $2.1 million, KCP&L had failed to include any detailed information in the record describing the services rendered or time spent by KCP&L’s attorneys, consultants, and experts in tire case. Consequently, the Commission reviewed KCP&L’s responses to data requests filed after the hearings. The Commission found the information and the responses prevented individualized review of charges. Therefore, the Commission used its own expertise in reviewing rate case expenses to determine what amount was a just and reasonable amount to include in rates for this particular case.
Given the lack of detailed information and the looming statutory deadline requiring a decision, the Commission decided to allow $4.5 million in rate case expenses and determined this amount would be granted as interim rate relief. If any party contested the rate case expenses, the Commission stated it would open a separate docket to allow parties to challenge the rate case expenses. The Commission reached the $4.5 million figure for utility-only rate case expenses, noting that the Commission’s and CURB’S costs would be added to that figure for total rate case costs. The Commission found this amount balanced the interests of all concerned parties and was based upon its knowledge and experience in determining reasonable rate case expenses. The Commission’s order set forth general considerations regarding the helpfulness of KCP&L’s various witnesses and consultants, the large number of attorneys working on the case, and the possible errors in invoices. The Commission specifically identified some entities and costs as being excluded from its calculations.
In response to the Commission’s order, several parties filed timely petitions for reconsideration or clarification. As a result, on January 6, 2011, the Commission entered its order on the various motions for reconsideration. The Commission modified its original order through a nunc pro tunc order and also clarified various provisions. The Commission modified its prior decision after concluding that rate case expenses should not be granted as interim rate relief and decided the amount set would be a final order. The Commission ordered Staff to file the data requests and KCP&L’s responses detailing rate case expenses as part of the hearing record. Commenting that the evidence in the record was meager, the Commission found that the $4.5 million in utility-only rate case expenses was supported and would be allowed in determining KCP&L’s rates.
This order spawned additional motions for reconsideration and motions for clarification by CURB and KCP&L. It was at this time that two petitions for judicial review were filed in this court. Those cases were later dismissed after the court concluded both appeals were prematurely filed as they attempted to review an agency action that was not final.
The Commission issues the final order setting rate case expenses.
On February 2, 2011, tire Commission granted both parties’ petitions for reconsideration and ordered that another evidentiary hearing be held for the presentation of witnesses and evidence relating to the rate case expenses. The Commission advised the parties that it would consider the eight factors set forth in Kansas Rules of Professional Conduct 1.5(a) (2011 Kan. Ct. R. Annot. 470) with respect to reasonableness of attorneys fees in the case and it would also rely on those factors as a guide when evaluating expenses for nonattorney consultants. The Commission limited the participants in this new evidentiary proceeding to KCP&L and CURB, the only parties taking issue with rate case expenses. The Commission directed Staff, however, to aid the Commission in evaluating the evidence presented by KCP&L and CURB. Finally, the Commission held that rate case expenses would be limited to expenses incurred through November 22, 2010.
The Commission received prefiled testimony and conducted the examination of witnesses at evidentiary hearings held September 6-8, 2011. This testimony revealed that KCP&L’s witnesses asserted that KCP&L had incurred approximately $9.1 million in rate case expenses. About $1.4 million of this expense was incurred by Staff and CURB, resulting in $7.7 million in utility-only rate case expenses. KCP&L’s representatives testified that approximately 70 percent of these costs were incurred in order to address the prudence issues concerning latan II.
For its part, KCP&L provided a summary of monthly invoices for its individual vendors and their timekeepers. Then KCP&L allocated the time spent to broad categories, such as prefiling, application preparation, discovery, hearing, and posthearing activities. KCP&L admitted its summary exhibits did not contain the information required by a presiding officer’s report, but they had a CD containing the level of detail required. That CD containing the work papers was ultimately admitted as KCP&L exhibit 2 over CURB’S objection. The CD is in the appellate record and contains copies of invoices from various law firms and consultants with timekeeper information. One of Staffs witnesses determined that except for a few vendors, the testimony and work papers contained all three levels of information previously requested by the Commission.
On the other hand, CURB presented testimony of witnesses challenging KCP&L’s claimed rate case expenses. One witness suggested that the Commission should institute a policy requiring % of the utility-only rate case expenses be borne by shareholders. She also suggested that in order to level the playing field, the utility’s rate case expenses should be limited to twice the total cost incurred by the Commission and CURB. In the alternative, CURB presented a witness that reviewed KCP&L’s vendors’ and attorneys’ bills and recommended that they be adjusted for duplication, non-jurisdictional work, and other factors. This witness’ calculation found that $4,912 million was a reasonable total for rate case expenses. By removing the costs incurred by the Commission and CURB, the utility-only rate case expenses would amount to $3,489 million based on this testimony.
Following this hearing, the Commission issued its order on January 18, 2012. The Commission granted KCP&L rate case expenses of about $1.4 million for Staff and CURB’S expenses. Finding that KCP&L failed to prove its management prudently incurred all the rate case expenses requested, the Commission limited the company’s own rate case expenses to $4.5 million. The Commission’s order indicated that its decision was based on the record as a whole, including the 2010 evidentiary hearing, and its members drew on their expertise as an administrative agency and the individual commissioners’ knowledge and experience as attorneys.
The Commission did note that the information submitted by KCP&L lacked the detail desired to calculate rate case expenses, and it specifically questioned the block billing practices of the attorneys and consultants. The Commission found that the format of the information submitted made it impossible, problematic, and tedious to analyze the billings to determine if the work was competently performed, was duplicative, or was relevant to the rate case. The Commission decided that KCP&L had exercised little or no control to keep its rate case expenses within the initial $2.1 million it estimated in its application and deemed KCP&L’s witness testimony to the contraiy “a sign of indifference.”
The Commission stated that the number of timekeepers involved in this particular case was remarkable. We note this includes 47 attorneys, consultants, and paralegals from six different law firms billing over 16,000 hours. In addition, KCP&L used eight consulting firms with 46 different timekeepers billing more than 9,700 hours. The size of the expenditures shocked the conscience of the Commission. The Commission expressed reservation that every attorney’s hourly rate increased during the pendency of the case, even during a time of serious national recession. The Commission also emphasized that in the last litigated case before it, the resulting rate case expense allotment totaled about 5.4 percent of the company’s revenue increase. Under that ratio, KCP&L’s rate case expenses would be about $1.2 million.
At this time the Commission chose to perform a lodestar calculation. After deciding what reasonable number of hours should be included and then multiplying that number by a reasonable hourly rate, an award can be determined. In this case, the Commission decided upon a range of hourly rates because some lawyers deserved a higher return based upon their skill, experience, and learning.
In the end, the Commission assessed KCP&L with costs incurred by the Commission, Staff, and CURB for $1,422,832, with total rate case expenses of $5,922,832, and directed the expenses be amortized over 4 years. The Commission repeated that although it had not specifically addressed the expenses submitted by each timekeeper, its final ruling was based upon the entire record.
CURB once again asks for reconsideration.
After receiving the Commission’s order, CURB filed a petition for reconsideration and once again asserted that KCP&L should be limited to rate case expenses of $2.1 million as it requested in its original application, due to its failure to provide the required detailed information. CURB also asserted KCP&L’s expenses should be limited because of billing errors, duplicity of work, and excessive charges. Citing the Commission’s own opinion, CURB asserted there was no substantial competent evidence to support the $4.5 million rate case expenses allowed, and it argued that an award based on the incomprehensible time records was arbitrary and capricious. Only Staff filed a response to CURB’S petition. KCP&L did not respond.
In due course, the Commission denied CURB’S petition for reconsideration and upheld its January 2012 order allowing KCP&L $5.9 million in rate case expenses$4.5 million for its own costs and the balance covering the costs for CURB, the Commission, and Staff. CURB then filed a petition for judicial review with this court.
A brief review of the law.
At this point, it is helpful to make some general observations so a proper perspective of the issues raised in this case can be achieved. To say the task of the Commission in deciding rate cases is complex is an understatement. These cases are huge and involve many learned disciplines such as electrical engineering, physics, and economics. Topics such as the applicability of federal rules and regulations, tax implications, as well as the application of its own rules and regulations are areas of concern for the Commission when making these decisions. Many dozens of witnesses can testify, yielding hundreds of thousands of pages of testimony that must all be considered and balanced.
A significant case dealing with this area of the law is Kansas Gas & Electric Co. v. Kansas Corporation Comm’n, 239 Kan. 483, 720 P.2d 1063 (1986). In that rate case appeal, our Kansas Supreme Court said:
“An important question to be considered is what a regulatory agency should seek to accomplish in such a case. The leading cases in this area clearly indicate that the goal should be a rate fixed within the ‘zone of reasonableness’ after the application of a balancing test in which the interests of all concerned parties are considered. In rate-making cases, the parties whose interests must be considered and balanced are these:
(1) The utility’s investors vs. the ratepayers;
(2) the present ratepayers vs. the future ratepayers; and
(3) the public interest.” 239 Kan. at 488.
Even before that case, the Supreme Court had dealt with the concept of “zone of reasonableness” in Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 386 P.2d 515 (1963). The court stated:
“There is an elusive range of reasonableness in calculating a fair rate of return. A court can only concern itself with the question as to whether a rate is so unreasonably low or so unreasonably high as to be unlawful. The in-between point, where the rate is most fair to the utility and its customers, is a matter for the State Corporation Commission’s determination.” 192 Kan. 39, Syl. ¶ 17.
Obviously, we are dealing here with such an in-between point.
Further, rate making is more than a mere act of discretion by a state agency; it is a part of the legislative function. Again, referring to Kansas Gas & Electric Co., the court held:
“Under the constitutional separation of powers doctrine, the regulation of public utilities is legislative in nature. The legislators created the Kansas Corporation Commission and granted it full and exclusive authority and jurisdiction to supervise, control, and regulate the public utilities of this state and, when acting in the exercise of its delegated powers, the Commission is not a quasi-judicial body. [Citations omitted.]
“Thus, public utility rate making is a legislative function, whether it is regulated by an administrative body or by the legislature itself.” 239 Kan. at 491.
But that does not mean the authority of the Commission is unbridled. The Kansas Gas and Electric court also held:
“The KCC’s expertise in the field is vast and the Commission must, of necessity, have considerable discretion in order to regulate utilities in the public interest. The statutes also contain a protection against arbitrary action by the KCC. The KCC is required to state expressly its findings of fact and conclusions of law. Such a provision prevents arbitrary action and facilitates judicial review, thus insuring a lawful exercise of legislative authority.” 239 Kan. at 495.
Our Standard of Review.
According to K.S.A. 2011 Supp. 66-118c, this court’s review of an order of the Commission must be in accordance with the Kansas Judicial Review Act, which begins at K.S.A. 2011 Supp. 77-601. On appeal, the Commission’s findings are presumed valid, and its order may only be set aside if it is unlawful, is not supported by substantial competent evidence, or is otherwise unreasonable, arbitrary, or capricious. Western Resources, Inc. v. Kansas Corporation Comm’n, 30 Kan. App. 2d 348, 351,42 P.3d 162, rev. denied 274 Kan. 1119 (2002). The party challenging the legality of the Commission’s order bears the burden of proof pursuant to K.S.A. 2011 Supp. 77-621(a)(l). Citizens’ Utility Ratepayer Ed. v. Kansas Corporation Comm’n, 28 Kan. App. 2d 313, 315, 16 P.3d 319 (2000), rev. denied 271 Kan. 1035 (2001). We now follow the 2009 amendments to the Judicial Review Act. See Rausch v. Sears Roebuck & Co., 46 Kan. App. 2d 338, Syl. ¶ 2, 263 P.3d 194 (2011).
We examine this order to see if it is lawful, reasonable, or arbitrary and capricious.
An order of the Commission is lawful if it is “ ‘within the statutory authority of the commission, and if the prescribed statutory and procedural rules are followed in making the order.’ [Citation omitted.]” Farmland Industries, Inc. v. Kansas Corporation Comm’n, 24 Kan. App. 2d 172, 175, 943 P.2d 470, rev. denied 263 Kan. 885 (1997). An order is considered reasonable if it is supported by substantial competent evidence. Farmland Industries, Inc., 24 Kan. App. 2d at 175. The Commission’s action is arbitrary and capricious if it is unreasonable or without foundation in fact. See Farmland Industries, Inc. v. Kansas Corp. Comm’n, 25 Kan App. 2d 849, 852, 971 P.2d 1213 (1999).
Once testimony is admitted in a rate case, the Commission has discretion to weigh and accept or reject that testimony. On appeal, the court may not substitute its judgment for that of the Commission even though there may be conflicting evidence in the record that would support a contrary result. Western Resources, Inc., 30 Kan. App. 2d 348, Syl. ¶ 2. Further, we recognize that the Commission’s decisions “involve complex problems of policy, accounting, economics, and other special knowledge.” 30 Kan. App. 2d at 352. The Commission has experienced staff with backgrounds in statistics, accounting, and engineering, which appellate courts lack. Kansas Gas & Electric Co., 239 Kan. at 496.
We may reverse or nullify a Commission order only when the decision is “ ‘so wide of the mark as to be outside the realm of fair debate.’ ” Williams Natural Gas Co. v. Kansas Corporation Comm’n, 22 Kan. App. 2d 326, 335, 916 P.2d 52, rev. denied 260 Kan. 1002 (1996).
Analysis of issues raised/CURB.
CURB’S argument in the three issues it frames is essentially the same in each but rephrased to fit the three avenues of attack afforded it by the Judicial Review Act. That is to say, CURB contends the Commission’s order is not supported by substantial evidence; the order is arbitrary and capricious; and the Commission misinterpreted or misapplied the law. But in support of its position, CURB uses the severe language the Commission employed in condemning the lack of management of tírese rate case expenses by KCP&L to bolster its position that these expenses must be capped at $2.1 million, the amount of KCP&L’s original estimate. We will examine CURB’S contentions beginning with the issue of substantial evidence, followed by our determination of whether the Commission’s order is arbitrary or capricious. After that, we will determine if the Commission misinterpreted the law.
The size of the task.
There is no doubt that the issue of the prudence of building latan II was of the utmost importance to KCP&L. After all, the company had invested $2.1 billion to construct this power plant. The administrative hearing dealing with this issue and others spanned 14 days in August and September 2010. The record of those proceedings fills 130 volumes (taking up 10 boxes). This was a point that KCP&L did not want to lose.
Even CURB’S expert witness at the hearings on the rate case expenses, after examining the billings and other issues, offered the opinion that $4.912 million was a reasonable amount for rate case expenses. Deducting the expenses of the Commission and CURB from this amount yields $3.489 million for KCP&L, well above CURB’S argument to us that $2.1 million was the cap for KCP&L’s rate case expenses.
K.S.A. 66-101b charges the Commission with the task of deciding if rate case expenses were prudently incurred and preventing imprudent costs from being passed on to the ratepayer. The Commission approached this task with gusto.
Evidence supporting the order.
At first the Commission examined the billings closely. The block billing practices used by some of the law firms and other consultants frustrated this process. Billings from 47 timekeepers (including attorneys, paralegals, and consultants) associated with six law firms totaled 16,407 hours. The prehearing officer appointed by the Commission sought information about the hourly rates, the number of hours worked, when the work was done, and a description of the work done for each timekeeper. Given the lack of de tailed information it received, the Commission then switched methods to a lodestar calculation. At this point, KCP&L sought $9.1 million for rate case expenses (including a sum for the Commission and CURB).
A lodestar calculation requires the decision maker, like a court or an agency, to determine a reasonable number of billable hours and then multiply that number by a reasonable hourly rate for the work performed. The product of this calculation is the fee awarded. It is important to note that the eight factors found in KRPC 1.5(a) are used as a method to determine the reasonableness of the hours requested. Westar Energy, Inc. v. Wittig, 44 Kan. App. 2d 182, 204-06, 235 P.3d 515 (2010).
The Commission had before it the evidence of all of the bills. Even though there was not a great amount of detail in them, they did supply some important information. The Commission also took testimony on the role each attorney and law firm played in this case for the company. The Commission also heard testimony about the work of each expert consultant.
From all of this evidence the Commission was able to disallow the total charges of three of the six law firms employed by KCP&L. Then, searching through the evidence, the Commission reduced the number of hours by adjusting for lost time, duplication of services, and time for “getting up to speed”; that is, time to become familiar with the case or the law of the case. Finally, the Commission decided to reduce the number of hours allowed, to account for the law firms’ failure to perform billing adjustments and for billing errors. At the end, the Commission decided to use 7,909 hours in its lodestar calculation.
CURB disputes none of this evidence but merely maintains nothing more than $2.1 million should be allowed because the Commission said it was impossible to determine a more exact figure due to the lack of detail in the bills. CURB may be missing the point here. The lack of detail in the bills made it impossible to grant the full amount requested by KCP&L. The lack of detailed billings did not preclude the Commission’s careful work in making its lodestar calculation based on the records, the testimony, and its own expertise. The Commission rejected almost 50 percent of what KCP&L sought. We view die evidence from the record as a whole, as did the Commission, that supports the findings of the Commission.
The prudence of any utility expenditure is tested in regards to both its purpose and its amount. Maine Water Co. v. Public Utilities Com’n, 482 A.2d 443, 453 (Me. 1984); see Pennsylvania Pub. Util. v. Phil. Elec., 501 Pa. 153, 460 A.2d 734 (1983). “[I]t would be proper for a public utility company to be allowed rate case expenses when ‘tire public service company has reasonably and fairly employed necessary outside help in connection with . . . [the] case.’ [Citation omitted.]” Lone Star Gas Co. v. Corporation Com’n, 648 P.2d 36, 41 (Okla. 1982).
We pass over the question about the reasonableness of the hourly rates used by the Commission when it made its lodestar calculation since CURB makes no complaint about those numbers.
Finally, we can find no error in the Commission’s application of KRPC 1.5(a) as a standard to measure reasonableness of an attorney fee award. After all, it is the method approved by our Supreme Court for use by lower courts when making such a determination. Davis v. Miller, 269 Kan. 732, 751, 7 P.3d 1223 (2000).
The Commission’s order was not arbitrary or capricious.
CURB argues that the Commission’s order was arbitrary and capricious because it failed to adequately specify how it reached the $4.5 million in utility-only rate case expenses. Once again, CURB reiterates that it was arbitrary and capricious for the Commission to make what it admitted were “impossible” calculations. CURB also questions the Commission’s ability to perform a detailed review but still achieve the $4.5 million that it initially determined before additional rate case expenses information had been provided. CURB contends the Commission’s reliance on its own judgment and expertise made it impossible to determine how the Commission reached its decision and, thus, was arbitrary and capricious.
This attack differs from a challenge based upon a claim the agency decision is not supported by substantial competent evidence. Such an argument attacks the quality of the agency’s fact- finding by asserting the fact-finding is not supported by substantial evidence. On the other hand, an attack under K.S.A. 2011 Supp. 77-621(c)(8) claiming that an agency decision is arbitrary and capricious is an attack on the quality of the agency’s reasoning. Thus, an agency’s conclusion could be set aside, even if supported by substantial evidence, if it was based on faulty reasoning. In re Protests of Oakhill Land Co., 46 Kan App. 2d 1105, 1115, 269 P.3d 876 (2012). Indeed, this court has recognized that “ ‘[Reasoned decisionmaking, in which the rule announced is the rule applied, promotes sound results, and unreasoned decisionmaking the opposite. . . .’ [Citation omitted.]” Home Telephone Co. v. Kansas Corporation Comm'n, 31 Kan. App. 2d 1002, 1012, 76 P.3d 1071 (2003), rev. denied 277 Kan. 923 (2004).
In our view, when determining the prudence of rate case expenses, the Commission, like a district court judge, is an expert in the area of attorney fees and can draw on and apply its own knowledge and expertise in determining their value. Cf. Kansas Industrial Consumers Group, Inc. v. Kansas Corporation Comm'n, 36 Kan. App. 2d 83, 112, 138 P.3d 338, rev. denied, 282 Kan. 790 (2006); see In re Petition of PNM Gas Services, 129 N.M. 1, 27, 1 P.3d 383 (2000), where the court held the New Mexico Public Utility Commission may utilize its own expertise and experience with amounts of rate case expenses typically incurred by a utility in a comparable rate case proceeding.
If we carry the analogy with a district court further, in determining attorney fees under fee-shifting statutes, a district court is not required to engage in an hour-by-hour analysis of voluminous billing statements to determine the amount of reasonable hours expended on the case. Thus, we see no reason to compel the Commission to do so here when deciding rate case expenses. If the court reduces the amount of fees requested, however, the court must concisely and clearly explain the reduction so that an appellate court can determine if the reduction is justified. Sheila A. v. Whiteman, 259 Kan. 549, 565, 913 P.2d 181 (1996). In this case, the Commission’s explanation of its reductions is truly not concise. This was apparently the first litigated case where the Commission chose to adopt a lodestar method of analysis when evaluating dis puted rate case expenses. The Commission detailed extensively how it reached the amount for reasonable attorney fees and gave specific details on the amounts of consultants’ fees allowed and disallowed. The fact that the Commission extensively detailed some of its calculations and declined to describe the minutiae of the balance of the expenses is not, itself, arbitrary and capricious.
It is not the function of the appellate court to independently calculate “ ‘formidable accounts in order to determine the precise correctness of particular findings.’ [Citations omitted.]” Coonrod & Walz Constr. Co., Inc. v. Motel Enterprises, Inc., et al., 217 Kan. 63, 75, 535 P.2d 971 (1975). Although the appellate court is also an expert on attorney fees, we will not substitute our judgment for that of the Commission on the amount of attorney fees unless required to do so in the interest of justice. See Snider v. American Family Mut. Ins. Co., 45 Kan. App. 2d 196, 200, 244 P.3d 1281 (2011), rev. granted 292 Kan. 966 (2011) (citing Johnson v. Westhoff Sand Co., 281 Kan. 930, 940, 135 P.3d 1127 [2006]).
In its brief, CURB ignores the testimony of its own expert witness. Although CURB proposed various alternatives for determining rate case expenses — including the arguments made in its brief — CURB also presented an expert witness who actually reviewed the detailed billings and determined that approximately $3.5 million was a reasonable figure for utility-only rate case expenses.
Finally, the careful, painstaking work reported by the Commission in performing its lodestar calculation, where the claims of three law firms and over $3 million in attorney and consultant fees were denied, was not arbitrary or capricious. In fact, it appears to be the sort of performance that the legislature has called upon the Commission to carry out. We cannot fault the Commission’s performance on this point as it carefully explained at each step why it was approving some fee requests and denying others. We will not substitute our judgment for the Commission’s. These decisions were not made on a whim.
A note about the Commission and the legal standards for fee requests.
It is important to maintain a proper perspective while examining the issues of this case. These are not ordinary civil actions but part of a legislative process as well. Kansas Gas & Electric Co., 239 Kan. at 491. The general rule is that prudently incurred rate case expenses are among the reasonably necessary operating expenses that a public utility is entitled to recover in a rate-making proceeding. Home Telephone Co., 31 Kan. App. 2d at 1015; People v. Illinois Commerce Com’n, 964 N.E.2d 510, 517 (Ill. App. 2011). Rate proceedings are a part of the normal course of business for a utility and function to establish just and reasonable rates. These proceedings are conducted for the benefit of both ratepayers and shareholders. Consequently, it is widely accepted that rate case expenses are one aspect of a utility’s operating costs and are recoverable in a general rate proceeding. Driscoll v. Edison Co., 307 U.S. 104, 120-21, 59 S. Ct. 715, 83 L. Ed. 1134 (1939). In Driscoll, the Supreme Court of the United States ruled: “Even where the rates in effect are excessive, on a proceeding by a commission to determine reasonableness, we are of the view that the utility should be allowed its fair and proper expenses for presenting its side to the commission.” As with other rate-making issues, the Commission is tasked with weighing competing policies to determine the recovery of appropriate rate case expenses. “ "Rate case expenditures involve some degree of management choice and discretion whether to incur the expenses.’ [Citation omitted.]” Kansas Industrial Consumers Group, Inc. v. Kansas Corporation Comm’n, 36 Kan. App. 2d 83, 111, 138 P.3d 338, rev. denied 282 Kan. 790 (2006). “In establishing rates, the KCC is required to balance the public need for adequate, efficient, and reasonable service with tire public utility’s need for sufficient revenue to meet the cost of furnishing service and to earn a reasonable profit.” Danisco Ingredients USA, Inc. v. Kansas City Power & Light Co., 267 Kan. 760, 773, 986 P.2d 377 (1999).
Our appellate courts have recognized that — due to tire broad authority to determine just and reasonable rates — the Commission is not bound to use any particular formula in valuing a public utility’s property. Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 60-61, 386 P.2d 515 (1963). The same rule should apply in determining other elements of rates. The Commission should receive and consider all relevant evidence and then determine “ ‘what formula, or combination of formulae, it believes should be used under the facts and circumstances of the case.’ ” Kansas Gas & Electric Co., 239 Kan. at 496. For example, see Farmland Industries, Inc., 24 Kan. App. 2d at 190, where this court upheld the Commission’s decision to use a combined cost-of-service analysis in addressing rates of merged electric utilities.
In our view, the Commission has broad discretion in deciding what is a just and reasonable utility rate. See K.S.A. 66-101b; Kansas Gas & Electric Co., 239 Kan. at 496-97. We think it wise for the Commission to adopt KRPC 1.5(a) as a yardstick to measure the reasonableness of an attorney fee request because it affords the Commission an immediate, well-thought-out system to make these decisions. Further, as time passes and more appellate decisions are reported, a growing body of law will provide the Commission a set of references that are useful for future inquiries.
In fact, it is the application of KRPC 1.5(a) that CURB seizes upon as claimed error. Citing Davis v. Miller, 269 Kan. at 748, CURB contends that the Commission failed to follow the standard it adopted and violated Kansas law because the utility’s rate case expenses were not supported by “meticulous, contemporaneous time records.” CURB argues that KCP&L’s records for rate case expenses, which consisted largely of attorney fees, failed to show the specific tasks being billed. Therefore, CURB contends, no additional rate case expenses should have been allowed.
However, CURB relies exclusively on language in Davis that was not specifically defined or applied to the facts of that case. Davis was a complex postdivorce case involving a challenge to a postnuptial agreement. The trial court awarded Miller, the ex-husband, attorney fees under an indemnity provision in the agreement. In awarding fees, the district court considered tire factors under KRPC 1.5(a) in evaluating tire amount and nature of reasonable fees. The district court excluded one attorney’s charges because he was corporate counsel for Miller’s business, but awarded substantial fees to two other attorneys.
On appeal, the Supreme Court held that fees not supported by “ ‘meticulous, contemporaneous time records’ that show the specific tasks being billed should not be allowed.” (Emphasis added.) Davis, 269 Kan. at 748. The opinion contained no discussion of the adequacy or inadequacy of the attorneys’ billings. One of Davis’ challenges, however, was that the paralegal fees were improperly billed because they were merely clerical functions. The Supreme Court held that it would “take a line-by-line review of records that are not descriptive enough for this court (or the district court) to separate paralegal work from clerical work.” 269 Kan. at 750. Still, the Supreme Court affirmed the attorney fee award, including the paralegal fees, finding the total amount awarded was not an abuse of discretion. 269 Kan. at 751.
CURB cites no authority beyond the general language in Davis to support its argument that attorneys, in billing for time worked, are precluded from using a “block-billing” method. The Davis court relied on Case v. Unified School Dist. No. 233, Johnson County, 157 F.3d 1243, 1250 (10th Cir. 1998), when discussing the need for detailed records when requesting attorney fees. Davis, 269 Kan. at 748. In Case, the Tenth Circuit Court of Appeals acknowledged the need for meticulous recordkeeping when seeking attorney fees under federal fee-shifting statutes. However, the appellate court did not require district courts to deny attorney fees if the records lacked clarity. Instead, the Tenth Circuit recognized that a district court was “justified in reducing the reasonable number of hours if the attorney’s time records are ‘sloppy and imprecise’ and fail to document adequately how he or she utilized large blocks of time.” (Emphasis added.) 157 F.3d at 1250.
Looking further in this area we note that although the Tenth Circuit has cautioned against block billing in civil rights cases, it has not established a rule mandating reduction or denial of a request for attorney fees if the attorney’s records reflect block billing. Cadena v. Pacesetter Corp., 224 F.3d 1203, 1215 (10th Cir. 2000). In Robinson v. City of Edmond, 160 F.3d 1275, 1284 (10th Cir. 1998). In Robinson, the court recognized that the use of block hilling camouflages the nature of a lawyer’s work and raises suspicions about whether all the work claimed was actually accomplished or was necessary.
The United States Supreme Court has recognized that parties seeking attorney fees should submit evidence supporting the hours worked and the rates claimed. “Where the documentation of hours is inadequate, the district court may reduce the award accordingly.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). In discussing billing records, the Court merely noted that attorneys were not required to record in detail how each minute was spent, but should at least “identify the general subject matter of his time expenditures” to allow determination of whether the time was spent on successful or unsuccessful claims. 461 U.S. at 437 n.12. Granted, Hensley was focused on determining appropriate attorney fees when a prevailing party was only partially successful. Still the Court noted that there is “no precise rule or formula for making determinations” about reduction of attorney fee requests. 461 U.S. at 436. The Court noted that a “district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.” 461 U.S. at 436-37.
Likewise, other courts have recognized the problems with block billing when determining the necessity and reasonableness of attorney fee claims in many contexts. In addressing attorney fee requests when block billing is present, courts tend to apply an across-the-board reduction of the fees, not denial of the fees. See, e.g., H.J. Inc. v. Flygt Corp., 925 F.2d 257, 260 (8th Cir. 1991); Crow v. Penrose-St. Francis Healthcare Sys., 262 P.3d 991, 1000 (Colo. App. 2011); Rosekrans v. Class Harbor Ass’n, Inc., 228 Or. App. 621, 641, 209 P.3d 411 (2009).
In at least one state, the appellate court found it was an abuse of discretion to totally disallow rate case expenses because of less than detailed documentation from the utility. In that case, the New Mexico Supreme Court reasoned that “[w]hen confronted with a questionable estimate of rate case expenses on one hand and irrefutable evidence that a utility has prudently incurred substantial, if unquantified, rate case expenses on the other, the Commission cannot simply deny recovery altogether.” In re Petition of PNM Gas Services, 129 N.M. at 26-27; see Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 892 (9th Cir. 2011).
Thus, to the extent CURB contends the Commission misinterpreted or misapplied the law because it allowed rate case expenses despite inadequate billing invoices by vendors, we remain unconvinced. The Commission has no statute or regulation setting forth how rate case expenses must be proved. When the Commission did request additional documentation from KCP&L through its prehearing officer, the agent did not request billings that accounted for each timekeeper s time for each different task during a single day; in fact, the prehearing officer indicated that level of detail was probably not necessary. Finally, by citing Kansas law pertaining to attorney fee awards in other contexts, CURB has failed to establish that Kansas law prohibits block billing or that KCP&L’s documentation is inadequate as a matter of law. Thus, CURB has failed to establish that the Commission misapplied existing law when considering KCP&L’s submissions and making an across-the-board reduction to the rate case expenses to reach what it considered a reasonable amount.
Conclusion.
Rate cases are truly unique. We wish to raise one additional point in this case, and that concerns the overall rate set by the Commission. At no point in its brief does CURB discuss any evidence regarding the impact of the “improper” amount of rate case expenses on KCP&L’s overall rates charged to Kansas consumers. The Commission’s final decision on overall rates authorized a $21,846,202 revenue increase, which included the subsequently challenged $4.5 million in rate case expenses. By limiting its discussion to the sole issue of rate case expenses allowed, CURB effectively converts this court’s review of the Commission’s overall decision into a single-issue rate-making proceeding.
“The rule against single-issue ratemaking recognizes that the revenue formula is designed to determine the revenue requirement based on the aggregate costs and demands of the utility. Therefore, it would be improper to consider changes to components of the revenue requirement in isolation. Oftentimes a change in one item of the revenue formula is offset by a corresponding change in another component of the formula.” (Emphasis added.) Bus. & Prof. People v. Ill. Com. Comm’n, 146 Ill. 2d 175, 244, 585 N.E.2d 1032 (1991).
CURB fails to explain how an award of rate case expenses over $2.1 million, which was to be amortized over a 4-year period, renders the Commission’s overall determination of KCP&L’s final revenue requirement outside the zone of reasonableness. This court may nullify a Commission order only when the decision is so unreasonable as to be outside the realm of fair debate. Columbus Telephone Co. v. Kansas Corporation Comm’n, 31 Kan. App. 2d 828, 836, 75 P.3d 257 (2003); Western Resources, Inc. v. Kansas Corporation Comm’n, 30 Kan. App. 2d 348, 352, 42 P.2d 162, rev. denied 274 Kan. 1119 (2002).
Basic calculations establish that die Commission’s order allowed $1.1 million more in rate case expenses than supported by CURB’S expert witness. This amount, amortized over 4 years, accounts for approximately $275,000 — or 1.25 percent — of KCP&L’s rate increase. The Commission’s final decision authorized a $21,846,202 revenue increase. This increase was determined necessary to give KCP&L the opportunity to earn income to meet its determined revenue requirement of $149,121,865. Therefore, even if the Commission acted improperly with respect to its determination of rate case expenses, CURB has failed to establish that any error carried the Commission’s overall rate determination outside the zone of reasonableness for its rates.
We affirm the Commission’s order in all respects. | [
-112,
-24,
-11,
108,
-116,
-32,
24,
-110,
105,
-78,
-9,
83,
-19,
-56,
-112,
57,
-46,
125,
-12,
106,
65,
-77,
7,
-64,
-106,
-71,
-15,
-59,
-79,
95,
116,
-121,
72,
96,
-54,
21,
-122,
66,
93,
-36,
-82,
-115,
-53,
-64,
-55,
-62,
-76,
72,
22,
3,
49,
-83,
119,
40,
24,
99,
77,
60,
-7,
41,
-125,
-6,
-22,
-105,
94,
20,
0,
4,
24,
-61,
-36,
15,
-112,
-71,
40,
-24,
115,
-90,
-122,
124,
13,
-103,
76,
-90,
98,
36,
0,
-89,
-18,
-88,
22,
-37,
31,
36,
-109,
24,
98,
7,
-106,
30,
116,
6,
7,
126,
-10,
5,
95,
108,
-125,
-126,
-120,
-13,
79,
117,
-102,
3,
-17,
-122,
32,
101,
-51,
-30,
94,
-57,
50,
-37,
14,
-71
] |
Malone, J.:
Victor and Nancy Bames appeal the district court’s judgment in favor of the Board of County Commissioners of Cowley County (Board). The Bames own real property in Cowley County and they allegedly failed to comply with Cowley County Resolution 2005-01 (the Resolution) regarding abatement of a nuisance on the property. County employees ultimately cleaned up the property and billed the Bames for the costs pursuant to the procedures set forth in the Resolution. The Bames refused to pay the bill, and the costs were levied as a tax lien against the property, also pursuant to the Resolution. The Bames claim the Board had no statutory authority to take these steps in order to enforce the Resolution. This case examines the statutory methods available to a county government in order to enforce resolutions passed under the County Home Rule Act. Because we conclude that the Board exceeded its statutory authority by enacting the Resolution’s self-help and abatement remedy provisions, we reverse the district court’s judgment in favor of the Board.
We will set forth the facts in greater detail. The Bames own 14 acres of vacant land in rural Cowley County which had been used by their son, Greg Barnes, as a course for paintball players. In 2005, the Barnes moved to Pennsylvania to commence a 1-year mission with their church. Also in 2005, Greg Bames was deployed to Iraq as a member of the Kansas National Guard leaving no family member to oversee the property. In August 2005, five Cowley County residents filed a petition with the Board, pursuant to the Resolution, alleging that the land presented a nuisance. Jim McGuire, a county environmental technician, inspected the land and agreed that it contained dangerous structures, an open basement, and miscellaneous debris that created a nuisance. McGuire mailed a formal complaint to the Bames informing them that they could either file an answer or appear in person at a hearing before the Board, but the Bames did neither.
At the hearing, the Board found that the property did not comply with the Resolution and issued a written order, dated January 17, 2006, which stated that the Barnes must “commence” within 30 days:
“(1) to either repair, alter, clean-up or improve structures to render the structure fit for human use or habitation; to vacate and close the structure until conformance with thee [sic] regulations are met; or to remove or demolish such structure; [and]
“(2) to abate or remove the accumulation of materials creating a nuisance on the property
The written order further notified the Barnes that failure to “commence [clean-up] within the time stated” or “diligently prosecute the same until the work is completed” would carry consequences, stating:
“[T]he Board of County Commissioners does hereby authorize and direct county staff to undertake efforts using county personnel or private contractors to bring said property into compliance. Further, the amount of the cost of removal or demolition of a structure or the removal or abatement of accumulation of materials creating a nuisance on a lot or parcel of land by the County and the cost of providing notice, including postage, shall be a lien against the real property upon which such cost was incurred and such lien, including as part thereof allowance of all costs and necessary attorney fees, may be foreclosed injudicial proceedings in the manner provided or authorized by law for loans secured by liens on real property, or shall be assessed as a special assessment against the lot or parcel of land on which the structure or the accumulation of materials creating a nuisance was located, and the County Clerk shall at the time of certifying other taxes, certify the unpaid portion of the aforesaid costs and shall extend the same on the tax rolls of the County against said lot or parcel of land.”
Victor Barnes claimed that he received the written order in early February 2006 and subsequently informed McGuire that he would hire someone to perform the cleanup when he returned to Kansas in early April. Victor also claimed that McGuire told him the Board would not take any remedial action as long as cleanup work was progressing. But on March 14, 2006, William A. Taylor, III, the Cowley County Counselor, sent a letter to the Barnes stating that they must comply with the Board’s written order within 21 days or county employees would complete the work and bill the Barnes for the costs. The letter further stated that if the Barnes did not pay the bill, the costs would be levied as a tax lien against the property.
In early April 2006, the Barnes returned to Kansas and hired Jacob Henderson, owner and operator of Ranger Tree Service, to perform the cleanup work. Henderson estimated the entire cleanup would cost $5,000. Henderson obtained a deposit from the Barnes and claimed he spent over 58 hours razing a bam and shed, tearing down an old brick house and piling the bricks, filling a basement and well, disposing of tires and appliances, and cleaning up dead trees and branches. Due to heavy rains and personal illness, Henderson was unable to complete the cleanup. He claimed that when he later returned to the property to complete the cleanup, county employees were already at work on the property and Taylor instmcted him by phone not to finish the project.
County employees cleaned up the property from May 30 to June 5, 2006. During that time, tire county employees removed a porch, a shed, a 3-foot brick wall, the foundation of the barn, and the chimney base of the barn; filled in a basement and broke and filled in two cisterns; removed a pickup topper filled with canned food; removed 194 tires and trees that had grown around them; removed various debris including metal barrels, fencing, barbed wire, and parts of appliances; and mowed the high weeds and brush. The Board billed the Barnes $11,740.75 for the work, and when the Barnes did not pay the bill, the costs were levied as a tax lien against the property.
On March 27, 2007, the Barnes filed a petition in district court, seeking an injunction to prevent the Board from enforcing the tax lien or otherwise attempting to collect the debt. Highly summarized, the petition claimed: (1) The Board acted without statutory authority when it completed the work and levied the claimed costs against the property; (2) the Resolution was void and unenforceable because it contradicted Kansas nuisance abatement statutes; and (3) the Board violated the Barnes’ due process and equal protection rights. The Board responded that the district court did not have subject matter jurisdiction because the Barnes had failed to appeal the Board’s actions within 30 days of the January 17, 2006, cleanup order.
On June 12, 2007, the Board filed a motion to dismiss the petition on jurisdictional grounds. Alternatively, the Board argued that the petition failed to state a claim upon which relief could be granted because the Resolution was not illegal or unconstitutional. The Barnes filed a response to tire motion to dismiss, and they also filed a motion for judgment on the pleadings. The district court construed both pleadings as cross-motions for summary judgment. On October 15, 2007, the district court filed a memorandum decision in favor of the Board. The district court found that it lacked subject matter jurisdiction because the Barnes had failed to appeal the Board’s actions within 30 days of the January 17, 2006, cleanup order. In the alternative, tire district court reached the merits of the claims and found that the Board’s actions were authorized under the county home rule powers and that the Board did not violate the Barnes’s constitutional rights in the manner that tire Resolution’s nuisance provisions were enforced.
On appeal, this court initially agreed that the district court lacked subject matter jurisdiction and dismissed the appeal without ad dressing the merits of the claims. Barnes v. Board of Cowley County Comm’rs, No. 99,609, 2009 WL 929117, at *2 (Kan. App. 2009) (unpublished opinion), off d in part, rev’d in part, and remanded with directions 293 Kan. 11, 259 P.3d 725 (2011). On a petition for review, our Supreme Court examined only the jurisdictional question and determined that the district court had jurisdiction over some but not all of the Barnes' claims. Barnes, 293 Kan. at 21-28. After an extensive analysis, our Supreme Court determined there were two surviving claims:
“In summary, we hold the property owners satisfied the jurisdictional burdens under K.S.A. 60-907(a) on the following issues: (1) the County exceeded its statutory authority in violation of the County Home Rule Act when the Board enacted the Resolution’s self-help and abatement remedy provisions; and (2) Resolution 2005-01 was unconstitutional as apphed, and the County engaged in arbitra^ and capricious conduct as noted above.” 293 Kan. at 28.
Accordingly, our Supreme Court remanded the case to this court to determine whether the district court erred in its decisions on the merits as to these issues. 293 Kan. at 28.
We will first address whether the Board exceeded its statutory authority under the County Home Rule Act by enacting the Resolution’s self-help and abatement remedy provisions. The Barnes argue that the Board exceeded its statutory authority by enacting the Resolution which authorized the Board to clean up the property and levy a tax lien to recover the costs. The Barnes note that the power of cities and municipalities to utilize self-help to abate nuisances does not vest by their home rule powers, but rather by specific enabling legislation. See K.S.A. 2011 Supp. 12-1617e. But as the Barnes point out, there is no corresponding legislation enabling counties to utilize self-help to abate nuisances. The Board replies that it did not exceed its statutory authority by enacting the Resolution or by enforcing it through seif-help and abatement procedures.
The Barnes appeal from the district court’s denial of their motion for judgment on the pleadings. When, as here, matters outside the pleadings are presented to the district court with a motion for judgment on the pleadings and the district court does not exclude the outside matters, the motion shall be treated as one for summary judgment. See K.S.A. 60-212(c). Where there is no factual dispute, appellate review of an order regarding summary judgment is de novo. Kluxhausen v. Tillman Partners, 291 Kan. 314, 318, 241 P.3d 75 (2010). Moreover, to the extent that this issue involves statutory interpretation, this court exercises unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
The County Home Rule Act (Act), K.S.A. 19-101 et seq., empowers a county to perform certain actions, including “to exercise the powers of home rule to determine their local affairs and government authorized under the provisions of K.S.A. 19-101a.” K.S.A. 19-101 fifth. The Act authorizes the board of county commissioners for a county to “transact all county business and perform all powers of local legislation and administration it deems appropriate,” subject to enumerated restrictions, by resolution of the Board. See K.S.A. 19-101a. K.S.A. 19-101d provides for enforcement of such resolutions, and states, in pertinent part:
“(a)(1) The board of county commissioners of any county shall have the power to enforce all resolutions passed pursuant to county home rule powers, as designated by K.S.A. 19-lOlc, and amendments thereto. Resolutions may be enforced by enjoining violations, by prescribing penalties for violations by fine, by confinement in the county jail or by both fine and confinement. Unless otherwise provided by the resolution that defines and makes punishable the violation of such resolution, the penalty imposed shall be in accordance with the penalties established by law for conviction of a class C misdemeanor. In no event shall the penalty imposed for the violation of a resolution exceed the penalties established by law for conviction of a class B misdemeanor.” (Emphasis added.)
K.S.A. 19-101d(a)(2) provides that prosecution for any violation of a county resolution shall be commenced in the district court in the name of the county. K.S.A. 19-101d(b) provides that the prosecution may be conducted in accordance with the provisions of the code for the enforcement of county codes and resolutions. See K.S.A. 19-4701 et seq.
Under the authority of the Act, the Board passed the Resolution, which stated that it was in the interest of the health, safety, or general welfare of the residents of Cowley County to enact regulations designed to clean up areas of the county that were unfit for human use, constituted a nuisance, or were otherwise a danger to people in Cowley County. Section 6 of the Resolution provided the procedure for enforcement, including initiation of the process; serving a complaint upon the owner, which contains notice of a hearing; timing for the hearing; the owner s right to give testimony; the Board’s obligations to issue a written order if it finds the structure is unfit for human use or habitation or finds that a piece of land constitutes a nuisance; and requirements for any subsequent order to repair, alter, clean-up, or otherwise improve the property. Section 6 further stated:
“e. If the owner fails to comply with an order to repair, alter or improve; to vacate and close; or to remove or demolish a structure, the Board may cause such structure to be removed or demolished. If the owner fails to comply with an order to abate or remove the accumulation of materials creating a nuisance on a lot or parcel of land, die Board may cause the same to be removed or abated.
“f. That the amount of die cost of removal or demolition of a structure or die removal or abatement of accumulation of materials creating a nuisance on a lot or parcel of land by die Board and the cost of providing notice, including postage, shall be a lien against the real property upon which such cost was incurred and such lien, including as part thereof allowance of all costs and necessary attorney fees, may be foreclosed in judicial proceedings in the manner provided or audiorized by law for loans secured by liens on real property, or shall be assessed as a special assessment against the lot or parcel of land on which the structure or the accumulation of materials creating a nuisance was located, and die County Clerk shall at the time of certifying other taxes, certify the unpaid portion of the aforesaid costs and shall extend the same on the tax rolls of the County against said lot or parcel of land.”
On remand, this court is to consider whether the Board exceeded its statutory authority in violation of the Act by enacting the Resolution’s self-help and abatement remedy provisions. Barnes, 293 Kan. at 28. As stated above, K.S.A. 19-101d(a)(l) explicitly provides: “Resolutions may be enforced by enjoining violations, by prescribing penalties for violations by fine, by confinement in the county jail or by both fine and confinement.” (Emphasis added.) The Bames argue that under the plain language of the statute, when a county resolution is violated, the resolution may be enforced only by enjoining the violation, or by imposing a fine or confinement in jail, or by imposing both a fine and confinement. Conversely, the Board argues that the use of the word “may” in the statute means that the remedies listed are not exclu sive and that alternate enforcement mechanisms may be used. See K.S.A. 19-101d(a)(l).
The district court accepted the Board’s argument, finding that “injunctive relief and/or criminal prosecutions are not the exclusive ways that home rule resolutions can be enforced. The statute uses the term ‘may’ and not ‘shall.’ ” This court must now determine whether K.S.A. 19-101d provides the exclusive remedies for enforcement of county resolutions. If the statute provides the exclusive remedies, the Resolution’s remedy provisions exceed the authority of the Act because the only statutorily authorized remedies are injunction, fine, confinement, or both fine and confinement; whereas the Resolution authorizes abatement and subsequent recoupment of costs when a property owner violates the provisions of the Resolution and fails to properly correct the situation.
The parties do not cite any Kansas cases interpreting K.S.A. 19-lOld, and our research has found only one case in which a Kansas appellate court has addressed the language of this statute. In that case, our Supreme Court, during a brief overview of the Act, stated: “K.S.A. 19-101d grants the power to a county board to enforce all resolutions passed pursuant to county home rule powers, either by injunction or by prescribing penalties for violations by fines or by confinement in the county jail.” Board of Sedgwick County Comm'rs v. Noone, 235 Kan. 777, 780-81, 682 P.2d 1303 (1984). The court in Noone did not analyze whether the statute provided the exclusive remedies for the enforcement of county resolutions, but we know generally that the legislature intended the Act to be liberally construed. K.S.A. 19-101c provides: “The powers granted counties pursuant to this act shall be referred to as county home rule powers and they shall be liberally construed for the purpose of giving to counties the largest measure of self-government.”
Resolution of this issue requires interpretation of K.S.A. 19-lOld. The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). The first step is to decide whether the legislature’s intent may be determined from the statute’s plain language, giving ordinary words their ordinary meaning. If the legis lature’s intent is not clear from the statutory language, a court moves to the second step by applying the canons of construction or examining legislative history. Brennan v. Kansas Insurance Guaranty Ass’n, 293 Kan. 446, 450, 264 P.3d 102 (2011).
Although the legislature intended the Act to be liberally construed, when a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009). Applying the plain language of K.S.A. 19-101d(a)(l), we are not persuaded by the Board’s argument that the use of the word “may” rather than “shall” makes the list of remedies set forth in the statute nonexclusive. The word “may” appears to be related to the enforcement, not the methods of doing so; in other words, a county may or may not choose to enforce its resolutions, but if it chooses to enforce them, the methods of doing so are restricted to injunction, fine, confinement in jail, or both fine and confinement. But in the event the legislature’s intent is not clear from the statutory language, we will also consider canons of statutory construction and legislative history to interpret the statute’s meaning. See Brennan, 293 Kan. at 450.
When construing statutes to determine legislative intent that is not ascertainable from the plain language, appellate courts may apply the maxim, expressio unius est exclusio alterius, i.e., the inclusion of one thing implies the exclusion of another. Applying this maxim, courts may presume that when the legislature expressly includes specific items in a statutory list, it intends to exclude any items not expressly included in that list. See In re Tax Application of Lietz Constr. Co., 273 Kan. 890, 911, 47 P.3d 1275 (2002).
Here, the legislature expressly provided that resolutions passed under the authority of the Act could be enforced either by enjoining the violation, or by imposing a fine or confinement in jail, or by imposing both a fine and confinement. The fact that the statute contains such a list may be interpreted as showing legislative intent to exclude other methods of enforcement unless the legislature makes clear that the list is nonexclusive. For example, K.S.A. 2011 Supp. 72-1397(c) covers restrictions on issuing and renewing teaching licenses and provides that the state board of education “may consider factors including, but not limited to, the following . . . (Emphasis added.) But K.S.A. 19-101d(a)(l) includes no such language; thus, there is no clear indication that the legislature meant the list of remedies to be nonexclusive. The legal maxim expressio unius est exclusio alterius supports the Barnes’ contention that K.S.A. 19-101d(a)(l) provides the exclusive remedies for the enforcement of county resolutions.
The Barnes’ position becomes even more persuasive when considered in light of the legislative history of K.S.A. 19-101d(a)(l). As originally enacted in 1976, the pertinent part of this statute read:
“The board of county commissioners shall have the power to enforce all resolutions passed pursuant to county home rule powers, as designated by K.S.A. 19-101c, by prescribing penalties for violations of such resolutions, either by fine, or by confinement in the county jail, or by both such fine and confinement." (Emphasis added.) L. 1976, ch. 149, sec. 1.
Later in the legislative session, the statute was amended to read:
“The board of county commissioners shall have the power to enforce all resolutions passed pursuant to county home rule powers, as designated by K.S.A. 19-101c. Such resolutions may be enforced by enjoining violations thereof or by prescribing penalties for violations of such resolutions, either by fine, or by confinement in the county jail, or by both such fine and confinement.” (Emphasis added.) L. 1976, ch. 150, sec. 1.
This amendment gives the board of county commissioners the authority to enforce county resolutions by enjoining violations thereof in addition to the options of fine and confinement in jail. When the legislature revises an existing law, the court presumes that the legislature intended to change the law as it existed prior to the amendment. Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs, 290 Kan. 446, 464, 228 P.3d 403 (2010). Thus, we may presume that the amendment that added the power of injunctive relief was required because the statute originally did not provide the county with that power. If the enforcement methods originally were not limited to fine or confinement in jail, there would have been no need to add authority for injunctive relief. In other words, if the original list of remedies had been nonexclusive, the explicit addition of another remedy would have been unnec essary and the revision would not have changed the law as it existed prior to the amendment.
The Board, on the other hand, points to the legislative history to support its contention that it acted within its statutory authority when it passed the self-help and abatement provisions. As the Board points out, when the county home rule legislation was originally passed in 1974, there were no provisions limiting methods of enforcement of resolutions. See L. 1974, ch. 110, secs. 1-6. The hmiting provisions were added 2 years later and were codified at K.S.A. 19-101d; see L. 1976, ch. 150, sec. 1. The Board’s interpretation of this history is that enforcement methods were unlimited at first and, when the enforcement provisions were added, they were intended to restrict home rule enforcement only when criminal sanctions were chosen as the enforcement mechanism. But the 1976 amendments to the statute also included injunctive relief as a method of enforcing county resolutions, and the Board does not explain how the addition of die power of injunction translates to a restriction on enforcement through criminal sanctions. We find the Board’s interpretation of the legislative history unpersuasive; instead, we find the legislative history supports the Barnes’ contention that the self-help and abatement remedy provisions enacted by the Board exceeded the statutory authority under the Act.
The Board also argues that the Barnes’ contention is foreclosed by the Kansas Supreme Court’s recent analysis and holding in General Building Contr., LLC v. Board of Shawnee County Comm’rs, 275 Kan. 525, 66 P.3d 873 (2003). In this case, the Board of County Commissioners of Shawnee County, at the request of a local economic development specialist, authorized the county counselor’s office to begin eminent domain proceedings to obtain three parcels of land needed to complete an industrial development project in Topeka. Invoking its powers under the Act, Shawnee County filed a petition for eminent domain in the district court to obtain the real property owned by three different landowners. After hearing testimony and argument, the district court found that Shawnee County’s eminent domain proceedings were authorized under its home rule powers, when K.S.A. 19-101, K.S.A. 19-301 etseq., and K.S.A. 19-4101 et seq. were considered together.
On appeal, the issue was whether counties have the power of eminent domain where there is no express grant of such power to counties by the legislature. By analogy, the landowners argued that because cities in Kansas have home rule powers but also have a specific statute granting them the power of eminent domain, the court could not assume that “the legislature intended to give counties the power of eminent domain through the county home rule statute alone.” 275 Kan. at 533. Our Supreme Court rejected the landowners’ argument and held that the existence of a specific statute giving cities the power of eminent domain does not mean that counties lack such power, even where there are no statutes expressly giving eminent domain powers to counties. See 275 Kan. at 534-36.
General Building Contr. is distinguishable from the facts herein. In that case, our Supreme Court examined whether a county’s use of the power of eminent domain was expressly prohibited or restricted by K.S.A. 19-101a and found that it was not. 275 Kan. at 534. Thus, the court determined that counties may initiate eminent domain proceedings under their home rule powers. 275 Kan. at 536. As applied to the facts herein, General Building Contr. supports the idea that counties have the power to regulate nuisances despite the lack of specific statutes granting such power to counties. But K.S.A. 19-101d expressly governs the enforcement of any such nuisance regulations passed by a county under the Act. Our Supreme Court did not address K.S.A. 19-101d in General Building Contr., and the case does not support the Board’s argument that the remedies set forth in that statute for the enforcement of county resolutions are nonexclusive.
As the Barnes point out, the power of cities and municipalities to utilize self-help to abate nuisances does not vest by their home rule powers, but rather by specific enabling legislation. See K.S.A. 2011 Supp. 12-1617e. But there is no corresponding legislation enabling counties to utilize self-help to abate nuisances. Counties are granted broad authority under their home rule powers to transact county business and govern their local affairs by resolution of the board of county commissioners. K.S.A. 19-101a. However, the only statutory authority for a county to enforce its resolutions is K.S.A. 19-101d. This statute provides no authority for self-help remedies.
In summary, we recognize that the Act “shall be liberally construed for the purpose of giving to counties the largest measure of self-government.” K.S.A. 19-101c. There is nothing in K.S.A. 19-101a that prohibits or restricts a county from exercising its home rule powers to regulate nuisances and provide for the health, safety, or general welfare of the county residents. But K.S.A. 19-101d provides the exclusive methods of enforcing county resolutions passed under the Act. The remedies available to the county are restricted to injunction, fine, confinement in jail, or both fine and confinement. The procedures by which Cowley County cleaned up and abated the nuisance on the Barnes’ property were not authorized by K.S.A. 19-101d and exceeded the authority granted by the Act. We conclude the district court erred in finding that the procedures were so authorized and in granting summary judgment in favor of the Board. Instead, the district court should have granted the Barnes’ motion for judgment on the pleadings on their claim that the Board acted without statutory authority by enacting the Resolution’s self-help and abatement remedy provisions. Because this finding is dispositive, we will not address the remaining issue of whether the Resolution was unconstitutional as applied based on the Board’s alleged arbitrary and capricious conduct.
Reversed. | [
-76,
-20,
-35,
92,
43,
-64,
24,
-83,
75,
-79,
-25,
87,
-81,
-21,
29,
99,
-80,
61,
81,
121,
-63,
-73,
123,
66,
-90,
-77,
-43,
85,
-80,
79,
-42,
-58,
72,
53,
-54,
-11,
6,
-64,
-115,
-36,
-122,
5,
11,
81,
-47,
67,
60,
-17,
22,
15,
21,
-97,
-78,
-82,
16,
-61,
73,
44,
89,
-83,
65,
-13,
-66,
20,
95,
5,
33,
-11,
-118,
-123,
72,
106,
-112,
49,
-128,
-24,
115,
54,
-106,
52,
79,
-39,
-88,
102,
67,
3,
-84,
-49,
-8,
-71,
46,
122,
-101,
38,
-110,
24,
98,
8,
-66,
21,
116,
18,
70,
-6,
-25,
5,
31,
104,
-98,
-50,
-76,
-107,
15,
-80,
0,
3,
-17,
71,
48,
113,
-49,
-26,
126,
-25,
81,
-101,
-114,
-39
] |
The opinion of the court was delivered by
Johnston, J.:
The appellant was charged with assaulting and wounding John Eddy Swartz with a deadly weapon, with the malicious intent to kill him. The information as drawn was intended to charge an offense under section .38 of the crimes act (Gen. Stat. 1897, ch. 100, § 39, Gen. Stat. 1889, ¶ 2159), which included offenses under other sections of the statute and of lower degrees. Conviction followed a trial, and the verdict of the jury simply found “the defendant guilty of an assault with intent to kill, as set forth in the information.” Motions for a new trial and’in arrest of judgment were overruled, and the judgment pronounced by the court was confinement in the penitentiary at hard labor for a term of ten years. He appeals from this conviction, and the state raises a question as to the sufficiency of the appeal, claiming that it was not taken in due time. The judgment was rendered on December 24, 1896, and the transcript of the record was delivered to and received by the clerk of the supreme court on August 4, 1898. A question having arisen between the clerk and the appellant as to the payment of the required docket fee, the case was not docketed, nor was an indorsement of the filing made upon the transcript. , It was received and retained, however, by the clerk, and subsequently, when the docket fee was paid, an entry of that fact was made, and the transcript was indorsed, “Filed as of date August 4, 1898.“ The entry and indorsement were made on January 12, 1899,- more than two years after the judgment was rendered.
An appeal must be taken within two years after judgment is rendered and it is not perfected until the transcript of the case is filed in the court. It is also essential that the transcript be filed within thirty days after the appeal is taken. (Gen. Stat. 1897, ch. 83, § 31; Gen. Stat. 1889, ¶ 5346.) If the appeal was completed when the transcript was delivered to and accepted by the clerk, it is in good time. On the other hand, if the indorsement of filing on the transcript is to be regarded as the completion of the appeal, it was too late and without avail. It is important, therefore, to determine what constitutes the filing of the transcript within the meaning of the statute. We think it is something more than placing file marks or an indorsement upon the transcript. In Wilkinson v. Elliott, 43 Kan. 590, 23 Pac. 614, it was held that the placing of a paper in the custody of the clerk, to be kept on file, subject to inspection by all interested parties, was a sufficient filing. In Rathburn v. Hamilton, 53 Kan. 470, 37 Pac. 20, it was remarked : “A paper is said to be filed when it is delivered to the proper ofv fleer and by him received to be kept on file. The mere indorsement upon the paper of the time of filing it by the county clerk is not an essential act of filing. It is a mere memorandum of the time of filing and ..not the filing itself.” See also 1 Bouv. Law Dict. 782.
Ordinarily, we look to the indorsement to ascertain when a paper or document is filed, but it is not.the only evidence of the filing. The docket fee required by the rules of the court should have been paid, and the clerk might have refused to have received the transcript until the fee was paid. Instead of that, he took the transcript into his custody and retained it among the records of the court. It was delivered, to the clerk with a view of completing the appeal, and was received and kept by him as a permanent record of' the court. Under the authorities, this must be deemed to be a sufficient filing and a valid completion of the appeal.
The first contention on the merits is that the verdict is insufficient to sustain the judgment. There are several degrees of the offense charged against the appellant, and the verdict fails to show the degree rof which he is convicted. Under the ruling in The State v. O’Shea, 59 Kan. 593, 53 Pac. 876, and the cases cited, this is a fatal error which compels a reversal of the judgment. On behalf of the appellant, it is sug* gested that the case should be sent back for a correó! tion of the sentence, and not for a new trial. He-claims that the verdict is sufficiently specific to .warrant a sentence for a misdemeanor, under section 41, chapter 100, General Statutes of 1897 (Gen. Stat. 1889, ¶ 2164), and asks that the case be remanded, for that purpose. The fault of the verdict is that it does not specify the degree of the offense of which they found the appellant guilty. The charge, as we 'have seen, embraced several degrees or offenses, and the verdict merely found him guilty as charged. Under section 239, chapter 102, General Statutes of 1897 (Gen. Stat. 1889, ¶ 5307), the jury are expressly required in such cases to specify in their verdict of what degree of the offense they find the defendant guilty. From the terms of the verdict in the present case, we cannot say that the jury intended to specify any particular degree or to find the defendant guilty of a misdemeanor. Failing in this respect, the verdict is fatally defective and. the court should have declined to receive it.
We are asked to consider the rulings of the court in giving and refusing instructions. The record includes the charge of the court, as well as the instructions which were asked by the defendant and refused by the court, but as the record contains none of the evidence or any statement of what the testimony tended to prove, the errors assigned are not available. These •rulings might have been reviewed if the testimony, or portions of it, or a statement of what the testimony tended to prove, had been saved in the bill of exceptions.
Three futile attempts were made by the appellant to have bills of exceptions, containing more or less of the testimony, allowed and signed by the trial judge. The judge refused to allow and sign them because they did not contain all the evidence given at the trial, nor all of the evidence upon the material issues in the case ; and further, that they did not contain the •statement of defendant’s counsel outlining his defense to the jury. The judge insisted, if the evidence was to be taken up, that a full transcript of the stenographer’s notes should be prepared and presented to him, and that the stenographer was ready to furnish a transcript of his notes upon the payment by the defendant of the legal fees of the stenographer. The appellant, who was unable to pay the fees for a complete transcript, prepared a summary of the testimony in one bill, with a view of raising a question upon the instructions. Another bill contained a fuller recital of the testimony ; and another appears to be quite a full report of the testimony of all the witnesses. The court, however, declined to sign any'of them, stating that the press of official business made it impossible for him to compare the statements of evidence in the bills of exceptions with the. stenographic notes, or otherwise determine whether they contained a true statement of the evidence purported to be set out. None of the reasons given appears to us to be sufficient grounds for the refusal of the judge to allow and sign the exceptions-No duty is more. imperative and important than the consideration and allowance of exceptions prepared and presented by a litigant, and no good reason is seen why other official business should have precedence over the duty mentioned. The other duties, however pressing, should not be allowed to prevent the consideration of exceptions prepared and presented in behalf of one who has been convicted of a felony and condemned to imprisonment at hard labor.
The objection that a complete transcript of the testimony was not presented is not good'. The law does not require any more of the testimony than is necessary to explain and fairly to present the exception. (Gen. Stat. 1897, ch. 95, § 311; Gen. Stat. 1889, ¶ 4396.) In most cases a full transcript of the testimony is a needless waste of time and money. A brief and explicit statement of what is proved or offered to be proved is better practice in most cases than a re cital of the evidence in extenso. In the absence of all the testimony, the appellant would not be entitled to have a determination of the question whether the testimony sustained the verdict; but rulings on the admission of testimony and upon the instructions given and refused may be made without a recital of all the testimony. The records of the court are frequently extended and unnecessarily encumbered by a verbatim report of all the questions and answers, including objections and rulings, upon which no point is made. The substance of the testimony is generally sufficient, and this carries out the theory of the code that so much of the evidence as is necessary to explain the point shall be given and no more, “ and the whole as briefly as possible.” (Gen. Stat. 1897, ch. 95, § 311; Gen. Stat. 1889, ¶ 4396.) The trial judge was not required to determine whether the exceptions presented contained all of the testimony, but only whether that presented was true. What questions are raised and can be considered on the exceptions preserved is for'.the reviewing court to decide.
. The judgment of the district court will be reversed and the cause remanded for another trial. | [
-16,
122,
-99,
-98,
42,
96,
34,
-72,
64,
-121,
-78,
83,
47,
-61,
21,
105,
91,
47,
84,
105,
78,
-73,
54,
-29,
-94,
-77,
114,
-43,
51,
-52,
-12,
-4,
76,
112,
-62,
117,
102,
72,
73,
86,
-114,
-121,
-87,
108,
115,
96,
56,
56,
124,
14,
49,
126,
-29,
42,
22,
-41,
105,
40,
-54,
-65,
-48,
-79,
-126,
-115,
-3,
22,
-77,
39,
-100,
-113,
88,
60,
-104,
53,
2,
-20,
115,
-124,
-122,
-44,
111,
-103,
44,
98,
35,
32,
69,
111,
104,
-120,
46,
126,
-99,
-89,
25,
65,
75,
36,
-100,
-99,
39,
48,
-89,
118,
-19,
85,
24,
108,
1,
-45,
-48,
-77,
-49,
116,
22,
90,
-61,
-91,
48,
97,
-51,
-94,
92,
71,
115,
-101,
-98,
-80
] |
The opinion of the court was delivered by
Johnston, J. :
Clifford C. Baker was a stockholder in the Topeka Commercial Security Company, a Kansas corporation, against which Mary H. Pierce obtained a judgment for $2428.29. After the return of an execution unsatisfied she instituted a proceeding against Baker to enforce his statutory liability on the stock held by him in the corporation, and therein it was made to appear that Baker had paid the full face value of the stock held by him, and also that he had bona fide judgments and claims against the coxporation which greatly exceeded the amount of the stock-owned by him ; and further, that these claims and demands accrued when the corporation was a going concern, and prior to the bringing of the action in which Mary H. Pierce obtained her judgment. The txúal coxxrt held that Baker was entitled to set off against the statutory liability the debts owixxg to him from the corporation, and the motion for execution against him was denied.
The single question presented on this review is : May a stockholder in a Kansas corporation, who has paid the full face value of his stock, when proceeded against by motion for an order that execution issue against him, show, by way of set-off or defense, or in diminution or extinguishment of his liability as sxxch stockholder, that the corporation is indebted to him upon bona fide claims and demands which accrued before he became liable as such stockholder? It is strongly contended that the claims of the stockholder against the corporation do not constitute a legal set-off, because of a want of mxxtuality between the parties to the action. The claim of the stockholder is not,a set-off in its technical legal sense, but it is an equitable defense which he is entitled to make. . When he becomes a bond fide creditor of the corporation he is clothed with the same equity as contract creditors. Under our code the distinction between actions at law and suits in equity no longer exists, and it specifically provides that ££the defendant may set forth in his answer as many groxxnds of defense, countex’-claixns, set-off, and for relief, as he may have, whether they be such as have been heretofore denominated legal or equitable, or both.” (Gen. Stat. 1889, ¶ 4177; Gen. Stat. 1897, ch. 95, § 94.)
In Abbey v. Long, 44 Kan. 688, 24 Pac. 1111, the right of a stockholder to make the defense of an equitable set-off was recognized. It was held that, where a creditor was proceeding by motion under the statute for an execution against a stockholder, the latter was entitled to set off against his liability any amount voluntarily paid by him in good faith of the just debts of the corporation. If a stockholder may set off voluntary payments made by him of the debts of the corporation in diminution or bar of a recovery against him, there is no good reason or authority why he may not also set-off in like manner the indebtedness due from the corporation to him. In Musgrave v. Glen Elder Association, 5 Kan. App. 393, 49 Pac. 338, the court of appeals had this identical question under consideration, and, after an extended review of the authorities, held that “where the stockholder against whom proceedings are had to enforce payment of a'stock liability is himself a creditor of the insolvent corporation, he will be allowed in equity to plead the indebtedness of the corporation to himself as a set-off against his liability to other creditors.” On a petition to certify that case to this court for review, the subject was considered by us, and having concluded that the court of appeals had reached a correct conclusion, the petition was denied. The view taken is based largely on the nature of the liability sought to be enforced and the character of the proceeding brought to enforce the same. ■
Under our statute the liability imposed on stockholders is personal and several, and any creditor may institute an independent action against any stockholder for the enforcement of corporate debts. (Abbey v. Dry-goods Co., 44 Kan. 415, 24 Pac. 426; National Bank v. Magnuson, 57 id. 573, 47 Pac. 518; Cottrell v. Manlove, 58 id. 405, 49 Pac. 519.) Where the stat ute creates a liability against stockholders which is personal and several, and actionable by any creditor against any stockholder, it is generally held that a stockholder may in such a proceeding brought against himself set off debts due to him from the company. (Beach, Priv. Corp., § 727; Taylor, Priv. Corp., §§ 731, 732; 2 Morawetz, Corp., §§ 861, 862; 1 Cook, Stock and Stockholders, § 225c.) As tending to support the view that a set-off is generally available in an action - by a creditor against a stockholder, we cite the following cases: Mathez v. Neidig, 72 N. Y. 100; Wheeler v. Millar, 90 N. Y. 354; E. C. Hood v. Abraham, French & Co., 37 Fla. 117, 19 South. 165; Jermans v. Benton, 79 Mo. 148; Coquard v. Prendegast, 35 Mo. App. 237; Savings Bank v. Butchers’ & Drovers’ Bank, 130 Mo. 155, 31 S. W. 761; Boyd & Son v. Hall et al., 56 Ga. 563.
The order of the district court denying the motion will be affirmed. | [
-14,
122,
-40,
-98,
26,
96,
42,
-102,
112,
-60,
-89,
83,
-23,
-26,
5,
109,
-63,
125,
83,
120,
-73,
-93,
3,
-71,
-42,
-45,
-39,
-35,
-70,
-49,
101,
94,
-51,
48,
10,
-41,
-26,
-110,
77,
28,
78,
-124,
58,
64,
-7,
32,
48,
59,
20,
73,
81,
-33,
-13,
32,
27,
-49,
77,
42,
43,
125,
-47,
-7,
-70,
13,
127,
21,
49,
36,
-100,
103,
-48,
38,
-40,
56,
41,
-23,
90,
-74,
-58,
116,
45,
57,
-116,
66,
98,
1,
1,
-29,
30,
-72,
46,
-9,
15,
-89,
-108,
88,
1,
73,
-76,
-98,
102,
4,
-122,
124,
-22,
21,
30,
109,
3,
-49,
-42,
-109,
-51,
118,
-98,
-121,
-17,
-105,
16,
96,
-50,
-94,
92,
7,
122,
27,
-49,
-66
] |
The opinion of the court was delivered by
Doster, C. J. :
This \yas an action brought by E. P. Kimball and others, the defendants in error, against the city' of Kansas City and others, the plaintiffs in error, to enjoin the collection of certain assessments levied against the real estate of' the defendants in error to pay for curbing and paving a certain portion of Waverly avenue in said city. The proceedings to charge the real estate in question with the lien of the assessments were had under chapter 73, Laws of 1891, as amended by chapter 274, Laws of 1895. (Gen. Stat. 1897, ch. 32, §§ 171, 172.) The grounds of the application for the injunction were that the petition to the mayor and council asking for the making of the improvement in^question was not in fact “signed by the resident owners of a majority of the feet fronting or abutting upon such street to be improved,” as required by section 6 of the act of 1891, as amended by section 1 of the act of 1895; nor did it, when presented to and acted upon by the mayor and council, purport to be so signed by such requisite number of qualified persons. Evidence upon both of these questions was introduced in the court below, upon the conclusion of which a general finding was made that the assessments were void and did not constitute a lien upon the lots against which they were levied. The record does not show whether this finding was made upon the ground that the petition was not in fact signed by the requisite number/ of resident owners, or upon the ground that it did not upon its face purport to be so signed. A perpetual injunction against the collection of the assessments was granted, and from the order therefor proceedings in error have been prosecuted to this court. The application for injunction was not made until more than thirty days after the amounts due on each lot liable for the assessments had been ascertained in accordance with the statutes above cited, and the plaintiffs in error contend that because thereof the action cannot be maintained. This contention is based upon the provision of limitation found in chapter 101, Laws of 1887 (Gen. Stat. 1889, ¶ 590, Gen. Stat. 1897, ch. 32, §§ 209-217), which reads as follows :
“ No suit to set aside the said special assessments, or to enjoin the making of the same, shall be brought nor any defense to the validity thereof be allowed after the expiration of thirty days from the time the amount due on each lot or piece of ground liable for such assessment is ascertained.”
To this the defendants in error reply that the act of 1887 was repealed by implication by the acts of 1891 and 1895. These later acts relate to the same general subject as that of 1887, to wit, improvements of the streets, avenues, alleys, etc., of cities of the first class, and the making of assessments to pay therefor. The contention of the. defendants in error is that they contain new and different1 provisions from those of the earlier law, but relating to the same matters and covering the whole of the same general ground, and are, therefore, a substitute for the earlier enactment, and in consequence work a repeal by implication of all its provisions.
The rule undoubtedly is that when a later act covers the entire subject-matter of an earlier one and substitutes therefor new and repugnant provisions, they will be deemed to take the place of those oí the former law, and will therefore accomplish its repeal by implication. (Oil Co. v. Angevine, ante, p. 167, 55 Pac. 879, and cases cited.) The acts of 1891 and 1895 do not, however, cover the entire subject-matter of the act of 1887; that is, they do not contain substituted provisions for all of those contained in the earlier law. They contain no provision of limitation such as the one above quoted from the act of 1887, and the material inquiry therefore-is, Are the later enactments to be regarded as substitutes for all of the act of 1887, or only for so much of' it as is covered by the new and repugnant provisions?'.
For the purpose of this inquiry we will assume that, outside of the limitation clause in the act of 1887, the-later enactments cover the same general matter by the substitution of new and repugnant ¿uovisions, and therefore should be regarded as repealing the former by iiPplication. As to this," however, there may be a serious question, and upon it we express no opinion. For the purpose of meeting the contention of the defendants in error we will assume the correctness of their premise, but by doing so the soundness of their conclusion by no means follows. The rule is well settled that repeals by implication are not favored, and that any reasonable construction which offers an escape from the conclusion of an implied repeal is to be preferred, because more likely to be in consonance with the real intention of• the legislature. (Endlich, Interp. of Stat., § 210.) The theory of repeals by implication only applies in cases where the provisions o£ the earlier and later statutes in respect to like subjects are inconsistent, the old law being, in respect to-all distinct and separable matter not covered by the-later one, left in full force and effect. (Endlich, supra, § 205; Sutherland, Stat. Const., §§152-156.). In harmony with this rule it must be held that the-laws of 1891 and 1895, containing no limitation of time upon the bringing of suits to set aside or enjoin, assessments, and therefore not covering the entire-ground of the act of 1887, did not repeal the limitation clause contained in that act. This view is- further and greatly aided by the fact that the law of 1891 did in terms expressly repeal an earlier enactment- other than the law of 1887. That enactment was section 2 of chapter 34, Laws of 1883. So far as express repeals of earlier enactments is concerned, the law of 1891 limits its abrogative force to the act of 1883.
“ The question of implied repeal being, after all, a question of implied intention, where the legislature expressly declares what effect, in the way of repeal, an act is intended to have, there is no room for any implication. It has even been held that a specific repeal by one statute of a particular section of another raises a clear implication that no further repeal is .intended, unless there is an absolute inconsistency between other provisions of the two statutes.” (Endlich, Interp. Stat., § 203.)
The defendants in error not having commenced their action within the statutory period, the remaining questions are easy of disposal. The law did not require the petition to the mayor and council for the making of the improvements in question to show upon its face that it was signed by- the resident own- . ers of a majority of the front feet to be paved. (City of Argentine v. Simmons, 54 Kan. 700, 39 Pac. 181.) The fact, if it were such, that the resident owners of a majority of the front feet did not in reality sign the petition did not appear upon it or upon other proceedings. Upon the face of the petition and other proceedings non-conformity to the law did not appear. In such cases the validity of the assessment cannot be challenged beyond the limited period allowed by the statute for so doing. (Doran v. Barnes, 54 Kan. 238, 38 Pac. 300.)
The objection made by the defendants in error to the consideration of the case for the reason that the i-ecord does not show the motion for new trial was made at the same term of court the judgment was rendered is unavailing. The record in respect to this claimed defect is similar to the one considered in Bank v. Miller, 59 Kan. 743, 54 Pac. 1070, and the decision of that case is accordingly followed.
The judgment of the court below is reversed, with directions to proceed in accordance with this opinion. | [
-16,
-18,
-15,
-2,
-54,
64,
10,
-101,
81,
-79,
-74,
123,
77,
-53,
4,
53,
-1,
57,
-48,
107,
-59,
-78,
79,
74,
-42,
-13,
-45,
-35,
-75,
77,
-12,
-34,
76,
48,
-54,
-107,
70,
-30,
69,
92,
-114,
-121,
11,
-52,
-39,
96,
52,
123,
82,
75,
-111,
-66,
-13,
44,
28,
-62,
-23,
44,
-39,
-83,
-15,
-80,
-100,
21,
125,
6,
33,
86,
-100,
7,
-56,
-70,
-112,
53,
-111,
-24,
115,
-74,
-122,
118,
69,
-103,
12,
98,
98,
33,
41,
-17,
-8,
-100,
14,
-5,
-115,
-90,
-106,
88,
106,
45,
-74,
-99,
52,
22,
103,
-2,
-26,
5,
29,
60,
11,
-113,
-28,
-47,
-113,
-80,
-126,
67,
-1,
-127,
48,
113,
-50,
-62,
95,
-57,
23,
19,
-98,
-104
] |
The opinion of the court was delivered by
Johnston, J. :
On August 2, 1886, I. P.'Campbell and his wife executed a principal note for $5000, pay able to the Davidson Loan Company five years after date, with interest at the rate of six per cent, per annum, secured by first mortgage on real estate. At the same time they executed to the same company what is termed a commission note for $500, due thirty months thereafter, and secured by a second mortgage on the same real estate. There was default in the payments and the Davidson Investment Company brought an action upon the $500 note and to foreclose the second mortgage given to secure its payment. In its petition the plaintiff set out the note and mortgage with proper allegations, and as to the ownership of the same alleged “ that t.he said Davidson Loan Company was a corporation duly organized and existing under and by virtue of the laws of the state of Kansas, and that this plaintiff is the successor in business of the said Davidson Loan Company, and as such is the legal owner and holder of the said note and mortgage.”
On application the Robinson Female Seminary was made a party, and in its answer and cross-petition alleged that it was the owner of the $5000 note, which was indorsed and transferred to it by the Davidson Loan Company before the maturity thereof or any of the interest thereon, in the due course of business and for a valuable consideration. After averring the incorporation and authority of the Davidson Loan Company, the following averment was made : “That said Davidson Investment Company is a reorganization of and a successor to the said Davidson Loan Company, and as such it succeeded to and became the owner of the entire assets of the said Davidson Loan Company, and as such had at all times mentioned herein full power and authority to act for and transact any business of the said Davidson Loan Company.” It was also alleged that after the organization of the Davidson Investment Company and by virtue of the authority aforesaid it assigned the mortgage in writing to the. Robinson Female Seminary as follows: “For value received, I hereby assign the within mortgage and the debt secured thereby to the Robinson Female Seminary, of Exeter, N. H. Jan. 29, 1887. — Davidson Investment Company, by W. L. Babcock, Vice-President."
It also averred that it was the owner and holder of the mortgage and that the conditions therein had been broken and had become absolute. Other parties were named as defendants, who, it was alleged, claimed an interest in the mortgaged premises, but which interest, if any, was inferior to the mortgage liens.
A joint answer was filed by I. P. Campbell and wife which contained a general denial, a specific denial that they were indébted to plaintiff, or that plaintiff was the owner of the $500 note sued upon, and also alleging usury and want of consideration. They demurred to the cross-petition of the Robinson Female Seminary for the reason that it did not state facts sufficient to constitute a cause of action, but this demurrer was overruled. Then they answered, setting forth a general denial, and alleging that the cross-petitioner was not the owner and holder of the note and mortgage, and that the same had not been legally transferred and assigned. It was also alleged that the indebtedness had been fully paid. When the cause came on for trial objection was made to the introduction of evidence for the reason that the petition of the Davidson Investment Company and the answer and cross-petition of the Robinson Female Seminary did not state facts sufficient to constitute a cause of action in favor of the respective parties. The objections were sustained, and the jury was discharged.
An attack is made on the record brought to this court because the Robinson Female Seminary and the Davidson Investment Company have each filed a petition in error, and that both of them are attached to a single case-made. This is permissible and a proper practice. . Each was a party to the record and judgment and had an appealable interest, and each was entitled to file a petition assigning errors and to have-them reviewed in a single proceeding. The objection that the Davidson Investment Company is not a party to this proceeding because no summons in error was served upon it is without merit. When it filed its cross-petition in error it voluntarily Recame a party to the proceeding, and no process was necessary to bring it, or the plaintiff in error, into court. Other objections are made to the record upon which a dismissal of the proceeding is asked, but from the showing made it is clear that the absent parties are not necessary to a review here, and that no grounds warranting a dismissal exist.
The rulings of the court sustaining objections to the admission of testimony because of insufficient facts in the petition and cross-petition are erroneous. The court had already overruled a demurrer to the pleadings challenging the sufficiency of the facts alleged, and a pleading is construed much more liberally upon an objection to the introduction of evidence than upon a demurrer. The objection to the petition of the Davidson Investment Company appears to have been sustained because the note was payable to the order of the Davidson Loan Company, and that without indorsement it could not be sued upon by the Davidson Investment Company. Aside from the averment in the petition, that one company is the successor of the other, there is a specific averment that the company bringing the action is the owner and holder of the note and mortgage. It is immaterial whether the change of name was because of a reorganization or for other reasons, since a change of name is authorized by statute. The identity of the company so differently designated is of little consequence, where it is alleged that the plaintiff is a duly organized corporation and is the successor of the company named as payee. A negotiable note may be transferred by delivery without indorsement, and an averment of the company that it owns and holds the note and mortgage is itself sufficient to show that it is the real party in interest and*entitled to maintain the action. Upon issue formed with the defendants it was entitled to prove ownership and right of recovery. The quantity and quality of proof required is not now a question for consideration, but the action of the court in shutting out all testimony and all opportunity to show its relation to and ownership of the paper was clearly erroneous.
The objection to the cross-petition of the Robinson Female Seminary appears to have been sustained because the note held by it was indorsed to it by the Davidson Loan Company, while the indorsement on the mortgage was by the Davidson Investment Company. It appears that the transfer of the note was made before the indorsement of the mortgage, and possibly the reorganization and change of name occurred in the interim. The fact that the assignment was written on the mortgage at a time later than the indorsement of the note, and by the successor of the payee of the note, is unimportant. The assignment of the note operated as an assignment of the mortgage made to secure the note, and the assignment of the mortgage was therefore unnecessary under the statute as it then existed. However, any question as to the identity of the corporations has been rendered immaterial by the averments that the second is a reorganization of the first, and has succeeded it and become the owner of all the assets of the first, including the note and mortgage in question. There was nothing substantial in the objection, and the judgment must, therefore, be reversed and the cause remanded for a new trial. | [
-73,
110,
-72,
-116,
-54,
-16,
-88,
-102,
75,
-128,
-74,
83,
-23,
-58,
20,
105,
-58,
77,
-64,
104,
-10,
-77,
38,
-23,
-46,
-13,
-15,
-35,
-79,
-34,
-28,
-33,
77,
52,
-54,
-35,
-26,
-54,
73,
-44,
-118,
15,
104,
-59,
-35,
72,
52,
59,
80,
14,
81,
-97,
-13,
40,
29,
66,
105,
43,
-19,
41,
-48,
-15,
-118,
-123,
95,
22,
49,
101,
-104,
67,
106,
44,
-110,
53,
9,
-24,
115,
-90,
70,
84,
79,
-71,
9,
52,
98,
17,
-27,
-17,
124,
-104,
14,
87,
-99,
-89,
-110,
89,
-95,
0,
-65,
-103,
-12,
17,
7,
116,
-26,
-107,
-108,
108,
5,
-101,
-108,
-109,
15,
116,
-102,
15,
-13,
-125,
48,
112,
-64,
32,
77,
87,
122,
27,
-114,
-68
] |
The opinion of the court was delivered by
Doster, O. J.:
This was an action brought by John McLane, as administrator of the estate of C. S. Averill, deceased, against Samuel T. Allison and others, to foreclose a mortgage upon real estate. The district court held that the action was barred by the statute of limitations, and upon proceedings in error to the court of appeals the judgment of the lower court was affirmed. Error has been prosecuted to this court.
Samuel T. Allison was the owner of the real estate in question, and on November 1, 1883, executed a note to C. S. Averill for the sum of $500, payable in five years, with interest payable semiannually. To secure this note the mortgage in suit was executed. On April 7, 1887, Allison conveyed the mortgaged property to Sarah A. Anderson, by a general warranty deed, with a covenant that the premises Avere free from encumbrances, “except a mortgage of $500.” Upon the next day, April 8, 1887, Sarah A. Anderson executed a mortgage for the sum of $1500 to the Phoenix Loan and Building Association, of Clay Center, Kan./payable at certain times and in accordance Avith certain rules and regulations of the association not necessai'y to be stated. This mortgage contained a covenant that the premises Avere free from encumbrances, “ except one mortgage of $500.” On November 13, 1894, Sarah A. Anderson conveyed the real estate in question to William Docking, as trustee for the Phcenix Loan and Building Association. This conveyance Avas in the form of a general warranty deed, with a coyenant that the premises were free from encumbrances, “ except mortgages and taxes.”
The note of Allison to Averill, the first mortgagee, matured in 1888, but Aras not then or thereafter paid. Sarah A. Anderson paid the interest upon it to its maturity, and afterward, and until her conveyance in 1894, kept up the interest upon the mortgage loan. After her conveyance to Docking as trustee for the loan and building association, it paid one instalment of interest. Neither the deed of Allison to Anderson nor the one of Anderson to Docking contained a contract of assumption of the Averill mortgage by the grantee, nor did either of these deeds in express terms convey the land “ subject ” to the Averill mort gage. However, as stated, the existence of the mortgage was recited in both conveyances. The action to foreclose was commenced more than five years after the maturity of the Averill mortgage, and was therefore barred as to Allison’s liability upon the mortgage note, and no contract of assumption of the mortgage debt having been made by any one no money judgment whatever was recoverable. .A judgment of foreclosure, if anything at all, could alone be had. The question is, Can that be had, or was the right of action upon the mortgages as well as upon the notes barred?
The question is difficult. Upon one hand it is contended that the right of action to enforce the mortgage lien is inseparable from the right of action to recover the debt; that when suit upon the note was barred suit upon the mortgage was likewise barred. Upon the other hand it is contended that the payments of interest by Sarah A. Anderson and her grantee, Docking, were a recognition of the continued existence of the debt as a lien upon the land by virtue of the mortgage contract; that actions to foreclose mortgages may be maintained without the rights or at least without the abilities to recover a money judgment for the debt. (Andrews v. Morse, 51 Kan. 30, 32 Pac. 640.) To this it is replied that the payments of interest were not made by any one under legal obligation to pay, and therefore such payments did not suspend the running of the statute of limitations. (Steele v. Souder, 20 Kan. 42.) No case involving the precise point has been cited to us or found by us in our own researches. Upon principle, however, wrn are convinced that the claim of plaintiff in error is sound, and that the district court and the court of appeals were in error. In the case of Schmucker v. Sibert, 18 Kan. 104, 112, after deciding that the acceptance of a deed which provided that the grantee should assume the encumbrance on the granted premises constituted a contract in writing by him to discharge such encumbrance, the court further held as to an additional fact involved in the case, as follows:
“Upon the same principle, and by the same reasoning, it would seem to be clear that, where the deed specifies that it is made subject to a certain mortgage, an acceptance of a deed is an undertaking that to the extent at least of the value of the granted premises the grantee shall pay the mortgage. Or, in other words, it is an agreement by the grantee that the granted premises shall be used, so far as necessary, to discharge and pay the mortgage.”
Had the conveyances in this case been made “ subject to the mortgage,” the rule above quoted would be applicable and would be decisive against the defendant in error. Plowever, as before stated, the conveyances -were not made subject to the mortgage, but nevertheless, as we think, the payments of interest made by the grantees, Anderson and Docking, were a recognition of the fact that the land was subject to the mortgage, and constituted an engagement upon their part to hold the land subject to the mortgage lien. The existence of the mortgage was recited in both deeds, and also in the mortgage of Anderson to the loan and building association, Docking's cestui que trust, and these instruments were all of record. Docking and the loan and building association were chargeable with knowledge of the fact that Anderson had recognized, the land as subject to the mortgage by continuing interest payments upon it after, as well as before, action upon the note which it secured had become barred, and with like knowledge that such action was barred they also recognized the validity of the mortgage as a lien upon the land by making an interest payment upon it.
Payments of money made with full knowledge of all the facts are in the nature of estoppels, and bind the persons .making them to an admission of the validity of the debt. (St. L. Ft. S. & W. Rld. Co. v. Tiernan, 37 Kan. 607, 15 Pac. 544.) Upon principle there can be no difference between a recognition of personal liability for the payment of a debt and a recognition of the existence of a mortgage lien upon land. Though the conveyances in question did not recite that they were made subject to the mortgage, and therefore their acceptance did not constitute engagements to allow satisfaction of the mortgage debt out of the-land, the continued payment of interest upon the mortgage, debt constituted a binding admission that the land was subject to the mortgage, and an agreement for its payment up to the value of the mortgaged premises.
We do not believe that the case of the defendant in error derives any strength from the principle of law announced by the court of appeals that “a covenant of warranty in a deed of real estate is not restricted by an exception in a preceding covenant against encumbrances.” The meritorious question in the case does not involve the force or strength of opposing covenants, but the effect to be given payments of money upon the mortgage claim.
The judgments of the court of appeals and of the district court are reversed, and, inasmuch as the case was heard upon the pleadings, upon documentary evidence, and upon an agreed statement of facts, the order will be that the district court render judgment thereon in favor of plaintiff in error, the plaintiff in the courts below. | [
-16,
111,
-40,
-82,
-38,
96,
42,
-102,
67,
-112,
-75,
83,
107,
-62,
1,
45,
70,
45,
49,
104,
69,
-78,
39,
-93,
-46,
-77,
-47,
85,
-79,
92,
-12,
87,
72,
32,
-54,
23,
-58,
-128,
65,
80,
14,
-123,
-119,
76,
-39,
64,
52,
59,
4,
74,
97,
-86,
-77,
43,
29,
-62,
105,
41,
-53,
57,
-112,
-72,
-101,
13,
95,
19,
-111,
101,
-112,
5,
104,
-120,
-112,
21,
2,
-24,
115,
38,
-122,
118,
119,
11,
13,
38,
98,
33,
101,
-17,
-4,
-104,
6,
-9,
-123,
-90,
-42,
88,
-93,
8,
-65,
-107,
124,
5,
69,
-10,
-26,
-107,
28,
108,
7,
-85,
-44,
19,
-113,
112,
-110,
-125,
-1,
23,
-96,
113,
-113,
-96,
93,
70,
63,
59,
14,
-8
] |
The opinion of the court.was delivered by
Smith, J. :
The petitioner, George A. Stewart, was arrested on two warrants issued by an examining magistrate after complaints had been duly filed, one charging forgery of two checks upon the Kansas City Savings Bank, and the other embezzlement at the same time and place. The warrants are as follows :
“ WARRANT.
“ State of Kansas, Wyandotte County, ss.
‘ ‘ The State of Kansas to any Sheriff or any Constable of the State of Kansas: It appearing that there are reasonable grounds for believing that at the county of Wyandotte, state of Kansas, and on or about the 5th day of September, A. d. 1896, one George A. Stewart did unlawfully and feloniously falsely make and forge a check which purported to be and was drawn on the Kansas City Savings Bank, which was then a bank incorporated under the laws of the state of Kansas, which check purported to be drawn, executed and signed by one Peter Peterson, who was then a depositor in said bank, and a creditor thereof, of which check so as aforesaid falsely made and forged the following is a copy :
‘Kansas City, Kansas............................189....
THE KANSAS CITY SAVINGS BANK.
Pay to cash or bearer $580.05 five hundred & eighty dollars.
Peter Peterson.’
contrary to the'statutes in such cases made and provided. And it further appearing that at the county of Wyandotte, state of Kansas, one George A. Stewart, on or about the, 24th day of December, 1896, did unlawfully and feloniously falsely make and forge a certain check on the Kansas City Savings Bank, which was then a bank incorporated under the laws of the state of Kansas, which check purported to be drawn, executed and signed by one Peter Peterson, who was then a depositor in said bank and creditor thereof, of which check so as aforesaid falsely made and forged the following is a copy : -
‘Kansas City, Kansas................................189......
THE KANSAS CITY SAVINGS BANK.
Pay to cash or bearer §9.16 nine iW dollars.
Petek Peterson.’
And it further appearing that at the time of so falsely making and forging each of said checks the said George A. Stewart was the cashier of said bank, and that, for the purpose of concealing the fact of said checks leaving been so falsely made and forged, he made false entries as if made in the regular course of business upon the books of said bank, showing a payment to said Peterson of the amount named in said checks respectively, and also stamped each of said checks as having been paid, and he, the said George A. Stewart, did thereby conceal the fact that said checks, or either of them, had been falsely made and forged, and such fact remained concealed and was not discovered until within three months last past:
You are therefore commanded forthwith to arrest said George A. Stewart and bring him before me, of said Wyandotte county, to be dealt with according to law.
Witness my hand, this 29th day of March, 1899.
E. B. Pfost,
Judge City Court, First District, Kansas City, Kan.”
“ WARRANT.
“ State of Kansas, Wyandotte County, ss.
“ The State of Kansas to any Sheriff or any Constable of the State of Kansas : It appearing that there are reasonable grounds for believing that at the county of Wyandotte, state of Kansas, and on or about the 5th day of September, a. d. 1896, one George A. Stewart, who then was an officer and the'cashier, agent and clerk of the Kansas City Savings Bank, which then was a corporation organized under the laws of the state, did unlawfully and feloniously embezzle and convert to his own use, without the assent of said bank, valuable effects consisting of money, bank bills and treasury notes belonging to said bank of the value of five hundred and ninety dollars and seventy-one cents, which had come into his possession and under his care by virtue of said official trust, and by virtue of his employment as such agent and clerk, and that at said time and place he, the said George A. Stewart, made false entries upon the books of said bank showing the payment of the amount so as aforesaid taken to Peter Peterson, who was a depositor in said bank, and who had that amount on deposit in said bank, and was a creditor of said bank to that amount, and also prepared and attached the purported signatures of said Peterson to checks for said amount, and stamped the same as having been paid and deposited, said checks so stamped, and by such false entries and checks, and by such stamping he concealed the fact of the commission of said crime so that such fact was not discovered until within three months last past:
“You are commanded forthwith to arrest said George A. Stewart and bring him before me, to be dealt with according to law. . . ■
“ Witness my hand, this 29th day of March, 1899.
E. B. Pkost,
Judge City Court, First District, Kansas City, Kan.”
A preliminary examination wms had, and after hearing the evidence it was found by the magistrate that the offenses of forgery and embezzlement had been committed, and that there was probable cause for believing the petitioner guilty of the commission of the same. In default of bail he was committed to the county jail. Thereupon he petitioned this court for a writ of habeas corpus,- which was granted, and prays for his discharge from custody. The warrants follow substantially the language of the complaints. The respondent sheriff sets out the same, together with the complaints, in his return to the writ, and the petitioner demurs thereto upon the ground that said return is not sufficient in law to authorize his detention..
The petitioner contends that the offenses charged in the warrants appear on the face thereof to be barred by the statute of limitations. It will be noticed that the offenses are charged to have been committed on or about the 5th day of September and the 24th day of December, 1896, and would be barred by limitation two years from that time unless saved by some exception in the statute. Section 33, chapter 102, General Statutes of 1897 (Gen. Stat. 1889, ¶ 5096), reads : “If any person who has committed an offense is absent from the state or so conceals himself that process cannot be served upon him or conceals the fact of the crime, the time of absence or concealment is not to be included in computing the period of limitation.”
The defendant filed a motion to quash the warrants before the magistrate upon the ground that the charge of forgery did not allege an intent to injure or defraud, and that no demand was alleged in the warrant for embezzlement. We will consider these matters in connection wfth the allegations of the warrants concerning the concealment of the fact of the crime.
Counsel for petitioner have drawn our attention to several authorities, principally from the state of Indiana, to the effect that the words of said section of the statute refer to positive acts of concealment preventing a discovery of the fact of the commission of the offense, which must be unconnected with the fact that the accused was the guilty perpetrator. This construction seems to be well established in that state. (Jones v. The State, 14 Ind. 120; The State v. Fries, 53 id. 489; Robinson v. The State, 57 id. 113. It is unnecessary, in view of the liberality with which warrants are construed in such cases, to determine the scope of section 33 of our statute above set out. Warrants issued by justices of the peace and other examining magistrates are not required to contain formal or technical language in setting out the offense charged. In the case of The State v. Smith, 13 Kan. 274, 296, it is said :
“To hold that the warrant of a justice should describe the offense as accurately as the information would in most cases be to defeat justice. They are generally unlearned in the technicalities of the law, and describe the offense in general terms, while the information is expected to be more exact in its terms, and more full and accurate in its statements.” See also The State v. Baker, 57 Kan. 511, 46 Pac. 947.
Again, in The State v. Bailey, 32 Kan. 83, 89, 3 Pac. 769, it was held that on a preliminary hearing it was not necessary for the papers and proceedings to be technically regular and exact like those required at the final trial, or to set forth the offense in all its details and with perfect and exhaustive accuracy ; that all that is necessary in such case is that the defendant be given a fair opportunity to know, by the proper preliminary examination, the general character and outlines of the offense charged, and that details and technical forms were not necessary to be set forth in the papers.
The petitioner calls upon us to apply the same scrutiny to these warrants that is to be given to an information when attacked by a motion to quash. The law does not require this. There is an attempt in the warrants to charge the commission of the crimes, and the warrants were sufficient, for the purposes of a preliminary examination, to inform the defendant of the charges against him. The allegations of concealment are sufficient as against this demurrer to the return of the sheriff. The warrant charging an offense constituting a felony rarely contains such full and complete averments as are required of an information, and the law does not require it. It would have been sufficient for the warrant to have set out the offense by name, as contemplated by the form con tained in section 37, chapter 102, General Statutes of 1897 (Gen. Stat. 1889, ¶ 5100), without averring the exception, bringing the time of its commission within the statute of limitations. While the examination is held upon the warrant (Redmond v. The State, 12 Kan. 172), yet its averments do not constitute the only: notice to be conveyed to the defendant of the nature of the crime charged. “ Defendant should take notice from the evidence introduced by the state on the preliminary examination, as well as from the papers in the case, of the nature and character of the offense charged against him.” (The State v. Bailey, supra.)
The question as to whether a prosecution for a crime is barred by the statute of limitations is one of fact, to be determined by the jury, and ought to be submitted to them under proper instructions with other questions in the case. (In re Clyne, Petitioner, 52 Kan. 441, 450, 35 Pac. 23.) The testimony heard at the examination is not before us. The magistrate found, as a matter of fact, upon the evidence produced, that the petitioner did conceal the fact of the crime. This being true, and the purpose of a warrant being for the detention of persons charged with crime until an examination can be had concerning the charges made therein, we are not permitted to give the attack upon the latter that technical consideration demanded b}7 the petitioner. The warrants were sufficient for the-, purposes intended, and the magistrate had jurisdiction, of the cases. The demurrer to the return will be overruled and the prisoner remanded to the custody of the sheriff. | [
48,
106,
-24,
-100,
58,
-32,
42,
-102,
83,
-31,
-92,
115,
-7,
10,
4,
123,
-30,
-83,
52,
96,
-42,
-109,
23,
-55,
-46,
-13,
-7,
-3,
-67,
93,
-68,
-42,
12,
48,
10,
-99,
102,
-54,
-57,
-36,
-114,
33,
40,
-63,
83,
72,
32,
41,
2,
10,
-15,
30,
-13,
42,
24,
90,
105,
44,
-21,
-83,
-48,
-15,
-102,
-43,
93,
22,
19,
39,
-116,
7,
88,
-82,
-104,
17,
1,
-8,
123,
-122,
-122,
116,
47,
-71,
13,
-10,
98,
96,
-75,
-117,
-68,
-36,
30,
-46,
-99,
-89,
-110,
88,
99,
45,
-74,
-103,
125,
16,
7,
-12,
-29,
5,
25,
108,
3,
-53,
-76,
-109,
13,
61,
-118,
27,
-9,
-94,
32,
96,
-123,
34,
93,
119,
115,
25,
-114,
-71
] |
The opinion of the court was delivered by
Doster, C. J. :
This is an application for a writ of habeas corpus. The petitioner, George A. Taylor, was charged in the district court of Wyandotte county with having received, as the cashier of a bank, deposits of money in the bank when it was to his knowledge insolvent and in a failing condition. The date of the offense charged was August, 1896. At the September term, 1897, he was tried, found guilty, and sentenced to two years’ confinement at hard labor in the penitentiary. The offense was prosecuted and conviction had under chapter 43, Laws of 1891, being the act of that year for the organization and regulation of banks. The ground of the petitioner’s application is that this statute was never constitutionally passed by the senate and house of representatives. It is claimed that, as signed by the president of the senate and the speaker of the house, approved by the governor, and enrolled in the office of the secretary of state, it contained matter which was never enacted by either house of the legislature.
The history-of the measure known as chapter 43, Laws of 1891, as shown by the legislative journals, is as follows : A bill was introduced in the house upon the subject of banking, and was designated “ house bill No. 705.” About the same time a bill with identically the same title, and upon the same subject, but said to contain provisions somewhat different in character, was introduced in the senate, and was designated “senate bill No. 10.” House bill No. 705 was read a first and a second time, and was then referred to a committee. Senate bill No. 10 was read three times, passed by the senate, messaged to the house, and placed upon the house calendar. When this bill was called for consideration in committee of the whole house, all after the enacting clause was stricken out, and house bill No. 705 was substituted in its place. The measure for consideration then became in reality house bill No. 705 under the name of “ senate bill No. 10.” To this bill a number of amendments in important particulars were proposed and adopted, but the bill, together with the amendments, when called for final vote, was defeated. The next day original house bill No. 705 was ordered from the committee to which it had been referred, and was passed as introduced, without amendment, so far as the journal shows. It was thereupon messaged to the senate, and likewise passed through that body without amendment, so far as the journal shows. We do not know what the provisions of house bill No. 705 were. It was not preserved in the legislative journals, and hence we are unable to compare it with the measure which appears as chapter 43, Laws of 1891. It would appear, however, that whatever the provisions of original house bill No. 705 were, they "were passed by both house and senate, and, inferentially, were passed, without amendment by either body. The amendments proposed and adopted in the house to house bill No. 705 under the name of “ senate bill No. 10,” and which together with the bill itself were, as before stated, rejected upon final vote, are set out in the house journal. We are therefore enabled to know what they were. Upon reading chapter 43, Laws of 1891, we find provisions identical in language with these rejected amendments, showing tliat they became by some means parts of the statute enacted by the two houses, attested by the legislative officers, and approved by the governor. As to whether these amendments, though once rejected in the house, were not again proposed to the bill as it finally passed that body the journal is silent, so far as any express statement is concerned. We have no evidence upon the subject except two inferences, one of which is that the bill was not amended because the journal makes no mention of amendments, and the other of which is that it may have been amended, because the identical matter which appears as parts of chapter 43, Laws of 1891, had been on a previous day, when the bill was under consideration under the name of “senate bill.No. 10,” proposed and adopted as parts of that measure, although subsequently and for the time being rejected together with the original bill itself. This evidences the fact of a majority sentiment among the members in favor of these amendments.
Before proceeding to a consideration of the question in the case it is important to make an addition to the foregoing summarized history of the measure in question which materially weakens the inference first above stated. It has been said that upon consideration in the house of senate bill No. 10, house bill No. 706 was substituted for it, and that to house bill No. 705, under the name of “senate bjjll No. 10,” the amendments in question were proposed and made. Looking to the precise language of the journal, this statement is not correct. The report covering the subject, made by the chairman of the committe of the whole house, reads as follows :
“Mr. Speaker: The committee of the whole has had under consideration the following bills : . . .
“Also, substitute for senate bill No. 10, ‘An act pro- Tiding for the organization and regulation of banks/ and direct me to report the same back to the house and recommend that all after the enacting clause be stricken out, and the substance of house bill No. 705 on the same subject be inserted in lieu thereof, and recommend its passage, subject to amendment and debate.”
The memoranda reports of the action by the house upon the measure in question read as follows :
“Substitute for senate bill No. 10, An act providing for the organization and regulation of banks. All after enacting clause stricken out and the subject-matter of house bill No. 705 substituted, was on third reading, subject to amendment and debate.”
“Substitute for senate bill No. 10, An act providing for the organization and regulation of banks, was amended by striking out all after enacting clause and inserting subject-matter of house bill No. 705, and was read a third time.”
It will thus be seen that house bill No. 705 was not substituted for consideration in lieu of senate bill No. 10, but that the “ substance of house bill No. 705” or the “ subject-matter of house bill No. 705” was so substituted for consideration. At all other places in the journal the measure known as “ house bill No. 705 ” is referred to eo numero, but in the instances mentioned it is the “ substance ” or the “ siobjed-matter ” of house bill No. 705 to which amendments were proposed and made, implying thereby that it was an epitome or modified draft of house bill No. 705 which was substituted for senate bill No. 10, and to which the amendments in question were proposed and made.
The question now arises, Is the inference to be drawn from the silence of the journal upon the subject that original house bill 705, when put upon consideration for its final passage, was not amended by the insertion of the matter which appears in chapter 43, Laws of 1891, or did not in the first instance contain such matter, sufficient to overcome that presumptive evidence of the due enactment of all its parts which is furnished by the enrolled bill, the signatures of the presiding officers of the two houses, and the approval of the executive? This question does not seem to us difficult to answer. While the journals of the two houses may be examined for the purpose of ascertaining whether the legislative branch has expressed its will in accordance with constitutional requirements, yet a legislative measure which has taken upon itself all the forms and appearances of verity which are involved in its enrollment in the office of the secretary of state, its certification by the president of the senate and speaker of the house and its approval by the governor, may not be impeached by the legislative journals except when the proof furnished by them is of the clearest, strongest and most undoubted character. This has been twice heretofore declared in the language now employed. (The State, ex rel., v. Francis, Treas., 26 Kan. 724 Homrighausen v. Knoche, 58 id. 646, 50 Pac. 879.)
In the case first cited it is said : “If there is any room to doubt what the journals of the legislature show; if they are merely silent or ambiguous ; or if it is possible to explain them upon the hypothesis that the enrolled statute is correct and valid, then it is the duty of the courts to hold that the enrolled statute is valid." Therefore, within the rule before declared and now reaffirmed, the mere silence of the legislative journals as to whether amendments were made to a pending bill is not sufficient to impeach the measure which finally appears in the form of an enrolled, certified and approved enactment containing the amendments.
It is no reflection upon legislative integrity, no criticism of legislative methods, to say that the journals of the houses are often carelessly, inaccurately and partially kept. They are often hurriedly made up, written by clerks having little aptitude for the work and slight sense of responsibility in its performance. Upon many days, especially as the session advances, the business accumulates, the saving of time becomes important, and the reading of the journal of the preceding day is dispensed with, so that mistakes fail of correction and unfortunately pass into forms of legislative history. It is also a notorious fact that in many cases, to a great extent in all cases, the journals are not made up until after the legislative session has closed. They are then put into such methodical shape as can be done, made up of the loose.and disconnected memoranda noted from day to day as the legislative session progressed. These facts justify courts in attaching less weight to journals of legislative proceedings as evidence of the non-enactment of laws than they would otherwise possess.
After the commission of the offense for which the petitioner was convicted, but before his trial and conviction, chapter 43, Laws of 1891, under which he was charged, was repealed by section 64, chapter 47, Laws of 1897. A proviso to the repealing section declares :
“Provided, that all criminal offenses committed, and criminal actions commenced under said chapter 43 of the Laws of 1891, shall in no manner whatsoever be affected or abated on account of the repeal of said law, and that the parties may be prosecuted, tried, convicted, sentenced and punished in all ways the same as though there had been no repeal of said chapter 43 of the Laws of 1891.” (Gen. Stat. 1897, ch. 18, § 67.)
The petitioner contends that this proviso does not save for trial and conviction offenses committed while the law of 1891 was in force, and therefore that he cannot be punished. His contention, however, upon this point resolves itself into a mere criticism of the, arrangement of the different clauses of the proviso and the phraseology employed. To our minds the proviso plainly preserves for future prosecution such offenses against the law of 1891 as had been committed before its repeal.
The writ is denied, and the petitioner ordered remanded. | [
112,
-50,
-79,
-67,
42,
-32,
-94,
-102,
19,
-80,
-92,
83,
105,
-108,
4,
113,
71,
45,
85,
105,
-58,
-110,
23,
-21,
-70,
-13,
-55,
-43,
51,
91,
-84,
87,
72,
50,
66,
-47,
70,
-46,
71,
92,
-114,
4,
41,
-63,
-47,
-128,
60,
111,
53,
11,
113,
47,
-77,
46,
26,
-38,
105,
47,
-55,
-71,
-15,
-71,
-97,
-105,
127,
22,
-95,
7,
-120,
5,
66,
62,
-104,
23,
19,
-88,
127,
-74,
-126,
86,
109,
-7,
45,
102,
98,
17,
45,
-50,
-88,
-88,
22,
-33,
-99,
-121,
-110,
80,
66,
12,
-66,
-99,
124,
22,
6,
-10,
-85,
-123,
21,
108,
-123,
-50,
-68,
19,
15,
123,
-98,
83,
-37,
-95,
32,
117,
-124,
-14,
79,
-57,
127,
25,
-122,
-67
] |
The opinion of the court was delivered by
Johnston, J. :
An information was filed in the distinct court of Russell county in which an attempt was made to charge George O. Otis with a violation of chapter 167, Laws of 1897 (Gen. Stat. 1897, ch. 70, §§ 67-69), which requires railroad companies to furnish free transportation to shippers in certain cases. The defendant was a station agent for the Union Pacific, Lincoln & Colorado Railroad Company, atLuray, Kan., and the substance of the charge against him is that one Thomas Thompson delivered a car-load of cattle at Luray for transportation over the railroad to Kansas City, Mo. ; that Thompson accompanied the cattle and was carried free over the road to the point of destination, but that defendant Otis, who had authority to and usually did issue return transportation to shippers of two or more car-loads of cattle, refused to issue return transportation to Thompson from Kansas City, Mo., to his home in Kansas, and he was therefore compelled to pay his fare.
The court on motion quashed the information and discharged the defendant from custody. The state appeals, and the question presented is, Do the facts stated constitute a violation of the statute? It pro-' vides :
“Section 1. ' Whenever any railroad company or corporation doing business within the limits of this state shall receive and ship any live stock by the carload, said company, in consideration of the usual price paid for the shipment of said car, shall pass the shipper or his employee to and from the point designated in the contract or bill of lading, without further expense to the shipper in the way of fare : Provided, however, that in all cases where a shipper ships more than one car-load of stock at the same time the said railroad company shall be and is hereby required to pass free, as aforesaid, only one additional person, shipper or employee for every three car-loads shipped in addition to the first car-load.”
Assuming, but not deciding, that the law is valid as a regulation of shipments between points in Kansas, it certainly is without effect as to shipments from one state to another. It has been so long settled and the adjudications are so numerous that citations of authority are not necessary to show that the regulation of commerce among states belongs exclusively to congress, and that any attempt by state legislation to regulate, burden or impede interstate commerce is a violation of the commercial clause of the federal constitution. There is nothing in the act itself indicating a legislative purpose to usurp the functions of congress or to make the act apply to other than traffic within the state ; in fact, the language of the first section of the act expressly refers to railroad companies and corporations “doing business within the limits of this state,” and the implication is that the act was only intended to apply to such corporations and to business of the character named. We assume that the legislature was acquainted with the constitutional limitation, and therefore did not intend that 'the act should apply to interstate commerce ; but if it was intended to apply to commerce of that character it would be repugnant to the constitution of the United States and therefore void.
That the shipment in question was interstate there can be no doubt, as it was expressly alleged to be from a place in Kansas to a place in Missouri. Although the destination of the cattle was in an adjoining state, the transaction is as clearly interstate commerce as if the destination was New York city. It was expressly averred that the shipment was made to Kansas City, Mo., and the alleged culpable act on which the penalty of the law is invoked is the refusal of the defendant to furnish transportation from a point in Missouri to a point in Kansas. As the shipment was clearly interstate commerce, it was not regulated or affected by the statute in question, nor was the defendant subject to the penalties of the statute for alleged non-compliance with the same.
The judgment of the district court will be affirmed. | [
112,
-30,
-11,
29,
58,
-32,
34,
-102,
81,
-15,
-92,
83,
-19,
-60,
21,
113,
-25,
61,
117,
121,
-12,
-105,
71,
-13,
83,
-45,
-109,
-57,
51,
75,
108,
-18,
77,
16,
10,
-43,
102,
-54,
-63,
-100,
-18,
36,
41,
-23,
-39,
0,
60,
105,
22,
79,
49,
-113,
-13,
42,
24,
-45,
41,
44,
105,
-91,
-63,
-15,
-70,
79,
124,
6,
19,
100,
-103,
5,
-56,
62,
-104,
17,
3,
-7,
115,
-96,
-126,
-44,
77,
-39,
9,
34,
99,
33,
13,
-19,
-84,
-120,
47,
-5,
-97,
-58,
-112,
16,
3,
13,
-98,
29,
22,
18,
6,
-2,
-2,
13,
31,
124,
-123,
-113,
-80,
-93,
-113,
116,
-110,
87,
-53,
-73,
-110,
113,
-60,
-94,
93,
71,
118,
27,
-114,
-66
] |
The opinion of the court was delivered by
Allen, J. :
The appellant, Alexander Warner, was charged by the county attorney of Cherokee county with having accepted and received on deposit in the Baxter Bank money, and drafts circulating as money, when the bank was insolvent. It is alleged in the information that the Baxter Bank was a corporation and that Alexander Warner was its president, Ben. S. Warner vice-president, A. A. Warner cashier, and Russell E. Davis clerk and bookkeeper. All of these persons were jointly charged with receiving deposits knowing the bank to be insolvent. The appellant, on a separate trial, was convicted and sentenced on the first, fifth, seventh and tenth counts of the information, which contained eleven counts. The second, fourth, sixth, eighth and eleventh counts charged the appellant with being accessory to the receipt of deposits, and the ninth charged him with having permitted and connived at the receipt of the same deposit which the seventh count charged him with having accepted and received. The jury found the defendant guilty on the third count, but as to this the court granted a new trial. The sentence was to confinement in the penitentiary for the term of one year on each of the counts on which he was convicted.
It is first contended that the banking act of 1891, under which the prosecution was instituted, was repealed by the new enactment of 1897, and that the saving clause is insufficient to authorize the commencement of a prosecution under the law of 1891. We have reached a conclusion adverse to this contention in the case of In re Taylor, ante, p. 87. It is unnecessary to restate in this case the reasons for that conclusion.
The next contention is that in certain counts of the information the defendant was charged with having received checks. It is said that section 16, chapter 48, Laws of 1891, under which the information was drawn, does not use the word “checks” ; that there is a clear distinction in the law between a check and a draft; that the proof was of deposits of checks properly so denominated, and that the motion to quash the information as to these counts, because it did not state facts sufficient to constitute a public offense, should have been sustained. The distinction pointed out by counsel is between bills of exchange, properly so termed, and private checks. In Bouvier’s Law Dictionary, Rawle’s Revision, draft is thus defined : “An order for the payment of money drawn by one person on another. (1 Story, 30.) It is said to be a nomen generalissimum, and to include all such orders. (Id., per Story, J.) ” Worcester defines it: “An order by which one person draws on another for a certain sum of money, a check, a bill of exchange.” In 5 American and English Encyclopedia of Law (2d ed.), 1029, it is said : “A check is a draft or order upon a bank or banking house, purporting to be drawn upon a deposit of funds, for the payment at all events of a certain sum of money to a certain person therein named, or to him or his order, or to bearer, and payable instantly on demand.”
That the deposit of a check falls as clearly within the reason of the statute as deposits of other commercial paper circulating as money is too clear for argument. The legislature, having used a general term which includes within its ordinarily accepted meaning checks as well as other orders for the unconditional payment of money, must be held to have intended to make the receipt on deposit of checks circulating as money by the officers of insolvent banks equally criminal with the receipt of other currency. The word “ check ” is not used in section 16, chapter 43, Laws of 1891. It is used, however, in section 15, chapter 47, Laws of 1897, which covers the same subject-matter. It is contended that the new act shows a legislative construction of the old, and indicates that the legislature of 1897 regarded the prior act as defective in this particular. While this suggestion has some force, the real question is, What did the legislature of 1891 intend, and what does the language used include ? It may be that in a prosecution under the last, enactment, where notes, bills, checks and drafts are all named, the instrument received should be properly designated in the information, and that the charge must be proved as alleged; but where the word “ check” is not found in the law, but the general term “ drafts” is used, it must be held that averment and proof of the receipt of a check is sufficient.
The defendant moved the court to require the state to elect on which count it would rely for conviction. This motion was overruled, and it is strenuously insisted that this was error. The information charged five separate and distinct transactions with different persons, and the defendant has been sentenced to punishment on each of four different counts. It is insisted that the joinder of charges of distinct felonies in one information and forcing the defendant to trial on all of them is contrai’y to well-established principles of law. Counsel for appellant concede that the case of The State v. Hodges, 45 Kan. 389, 26 Pac. 676, is clearly opposed to their contention. It was there held:
“Several separate and distinct felonies may be charged in separate counts of one and the same information, where all the offenses charged are of the same general chai’acter, requiring the same mode of trial and the same kind of evidence, and the same kind of punishment, and the defendant may be tried upon all the several counts at one and the same time, all resting in the sound judicial discretion of the trial court.”
It is said by counsel that the authorities cited in the opinion in that case do not uphold the conclusion reached by the court. It does appear that the prior decisions of this court cited in the opinion were in prosecutions for xnisdemeanors, and it has long been the settled law that such joinder is proper in prosecutions for misdemeanors. It is said that these decisions have no bearing and give no support to the proposition that a defendant may be convicted axid punished for several distinct felonies on one trial. While this is true as to the Kansas cases cited, the other citations (Whart. Cr. Pl. & Pr., § 285, et seq., 1 Bish. Cr. Proc. (3d ed.), §§ 424, 450, 451, and 4 A. & E. Encycl. of L. (1st ed.) 754, 756) do give support to the conclusion x’eached by the court. The reasons for the distinction which formerly prevailed in England between prosecutions for felonies and for misdemeanors no longer exist. Where the usual punishment for the commission of a felony was death, great strictness in charging the offense, as well as in the mode of trial, was and ought to have been maintained; but in this state, and in this country generally, there is no broad distinction between the character of the punishment-inflicted for misdemeanors and for felonies other than murder. Fines and imprisonment, with or without-hard labor, are the penalties usually imposed for both felonies and misdemeanors. The distinction between the two classes of crimes drawn by our statute rests on the character of the punishment, offenses punishable by death or confinement in the penitentiary being denominated felonies, and all others misdemeanors. The mode of trial in all cases is substantially the same, and in cases like the one under consideration, where the proof must necessarily be in part the same on all of the charges, it seems entirely proper to join charges of separate transactions of similar character. The tendency of the courts in most of the states seems to be to uphold the practice and follow the rule adopted in the case of The State v. Hodges, supra. (10 Encycl. Pl. & Pr. 547, et seq.)
The last and most serious question is as to the sufficiency of the proof. It is claimed on behalf of the' appellant that there is a total want of proof to sustain the charge that he received or accepted any one of the deposits mentioned in the counts under which the conviction was had. Counsel for the state have failed to call our attention to any testimony in the record showing that Alexander Warner personally took either of the deposits, or even had any knowledge that any one of them was in fact made. We have examined the testimony with some care, and fail to find any statement in the record showing that the appellant had any direct connection with the receiving of any of these deposits, or that he did anything as a distinct acceptance of any of them. The only manner in which he is connected with either transaction is by his official relation to the bank as its president and proof that he was sometimes seen in the bank. One depositor stated that he thought the appellant was in the back room of the bank at the time the deposit was made. There is no testimony showing that he gave special directions to any one to receive either deposit, or that he knew the amount or character of any of them. The language of the statute is :
“No bank shall accept or receive on deposit, with or without interest, any money, bank bills or notes, or United States treasury notes, gold or silver certificates, or currency, or other notes, bills or drafts circulating as-money or currency, when such bank is insolvent; and any officer, director, cashier,, manager, member, party, or managing party of any bank, who shall knowingly violate the provisions of this section, or be accessory to or permit or connive at the receiving or accepting on deposit of any such deposit, shall be guilty of a felony. . . .”
The charges contained in the counts of the information under which the conviction was had were all that the defendant accepted and received on deposit the several items described. It must be borne in mind that the Baxter Bank was a corporation. The connection of the appellant with it was that of an officer. He is not charged with being the owner. The other persons connected with the bank were its officers and employees. Possibly a private banker who employed clerks and servants to receive deposits might be bound even in a criminal case by their acts where their possession immediately became his, but the statute as framed seems to denounce its penalties against the individual who shall take deposits into the bank when he knows it to be insolvent, and also against all others who knowingly permit or connive at their reception. In the case of The State v. Wells, 134 Mo. 238, 35 S. W. 615, construing a Missouri statute making it larceny for an officer of a banking institution to receive or assent to the reception of a deposit, it was held by the supreme court of that state that a charge that the defendant received a deposit knowing the bank to be insolvent was not sustained by proof of his assenting only, and that, as the evidence did not tend to prove the reception of the deposit, there was a total failure of proof.
Whether the evidence given at the trial in this case was sufficient to uphold a charge against the defendant of having permitted or connived at the receipt of the deposits, we need not decide. The charge is that he accepted and received. The word “ accepted ” implies that the bank received and that he agreed and assented to the reception. He could not accept without at least knowing what was received. The proof being insufficient to sustain the conviction under these counts of the information, the motion for a new trial should have been sustained. The judgment is reversed. | [
-80,
-24,
-36,
-66,
90,
96,
42,
-102,
90,
-128,
-94,
115,
-23,
71,
4,
113,
-13,
107,
117,
121,
-60,
-77,
39,
99,
-30,
-13,
-55,
-43,
-75,
89,
-92,
-43,
12,
50,
-54,
-39,
102,
72,
-61,
-44,
-114,
5,
48,
75,
-40,
8,
52,
47,
66,
11,
49,
-99,
-13,
43,
20,
78,
105,
44,
73,
-72,
112,
-79,
-114,
-121,
109,
5,
-77,
7,
-72,
1,
-56,
46,
-104,
51,
2,
-24,
122,
-122,
-122,
-12,
111,
-71,
13,
98,
98,
33,
53,
79,
-104,
-120,
38,
-1,
-67,
-90,
-110,
80,
-85,
12,
-73,
-99,
-10,
16,
-122,
-3,
-20,
-115,
25,
108,
1,
-54,
-106,
-109,
-113,
60,
-102,
-37,
-29,
35,
48,
97,
-50,
-30,
93,
86,
120,
-111,
-100,
-35
] |
The opinion of the court was delivered by
Smith, J. :
L. FI. Westerman and Henry Rammelsberg were the owners of a grist-mill in Ellsworth, Kan. They insured the same with the plaintiff in error for the sum of $5000 on the 27th day of November, 1889, for five years. The application for the policy was made by said firm, and there was no agreement contained in it to keep a watchman on the premises when the mill was not in operation. About the 16th day of June, 1890, Westerman sold his interest in the milling property to his partner Rammelsberg, and made a written assignment of his interest in said policy of insurance to the latter. This assignment was approved by the insurance company. The company, however, required Rammelsberg to make a new application. It is claimed by the company that Rammelsberg agreed in this that he would keep a watchman on the premises at all times when the mill was not in operation. Rammelsberg insisted that the application was made to one Atkinson, agent of the company, at Ells-worth, and that he (Rammelsberg) signed it at that place; that he made no agreement to keep a watchman on the premises, and that he did not know that the application contained any agreement to that effect, and that he positively refused to agree to keep a watchman. The property insured was burned on the 12th day of April, 1893, at 11: 30 p. m., after the mill had ceased operation and had been shut down from about five o’clock in the afternoon. There was no watchman on the premises. All rights of Rammelsberg in the policy came to the defendant in error by assignment. On the trial the evidence was confined to the question whether there was an agreement upon the part of the insui'ed to keep a watchman on the premises at all times when the mill was not running. There was a verdict and judgment for the plaintiff below.
But two questions are argued in the brief of the insurance company — error in the admission of the declarations of Robert Atkinson, its general manager, and in refusing and giving certain instructions to the jury. The plaintiff below was permitted to read extracts from the testimony of Robert Atkinson, the secretary and general manager of the company, given on its behalf at a former trial of the case, regarding what was said and done by him and the insured at the time the second application for insurance was made. This testimony was read from a case-made prepared for this court, but no objection was made upon that ground. In fact, it was admitted that the case contained the evidence of the witness as given at the previous trial. The objection urged in the court below and here is that this testimony amounted to nothing more than proof of statements concerning a transaction made by the agent Atkinson long after the application for insurance had been made to him, that such statements contained in his former testimony were not part of the res gestee, were hearsay, and not evidence against the company. The evidence was read at the last trial, in June, 1898, from testimony of Atkinson given at a former trial in May, 1894.
It will be unnecessary to discuss the objections to competency' directed against the admission of this testimony. The error, if one was committed, is not, in our judgment, sufficiently serious and material to justify a reversal of the cause, in view of the subsequent action of the plaintiff in error on the trial in the court below. After the plaintiff below had read such portions of the testimony of Atkinson at a former trial as it desired, over the objections of the insurance company, the latter then asked leave of the court, which was granted, to read all of the testimony of the witness.given at the previous trial by way of cross-examination. Thereupon all of his former testimony, both in direct and cross-examination, of which plaintiff below had read a part, was read to the jury by the defendant insurance company. Thereafter, when the plaintiff below had rested its case, the witness Atkinson was swrorn, placed upon the stand in person by defendant, and examined and cross-examined at great length. He fully detailed his connection with the application for insurance, and went into all the facts and circumstances regarding that clause in the application relating to the keeping of a watchman. If there was any error in the admission of the statements made by Atkinson at the former trial, we do not think the same could have prejudiced the insurance company. On both occasions Atkinson was a witness in its behalf, and on the last trial his testimony was twice presented to the jury, thus giving the company the benefit of whatever emphasis might follow repetition. The plaintiff in- error was certainly not prejudiced by the action of the court. If error was committed in getting before the jury statements of the witness which might be prejudicial to the insurance company, the error was fully neutralized by a reading of all the testimony given at the same time, and the further examination of the witness fully and exhaustively on the matters in issue.
On the second question, both Rammelsberg and Westerman testified that Atkinson told them that the second application, which was signed in Ells-worth when Atkinson was there, contained the same provision as the first, in which no watchman was required. This testimony was contradicted by Atkinson, however, who testified that he went to Ellsworth on August 5, 1890, saw Rammelsberg about the application, and told him that he would insist upon the contract providing for a watchman, to which Rammelsberg, after some objections, finally agreed ; that he then went to Ottawa, the headquarters of the company, and on August 12 sent a copy of the application to Rammelsberg containing an agreement to keep a watchman, which the latter signed and sent back; that about three days thereafter he sent back the policy, with application attached, to Rammelsberg. Plaintiff in error complains of the trial court because of its refusal to give to the jury certain instructions tendered, which are to the effect that if Rammelsberg, at the time he signed the application for insurance, knew, or might by the exercise of ordinary care and prudence have known, that said application contained an agreement to keep a watchman on the premises when the mill was not in operation, or afterward received a copy of said policy with the application, and knew or might have known by the exercise of ordi-, nary care and prudence that said application contained an agreement to keep a watchman, and made no objection thereto, and made no offer to return said policy to the insurance company, but retained the same, then he was bound to keep a watchman when the mill was not running ; and if a fire originated at that time, and no watchman was kept, there could be no recovery. One of the instructions refused is as follows :
“If Rammelsberg, before and at the time he signed said application, could have read said application, and if it was a fact that the witness Atkinson told Rammelsberg that the application was the same as the old one, yet that would not excuse him from reading said application or having it read to him ; he was bound to use all reasonable care to learn the contents of the paper he was to sign.”
The court below instructed the jury as follows :
'“ If at the time the new application was presented to Rammelsberg for his signature he could read, and he neglected to read said application, he is bound by the conditions contained in said application, unless the defendant used some device or did some act which would have caused a man of ordinary prudence to refrain from reading said application.”
We think the instruction given covered the law of the case, and-that the court was right in refusing to instruct as requested. If the insured relied on the statement of the company’s agent to the effect that the new policy issued to him did not require the keeping of a watchman, which requirement was not made in the former policy, and he signed the application written by the agent, which was made part of the policy, then we think the insured had the right to rely upon the agent’s statements, and his failure to read the application and to verify the written words would not be an act of omission amounting to negligence. In the case of Continental Ins. Co. v. Pearce, 39 Kan. 396, 404, 18 Pac. 291, the question here was involved. The court said :
“The defendant claims that plaintiff was respon sible for such statements, because he signed 'the application after he had an opportunity to read and examine it, and having thus entered into an agreement he should not be permitted to say that he did not sign it with full knowledge of its contents. When the application was taken Beals (the agent) handed it to plaintiff, who said : ‘You read it; I haven’t my glasses with me ’ ; and then Beals read a part of it, but not the answers that were false. The first time plaintiff knew they wei’e in the application he learned it from another agent of the defendant, who came to adjust the loss. The plaintiff evidently trusted to Beals to fill out the application truthfully. He was not dishonest, did not misrepresent, and did not intend to deceive. -The only thing that he was guilty of was that he did not read the answers that he gave to Beals to transcribe. The dishonesty was all on the part of the agent of defendant. . . . It is insisted that under such circumstances the assured should be bound by his written application, unless there was some crafty device or stratagem resorted to to prevent him from reading the application which he signed. This is the ordinary rule in signing a written contract or stipulation ; but after the payment of the premium, we are unwilling to apply it <to its full extent to the system of taking applications, which is now almost universally adopted by insurance companies to obtain business. Its practical application would work injustice to the insured.” See also Sullivan v. Phœnix Ins. Co., 34 Kan. 170, 8 Pac. 112.
In Temmink v. Insurance Co., 72 Mich. 388, 40 N. W. 469, which was an action upon a policy of insurance, the agent took down answers of the applicant for insurance, but fraudulently changed the same. The court said :
“ If the document was not truly interpreted to her, or if, as the jury must have found, it was falsely represented, at least by implication, it would be going too far. to hold her (the insured ) estopped by what she .was in no fault for relying on. By the testimony of all parties the agent assumed the whole preparation of the paper, and she had a right to suppose he did it honestly. It is not her fault if he did not act honestly.”
In the case at bar the agent was bound to write the answers to the questions in the application as dictated by the insured, and the latter was not called upon to assume that a fraud was being practiced upon him, nor can he be charged with negligence in believing that the agent was acting in good faith. Although Rammelsberg might have received from the insurance company the policy with the written application attached thereto, yet he had a right to assume that the answers made by him were correctly written, and cannot be chargeable with negligence for his failure to be suspicious, or for too much confidence in the good faith of the agent in carrying out his directions. (Albany City Savings Institution v. Burdick, 87 N. Y. 40; Andrews et al. v. Gillespie, 47 id. 487; Botsford v. McLean, 45 Barb. 478; Hale v. Philbrick, 42 Iowa, 81.) If the agent of the insurance company was guilty of a positive fraud, negligence by which the party injured exposed himself to the wrong or fraud will not bar relief. (Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496, and cases cited.)
It was said in the former opinion : “It (the application for the policy) is the instrument solely of the insured in the sense that its execution is solely his act.” The agent, however, acted as an amanuensis for Rammelsberg in writing down answers to the questions in the application, and the latter had the right to presume that his statements would be set down as they were made, and was not negligent in failing to read them over.
“A man who, by misrepresentation or concealment, has misled another, cannot be heard to say that he might have known the truth by proper inquiry; but must, in order to be able to rely on the defense that he knew the representation to be untrue, be able to establish the fact upon incontestible evidence, and beyond the possibility of a doubt.” (Kerr, Fr. 79.)
In 1 Bigelow on Fraud, 525, the rule is thus stated :
“Indeed the courts would turn a deaf ear to a man who' sought to get rid of a contract solely on the ground that its terms were not what he supposed them to be. But the courts would not refuse to listen, on the contrary they would give relief, where a plaintiff charged fraud upon the defendant in reading the contract to him, or in stating its nature or terms ; and also in leaving out terms agreed upon, or in inserting terms not agreed upon. This would obviously be true of cases in which the complaining party could not read, or could read only with difficulty, or in which a printed document was concerned containing much fine print. But the rule is not confined to such cases ; on the contrary it is very general.”
The jury must have found that Rammelsberg never read the application after the answers were affixed to the questions, otherwise the verdict would have been in favor of the insurance company. On this question the controversy centered. We do not understand that the court said or intimated to the jury that if the policy was received back from Atkinson by Rammelsberg, and the latter had read the provisions of the application before the fire, the plaintiff could recover. There was nothing but conjecture upon which to base a conclusion that Rammelsberg read the application after the time when Atkinson said he sent the same to him from Ottawa.
The judgment will be affirmed. | [
48,
126,
-68,
-99,
24,
96,
40,
-38,
123,
-16,
-89,
83,
-51,
50,
21,
121,
-81,
57,
81,
42,
-10,
-93,
23,
51,
-46,
115,
-13,
-51,
-80,
72,
-68,
78,
76,
40,
10,
-41,
-26,
-64,
73,
-36,
-114,
5,
104,
-17,
-8,
80,
48,
122,
20,
75,
17,
-98,
-13,
46,
21,
-61,
41,
44,
107,
-83,
-16,
-7,
-86,
-116,
103,
0,
51,
4,
-72,
103,
88,
46,
-112,
17,
8,
-56,
83,
-90,
-122,
-76,
47,
57,
8,
98,
103,
33,
53,
-17,
-24,
-104,
62,
-42,
29,
-89,
-106,
88,
51,
8,
-74,
-101,
-12,
20,
7,
-2,
-26,
29,
29,
104,
1,
-125,
-10,
-123,
-49,
120,
-104,
-121,
-34,
-125,
34,
113,
-49,
-86,
94,
69,
114,
25,
-114,
-36
] |
The opinion of the court was delivered by
Smith, J.:
A judgment was rendered in the district court in favor of the Salina National Bank against the Lone Star Plaster Company, a corporation, for $3127.08. Two executions were issued and returned “no property found.” A motion was filed for execution against Mary E. L. Prescott, E. W. Dow, and J. E. Miller, stockholders, alleging that they held 113, 52 and 5 shares, respectively, of the capital stock, of the par value of $100 each. The stockholders moved against first appeared specially and attacked the judgment rendered against the corporation for the reason that the court rendering the same had acquired no jurisdiction for want of proper service. It appeared that the president of the Lone Star Plaster Company made a voluntary appearance by filing with the clerk of the court a writing which, omitting title of the cause, was as follows :
‘ ‘ The issuance and service of a summons in the above-entitled action is hereby waived, and the said defendant, the Lone Star Plaster Company, hereby enters its voluntary appearance in said action.
The Lone Star, Plastee. Company.
By J. F. Meeeill, President
This was filed in vacation, accompanied by the petition in the cause against the company. Defendants in error contend that the judgment based on this service is void for the following reasons : (1) That the entry of appearance conferred no jurisdiction; (2) that the president of the plaster company had no power to waive the issuing of summons. The case of Bradley v. Harwi, 2 Kan. App. 272, 42 Pac. 411, is cited as conclusive on the first proposition. We do not concur in the rule of that case. When the entry of appearance in the case at bar was filed in court it became at once operative. It can make no difference whether the court was in session or not. A suit was anticipated and the title of the action about to be commenced was mentioned in the paper signed by the defendant. We think it is competent for parties out of court, in anticipation of a suit to be brought, to waive the issuance and service of summons and enter appearance in the cause. The code provides: “An acknowledgment on the back of the summons or the voluntary,appearance of a defendant is equivalent to service.” (Gen. Stat. 1897, ch. 95, § 64; Gen. Stat. 1889, ¶ 4146.) We do not interpret the words “voluntary appearance of a defendant” to mean an appearance in court in term time, personally or by attorney. It has been the uniform custom, both in the district courts and this court, for defendants to waive in writing the issuing and service of summons and enter their appearance in cases about to be commenced.
• It would be overturning a long-continued course of practice to hold that the courts obtain no jurisdiction where appearance is entered in this way. In the case of Freelove v. Gould, 3 Kan. App. 750, 45 Pac. 454, in discussing whether the filing of a written motion for a new trial within three days after a decision was the making of an application for a new trial, within section 308 of the code (Gen. Stat. 1897, ch. 95, § 318, Gen. Stat. 1889, ¶ 4403), that court used the following pertinent language :
“This construction of the statute has, also, been universally acquiesced in and acted upon by the courts and by the bar of the state, and has become a rule of practice as thoroughly established as if directed by the very letter of the law. The change of construction contended for would not only revolutionize the practice, but would inevitably result in the doing of a grievous wrong to litigants who have acted in reliance upon the established rule. The doctrine of stare decisis is peculiarly applicable under such circumstances, and forbids any innovation at this time.”
There could be no question that if the defendant had filed a motion in the cause, either simultaneously with the filing of the petition or afterward, on any other than jurisdictional grounds, his appearance would have been effectually entered in the case. (Burdette v. Corgan, 26 Kan. 102; Packing and Provision Co. v. Casing Co., 34 id. 340, 344, 8 Pac. 403; Life Association v. Lemke, 40 id. 142, 19 Pac. 337.)
In the case of Humphries v. Humphries, Morris (Iowa), 473, the defendant indorsed on the complaint these words : “I hereby waive service of process on the within and agree to enter an appearance the first term of the district court for the county of Muscatine.” The court held:
“By this indorsement the defendant Humphries' not only waived service but agreed to make his appearance to answer at the next term of the court for Muscatine county, thus by his own act obviating the necessity of issuing a summons in accordance with the precipe filed, thereby amicably placing himself in the position of a defendant in the action who had been fully and legally notified by summons.” (See also Russell v. Craig, 10 Colo. App. 428, 51 Pac. 1017.)
Cases to the contrary of this doctrine have been cited by the defendant in error, but we think the better rule is that stated above, which has been uniformly practiced and acquiesced in by the bench and bar of the state for many years. In Bouvier’s Law Dictionary, 518, under the title “Appearance” it is said:
“The appearance of the parties is no longer (as formerly) by actual appearance in court, either by themselves or their attorneys, but it must be remembered an appearance of this kind is still supposed and exists in contemplation of law. The appearance is effected on the part of the defendant (where he is not arrested) by making certain formal entries in the proper office of the court expressing his appearance.”
The paper signed by the plaster company was, within the meaning of the statute, “the voluntary appearance of a defendant,” as effective in all respects as if a formal pleading had been filed in the cause. The intention of the defendant company was apparent from the terms used in the entry of appearance, and we can see no good reason for defeating the object sought to be accomplished.
On the second proposition, the president of the plaster company was the proper person, to be served with summons in the cause. (Gen. Stat. 1897, ch. 95, § 65; Gen. Stat. 1889, ¶ 4147.) A waiver of service of sum mons and the entry of appearance was a substitute for actual service and was binding on the corporation. (City of North Lawrence v. Hoysradt, 6 Kan. 170.) Defendants in error contend that the case last cited is not in point, because it construed a provision of the justices’ code which is broader than section 67 above quoted. In our view both provisions are equally comprehensive.
It appeared from the evidence that some of the stockholders were released by the bank from their statutory liability as such by the payment of nominal sums, and it is claimed that the aggregate liability of such stockholders was more than the amount of the judgment rendered in favor of the bank against the plaster company, and that for these reasons we must consider the judgment paid. In one instance, that of J. J. Crippen and wife, a liability of about $3000 was released in consideration of the payment of $75. The argument is that this affected the rights of the defendants in error to compel contribution from other stockholders. This court has held, in Abbey v. Long, 44 Kan. 688, 24 Pac. 1111, that a stockholder cannot purchase claims against the corporation at a discount and then set them off against his liability at their face value. He can only get the benefit of the amount actually paid by him for such claims. The total debt and liability of the stockholder is not paid by the acceptance of a less amount than that for which the stockholder is actually liable. This, however, is not an action by one stockholder against another for contribution, and we are without power to adjudicate upon the rights of stockholders not brought into this court. It would be mere dictum to state a rule determining the proportion that other stockholders should pay to defendants in error by way of contribu tion, for the reason that no such controversy is involved here. The judgment; creditor has the right to pursue one stockholder alone and compel payment from him of his statutory liability, and he cannot complain that his associates are not brought in and likewise charged; and one stockholder is not concerned with the question whether other subscribers are discharged or not unless his liability be thereby increased. (Bennett v. Glenn, 8 U. S. App. 419, 5 C. C. A. 353.)
The contention that the proceeding adopted by the plaintiff in error in the court below was not available, for the reason that the corporation had ceased to do business for more than a year before the same was begun, is not -well founded. (Sleeper v. Norris, 59 Kan. 555, 53 Pac. 757; Thompson v. Pfeiffer, ante, p. 409, 56 Pac. 763.) Connected with this contention is the claim that the note of the Lone Star Plaster Company to the bank was dated October 1, 1894, after the plaster company had ceased to do business for more than a year, and hence that no debt could be created which the stockholders ought to pay after the corporation had ceased to exist as to them. It appears that this note was a renewal of a former one. In Sleeper v. Norris, supra, Mr. Justice Johnston, speaking for the court, said;
“The provision of section 45, however, was not intended to extinguish the franchises or destroy the life of the corporation for all purposes. The cessation of business does not operate as a legal or complete dissolution of the corporation, but it is deemed to be dissolved but for a single purpose, that of enabling creditors to. enforce the individual liability of stockholders. For all other purposes the bank continued to be a corporation in the eye of the law, and credit? ors had a right to sue the bank in its corporate capacity.”
Its suspension of business for more than a year did not render the directors or officers of the corporation powerless to act in matters concerning the payment of its debts and making evidence of the same by the execution of notes.
The claim that an extension of the time of payment of the note by the bank when it took the renewal obligation released the stockholder from his statutory liability on a judgment for that debt is not tenable. We are not satisfied that the stockholders stand in such relation to the corporation as to entitle them to that favor and strict construction of their contracts which is accorded to sureties. In any event, the mere extension of the time of payment will not discharge a surety. There must be a valuable consideration paid. (Jenness v. Cutler, 12 Kan. 500, and cases cited therein.)
Defendants in error contend that the corporation has assets subject to execution. This we cannot consider in contradiction of the return of the execution nulla bona. In Thompson v. Pfeiffer, supra, it is said : “In the absence of fraud on the part of the sheriff we think that the truth of the return ‘ no property found! on an execution cannot be contested in an action brought to charge a stockholder of a corporation with the statutory liability.”
The fact that the plaster company and. the bank may have had common officers or directors cannot affect the right of one corporation to sue the other to recover a bona fide indebtedness. They had authority to contract with each other, and in the absence of fraud such contracts were binding. (Barr v. N. Y. L. E. & W. R. R. Co., 125 N. Y. 263, 26 N. E. 145; Manufacturers Sav. B. v. Big Muddy Iron Co., 97 Mo. 38, 30 S. W. 865; San Diego v. Pacific Beach Co., 112 Cal. 53, 44 Pac. 333.) In the case last cited it is held :
“The mere fact that two contracting corporations have common directors does not render the contract between the corporations invalid or incapable of ratification, where there is no actual fraud alleged or found, and where the contract is within the chartered powers of both corporations.'”
In Leavenworth v. Chicago &c. R. R. Co., 134 U. S. 688, 707, 10 Sup. Ct. 715, it is said :
“Notwithstanding this commingling of officers, the corporations were distinct corporations. They had a right to make contracts with each other in their own corporate capacities, and they could sue and be sued by each other in regard to these contracts ; and the question is not, Could they do these things? but, Have the relations of the parties — the trust relations, if indeed such existed — been abused, to the serious injury of the Southwestern company ?”
In Coe v. E. & W. Rld. Co., 52 Fed. 531, 543, it is said :
“That the East & West Railroad Company could lawfully contract with the Cherokee Iron Works, although all the stockholders of the one were also stockholders of the other, in the absence of fraud and misrepresentation, is indisputable ; nor would the fact that the two corporations had substantially the same directors, who were the active agents negotiating the contract, render it void — at worst only voidable, but subject to ratification.
The court below permitted the widest inquiry touching the good faith and consideration of the indebtedness of the plaster company to the bank, and we can discover nothing of a fraudulent nature concerning it either in its inception or in the efforts made by the bank towards its collection. We have examined into other questions discussed in the brief of the defendants in -error, but fail to find -where they have been prejudiced by the rulings of the trial court.
The judgment of the court of appeals will be reversed, and the judgment of the district court affirmed. | [
-14,
-12,
-68,
-36,
59,
96,
32,
-70,
113,
-30,
-91,
19,
-23,
-54,
4,
107,
103,
45,
117,
120,
-50,
-125,
7,
99,
-46,
-45,
-45,
85,
-80,
79,
-18,
-1,
76,
32,
106,
-41,
-58,
-54,
-59,
-100,
-50,
-91,
57,
108,
-15,
1,
48,
75,
20,
15,
17,
-2,
-13,
56,
27,
75,
41,
56,
-5,
-75,
-64,
-8,
-114,
-59,
127,
20,
49,
4,
-100,
-89,
120,
10,
-112,
57,
1,
-24,
115,
-74,
2,
-12,
47,
123,
8,
38,
99,
33,
21,
-29,
24,
-72,
47,
126,
-99,
-89,
-111,
24,
-125,
41,
-74,
-99,
-1,
0,
-121,
-4,
-18,
21,
16,
44,
3,
-53,
-106,
-77,
7,
119,
58,
15,
-29,
-121,
48,
113,
-52,
-80,
92,
67,
122,
-103,
-116,
-100
] |
The opinion of the court was delivered by
Doster, O. J. :
This is an appeal from a conviction of the offense of what is commonly designated as “statutory rape”; that is, of carnally knowing a female under eighteen years of age, without force and not against her will. The prosecution was by indictment, which contained but one count, and alleged the commission of the offense on the 25th day of December, 1896. The evidence on behalf of the state tended to show two offenses, one in November, the other in December, 1896. The defendant did not move the court at the close of the evidence for the prosecution to require the state to elect upon which of the claimed offenses it would .demand a conviction, as he might have done, but introduced evidence in denial of both the imputed acts. After the evidence was all in, and when the court was about to charge the jury, the defendant moved that the state be compelled to make its election. The court overruled the motion, upon the ground that it had been made at too late a stage of the trial. The overruling of this motion constitutes the principal claim of error.
The complaint of the appellant is well grounded. The rule is that, in indictments for felony charging a single offense, the defendant can only be held to answer for a single separate and complete felonious act. It may develop in the course of the trial of a defendant charged with a single offense that he has been, perhaps, guilty of two or more offenses of a like kind. In such cases it is the right of the accused to demand that the state elect as to which of the claimed offenses it will require him to respond. As to the limitations upon the right of the state in such cases to give evidence of more than one offense we have no concern. (The State v. Stevens, 56 Kan. 720, 44 Pac. 992.) The question of its right to do so is not before us. It did give such evidence in this case. 'At what time, then, should the defendant have exercised his right to compel an election?
In a number of cases the right of the defendant to compel this election at the close of the evidence in behalf' of the prosecution and before being called upon to make his defense has been affirmed. (The State v. Schweiter, 27 Kan. 500; The State v. Crimmins, 31 id. 376, 2 Pac. 574.) All the cases cited to us are cases in which the question of the defendant’s right to compel an election at that time was alone involved ; hence the defendant’s right to compel an election at a later time has not yet been determined, so far as we know. In some of the decisions language is used from which the right to compel an election at any time before final submission to the jury might be inferred. (Wash v. The State of Mississippi, 14 Sm. & M. 120; Mart Womack v. The State, 7. Colo. 509.) In Goodhue v. The People, 94 Ill. 37, the motion to require an election was made at the close of all the evidence. The court held that it should have been sustained, but the holding seems to have been made upon the general doctrine of the right of the defendant to limit the prosecution to a single offense. The question as to the proper time at which the motion for an election should be made was not discussed either by court or counsel. In The State v. Bonsor, 49 Kan. 758, 31 Pac. 736, the motion for election was made after all the evidence had been introduced. The state made an election. The defendant then moved for the exclusion of all evidence from the jury that did not tend directly to prove the commission of the particular act relied upon for conviction. This motion was overruled, and it was held to be error.
Upon principle we are constrained to believe that the defendant in this case had a right to require an election after all the evidence was introduced and before the time for the court’s charge to the jury and the argument of the case. The trial had not ended. The instructions had not been given. The arguments had not been made. The defendant had not yet finally submitted his defense to the consideration of either court or jury, and until he had done so his right to demand the elimination from the case of all matters not properly subjects of consideration remained with him. Until the court commenced the reading of its charge to the jury he had the right to require the presentation of such law only as bore upon a single separate offense, and until the argument in behalf of the state and in his own behalf had commenced he had the right to require that the discussion be confined to the question of his guilt of one single separate offense. Indeed, it would seem that so far as the state is concerned the appropriate time for the making of an election is at the close of all the evidence. Until that time the facts in direct proof and in defense of the charge and in rebuttal of the defendant’s evidence are not all fully disclosed. At that time more than at any other the state can intelligently determine for which of the several separate criminal acts it will demand a conviction. Therefore no right of the state can be jeopardized or made more difficult of assertion by the delay of the defendant’s motion. A claim of waiver of defendant’s right by his delay can only be predicated upon the theory of prejudice to the state in consequence of the delay ; hence, if no prejudice result, no waiver occurs. The mistake of the court below was in regarding the rule of the cases of The State v. Schweiter and The State v. Crimmins, supra, and other like cases, as a rule of restriction and not of privilege. These cases do not declare a time beyond which the motion for an election may not be made ; they only declare that it may be made at the time stated.
Some minor claims of error are made. They are not well founded. However, for the reasons given, the judgment of conviction is reversed and a new trial ordered. | [
-16,
-18,
-71,
-67,
43,
96,
-30,
-72,
0,
-93,
54,
115,
-87,
-38,
4,
121,
-101,
63,
85,
106,
-44,
-73,
55,
-55,
54,
-77,
-6,
-41,
-73,
72,
-10,
-3,
12,
-80,
74,
-43,
70,
-54,
65,
92,
-118,
-115,
-103,
-56,
-48,
-118,
54,
51,
114,
11,
49,
30,
-5,
42,
28,
-61,
75,
44,
75,
-67,
72,
-79,
-104,
-107,
-51,
22,
-77,
38,
-99,
-126,
-24,
38,
24,
25,
0,
-24,
123,
-90,
-122,
86,
77,
9,
-84,
98,
98,
1,
-83,
-49,
-84,
-87,
46,
55,
-67,
-90,
16,
72,
106,
40,
-74,
-103,
102,
52,
11,
-2,
-11,
-59,
17,
108,
2,
-113,
-48,
-77,
-113,
116,
18,
66,
-61,
-91,
16,
53,
-60,
-12,
92,
87,
82,
19,
-98,
-106
] |
The opinion of the court was delivered, by
Doster, O. J. :
This was an action of injunction to restrain the city of Kansas City from enforcing the collection of an assessment on abutting property for the purpose of paying for a street pavement, on the ground that the city council in making the contract for the improvement had included therein the estimated cost of repairs of the pavement for live years subsequent to the completion of the work. Judgment was rendered for the plaintiff, which judgment was affirmed by the court of appeals. Error is prosecuted to this court. The case is determinable upon the construction of the provisions of the contract in question. These read as follows :
“ The contractor expressly agrees to give a good and substantial bond to maintain in good order the aforesaid pavement for five years after the date of its acceptance, and binds himself, his heirs and assigns, to make all repairs which may, from any imperfection in said work or material, or from any crumbling or disintegration of the material, become necessary within that time ; and contractor shall, whenever notified by the city engineer that repairs are necessary, at once make such repairs at his own expense, and if they are not made within fifteen days after the date of said notice, the city engineer shall cause such repairs to be made at the expense and cost of the said contractor.
“ It is further agreed that whenever any repairs in the street are made necessary from the construction of sewers, laying of pipes or telegraph wires', or from any other disturbance of the pavement by parties acting under permit issued by the city engineer, the contractor shall, on notification from the city engineer, immediately cause all necessary repairs in conformity with the specifications for this class of work. The cost of such repairs, exclusive of back filling, which should be done by the parties holding the permit given in the same manner as now required by existing ordinances, shall be paid for at the full contract price for a square yard of new pavement, out of the deposit made by the one holding the permit, upon notice of completion from the city engineer.”
In the construction of a contract inter partes, as likewise other written instruments, the writing as a whole, as well as the particular part under consideration, must be looked at. Every portion of it must be given due weight and the intent of the parties collected out of all its terms. So doing in this case, there does not seem to be much difficulty in arriving at a correct conclusion as to the meaning of the contract. The first clause, standing by itself, would seem to. uphold the contention of the defendants in error. It reads as follows : “ The contractor expressly agrees to give a good and substantial bond to maintain in good order the aforesaid pavement for five years after the date of its acceptance.” Thus far quoted, this, in connection with other parts of the instrument, is an agreement not only to build but to keep in repair, and from it we might well conclude that, the contractor's obligation being not merely to build but to repair as well, the cost of repairs during the time stated was included in the amount of his bid. If so, the contract would be illegal, because the cost of the repair of streets in cities, except as presently mentioned, is a general public burden and cannot be imposed upon the abutting property owners. The above-quoted clause, however, is not the whole contract. Following it, in immediate sequence and connection, the instrument reads : “And binds himself, his heirs and assigns, to make all repairs-which may, from any imperfection in said work or material, or from any crumbling or disintegration of the material, become necessary within that time.” Rightly construed, the last quotation is a specification of the kind of repairs which the contractor in the clause first quoted agreed to make. Rightly construed, the two clauses together mean that the contractor binds himself to make all repairs which might become necessary through his imperfect work or imperfect material, and agrees to give a bond that he will do so. If it had been the design of the parties to make an agreement binding the contractor in general terms to make any and all repairs of the pavement for five years irrespective of the causes which made them necessary, the whole of the instrument following the clause first quoted might have been omitted. That standing by itself obligates to the making of repairs made necessary by any and every cause. The fact that in immediate connection with it a specific character of repairs was contracted for quite clearly indicates that it was the intention of the parties to limit the general language of .the first clause by the specific and definite terms of the latter one. This, too, is what the law will do in its effort to ascertain the intent of parties to such instruments and to give effect to their engagements. (Bish. Contr., §§ 382, 406, 409.) We feel quite clear that the instrument should be construed as an agreement to make such repairs only as became necessary on account of indifferent workmanship or defective material used by the contractor. In other words, it is a guaranty by the contractor of the quality of material used and character of work performed by him.
The taking by the city council of such a guaranty cannot in law be held to increase the cost of the pavement or to impose upon the property owners payment for future repairs, and there was no evidence that the amount of the contractor’s bid was in fact increased by the imposition of an obligation to make the repairs in question. The use of reasonably good material and the employment of reasonably skilful workmen are implied in the making of every such contract. To express in words what is thus implied, and to take se curity for the fulfilment of the obligation, cannot be regarded, as an onerous burden upon the taxpayer. Construing the contract as a guaranty of the quality of material and workmanship, the authorities are uniform in upholding its validity. (Robertson v. City of Omaha, 55 Neb. 718, 76 N. W. 442; Asphalt Paving Co. v. Ullman, 137 Mo. 543, 38 S. W. 458 : Allen v. City of Davenport, 77 N. W. [Iowa] 532; Wilson v. Trenton, 60 N. J. L. 397, 40 Atl. 575; Cole v. The People, 161 Ill. 16, 43 N. E. 607.)
The defendants in error have filed a motion to dismiss but it is without merit and is overruled. The judgments of the court of appeals and the court of common pleas are reversed, with directions to the latter court to proceed in accordance with this opinion. | [
-16,
110,
-48,
-17,
90,
64,
26,
-103,
89,
-79,
-75,
95,
-51,
-54,
4,
97,
-121,
125,
-48,
106,
65,
-78,
103,
74,
-42,
-13,
-13,
-43,
-71,
125,
116,
87,
78,
48,
-62,
-99,
102,
-61,
85,
88,
-54,
-122,
8,
69,
-39,
99,
52,
43,
50,
14,
49,
-115,
-13,
44,
24,
-57,
-19,
44,
-8,
41,
-63,
-16,
-37,
-107,
127,
5,
-112,
6,
-100,
7,
-36,
12,
-112,
121,
25,
-24,
115,
-74,
-58,
118,
101,
-101,
9,
98,
98,
32,
33,
-17,
-4,
-68,
12,
-46,
-115,
-90,
-105,
88,
43,
109,
-66,
-107,
116,
22,
101,
-2,
-10,
21,
-37,
108,
3,
-118,
-16,
-45,
-113,
116,
-110,
65,
-17,
-127,
49,
116,
-50,
-12,
94,
-25,
23,
-109,
31,
-71
] |
The opinion of the court was delivered by
Smith, J. :
It is not necessary, in determining this case, to question the rule that instruments such as deeds, mortgages, etc., placed in escrow to await the performances of conditions precedent to delivery, do not take effect until such conditions are complied with. The agreement set out in the statement is a contract'of sale. It expressly states that E. Gilmore has sold to A. Strausbaugh the land described for the sum of $5250, to be paid in the instalments mentioned. It further provides that Strausbaugh. shall not encumber the premises in any manner. A reasonable construction of the language employed by the parties forces the conclusion that a present sale of the property was intended. To say that the intention was to give Strausbaugh a mere option of purchase, and that he took no title, would require the rejection of language used in the contract, and a substitution therefor of words of different meaning. The contract does not contain a condition that no title shall pass to the grantee until the delivery of the deed, the language used being at variance with this construction. Upon the performance of the conditions of payment, a deed containing covenants of warranty was to be delivered to the grantee, conveying to him the legal title, whereas, under the contract, he was the equitable owner. (Jones v. Hollister, 51 Kan. 310, 32 Pac. 1115.)
“It seems to be well settled that when articles of agreement are entered into for the sale and purchase of land, the purchaser is considered the owner in equity of the land, subject to the payment of the purchase-money ; he is regarded as trustee of the purchase-money for the vendor, and the vendor is treated as a trustee for the purchaser of the legal title, having no interest in the land beyond the amount of the purchase-money due. It does not seem to be necessary to produce this effect, that añy part of the purchase-money should be paid ; it results from the contract.” (Liter, James & Co.’s Appeal, 26 Pa. St. 178.) See Miller’s Administrator v. Miller, 25 N. J. Eq. 354.
The amount of the consideration to be paid was stipulated in the agreement, and Strausbaugh was to have time to pay a large portion of the same, as evidenced by the notes. The provision relating to the deferred payments secured by the mortgage was for the benefit of Strausbaugh. He could not divest himself of the equitable title conveyed by the agreement by making default in payment. He still held such title thereafter, subject to the lien of Gilmore for the purchase-money. This being the state of the title, the administrators of Gilmore were proper parties plaintiffin the suit. “A contract for the sale of real estate works an equitable conversion of the land into personalty from the time when it was made, and the purchase-money becomes, thereupon, a part of the vendor’s personal estate, and, as such, distributable, upon his death, to his widow and next-of-kin. (Miller v. Miller, supra.)
The action of Juliann Gilmore in taking a deed from Strausbaugh after the death of her husband is not material. It merely showed her construction of the legal effect of the contract.
There being a sale of the property to Strausbaugh at the date of the delivery of the contract, followed by possession, it would be inequitable for him to occupy the land, make default in payment of the notes in escrow,' and then say that the grantor could not recover on the notes which evidenced the amount he was to pay. The conditions and terms of the notes and mortgage must, under the circumstances of the case, be considered as part of the contract of sale.
The judgment of the district court will be affirmed. | [
-10,
126,
-39,
-19,
122,
96,
42,
-103,
121,
-32,
38,
83,
77,
-62,
20,
43,
-89,
109,
97,
106,
84,
-93,
39,
75,
-46,
-77,
-47,
-35,
-67,
-52,
38,
86,
76,
36,
66,
85,
-26,
-54,
-55,
-48,
46,
-91,
8,
101,
-15,
64,
48,
27,
16,
73,
65,
-113,
-13,
44,
25,
71,
41,
42,
-53,
41,
-64,
-8,
-101,
-123,
127,
4,
51,
117,
-4,
99,
-24,
-114,
-112,
57,
9,
-56,
83,
-74,
-106,
116,
29,
9,
40,
38,
106,
32,
84,
-19,
-40,
-104,
42,
-2,
-115,
-90,
23,
88,
-126,
109,
-66,
-97,
124,
16,
102,
100,
-30,
29,
29,
108,
31,
-117,
-42,
-105,
-113,
124,
-102,
3,
-2,
3,
33,
64,
-50,
-78,
92,
97,
126,
-101,
-114,
-37
] |
The opinion of the court was delivered by
Doster, C. J. :
This was an action brought by Bridget A. Cusick, the defendant in error,-against the Leavenworth Electric Railroad Company, the plaintiff in error, to recover damages for injuries negligently inflicted upon her as a passenger on one of the defendant’s cars. The case is brought to us upon the evidence, under a claim that such evidence fails to show negligence upon the part of the company and does show negligence upon the part of the defendant in error. The claim of negligence made in the petition was that, while the plaintiff was descending the steps of the car for the purpose of leaving it, the conductor negligently and without notice to her signaled the motor-man of the car to go ahead, which signal was obeyed, the car started, and' the plaintiff in consequence thrown from the car steps to the street. The evidence showed that plaintiff and her child were passengers on a south-bound car on Third street in the city of Leavenworth. She told the conductor, one Flora, to let her off at Pine street. As the car approached Pine street it was quite full of passengers. The conductor desired to occupy his time in collecting fares, and in order to enable himself to do so asked one Buckley to stop the car at Pine street and let the plaintiff and her child off. This Mr. Buckley promised to do. Buckley was a conductor on another car belonging to the company, and at the time in question was off duty, riding on Conductor Flora’s car. It was the habit among conductors to assist one another in such cases. Conductor Flora testified : “Ques. But as far as the management of the car was concerned, he (Buckley) was a stranger, was n’t he? Ans. Comparatively so. But still, it had been done on numer ous occasions. One conductor would help another one out.”
"Whether the company was aware of these frequent and friendly transferences of duty between its conductors and assented to them was not shown by the testimony. Buckley gave the signal to stop for Pine street, and left the car at that point in advance of the plaintiff and her child, without giving the starting signal. The plaintiff’s child descended in safety from the.car steps to the street, and the plaintiff herself went as far as the platform steps, when some unauthorized and unknown person gave the starting signal to the motorman. He obeyed it. The car started with the plaintiff on the steps. She grew dizzy, her head swam, she could not hold on to the platform railings, and because thereof, as she testified, fell to the street, sustaining' the injuries for which she sued. The car had gone a quarter of a block, perhaps more, from the point of starting when the plaintiff fell. Conductor Flora supposed that Buckley had given the starting signal, and supposed that the plaintiff had safely alighted. Yery soon after the car started he went out upon the rear platform, and finding her apparently about to leave the moving car directed her to wait for him to stop it. There is conflict in the testimony as to whether she jumped off or fell off. However, the jury having found in her favor upon this point, we are concluded by the finding.
Two claims of error arising upon the facts thus far stated are made. One is that the plaintiff’s fall, according to her own testimony, was not caused by the premature starting of the car, but was caused by the attack of dizziness which overcame her and prevented her from holding on to the platform railings. It is argued that the plaintiff in error cannot be field re sponsible for the consequences of sudden attacks of vertigo, or other like ailments, which disable people from maintaining their balance on its cars. As a reply to this, it is sufficient to say that it is fairly infer-able from plaintiff’s testimony, although not stated by her in direct terms, that the cause of her dizziness and inability to hold on to the car was its premature and sudden starting ; but beyond this, and g,s a proposition of law, it is undeniably true that if the car was negligently started, the company is liable for such injuries as resulted from its negligence concurring with plaintiff’s physical ailments or disabilities. To be subject to vertigo is not a fault.. To be seized with an attack of it at a time when the defendant was performing a negligent act toward the plaintiff was not contributory negligence in the plaintiff. Street-railway companies must have a care for the physically diseased and infirm. They must know that some of such unfortunates are perhaps among their passengers, and they are therefore bound like other railroad companies to the observance of the highest possible diligence to protect the lives and insure the safety of such passengers. (The Citizens’ St. R. W. Co. v. Carey, 56 Ind. 896.) We do not mean to say that street-railway companies must know of the latent infirmities of their passengers and regulate their own conduct' and that of their employees accordingly, but we mean to say that general rules which will insure the safety of the possibly diseased and infirm as well.as the healthy, alert and active among their passengers should be observed, because they must know that their passenger customers belong to all classes. Among these rules is the obligation to see that passengers have alighted in safety from the car before starting again. It is well expressed in Anderson v. The Citizens’ Street Railroad Company, 12 Ind. App. 194, 38 N. E. 1109 :
“There is a marked difference between the duties the law imposes upon those who operate street-railways and those who operate ordinary steam-railways. The latter usually run upon schedule time, and have fixed places for receiving and discharging passengers. There is a higher degree of care imposed upon street-railways than upon ordinary steam-railways. When their cars stop for passengers to alight, it it the duty of their servants to stop long enougfe for the passengers to alight, and to see that the car does not start again, while any one is attempting to alight or exposed to danger. Stopping a reasonable time is not sufficient, but it is the duty of the conductor or those in charge to see and know that no passenger is in the act of alighting or in a dangerous position before putting the car in motion again."
Of course, what is meant by the rule that stopping a reasonable time is not sufficient is that assuming} without looking, that because a reasonable time has elapsed the passenger has safely alighted, is not sufficient diligence. Had the plaintiff been seized with dizziness while the car was standing waiting for her to alight, and she had in consequence fallen and been injured, no blame could attach to the company; but falling as she did from dizziness occurring while the car was negligently in motion, whether the dizziness was a consequence of its motion or otherwise, the company is liable for the resulting injuries.
Another claim of plaintiff in error arising upon the. facts hereinbefore stated is that the premature starting of the car was the act of the unauthorized person Avho rang the bell and gave the starting signal,- and not the act of the compan'y. The claim is that it was, the duty of the motor-man to obey the starting signal; that he could not know that it had not been given by- the conductor, but was bound to assume that it had been given by him ; that the conductor did not know, that the signal had been given by an intermeddler, but was at liberty to assume that it had been given by Buckley, who had promised to stop the car and let the plaintiff off. A sufficient answer to this is that it does not appear that Buckley promised to do more than let the plaintiff off at Pine street. This of course implied the obligation to give the stopping signal, but it cannot be said to imply the obligation to give the starting signal; that is, it cannot, as a matter of law, be said to imply the obligation. If, therefore, Buckley’s obligation to give the starting signal could not be implied from the agreement to stop the car and let the plaintiff off, the act of the intermeddler who did give it, being known to Conductor Flora and not repudiated by him, must be regarded as assented to and adopted by him. So adopted by him, it became liis act — his negligent act.
We do not deny the legal doctrine advanced by counsel for plaintiff in error, which is that a railroad company cannot be held responsible for injuries to a passenger resulting from the act of an intermeddler which it could not foresee and guard against, but the facts of this case do not permit of its application. We will, however, for the purpose of meeting all phases of the contention of counsel for plaintiff in •error, assume that Buckley’s agreement to let the -.plaintiff off implied an obligation upon his part to give the starting as well as the stopping signal. He did -not do it, but, after stopping the car got off himself and left the remainder of his duty unfulfilled. Whose fault was this? If the custom among conductors to assist one another in exigencies such as the one under consideration, as testified to by Conductor Flora, was known to the company and assented to by it, or not dissented from, Buckley then became by virtue of that authorized custom the company’s servant for the purpose of starting the car again as well as stopping it. In other words, for the performance of that particular duty he became the company’s agent to see that the plaintiff was safely off the car before it started up, and the neglect of that duty, leaving the plaintiff exposed to the premature starting of the car through the act of an intermeddler, was the negligence of one of the company’s employees.
If on the other hand the custom among the company’s conductors to lend one another assistance in such cases, as testified to by Conductor Flora, was unknown to the company and therefore unauthorized by it, or if no such custom existed, Conductor Flora was himself guilty of negligence in abandoning the duty of his position, or in deputing its performance to-another, and for such abandonment of duty by him the company is as much responsible as for the abandonment of the same duty by the man Buckley. There is no escape from these conclusions. They are irrefutable. If Flora rightly deputed the performance of his duties to Buckley — that is, rightly as to the company — and Buckley negligently omitted to perform them, the company is liable. If Flora had no right to turn the performance of his duties over to Buckley, but nevertheless did so, he must-be held to have negligently abandoned them, in which event the company is equally liable. If the authority of adjudged cases be necessary to enforce these manifestly sound propositions, it can be found in Haluptzok v. Great Northern Ry. Co., 55 Minn. 446, 57 N. W. 144, and Booth v. Mister, 7 Carr. & Payne, 66.
■ Some of the plaintiff’s testimony was in proof of an injury and resulting damages which had not been al leged in the petition, and it is sought to apply thereto the rule declared in Railroad Co. v. Willey, 57 Kan. 764, 48 Pac. 25. However, an examination of the record of the introduction of this testimony shows that plaintiff in error made no objection to its reception. It was allowed to go to the jury as offered, and upon it the plaintiff in error availed itself of the privilege of cross-examination. No objection was made to it except by way of request for an instruction to the jury forbidding them to allow damages for the injuries proved but not pleaded. This was too late. (Johnson v. Mathews, 5 Kan. 118.)
Some minor claims of error raising questions of variance between the 'pleadings and proof are made. They are, however, quite technical and unsubstantial and lacking in merit.
■ The judgment of the court below is affirmed. | [
-16,
106,
-40,
-81,
58,
104,
58,
-102,
101,
-105,
-89,
115,
-83,
-47,
21,
49,
-9,
45,
81,
43,
-13,
-77,
7,
-93,
-110,
-13,
51,
-52,
-74,
74,
118,
-42,
77,
48,
-54,
-107,
102,
74,
69,
24,
-50,
22,
9,
-16,
25,
-104,
-76,
113,
-42,
79,
113,
-34,
-13,
42,
24,
-45,
45,
47,
-21,
-31,
-32,
120,
-126,
5,
85,
18,
35,
4,
-65,
-121,
72,
25,
-104,
-75,
56,
-8,
51,
-90,
-125,
-11,
97,
-103,
-128,
-30,
98,
33,
21,
103,
-100,
-72,
46,
58,
-115,
-90,
52,
60,
41,
33,
-65,
-67,
85,
16,
15,
-8,
-6,
93,
25,
-28,
1,
-113,
-76,
-111,
-33,
52,
-74,
-105,
-21,
-95,
48,
116,
-54,
112,
92,
71,
51,
-101,
-34,
-98
] |
The opinion of the court was delivered by
Smith, J. :
This action was brought in the district court by plaintiff in error, assignee of the Kansas 'Trust and Banking Company, against the defendants in error, the Ebenezer Baptist Church, of Atchison, and its trustees, to recover upon four bonds aggregating in amount $4000, with accrued interest, and to ■foreclose a mortgage on real estate given to secure the ¡same, together with taxes paid. The amount secured by this mortgage was originally $4250, $250 having been paid. The answer of the defendant church and its trustees was as follows :
“First. That they deny each and every allegation, statement and averment in said petition contained, not hereinafter expressly admitted.
“Second. Said defendants admit'that they executed the four notes or bonds, copies of which are attached to and made part ,of the petition herein ; that it is a religious corporation duly organized under the laws of the state of Kansas, and that said Kansas Trust and Banking Company is duly incorporated under the laws of Kansas.
“Third. The said defendants allege that while they made and executed their notes to said The Kansas Trust and Banking Company for the aggregate" sum of $4250, yet they received of said loan only the sum of $2200, being $2050 less than they should have received, the said defendant never receiving from said The Kansas Trust and Banking Company, or from the plaintiff, any valid and sufficient consideration for said sum of $2050, whereby there was a failure of consideration in the giving of said notes.
“Fourth. Said defendants for a further defense allege that they have paid to the said The Kansas Trust and Banking Company, and to the plaintiff, up to October 23, 1893, on account of the money so as aforesaid received, the full sum of- $2944.14, which, is in full payment of the principal sum actually received from said The Kansas Trust and Banking Company, and interest thereon as per contract.
“Fifth. The said defendants further allege that the said plaintiff ought not to have his said action against them because they say that said notes were given by said defendants to the said The Kansas Trust and Banking Company for the loan of $2200, and no more, and that said sum of $2050 was for commission and interest for. five years at the rate of twenty per cent, per annum.
“Wherefore said defendants pray judgment that they may go hence without day, and have judgment for their costs herein laid out and expended.”
A question of practice is raised by an objection made by plaintiff below to the introduction in evidence by defendants of a record showing the proceedings of the trustees of the church at a meeting held three days before the execution of the mortgage, the resolutions having been prepared, as was claimed, by the attorney for the Kansas Trust and Banking Company, the assignor of the plaintiff below. Before the trial the plaintiff below served a written notice upon the attorneys for the chúrch, the material part of which is as follows :
“ Request is hereby made upon you and each of you, and you are hereby required to deliver to the plaintiff, or his attorneys, a copy of each and every deed, instrument or other writing whereon the defense of said The Ebenezer Baptist Church to said action is founded or which you intend to offer in evidence at the trial thereof; and especially the receipts executed by or on behalf of the Kansas Trust and Banking Company for payments made on account of or for the said The Ebenezer Baptist Church on the bonds executed by it to the said The Kansas Trust and Banking Company and secured by mortgage sought to be foreclosed in the above-entitled cause and also all interest coupons to such bonds; also the bank accounts, if any, and the items thereof, which you intend to offer in evidence on the trial of said cause, and also each and every other instrument or writing which you intend to offer in evidence on said trial.”
The request was not complied with so far as the same relates to the document above mentioned. It was admitted in evidence, however, over the objection of the plaintiff below. The above demand for the delivery of copies of said documents was based upon section 381, of chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶ 4464). The written request made no special mention of the paper admitted in evidence. The demand was too. broad. The notice must specify the writings with reasonable certainty, so that the adverse party may be aware of what particular paper an inspection or copy is, desired. (6 Encycl. Pl. & Pr. 797; Wade, Notice, § 1282.) Greenleaf says : “It must describe the writing demanded so as to leave no doubt that the party was aware of the particular instrument intended to be called for.” (Greenleaf’s Evid. [Lewis ed.], § 562.) Again, in Kinne’s Pleading and Practice, section 428, it is said:
“Such notice shall be addressed to the party or his attorney, and be served on either of them, and should so fully describe the writing demanded as to identify the particular document desired. (Olney v. Hatcliff, 37 Hun, 286; Rose v. King, 5 S. & R. 241; Jackling v. Edmonds, 3 E. D. Smith, 539; Railroad Co. v. Donaldson, 2 Tex. App. sec. 241; Nussbaum v. Brewing Co., 63 Ill. App. 35.)”
The case of Kansas Ins. Co. v. Berry, 8 Kan. 159, is cited as authorizing a demand as broad and general as that made by the plaintiff in error. We have examined the record in the case cited, and find that at the trial no objection was made to the form or scope of the notice served, and hence the question arising here was not-suggested to the court. In the case at bar certain receipts were specifically mentioned with sufficient particularity in the notice, but the general statement including ‘ ‘ every other instrument or writing which you intend to offer in evidence on said trial” does not specifically inform the opposite party of the nature of the document or paper an inspection of which was demanded.
The defendants in error were permitted to prove a demand made by them on the Kansas Trust and Banking Company for $1700 which had been retained by the banking company to pay a former mortgage on the property held by one R. M. Manley. The defendants in error claimed that the Kansas Trust and Banking Company, mortgagee, withheld about $1700, which should have been paid over to the church to be applied on the salary of the Rev. William Smothers, the pastor ; and that the banking company applied this amount to the satisfaction of a former mortgage debt held by Manley, which theretofore, in a prior suit against the church, had been adjudged to have been paid. Upon the trial of the cause no controversy arose as to the application of the $4250 originally borrowed by the church from the Kansas Trust and Banking Company except as to the amount used in payment of said Manley mortgage, which the defendants below claimed had been wrongfully paid, and the said amount of money thus diverted instead of being applied to the payment of the pastor’s salary. The plaintiff below first objected to the proof offered, showing a demand by the church from the Kansas Trust and Banking Company for this $1700, and all through the trial insisted that the question of the application of this money to the Manley mortgage, as above stated, was incompetent under the pleadings and not within the issues in the case.
It will be noticed that the fifth paragraph of the answer alleges that the notes sued on were given by the church to the Kansas Trust and Banking Company for a loan of $2200, and’no more, and that said sum of $2050 was for commission and interest for five years, at the rate of twenty per cent, per annum. We think the evidence should have been confined to the issue so made by the pleadings. The defendants below, at the trial, seemed to have wholly abandoned the defense set out in the fifth clause of the answer, and instead of attempting to show that the $2050 was for commission and usurious interest on the loan as alleged, by a wide departure therefrom, were permitted to show that a large portion of this sum was diverted by the bank to the payment of the Manley mortgage. The plaintiff below, by this departure, was compelled to meet a defense of the nature of which he had no information from the answer. A party is bound by his pleadings. (Stone v. Young, 4 Kan. 17; Wright v. Bacheller, 16 id. 259; Bell v. Wright, 31 id. 236, 1 Pac. 595.)
There is an allegation in the answer stating that the plaintiff below never received from the banking company any valid and sufficient consideration for the $2050 and that said church received $2050 less than it should have received; but this general denial 'of want of consideration is modified and explained by the specific allegation that the said amount was withheld by the banking company for commission and usurious interest. (Wiley v. Keokuk, 6 Kan. 94; Bierer v. Fretz, 32 id. 338, 4 Pac. 284.)
Because of the erroneous admission of evidence outside of the issues in the case as made by the pleadings, the judgment of the court will be reversed and a new trial ordered. | [
-10,
110,
-24,
-2,
10,
-32,
34,
-118,
17,
-31,
-92,
83,
-23,
-54,
4,
111,
-30,
57,
-48,
96,
86,
-77,
55,
105,
-46,
-13,
-7,
-51,
-79,
93,
-12,
-34,
76,
48,
74,
-99,
102,
-54,
-61,
-36,
-114,
-128,
8,
-60,
-39,
72,
52,
127,
22,
67,
17,
60,
-13,
41,
28,
107,
73,
44,
107,
-87,
80,
-15,
-102,
-59,
95,
7,
1,
69,
-100,
67,
64,
-82,
-104,
51,
9,
-88,
99,
-122,
-122,
116,
77,
-119,
45,
60,
98,
32,
-75,
-22,
-40,
-100,
30,
-73,
-115,
-26,
-110,
72,
-29,
13,
-74,
-103,
116,
80,
6,
-12,
-18,
5,
25,
108,
1,
-49,
-12,
-109,
-115,
52,
-102,
3,
-13,
-90,
32,
112,
-51,
-94,
94,
-9,
58,
51,
15,
-71
] |
The opinion of the court was delivered by
Dostek, O. J. :
Grant and Ann Renfrow were colored persons living in the state of Missouri. They married each other in 1852 according to the ordinary form of marriage agreement and ceremony. This marriage did not confer upon them any legalized matrimonial status or relation. It was not deemed illegal or immoral by the law then obtaining, but it did not constitute them husband and wife. “It was an inflexible rule of the law of African slavery whérever it existed that the slave was incapable of entering into any contract, not excepting the contract of marriage.” (Hall v. United States, etc., 92 U. S. 27.) “Marriage is based upon contract; consequently the relation of man and wife cannot exist among slaves. It is excluded, both on account of their incapacity to contract, and of the paramount right of ownership in them as property.” (Howard v. Howard, 6 Jones [N. C.] 235.) To the same effect is Johnson v. Johnson, 45 Mo. 595. As presently more particularly stated, the persons named lived together as husband and wife until 1868. Missouri was not within the insurrectionary portions of slaveholding territory over which the emancipation proclamations of September 22, 1862, and January 1, 1863, operated. Slavery continued to exist there until abolished, January 11, 1865, by ordinance of the constitutional convention of that state. (Gen. Stat. of Missouri, 1889, p. 63.) After the passage of this ordinance, and on February 20, 1865, the legislature of Missouri enacted the following statute : .
“That in all cases where persons of color heretofore held as slaves in the state of Missouri have cohabited together as husband and wife, it shall be the duty of persons thus cohabiting to appear before a justice of the peace of the township where they reside, or before any other officer authorized to perform the ceremony of marriage, and it shall be the duty of such officer to join in marriage the persons thus applying, and to keep a record of the same.
“Free persons of color living or cohabiting together as husband and wife without being married according to the provisions of this act shall, after twelve months from its passage, be liable to criminal prosecution, and subject to same penalties as now provided by law: Provided, however, that this section shall not extend to colored persons who have enlisted in the service of the United States or state of Missouri, who shall not be subjected to any penalty for its violation until six monfhs' after their discharge from said service.” (Missouri Session Laws, 1865, p. 68.)
The Renfrows never complied with the provisions of this law. In disregard of it they continued to live together until 1868, in which year Grant abandoned Ann, declaring his intention no longer to recognize her as his wife. Thenceforth he never did recognize her as such, but several times thereafter married other women, by some of whom he had children. Throughout the time intervening between his emancipation from slavery and his separation from Ann they lived together in Missouri as husband and wife, mutually recognizing and holding each other out in the face of the world as such. Grant Renfrow moved to Kansas, accumulated here a small amount of property, and died. This action was instituted by his first wife, Ann, in assertion of her rights as his widow to a division of the property left by him. To this action his children and his last wife, Medora, were made defendants. Upon the facts above summarized judgment was rendered against them, and they prosecute error to this court.
It is admitted by counsel for plaintiffs in error that consensual or common-law marriages are and at the dates above mentioned were recognized as valid in the state of Missouri. It is, however, insisted that the above-quoted Missouri statute disqualified persons of color from contracting marriage according to the common law. It is insisted that the penal provisions of this statute excluded such class of persons from the operation of the common law of consensual marriage, and rendered ineffectual and void all agreements of marriage by such persons which were not solemnized according to its provisions. The plaintiffs in error are mistaken. The statute in question does not pretend to operate upon the marriage status. It does not pretend to annul or forbid the marriage relation because not entered into in accordance with prescribed forms. It only provides penalties for noncompliance with certain ceremonies of solemnization. It is in effect like the statute of this state discussed in The State v. Walker, 36 Kan. 297, 32 Pac. 279, in which it was held that “punishment may be inflicted upon those who enter the marriage relation in disregard of the prescribed statutory requirements without rendering the marriage itself void.” The general doctrine is that a marriage good at common law is good notwithstanding the neglect of statutory forms relating to the subject, unless the statute itself contains express words of nullity because of the failure to conform to its requirements. (1 Bishop, Marr. and Div. [5th ed.], § 283; Meister v. Moore, 96 U. S. 76.) The statute, it will be observed, makes it the “duty” of colored persons to solemnize their marriage agreement before an officer, but it does not abrogate the marital relation as a penalty for the violation of its provisions.
It is also insisted that the facts stated do not show the existence of a consensual or common-law marriage between Grant and Ann Renfrow, because no express agreement between them to take and live with each other as husband and wife was shown to have been made at any time between their emancipation from slavery and their separation three years later, without which agreement, it is contended that such kind of marriage cannot exist, or, to state the contention of the plaintiffs in error more accurately, cannot be proved. It is true the making of such agreement was not shown, but it does not follow that legal proof of the marriage was lacking. If a marriage contract need not be evidenced by writing, and of course it need not be, we can conceive of no reason why it may not, like many other civil'contracts, be evidenced by acts and conduct from which its making ore terms may be presumed. The acts and conduct of Grant and Ann Renfrow, after the removal of their disabilities, were in recognition of each other as husband and wife, and were continued for a sufficient length of time and with such openness to the world as to estop either from claiming to the contrary and to establish for themselves the marital status in the community where they resided. In the case of Francis v. Francis, 31 Gratt. 283, the same contention was made before the court of appeals of Virginia, in the case of a colored man and colored woman, as the plaintiffs in error make before us in this case. In the opinion of the court in that case it was said :
“It must appear that they have agreed to occupy that relation. The fact that they have so agreed is, however, not always susceptible to direct proof. The courts must, in many cases, infer it from the circumstances. It is not necessary that the parties shall have expressly agreed to live together as husband and wife. The agreement or understanding may be implied, as in other cases, from their conduct and declarations. In the present case there is no positive proof of an express agreement of the appellant and the appellee to occupy the relation to each other of husband and wife. But the circumstances tending to show an implied understanding of that sort are almost as satisfactory as the direct testimony of unimpeached witnesses to the fact.”
The facts involved in Solomon McReynolds v. The State, 5 Coldw. 18, were identical with those now under consideration, and in that case the court held that after the living together of a slave man and woman as husband and wife, a mutual recognition by them of each other in that relation, after the removal of their disabilities by emancipation, constituted a consensual marriage.
The plaintiffs in error urge some matters of conduct upon the part of Ann Renfrew toward her husband Grant as equitable reasons for refusing her recognition as his widow, and for disallowing her a share of his estate. They are not, however, sufficient to prevent the operation in her favor of the rules of law we have announced, and the judgment of the court below will be affirmed. | [
-112,
110,
-11,
-2,
-86,
86,
-122,
-104,
-14,
-86,
37,
-45,
-51,
90,
-108,
105,
32,
13,
80,
121,
-48,
-9,
20,
-62,
114,
-13,
-37,
-35,
-79,
-49,
-78,
95,
72,
40,
46,
-39,
102,
74,
-55,
92,
-120,
2,
-119,
76,
-48,
-62,
60,
59,
82,
26,
1,
-114,
-77,
-82,
21,
-13,
-23,
110,
-63,
33,
-16,
112,
-113,
23,
-19,
28,
-77,
38,
-112,
-123,
72,
6,
-104,
17,
5,
-4,
91,
-76,
-125,
84,
95,
-117,
12,
98,
106,
0,
-75,
-6,
-128,
-104,
92,
90,
-123,
7,
-108,
88,
74,
73,
-66,
23,
93,
85,
47,
122,
-26,
29,
21,
32,
8,
-113,
-66,
-75,
5,
122,
-110,
3,
-13,
71,
-79,
113,
-57,
98,
77,
7,
123,
19,
-114,
-71
] |
The opinion of the court was delivered by
Smith, J. :
It does.not appear from the petition that there was any contract or agreement upon tl^e part of the plaintiffs below with the railway company by which they bound themselves to ship the corn over the line of the Missouri, Kansas & Texas railway. While it is alleged that the agent, Donohue, promised and contracted on behalf of the railway company to transport this corn for the plaintiffs within a given time to Laredo, Tex., and that plaintiffs made contracts with the persons in Mexico upon the strength of the promise of Donohue, yet nowhere is it alleged that the plaintiffs agreed to furnish this corn to the Missouri, Kansas & Texas Railway Company for shipment. There are allegations in the petition to the effect that the plaintiffs below had various offers from persons in Mexico to purchase a certain quantity or kind of corn at a certain price per hundred pounds, delivered at Laredo, which place is on the border between the state of Texas and the republic of Mexico ; that these propositions as they were received by the plaintiffs below were in each instance shown to Donohue, who, it is alleged, was the commercial agent of the company, with authority to contract for it and especially to make the contract with the plaintiffs for the transportation of the corn; that, upon receiving from Donohue assurances that the railway company would receive and ship the corn if the plaintiffs made the contracts with the persons in Mexico, they closed the contracts with such persons and bound themselves to deliver at Laredo the amount of corn called for in each of the several causes of action, which represent as many contracts with persons in Mexico.
It is not contended by counsel for defendant in error that there is any express allegation in the petition to the effect that W. H. Harris & Co. bound themselves to ship the corn over the railway of defendant in error, but it is claimed that this is a fair inference to be drawn from the language used. While the allegations of the petition, when attacked by an objection to the introduction of evidence under it, will be construed liberally and will be held good unless there is a total omission to allege some material fact which is essential to plaintiffs’ cause of action, yet it seems to us that an allegation of the important element of mutuality, which is the basis of all valid contracts, is wholly absent from the petition. It is probable that the pleader considered that he was pleading an undertaking on the part of the plaintiffs below, by the terms of the contract with Donohue, to ship the corn over the defendant’s railway, but a careful reading of the petition convinces us that he wholly failed so to do. In the late case of Woolsey v. Ryan, 59 Kan. 601, 54 Pac. 664, this court, speaking through Chief Justice Doster, said :
“In all probability, the instrument wTas supposed to be binding upon both sides when it was signed, but we can give effect to the intention of the parties only through' the words they employ. If they do not express themselves in intelligible language, the law cannot afford them relief. For illustrations of the rule which requires mutuality of engagement between parties to contracts, see Davie v. Mining Co., 93 Mich. 491, 53 N. W. 625; Vogel v. Pekoc, 157 Ill. 339, 42 N. E. 386; Campbell v. Lambert, 36 La. Ann. 35; Turnpike v. Coy, 13 Ohio St. 84; Stensgaard v. Smith, 43 Minn. 31, 44 N. W. 669.”
The defendant in error contends that the petition was sufficient in the respect mentioned, it having alleged offers from persons in Mexico to buy corn from W. H. Harris & Co., which offers were laid before Donohue, with the amount, price, terms and all made known to him, and thereon he was requested to name a through'rate from Kansas City to Laredo within the time fixed; that he offered, if plaintiffs would make the sale, to transport the corn for 25 cents per 100 pounds; that plaintiffs notified him that they would close the sale and ship the corn within the time ; “that defendant thereupon, through its agent, orally contracted and agreed with plaintiffs to transport said quantity of grain promptly and as rapidly as tendered within the time so specified to said Laredo, Tex., at the rate of 25 cents per 100 pounds” ; that plaintiffs thereupon closed a contract of sale.
The agreement places an obligation upon one of the parties to the contract only — the railway company. If W. H. Harris & Co. had refused to ship any corn over the road of the defendant after making the various oral contracts with Donahoe, and the railway company had sued them for á breach, could it be said that proof only of the facts set out in the petition would render W. H. Harris & Co. liable to the railway in damages for a failure to ship over the line of the plaintiff in error? From all that can be gathered from the pleading, plaintiffs below were at liberty to ship this corn over any other route from Kansas City to Laredo, and it appears from the evidence that there were two others. Nor can the doctrine of “express aider ” cure the infirmities of the petition. The answer, after alleging an impenetrable blockade and impossibility of sending more corn through, says: “This defendant was compelled to decline several shipments of corn which were tendered by plaintiffs, which refusal was made nécessary,” etc. It is contended that this language in the answer remedies the defective allegations of the petition by invoking the doctrine of aider by answer. The language above quoted.falls far short of an admission that W. H. Harris & Co. were obligated to make all shipments of corn mentioned iii the petition over the defendant’s railway line. The fact that they did ship a large quantity of corn over defendant’s road, and that defendant was compelled afterward to decline several shipments of corn which were tendered by ~W. H. Harris & Co., does not imply that they were bound by contract to make all the .shipments over the defendant’s road.
The principle that mutualityis an essential element to the validity of contracts is well settled.
“It is a general principle of law of contracts, but not without exception, that an agreement entered into between parties competent to contract', in, order to be binding, must be mutual; and this is especially so when the consideration consists- of mutual promises. In such cases, if it appears that the one party never was bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality.” (Wilkinson v. Heavenrich, 58 Mich. 574, 26 N. W. 139.)
In Tucker v. Wood, 12 Johns. 190, it is said: “In contracts, where the promise of the one party is the consideration for the promise of the other, promises must be concurrent and obligatory upon both at the sanie time.” In Chitty on Contracts, 297, this language is used : “ The agreement, as before observed, must in general be obligatory upon both parties. There are several cases satisfactorily establishing that if the one party never was bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality.” It is unnecessary to multiply authorities upon this well-established doctrine.
The defendant in error calls our attention to the evidence in the cause, which he claims shows a plain contract of agreement on the part of W. H. Harris & Co. to ship over the line of the Missouri, Kansas & Texas Railway Company. This evidence is contained in the affidavit made by Donohue before the action was brought, and was used in his cross-examination for the purpose of contradiction and impeachment. A large portion of this affidavit was of doubtful admissibility, and that part of it relating to the agreement of plaintiffs below to ship the grain over the line of the defendant railway within the time specified was not ill contradiction of any statements made by the witness in direct examination. Whether this testimony was admissible or not becomes immaterial, however, in our view of the failure of the petition to allege such mutuality of contract as justified a recovery under it.
A number of exhibits written in Spanish were offered in evidence, containing orders for corn from persons and firms in Mexico named in the petition, addressed to the plaintiffs below and material to their case. These documents were translated by one Enrique Guerra, who made affidavit to each that he was a competent translator, could read and write both Spanish and English, and that he had translated the documents accurately and faithfully into the English language. Mr. Bagley, a witness for plaintiffs below, testified that he could converse in Spanish, that he had known Señor Guerra five years, and that he could speak and write both English and Spanish, and had done so with the witnéss. The statute governing the admissibility of such evidence reads : “ Whenever any written evidence in a cause shall be in language other than the English, a written translation thereof, in the English language, made by a competent translator, and verified by his affidavit, may be read in evidence instead of the original, if such original be competent evidence.” (Gen. Stat. 1889, ¶ 4477; Gen. Stat. 1897, ch. 97, § 21.) We do not think it is competent for the translator to establish his competency and qualifications for the work he has undertaken by his own affidavit. In making the translation he acts in the capacity of an expert, and his competency as such should be open to inquiry by the party against whom the translated documents are to be used as evidence. A cross-examination of the witness Guerra by the defendant below would have tested his ability as a translator. Nor was it competent for the witness Bagley to give his opinion as to the qualifications of Guerra. The statute contemplates that a witness acting as a translator should not prove his competency by his own ex parte affidavit, but that he should be brought before the court and examined as a witness or his deposition taken, in either case affording to the opposite party the opportunity of cross-examination.
It is unnecessary to consider other grounds of error assigned. We will say, however, in view of another trial of this cause, that the authority óf the agent Donohue to make the contracts was in our opinion sufficiently established. The instructions given hint by Mr. J. Waldo, the general traffic manager of they railway company, to the effect that he might do whatever was necessary to get the south-bound business from W. H. Harris & Co., was sufficient to authorize Donohue to make contracts. The claim that the contracts of shipment were in violation of the interstate commerce law of the United States cannot be considered. Such defense, to be available, must be pleaded. (Ray, Freight Carriers, 707; Association v. Delano, 108 Mo. 217, 18 S. W. 1101.) Nor was there any evidence offered by the defendant below to the effect that W-. H. Harris & Co. knew that a higher freight-rate was charged for a shorter distance than Kansas City to.Laredo from points in Kansas.
The judgment of the court below will be reversed, arid a new trial ordered. | [
-80,
116,
-4,
-67,
58,
96,
40,
-102,
117,
-93,
103,
83,
-51,
27,
-112,
123,
-17,
125,
84,
106,
-26,
-125,
68,
112,
-45,
-13,
-37,
-35,
49,
-53,
-18,
94,
76,
44,
10,
-41,
102,
-46,
69,
28,
-50,
-79,
-87,
-24,
-39,
2,
52,
47,
22,
79,
85,
-114,
-13,
40,
25,
-61,
-83,
46,
-21,
45,
-63,
-7,
26,
-50,
117,
6,
49,
36,
-114,
-123,
-54,
62,
-112,
17,
-120,
-40,
123,
-92,
-122,
-12,
45,
-23,
8,
98,
103,
1,
-43,
-83,
30,
-104,
39,
-38,
-99,
-90,
-44,
24,
99,
69,
-66,
-99,
52,
64,
-89,
122,
-10,
13,
29,
100,
-125,
-117,
-112,
-89,
-105,
112,
-120,
67,
-21,
-74,
18,
113,
-51,
-70,
93,
71,
60,
-109,
-113,
-104
] |
The opinion of the court was delivered by
Doster, O. J. :
This is an action of mandamus to compel A. A Fenn, as president, and R. H. Fenn, as secretary of the Broadway Manufacturing Company, to report to the secretary of state a detailed statement of the condition of such company for the preceding year. The statute requiring the making of reports by the officers of corporations reads as follows :
“ It shall be the duty of the president and secretary of each corporation for profit, annually on the 1st day of January, to prepare under their own oatfis and deposit in the office of the.secretary of state of this state a detailed statement of the condition of such company on the 30th day of December then next preceding, exhibiting the following, namely : First, The amount of the capital stock of the company. Second, The property or assets held by the company. Third, The liabilities of such company. Fourth, The receipts of the company during the preceding year. Fifth, The expenditures during the preceding year. Every corporation for profit created under any law of this state failing to make and deposit such statement shall be subject to a penalty of $200 and an additional $200 for every month that such company shall continue thereafter to transact business. (Gen. Stat. 1897, ch. 66, § 41; Gen. Stat. 1889,¶ 1181.)
The answer of the defendants avers that the corporation in question is not public in its character, like a railroad or light or water company, but is of an entirely private character, being engaged in the business of manufacturing sash, doors, and other woodwork. The claim is therefore made that the statute is not applicable-to it, because of the private and ordinary business in which it is engaged, but that the law quoted applies only to corporations qu,asi public in character and in the enjoyment of public franchises. The statute makes no distinction between classes of corpora-: tions for profit. Corporations of all kinds are the* creatures of the law. They ask and have conferred upon them privileges and artificial characteristics of special advantage, such as limited liability of their .stockholders, perpetual succession of membership, or •succession through the period limited by their charters. Being thus the creatures of legislation and the recipients of legislative favors, they must conform to all valid legislative requirements. The statute in question is general in its terms. It makes no exceptions to the rule which it ordains, and even were we •able to perceive a reason for the exemption of particular classes of corporations from its operation we would be powerless to declare, such exemption.
In addition to the above, the answer avers that the defendants have complied to the best of their ability with the requirements of the statute and the demands made upon them in pursuance to it by the secretary of state. The secretary furnished to the defendants printed forms for the making of the required statements. These forms contain general headings for the four subjects of “resources,” “liabilities,” “receipts,” and “ disbursements.” Under these were printed subheadings for the insertion of various items appropriate to the general subjects named, with additional space lines for such matters as might be necessary to report, but which were not specially indicated Iby any of the subheadings. In the statement filed none of the items under the general heads of “receipts” and “disbursements” was reported, but instead thereof the defendants wrote upon the paper: •“ Our accounts are not kept in such a way as to enable •us to give a detailed statement of receipts and disbursements as required by this blank.” The excuse given is not a good one. Every corporation, whether one for manufacturing or otherwise, makes and keeps an account of its receipts of moneys, and makes and keeps an account of its disbursements. If the printed form sent out by the secretary be not adapted in its subheadings to the making of a correct statement of the defendants’ business, they can easily adapt it to such purpose, or an entirely different form may beused.
Judgment as prayed for is allowed in favor of the plaintiff. | [
-80,
126,
-4,
-68,
-70,
96,
50,
-38,
65,
-29,
-89,
115,
-55,
-16,
4,
111,
-9,
61,
80,
98,
-59,
-14,
7,
-29,
-106,
-109,
-13,
-59,
55,
74,
-28,
124,
77,
48,
-118,
-107,
-26,
-126,
-63,
28,
-114,
5,
57,
-55,
-7,
-32,
48,
26,
114,
75,
17,
78,
-5,
44,
26,
-53,
105,
46,
-24,
41,
-63,
-79,
-70,
-115,
111,
22,
19,
6,
-104,
39,
-56,
44,
-120,
25,
-103,
-32,
83,
-74,
-58,
-44,
43,
105,
8,
106,
99,
3,
-123,
-25,
-36,
-104,
38,
-37,
-115,
-89,
16,
121,
43,
105,
-68,
-99,
112,
18,
-125,
-2,
-18,
-107,
-99,
108,
1,
-113,
-26,
-94,
-121,
102,
-98,
3,
-17,
-93,
17,
113,
-58,
-80,
95,
13,
58,
27,
-122,
-40
] |
The opinion of the court was delivered by
Johnston, J. :
On March 14, 1887, J. K. Hudson and Mary W. Hudson executed and delivered a promissory note to C. W. Ament for $5500; due in forty-five days after date, with interest from date at ten per cent, per annum, and at the same time, and to secure the payment of this indebtedness, they executed a chattel mortgage on the Daily Capital newspaper plant. This action was brought to recover the indebtedness and to enforce the lien of the chattel mortgage. Shortly after the execution of the note, Ament transferred it and the mortgage to the First National Bank of Topeka, where they were held as collateral security for a debt which he owed the bank. The indebtedness of Ament to the bank was in the form of notes, which J. K. Hudson signed as surety. As the interest accrued on the $5500 note given by Hudson to Ament, Hudson paid the same to the bank, and it applied these payments on the Ament debt to the bank. It was agreed among all the interested parties that such payment should be a liquidation and discharge of the interest due on the $5500 note held by the bank as collateral. Payments were made by Ament from time to time on his indebtedness to the bank until it was reduced to $2500, and during all that time Hudson continued to sign the renewal notes as surety for Ament. Afterward, under an arrangement between Hudson and Ament, Hudson was accepted by the bank, as principal debtor, with Ament as surety, but the bank still held the $5500 note and mortgage as collateral for the debt. Ament, desiring to be relieved from the debt to the bank and to realize on his interest in the $5500 note and mortgage, made an arrangement with the bank and Hudson by which it was accomplished. Hudson and Dell Keizer executed their note to the bank for the full amount of $5500, it being agreed that the original $5500 note and mortgage should be held by the bank as collateral. This transaction occurred in May, 1892, but it was not intended by the parties that it should be treated or amount to a payment of the original $5500 note and mortgage.
In September, 1892, the First National Bank not desiring to carry the indebtedness longer for Hudson, it was transferred to the Northfield National Bank, of Northfield, Vt., and a note for $5500 was executed by Hudson and Keizer to the bank, and the original $5500 note, as well as the mortgage, was transferred to it and held as additional evidence and security for the indebtedness. At that time all the parties interested treated the original note and mortgage by Hudson to Ament as a valid and subsisting indebtedness and a first lien on the newspaper plant, and it was their intention that it should so continue. Renewals of the Hudson and Keizer note were made, and interest on the indebtedness paid to the bank semiannually.
Prior to the commencement of this action E. B. Merriam bought the claim from the Northfield National Bank, and the note and mortgage were transferred to him. In June, 1890, the Topeka Capital Company was organized, and a bill of sale of the newspaper plant was made by Hudson to that company, which contained a stipulation that the property was free from all incumbrances. A few shares of the stock were sold, but Hudson retained the greater part of the same and a controlling interest in the company, which continued in the possession of the property until it was turned over to John R. Mulvane, mortgagee, in November, 1895. During all this time the principal officers of the company recognized the validity of the mortgage in question. Other mortgages were giv§n, and in this proceeding Mulvane, who had acquired several mortgages on the plant, set up the defense that Merriam’s action was barred by the five years’ statute of limitations. He further answered alleging payment and the cancelation of the mortgage, and claiming that his liens were prior and superior to that of the plaintiff. The Topeka Capital Company answered that it purchased the mortgaged property from Hudson in June, 1890, and had been in the possession of the property since that time, claiming to be its owner. It also set up the five years’ statute of limitations, and averred the payment of the debt and the cancelation of the mortgage.
• There was but little dispute in the testimony, and what there was has been settled by the findings of the trial court, based, as they appear to be, on sufficient evidence. It was found by the court that the debt had never been paid or discharged, that the mortgage had never been canceled or satisfied, and that it constituted a first and valid lien on the property described therein. The Hudsons made no controversy as to the validity of the note and mortgage, and judgment for the amount of the debt was taken against them without contest. The holders of the subsequent mortgages and the Topeka Capital Company still insist that the debt was barred by the five years’ statute of limitations, and that the mortgage was therefore not enforceable. The debt was not paid within five years after it became due, nor was any indorsement'of the payment of interest placed on it during that time. It appears that on September 7, 1892, an indorsement was made on the note that interest had been paid in full up to that date, and there is a subsequent indorsement that the interest was paid in full up to March 7, 1895. These indorsements appear to have been made when the note and mortgage were transferred, and in both instances, as will be seen, it was later than the five-year period. According to the testimony, however, interest was paid from time to time in short periods from the time it was executed until shortly before the present action was brought. While the note and mortgage were held by Ament and by the First National Bank of Topeka interest payments were made by the Hudsons in thirty- and ninety-day periods, and after they were transferred to the Northfield National Bank semiannual payments of interest were made.
A payment of interest is regarded as an acknowledgment of the debt, which will start the statute of limitations afresh, and a written indorsement of such payment upon the instrument is not required. (Gen. Stat. 1897, ch. 95, § 18; Gen. Stat. 1889, ¶ 4101.) It is not the indorsement of a credit upon the note which revives the liability, but it is rather an actual payment made and received as such which takes the case out of the operation of the statute. An indorsement on the note is only evidence of the act of payment, a fact which may be otherwise shown. In this case, other evidence of such payments was received, and that they were made and accepted as interest upon the debt in suit was the understanding and agreement of all who then had any interest in the debt or mortgage securing it.
Nor are we able to sustain the claim that the debt was paid and satisfied by the execution of other promissory notes.' Of course, if the debt was paid and canceled the mortgage was necessarily extinguished, but “ where a mortgage is given to secure the payment of a particular debt the mortgage is not exhausted until the debt is paid or canceled, although the debt may in the meantime be evidenced by several different promissory notes.” (Cooper v. Condon, 15 Kan. 578.)
Assuming that the mortgage in question was given not to secure a debt apart from the note, but rather the debt as evidenced by the note in suit, we still have the question whether the giving of other notes should be treated as a payment of the original note as between the contesting parties, The common-law rule is that a promissory note made by the debtor does not discharge the 'preexisting debt for -which it is given, unless such be the express agreement of the parties. The intention and agreement of the parties is the controlling consideration. Whether the parties to these transactions intended that the notes should be regarded as absolute payment and extinguishment of the debt, or whether they were intended' as additional evidence of the debt with the purpose that the original debt should still continue in force, is to be determined by the evidence. (Kermeyer v. Newby, 14 Kan. 164; McCoy v. Hazlett, id. 430; Shepard v. Allen, 16 id. 182; Medberry v. Soper, 17 id. 375; Bradley v. Harwi, 43 id. 314, 23 Pac. 566.) Upon this subject there was testimony, and the trial court appears to have determined in accordance with the preponderance of the evidence that the notes given were only additional evidence of the same debt, and that it was not the intention of the parties that the giving of the same should operate as a payment or cancelation of the debt.
There is testimony which tends to show that the transaction with the Northfield National Bank was a purchase of the note and mortgage in controversy, and not a payment or satisfaction of the same ; and where there is testimony which tends to sustain a finding of fact made by the court, it is the end of the. controversy as to that fact. The mortgage was recorded' and the Capital company had not only constructive but actual notice of the existence of the mortgage. It was renewed from year to year, and the public records disclosed that the debt which it was given to secure was wholly unpaid, and that the parties to the same treated it as a subsisting debt, and the mortgage as a valid lien. The company therefore took the prop-. erty subject to the mortgage. It had no right superior to those which would have been possessed by Hudson - if there had been no transfer of the property from him, to the company. It follows, too, that the liens held-by Mulvane are subordinate to the mortgage in question.
There is nothing substantial in the claim that tlip action was barred by the two years' statute of limita-; tions.
Finding no error in the proceedings, the judgment of the district court will be affirmed. | [
-16,
106,
-104,
-50,
-38,
96,
42,
-102,
91,
-96,
-75,
83,
-55,
-62,
5,
105,
116,
13,
-60,
120,
68,
-77,
55,
-23,
-46,
-13,
-15,
-35,
-72,
125,
-12,
87,
77,
52,
-54,
-99,
-26,
-62,
65,
22,
-114,
-123,
42,
-51,
-35,
96,
48,
123,
48,
72,
85,
-113,
-13,
40,
21,
66,
105,
43,
106,
41,
-48,
-16,
-117,
-115,
93,
23,
-109,
97,
-104,
71,
-56,
12,
-112,
53,
13,
-24,
114,
-90,
-58,
-12,
109,
41,
72,
34,
103,
16,
-59,
-21,
-8,
-104,
46,
-42,
-115,
-89,
-112,
88,
-94,
41,
-76,
-97,
93,
19,
-121,
-10,
-2,
21,
20,
108,
5,
-33,
-42,
-93,
11,
127,
30,
-101,
-1,
35,
33,
96,
-58,
-96,
93,
119,
122,
27,
-114,
-7
] |
The opinion of the court was delivered by
Doster, O. J.;
This was an action by the state of Nansas, on the relation of the county attorney of Wyandotte county, against the city of Kansas City, to enjoin it from entering into a contract for the paving of certain streets, and from issuing bonds in payment for the same. The application for a temporary injunction was denied, and the state, by the county attorney, prosecutes error to this court. The questions presented by the plaintiff in error are : (1) "Whether a city of the first class may lawfully issue bonds for street paving, payable by special assessments upon the abutting property, without a petition for the making of such improvements signed by the resident owners of a majority of the front feet abutting upon the street to be improved having been presented to the mayor and city council; (2) whether, for the paving of streets in a city of the first class, bonds payable otherwise than by special assessments upon the abutting property may be issued without a vote of the electors of the city authorizing them — that is, whether-without such vote they may be issued for such purpose, chargeable generally upon the property in the city. The last question is the one principally discussed by counsel for plaintiff in error, but the first question is the one principally discussed by counsel for defendants in error, and it is not clear from the record whether the city was about to issue the one class of bonds or the other. However, the allegations of the petition for injunction are sufficient to challenge the right of the city to issue bonds of either kind without the occurrence of the conditions precedent mentioned.
Our conclusion is that a city of the first class has no right to issue-either kind of bonds without the occurrence of such precedent conditions. There has been much legislation upon the subject of the making of street improvements in cities of the first class and the method of payment therefor. Many statutory provisions have been enacted and subsequently supplemented, or amended, or repealed. The provisions pertaining to the subject under consideration necessary to be noticed for purposes of explanation are as follows, reference being made for greater convenience to the General 'Statutes of 1889 and subsequent session laws : Paragraph 555, General Statutes of 1889 (Gen. Stat. 1897, ch. 32, § 88), provides, among other things, that the mayor and council shall have power to levy and collect taxes upon all the property within the limits of the city "for general-revenue' purposes, not to exceed six mills on the dollar in any one year; for general improvements, excepting sewerage and improvements for which special assessments are levied, not to exceed six mills on the dollar in any one year.” It- will thus be seen that provision has been made for raising a fund for the making of "general improvements” in the city.
Paragraph 557, General Statutes of 1889 (Gen. Stat. 1897, ch. 32, §§ 163-165), provides :
"For opening, widening, extending and grading any street, lane, alley, or avenue, and for doing all excavating and grading necessary for the same, and for all improvements-of the squares and areas formed by the crossing of streets, and for building culverts, bridges, viaducts and all crossings of streets, alleys, and avenues, the cost or contract price thereof shall be paid out of the general-improvement fund, except as otherwise provided by law; and for all paving, macadamizing, curbing and guttering of the streets and alleys, the assessments shall be made for the full cost thereof on each block separately.”
Other provisions of this paragraph and also paragraph 558 following (Gen. Stat. 1897, ch. 32, §§ 166, 180, 181), explain in detail the method by which the cost of paving, macadamizing, curbing and guttering the streets is charged against and collected from the abutting property, and paragraph 559 designates the charge made against abutting property for paving and macadamizing streets as "special assessments for improvements.” It will thus be seen that the three paragraphs of the statute last quoted divide street improvements, in respect to the method of paying therefor, into two classes — one class consisting of opening, widening, extending, grading, and excavating, improving the squares and areas formed by street crossings, and in building bridges, culverts, viaducts, etc.; the other consisting of paving, macadamizing, curbing, guttering, etc. As to the first-mentioned class of improvements, it is specifically provided that the cost thereof ‘' shall be paid out of the general-improvement fund, except as otherwise provided by law ” ; that is, out of the six mills annual levy authorized by para-, graph 555 for “general improvements.” As to the other class, it is specifically provided that the cost thereof shall be paid by assessments upon the abutting property. Paragraph 586, General Statutes of 1889 (Gen. Stat. 1897, ch. 35, §§ 17, 18), declares:
“ For the purpose of paying for any improvement of a general nature in the city not herein otherwise provided for, and for the construction of water-works and waterpower, the mayor and council may from time to time borrow money and issue bonds therefor, but no money shall be borrowed or bonds issued until the city council shall be instructed to do so by two-thirds of all the votes cast at an election held in such city for that purpose.”
The first three sections of the General Statutes of 1889 above cited are provisions of chapter 37 of the Laws of 1881, as amended by chapter 99 of the Laws of 1887. The two sections last cited from the General Statutes of 1889 are provisions of chapter 37 of the Laws of 1881, which law of 1881 was a general codification of the laws pertaining to cities of the first class, and is the basis for most of the subsequent legislation relating to such cities. Paragraph 590 of the General Statutes of 1889 is an enactment of the legislative ses sion of 1887, separate from chapter 99 of that year, which, as stated, was amendatory of chapter 37 of the Laws of 1881. It pertains, however to the making of street improvements in cities of the first class, and provides that for grading, curbing, guttering, paving, repaving, etc., the cost of which is chargeable to abutting property, the mayor and city council may provide payment by instalments of special assessments, and for such instalments may issue improvement bonds of the city. It further provides as follows :
“For the cost of such improvements as are made .payable out of the general-improvement fund of the city, the mayor and council may also issue bonds of the same tenor and effect, and under the same restrictions, as those hereinbefore mentioned, and such bonds and interest thereon shall be paid by the levy of a general tax on all the property of the city.”
It will be observed, however,'that under the provisions just quoted the mayor and council may not issue bonds except to pay for “ such improvements as are made payable out of the general-improvement fund,” and such improvements so made payable out of the general-improvement fund are, as stated in paragraph 557, supra, before quoted, the opening, widening, extending and grading of streets, etc., not the paving, macadamizing, curbing and guttering of streets. Provision for the payment for such last-mentioned improvements is, by the section last cited, to be made by special assessments upon the abutting property.
To return, however, to paragraph 590, supra-. This section provides for the issuance of bonds to pay for street improvements. It designates them “ improvement bonds of the city,” and declares that “ the credit óf the city issuing such bonds shall' be pledged for the payment thereof.” This statute does not provide for a general vote of the electors of the city, or a petition of the abutting property owners as a condition precedent to the issuance of the bonds, and it might, except for subsequent legislation, be supposed to authorize the issuance of bonds without a vote or petition therefor. It is to be observed, however, that the expense of the improvement for which bonds may be issued is chargeable against the abutting property through the method of special assessments. Up to the time of the enactment of this statute, and until 1891, so far as we have been able to observe, no provision had ever been made for taking the sense of abutting property owners upon the question of the desirability of street improvements or their willingness to pay for the same ; however, in 1891, by section 6, chapter 73, of the laws of that year (Gen. Stat. 1897, ch. 32, § 171), it was provided, as conditions precedent to the levy of special taxes for curbing, guttering, paving, macadamizing streets, etc., that the mayor and council should by resolution declare the necessity for such improvements, and should make newspaper publication of the resolution. It also specifically provides that such resolution “ shall not be valid unless a petition asking for such improvement has been ordered spread upon the journal, which petition must be signed by the owners of a majority of the front feet abutting upon the street to be improved.” This law of 1891 was amended in some particulars by chapter 274 of the Laws of 1895, but not in respect to the necessity for a petition by the abutting property owners.
From the various statutory provisions .to which we have called attention, it is quite plain that if the bonds which the city was about to issue were to have been bonds payable by special .assessments or special taxes upon the abutting property, their issuance without a precedent petition by the abutting property owners for the making of the improvement in question would have been unlawful. The answer of the city to the petition for injunction admits that no such petition had been presented to the mayor and city council; hence the bonds may not be issued as bonds payable by special assessments. If the bonds in question were not to be paid out of special assessments, but were to be payable by general taxes levied on all the property in the city, it is likewise evident that their issuance would be unlawful without the authority of a vote of the electors of the city, as required by paragraph 586, supra. Whether street paving within the meaning of that section is an “improvement of a general nature,” so as to justify the issuance of bonds even by a vote of the electors, we need, not inquire. Some of the language of the opinion in City of Wyandotte v. Zeitz, 21 Kan. 649, indicates that street paving is a “general improvement” within the meaning of that phrase. Without so deciding, but assuming for the purpose of meeting the contention of defendant in error in this case that street paving is a general improvement, it nevertheless results from the express provisions of paragraph 586, siopra, that bonds in payment therefor may not be issued except upon the authority of a vote of the electors of the city. Nor can they be issued under the last sentence of paragraph 590, supra, in payment for such improvements, without a precedent vote of the electors of the city. The bonds authorized by that portion of that section can only be issued in payment for “such improvements as are made payable out of the general-improvement fund of the city”; and, as hereinbefore pointed out, improvements the cost of which is made payable out of the general-improvement fund are the opening, widenening, extending and grading of streets, etc., hot the paving of them, which is the improvement contemplated by the defendant in error in this case. See paragraph 557, supra, before quoted. The power to issue municipal bonds exists only when expressly conferred, or when necessarily implied ; that is, when it is a necessary means to the execution of some other power which is expressly conferred. The authorities are uniform to this effect. (Waxahachie v. Brown et al., 67 Tex. 519, 4 S. W. 207; Hopper v. Town of Covington, 8 Fed. 777; Brenham v. German American Bank, 144 U. S. 173, 12 Sup. Ct. 975.)
The defendants in error raise a question as to the right of the county attorney to undertake the maintenance of the petition for injunction in the name of the state. Municipal corporations are as much creatures of the state as the public corporations called counties, townships, etc., and as to them the state can exercise its restraining power to prevent violations of the public trusts committed to their officers. (The State, ex rel., v. Comm’rs of Marion Co., 21 Kan. 420.) The prevention of like breaches of trust by the officers of municipal corporations is also the duty of the attorney-general of the state, or other public counselors. (2 Dillon, Mun. Corp., 3d ed., §§ 909, 910.)
The defendants in error object to the consideration of the record brought here by the plaintiff in error because, as claimed, it shows no proper exceptions to the orders of the court below. We have given thought to this objection. It is, however, not well founded.
The judgment of the court below is reversed, with directions to issue against the defendant city a temporary injunction, as prayed for in the plaintiff's petition, and for further proceedings in the case in conformity with this opinion. | [
-16,
-19,
-15,
-2,
-54,
64,
26,
-103,
17,
-79,
-76,
95,
-19,
-54,
5,
105,
-66,
125,
80,
106,
65,
-78,
71,
75,
-106,
-77,
-45,
93,
-71,
93,
-10,
7,
76,
112,
74,
-99,
6,
-61,
5,
28,
-114,
-123,
10,
-52,
-39,
-63,
52,
107,
114,
11,
-79,
-97,
-13,
41,
24,
-29,
-20,
44,
-39,
-87,
-47,
-16,
-103,
-105,
125,
4,
1,
84,
-100,
-123,
80,
-86,
-104,
49,
16,
-24,
119,
-90,
-122,
-10,
109,
-103,
44,
-26,
102,
33,
37,
-17,
-8,
-88,
14,
-41,
-115,
-90,
-106,
89,
107,
45,
-74,
-41,
125,
22,
71,
-2,
-26,
21,
89,
124,
3,
-118,
-16,
-15,
-49,
-76,
2,
65,
-17,
64,
32,
113,
-50,
-20,
95,
-25,
19,
19,
-113,
-103
] |
The opinion of the court was delivered by
Smith, J. :
It is claimed that the evidence does not support the judgment. There were no conclusions of fact made by the trial court. The principal ground of error assigned is that service of summons on W. O. Van Arsdale, the president of the Bank of Burrton, conferred no j urisdiction on the court to render a j udgment against the bank at the suit of the defendant in error to recover upon the defaulted certificates of deposit. This contention is based upon the claim that W. O. Van Arsdale was the agent of Rudolph Pfeiffer, the plaintiff below, and was ‘‘ vitally interested in the recovery of the judgment.” We cannot say that the evidence does not support the conclusion of the trial court.
J. H. Van Arsdale was not a stockholder in the bank, and never had been, and his only connection therewith was that of an indorser on the certificates of deposit. When his land in Illinois was attached to enforce payment from him of these certificates, it was but natural that he should make prominent the fact of his secondary liability and his status as a surety, and that he should at once endeavor to induce the holder of the certificates to exhaust his remedy against the bank and its stockholders before compelling him as indorser' to pay the amount. There was an obligation, both legal and moral, resting upon the bank and its stockholders to pay these debts, and not permit the surety, who was a mere accommodation indorser, to suffer. The bond of indemnity made on the 25th day of January, 1895, set out in the statement of this case, shows no unnatural course taken on the part of J. H. Van Arsdale, but an act to which any surety would have had a right to resort. The Van Arsdales suggested to Pfeiffer the names of attorneys to be employed in the cause, and they were retained. We cannot see that W. O. Van Arsdale was so far the agent of Rudolph Pfeiffer, the plaintiff below, in the prosecution of the suit as to render service upon the former as president of the bank void or even voidable.
The debt was a just one. Its consideration seems not to have been attacked seriously. The proceeds of the money obtained from Gardner T. Barker through Henry P. Ayers, his agent, went to pay off an indebtedness due from the bank to relatives of the plaintiff in error, Thompson ; and the judgment against the bank, obtained on June 3, 1895, for $13,659, was for renewals of the certificates originally given when the money was borrowed by the bank from Barker for that purpose. There is no suggestion of fraud or lack of consideration in the origin of the indebtedness. It was recognized as valid by everybody connected with the bank. The fact that W. O. Van Arsdale advanced money to pay costs and expenses of Pfeiffer’s suit out of funds belonging to the bank, charging the amount to Henry P. Ayers, did not show that he was the agent for the plaintiff below, Pfeiffer. This money was advanced at the request of his father.
In the case of Bank v. Milling Co., 59 Kan. 654, 54 Pac. 681, one Warkentin was a stockholder in both the Sedgwick Milling and Elevator Company and the Newton Milling and Elevator Company, corporations. The former was indebted to the latter in the sum of $2480, to recover which suit was brought. A judgment was rendered, and an application made for execution against Warkentin for the payment of a balance due upon his stock subscription to the Sedgwick Milling Company and also upon his statutory liability. Thereupon he paid over the amount of his liability as a stockholder to the Newton Milling and Elevator Company. The judgment against the Sedgwick Milling and Elevator Company was based upon service which Warkentin accepted in his capacity as vice-president for that company. He was also general manager of the Newton milling company at the time, and a director in both corporations. In passing upon the validity of the judgment, Chief Justice Poster, said :
“ In view of the fiduciary relationship of Warkentin to the two companies, counsel for plaintiff in error cites the familiar doctrine that officers common to two corporations may not act in the interests' of one as against the other. This doctrine has no applicability. Warkentin did nothing for his own company to the prejudice of the other. What he did was to the prejudice of some of the creditors of the Sedgwick company, but not to the prejudice of the company itself. He simply used his position as an officer of that company to secure an advantage to another company of which he was also an officer ; not as against the one company, but' as against some of its creditors. It could not be material to the Sedgwick company that Warkentin paid the amount of his liability as a stockholder to one creditor or another. He, as a debtor, chose to pay one as against others, and to that end used his power as an officer.”
In the case at bar we can find no fraud in the acts of W. O. Van Arsdale connected with the rendition of the judgment of Pfeiffer, executor, against the Bank of Burrton. Whatever W. O. Van Arsdale did, showing any interest, was chiefly as the representative of his father. But we cannot say that J. H. Van Arsdale was the agent of Pfeiffer. He was interested of course in protecting himself from liability as a surety, but we cannot conclude from the evidence, in opposition to the general finding made by the court below, that either he or his son was the agent of the defendant in error. It is only in cases where the officer of the corporation upon whom service is had is pecuniarily interested in the claim sued on, or when he acts as agent or attorney in fact for the person suing, that service upon the officer is adjudged to be void. The trial judge, who heard all the evidence, found that W. O. Van Arsdale did not, as charged, assume a questionable position in his relation to the suit; and while some of his acts might savor of hostility to the company whose chief office he held, and his zeal to promote his father’s interests might have impelled him to unusual activity in carrying out his wish that Thompson might be forced, as a stockholder, to pay, yet all inferences being in favor of the judgment below, to disturb it would be violative of a well-established rule forbidding this court to review disputed, questions of fact.
In the case of George v. American Ginning Co., 46 S. C. 1, 24 S. E. 41, cited by plaintiff in error, it dis tinctly appeared that one Brown was acting as attorney in fact for the plaintiff in the suit, and had summons served on himself as treasurer of the corporation. The court said that Brown was pro hac vice the plaintiff. He commenced the action under a power of attorney from George, being fully authorized to prosecute an action and attach the property of the defendant. Also in Buck v. Manufacturing Co., 4 Allen, 357, Buck was plaintiff in the 'action and caused a summons to be served on himself as president of the corporation. The judgment founded thereon was held void. These authorities are not applicable to the case at bar. Here it was an issue whether the Van Arsdales were agents of the defendant in error, Pfeiffer, and this issue, after the hearing of much evidence, was decided against the plaintiff in error at the trial. If the judgment against the Bank of Burrton was not void for fraud, then it was conclusive against the stockholders. (Ball v. Reese, 58 Kan. 614, 50 Pac. 875.) The plaintiff in error, with great persistence, urges us to review the evidence and to reach a different conclusion from that reached by the district court. In Beaubien v. Hindman, 37 Kan. 227, 15 Pac. 184, it is said:
“ It has always been held by this court that a finding of fact by the court is equivalent to a verdict by a jury; and, further, that this court will not disturb the finding if there is sufficient evidence to justify it; and this is the case, although the finding of the court be contrary to the judgment of the appellate court. (Ruth v. Ford, 9 Kan. 17; Walker v. Eagle Works Manufg. Co., 8 id. 397; K. P. Rly. Co. v. Kunkel, 17 id. 145; Beal v. Codding, 32 id. 107, 4 Pac. 180.) ”
The plaintiff in error insists that the summons in the suit against the Bank of Burrton was void, and that the district court obtained no jurisdiction to ren der the judgment, for the reason that the requirements of section 54, chapter 95, General Statutes of 1897, were not observed. This section reads :
“ . . . Where the action is on contract for the recovery of money only, there shall be indorsed on the writ the amount for which, with interest;, judgment will be taken if the defendant fail to answer. If the defendant fail to appear, judgment shall not be rendered for a larger amount and the costs.” (Gen. Stat. 1889, ¶ 4138.)
The amount for which judgment would be taken in case the defendant failed to appear was stated on the face of the summons and at the bottom thereof. The only complaint is that it was not indorsed on the back. The argument against the validity of the process is wholly without merit. The purpose of the statute is to require notice to be given the defendant of the amount for which judgment will be taken if he fail to appear. The -paper served contained this notice. The information as to the amount for which suit was brought was in fact more conspicuous on the face than on the back of the summons, and more likely to be read by the person served. 'A person may be an indorser of a promissory note who signs his name on the face of the paper. (Story, Notes, § 121; Chitty, Bills, 141; Richards v. Warring, 39 Barb. 45; Powell v. Commonwealth, 11 Gratt. 830.)
Again, we can see no merit in the fourth assignment of error, to the effect that no bona fide effort was made by the sheriff while the execution was in his hands to find property of the bank upon which to levy the same. His return is entitled to that credit due to the acts of a sworn officer. The bank was evidently insolvent. It could not pay its debts. The return on the execution, “no property found,” was sufficient under the statute. In Hoyt v. Bunker, 50 Kan. 574, 32 Pac. 126, it is held that when the record of the judgment against the corporation show's an execution returned nulla bona, indicating that the corporate property has been exhausted, an execution may then be ordered against the stockholders. (Sleeper v. Norris, 59 Kan. 555, 53 Pac. 757.) This question has been passed upon by other states having statutes substantially like ours. In Baines v. Babcock, 95 Cal. 581, 27 Pac. 674, and 30 Pac. 776, it is said :
“The return of the execution issued upon the judgment as unsatisfied is conclusive, in the equitable action against the stockholders, that the creditor has exhausted his legal remedy upon the judgment; and evidence offered by the defendants for the purpose of showing that the corporation was the owner and in the possession of a large amount of property, which might have been levied upon is properly rejected by the trial court.”
Bagley v. Tyler, 43 Mo. App. 195, was a suit against a Missouri stockholder in a Kansas corporation. Speaking of our statute, the court said :
“The words of the statute are, 'if any execution shall have been issued ’ against the corporation and no property found, then the contingency has arisen whereby the stockholder may be charged. It is not, surely, required that the creditor, before resorting to the stockholders’ liability, should take a roving execution and go about the country, wherever the corporation may have had business, and should, too, go into the courts of other states and secure judgment against the corporation, with executions in all, and returns of ‘ no property found.’ The stockholder contracted in view of this law, and he agi’eed that if a judgment should be rendered against the corporation, and an execution returned thereon of 'no property found,’ then he would pay the debt to the extent of this double liability.”
In Jones v. Green, 1 Wall. 330, this language is used :
“ The execution shows that the remedy afforded at law has been pursued, and, of course, is the highest evidence of the fact. The return shows whether the remedy has proved effectual or not, and from the embarrassments which would attend any other rule, the return is held conclusive. The court will not entertain inquiries as to the diligence of the officer in endeavoring to find property on which to levy.”
In the absence of fraud on the part of the sheriff, we think that the truth of a return of “no property found” on an execution cannot be contested in an action brought to charge a stockholder of a corporation with the statutory liability.
The contention of plaintiff in error that the plaintiff below was mistaken in his remedy cannot be considered. The position taken is that the corporation having ceased to do business since March, 1893, no judgment after that could be obtained against it, so that the only remedy of a creditor seeking to charge a stockholder was to sue him directly, under section 45, of chapter 66, General Statutes of 1897 (Gen. Stat. 1889, ¶ 1200). The question raised was set at rest by this court in Sleeper v. Norris, 59 Kan. 555, 53 Pac. 757. The precise point was there decided against the position taken by the plaintiff in error.
We have examined into the application of the defendant below for a continuance, and cannot see how he was prejudiced by its refusal.. Pie seems to have been able to get before the court all that was material of tlm records of the bank, and sufficient of W. O. Van Arsdale’s correspondence to show his relations to Pfeiffer and to his father in this matter. Thompson, the plaintiff in error, is in no worse situation than any other stockholder. If he pays more than his' share of the debts of the bank, he can compel contribution from his associates.
We think the case was fairly and carefully tried in the court below, and its judgment will be affirmed. | [
114,
108,
-16,
-66,
72,
-32,
42,
-102,
19,
40,
-89,
-13,
-23,
-57,
16,
37,
114,
61,
-48,
104,
-42,
-77,
23,
42,
-37,
-109,
-5,
-51,
53,
-35,
116,
-35,
77,
48,
-62,
-3,
102,
-24,
-63,
52,
-50,
-124,
40,
-19,
-7,
16,
48,
31,
-112,
73,
97,
-98,
-13,
46,
-103,
103,
41,
45,
123,
-71,
80,
-16,
-102,
-50,
95,
20,
49,
116,
-104,
35,
74,
14,
-120,
119,
3,
-72,
118,
-76,
-122,
117,
109,
57,
44,
-14,
102,
1,
117,
107,
-32,
-104,
62,
-65,
-99,
-89,
-105,
88,
-117,
37,
-74,
-103,
-1,
17,
-90,
-8,
-22,
29,
24,
108,
5,
-117,
-74,
-77,
-65,
-66,
25,
75,
-37,
-125,
52,
113,
-50,
-128,
93,
85,
91,
-101,
-114,
-68
] |
The opinion of the court was delivered by
Smith, J. :
The Citizens’ State Bank commenced an action of replevin against J. C. O. Morse, sheriff of Sumner county, for the recovery of ‘the possession of certain personal property levied on by him as such sheriff, and prayed in its petition for a return of the property or judgment for its value, $3423.41, in case a return thereof could not be had. The replevin un dertaking given by the bank contained these conditions :
“Now we, the undersigned, residents of said county and state, bind ourselves to said defendant in the sum of §6850 that the plaintiff shall duly prosecute the above action and pay all costs and damages that may be awarded against him, and if a return of the property therein delivered to him be adjudged, that he will deliver the same to said defendant.”
The bond was signed by the bank as principal and by F. K. Robbins as surety. The property in controversy was delivered to the bank and it has since had possession of the same. The defendant in that suit, Morse, answered by general denial. The action was tried, and the jury rendered a verdict as follows : “We, the jury impaneled and sworn in the above-entitled action, do, upon our oaths, find for the'defendant.”
The jury returned with the verdict answers to certain particular questions of fact. The plaintiff bank filed motions for judgment on the findings and for a new trial, both of which' were denied. Thereupon the attorneys for the defendant applied to the court for judgment upon the verdict for costs, which was granted, and a judgment rendered against the bank for the costs of the action, taxed at $30.3.95.
The bank then commenced proceedings in error in this court to reverse the judgment. Later it dismissed its petition in error here and paid the judgment for costs against it in the district court for the amount above mentioned. Soon thereafter this action was brought by the sheriff for the use and benefit of various creditors interested in the property, for whom he was holding the same under several executions at the time it was replevied. The action is upon the replevin bond, and it is alleged that there was a breach thereof because the bank and its surety on said bond had not returned the property or the value thereof to said Morse upon demand, and that the Citizens’ State Bank, the plaintiff in that suit, had failed duly to prosecute its said action of replevin to a successful issue, having failed on the merits in the court below and having dismissed its petition in error in this court. The petition prayed judgment for the sum of $3374.83, the value of said property. The petition set out all the proceedings, pleadings, findings, verdict and judgment for costs in the former suit. To this petition a general demurrer, filed by the bank and Robbins, was overruled, and they assign error.
The obligation of the replevin bond is divided into three parts : (1) That the plaintiff should duly prosecute the action; (2) that it should pay all costs and damages that might be awarded against it; (3) that' if a return of the property therein delivered to it be adjudged it would deliver the same to the defendant. We will consider these obligations in their order.
Did the plaintiff bank duly prosecute the replevin suit? It is contended by counsel for defendant in error that the words “duly prosecute ” are synonymous with “prosecute to effect.” We do not concur in this view. The word “duly” is defined: “In due time or proper manner ; in accordance with what is right, required, or suitable; fittingly, becomingly, regular” (Stand. Dict.);.“in due manner, when, or as due; agreeable to obligation or propriety, exactly, fittingly, properly ” (Cent. Dict.) In Morrison v. Wells, 48 Kan. 494, 29 Pac. 601, there was a recital that plaintiffs had duly filed their motion. The court said : “The word ‘ duly ’ means properly, regularly, and in this connection indicates that the motion was regularly and properly filed.” “Duly” in legal parlance means “according to law.” (Brownell v. Greenwich, 114 N. Y. 518, 22 N. E. 24; 10 A. & E. Encycl. of L., 2d ed., 315.) The defendants in error insist that the failure of the bank to obtain a judgment in its favor was a breach of this condition of the bond, for the reasons that the words “duly prosecute” mean that the action shall be prosecuted successfully, and that, the plaintiff being defeated in the suit, the action was not “duly prosecuted” by it. The cases cited to sustain this position, except one, are based upon statutes different from ours, and upon conditions in replevin bonds which bind the plaintiff to prosecute the action with effect. In the case of Biddinger v. Pratt, 50 Ohio St. 719, 35 N. E. 795, cited by defendant in error, there is, however, a dictum that the words “duly prosecute” mean “to prosecute to effect.” In that case the action was dismissed out of court for want of jurisdiction, and the sureties on the bond held liable. In Cobbey on Replevin, section 1260, it is said : “A verdict for a defendant is in effect a finding that the plaintiff wrongfully took the property, that the defendant is entitled to the possession of it, and that there has been a breach of the replevin bond in that the action has not been prosecuted with effect.” See also Cox v. Sargent, 10 Colo. App. 1, 50 Pac. 201; Cobbey, Repl., §§ 1253, 1254; Boom v. St. Paul Foundry and Manufg. Co., 33 Minn. 253, 22 N. W. 538.
Conforming 'the petition, affidavit and bond to the statutory requirements, the plaintiff bank brought the replevin action in due form, and prosecuted the same with proper diligence to verdict and to a judgment. The suit was commenced in February and tried in November in the same year. The conditions of the bond would have been broken by unnecessary delay to prosecute without good cause, although no judgment was entered. (Cobbey, Repl., § 1252.) A dismissal of the action by the bank would have been a breach of this condition in the bond, showing an intention not to proceed with the case, being a failure duly to prosecute the action, but the returning of a verdict and the rendition of a judgment for costs, after a contest in court, is at variance with the assertion that the plaintiff did not duly prosecute the case, and we are clearly of the opionion that the condition duly to prosecute the action was satisfied.
The second obligation of the bond was met by the payment of the judgment for costs awarded in favor of Morse against the bank.
The third obligation, that if - a return of the property therein delivered to the plaintiff in the action be adjudged it would redeliver the same to the defendant, presents the question whether, in the absence of a judgment for redelivery, an action can be maintained on the bond; It will be noticed that the attorneys for the defendant Morse in the replevin suit, after a general verdict had been returned in his favor by the jury, applied to the court for judgment against the bank for costs, which application was sustained and such a judgment rendered in the cause as they desired. The court had power to render - a judgment on the verdict in the alternative for the return of the property or the value thereof, the amount of which was admitted, in case a return of the same could not be had. (Marix v. Franke, 9 Kan. 132; McVey v. Burns, 14 id. 292; Hall v. Jenness, 6 id. 356.) The party executing the bond and the surety are entitled to have their contract strictly construed. (Burton v. Decker, 54 Kan. 608) 38 Pac. 783.) The condition in the bond was that the plaintiff in the replevin action would return the property if the return thereof -should be adjudged. No adjudication was had as to the return of the property. A verdict for the defendant for costs was not an adjudication. “A verdict without a judgment entered upon it is of no validity either as an estoppel nor as evidence.” (2 Black, Judgts., § 682; Saylor v. Hicks, 36 Pa. St. 392; Smith v. McCool, 16 Wall. 560.) In our practice the verdict may be in favor of one party and the judgment be entered for another. (Gen. Stat. 1897, ch. 95, §§ 407, 408; Gen. Stat. 1889, ¶¶ 4506, 4507.)
The reasoning in Thomas v. Irwin, 90 Ind. 557, meets with our approval. The facts in that case were substantially like the case at bar.. The plaintiff in replevin gave a bond, as required by statute, and secured possession of the property involved. A verdict and judgment for defendants were rendered, but no provision made adjudging the return of the property. It was held that the sureties on the bond were-not liable. The court said :
“The difficulty arises out of the fact that the judgment in the replevin action did not provide for a return of the property. Judgments and not verdicts rule causes. The verdict in the replevin action exerts no controlling influence in this collateral proceeding, for in it the rights of the parties are to be measured by the judgment, and we cannot overleap it and act upon the verdict. Nor can we here inquire whether the judgment was right or wrong. It is a general rule that sureties are not to be held beyond the terms of their contract, and a statutory undertaking must be construed so as to give effect to the terms employed. The liability of the surety on the bond in suit is, by the terms employed, limited' to three things: The due prosecution of the action, the return of the property if a return be adjudged, and the payment of such sums of money as may be recovered against the plaintiff. These are independa ent things. If a complaint should charge a failure* to prosecute, and a recovery of damages, it woulcl certainly not be a sufficient answer to aver that the property had been returned; and, on the other hand, if a return had been adjudged in such a case, .it would not be sufficient to answer payment of costs .-and damages. The question is, however, so well setitted by authority, that we deem it unnecessary, to •'enter upon a discussion of this point, and content •ourselves with quoting from a recent treatise the following statement of the rule : ‘ These conditions have .always been treated as independent, and if either was mot complied with the bond was forfeited.’ (2 Sutherland, Dam. 42.) ... A surety cannot be held if or a thing he did not undertake' to perform, and in ithis case the surety did not undertake to be responsible for the return of the property unless a return should be adjudged by the court. This is, as we have .shown, an independent condition, and no liability can ibe fastened on the surety unless it is made to appear fithat the act alleged to constitute the breach is within the terms of the condition. We are unable to perceive how a failure to return the property can constitute a breach in a case where there has been no judgment for a return. The undertaking is not a general one for the return of the property, but is an undertaking for the return in case it shall be so adjudged, and the contract of the surety is, therefore, restricted and limited by the terms of the instrument. The liability of the surety depends upon the judgment, for unless a judgment is entered awarding a return, the case is mot within the contract; to bring the case within the -terms of the contract, it must be made to appear that i-the court had awarded a return. To hold the surety liable for a failure to return where no return had been ..adjudged, would be to hold him in a case not within -.-.the spirit or letter of his undertaking.” See also Gallarati v. Orser, 27 N. Y. 324; Chambers v. Waters, 7 Cal. 390.
'The case of Marix v. Franks, supra, is cited as an authority permitting this action on the bond to be maintained. In that case there was a judgment rendered by the court on the verdict that the plaintiff re cover from the defendant the personal property in the petition described, and on a failure of the defendant to return the property an action was brought upon the undertaking to recover its value. The court says : “The condition indicated that Schott should deliver* the property if delivery be adjudged. Delivery was adjudged. Schott has not delivered. By the plain language of the undertaking the liability thereon has arisen.” In that case it will be seen that the liability on the bond was based upon the judgment of the court.
The case of Manning v. Manning, 26 Kan. 98, cited by defendant in error, decides nothing more than that where the plaintiff in replevin, having obtained possession of the property, dismissed his action, defendant may recover upon the bond in an independent suit, upon the ground that that condition of the undertaking to the effect that the plaintiff should duly prosecute the action had been broken.
The defendant in error cites section 1159 of Cobbey on Replevin, which lays down the doctrine that a judgment in replevin in favor of defendant is a solemn legal adjudication that the defendant, and not the plaintiff, was entitled to the property, and it gives him all legal remedies not prohibited by statute; to obtain possession of the property, or its value, he may pursue the bond or bring trover. The only authority cited by the author in support of this principle is the case of Smith v. Demarris, 39 Mich. 14. In that case a trial- of the action was had upon the merits and judgment rendered in favor of the defendants for the return of the property, and after execution had been issued and returned unsatisfied it was held that the defendant might bring and maintain an action of trover to recover the value of the property. The court in that case was discussing a question where the de fendant in the action had recovered a judgment for something more than the costs'against the plaintiff. We quote with approval the language of Mr. Justice Valentine, in Kayser v. Bauer, 5 Kan. 202 : “The defendant has a right, when the verdict is in his fayor, to take a judgment for the return of the property to him, or for the value thereof in case a return cannot be had, and he is bound at his peril to see that the judgment is rendered as he desires it.” If the defendant, however, take a judgment for the return of the property he can, under the authority of Marix v. Franke, supra, maintain an action on the bond for the value thereof. If the replevin action had been dismissed Vithout a trial on the merits, or if there had been a judgment in the replevin action against the plaintiff for the return of the property, or for its value, in the alternative, or if there had been a judgment in the replevin action for the return of the property alone, or for the value of the property alone, an action could have been maintained upon the bond.
If the broad construction contended for by defendant in error be placed upon the condition of the replevin bond requiring the plaintiff duly to prosecute the action, then said condition is made to comprehend all that the surety binds himself to do in the conditions which follow. If his theory be adopted, the adjudication of costs and damages awarded against the plaintiff in a replevin suit, or a judgment for the return of the property or for its value, would show that plaintiff had not prosecuted the action successfully, and that the condition of the bond would be violated which bound the plaintiff duly to prosecute the action.
We would prefer to affirm the judgment of the court below, if we could do so without violating established precedents ; but reason and authority are with the plaintiffs in error, and their application to this case demands a reversal of the judgment. The judgment of the district court will be reversed, with directions to sustain the demurrer to the petition. . | [
-16,
108,
-80,
-68,
26,
-32,
42,
-102,
91,
-96,
-92,
-13,
-87,
-50,
17,
109,
115,
61,
85,
105,
-58,
-73,
23,
-25,
-46,
-14,
-43,
-59,
-75,
94,
-28,
-41,
76,
48,
-54,
29,
102,
-56,
-59,
-44,
-50,
-127,
41,
-27,
-35,
72,
48,
15,
50,
74,
117,
12,
-13,
62,
25,
-61,
73,
44,
91,
-71,
81,
-7,
-72,
69,
93,
21,
17,
39,
-100,
67,
-56,
46,
-104,
49,
0,
-24,
114,
-74,
-122,
-44,
109,
-101,
44,
102,
102,
35,
21,
-49,
-104,
-120,
38,
-42,
-115,
-90,
-111,
88,
42,
36,
-74,
-99,
-1,
0,
-121,
-4,
-17,
12,
29,
108,
5,
-50,
-110,
-77,
-113,
60,
-102,
75,
-13,
-110,
48,
113,
-57,
-86,
93,
71,
120,
59,
-113,
-7
] |
The opinion of the court was delivered by
Doster, C. J. :
One B. Wheldon, a druggist, was indebted to the First National Bank of Emporia, to secure which he executed a chattel mortgage upon property described as follows :
"All of the stock of goods, wares and merchandise in the store lately occupied by B. Wheldon, in the city of Emporia, Lyon county, Kansas, located at lot No. 196 Commercial street, together with the furniture, fixtures and other personal property connected with and heretofore used in the drug-store business of the said B. Wheldon, the same being a general stock of drugs, medicines, paints, oils, druggist’s sundries, toilet articles and miscellaneous goods as are usually contained in a drug-store.”
The bank took possession of the property by virtue of the terms of the mortgage. The C. D. Smith Drug Company was an unsecured creditor of Wheldon. ' It sued for the recovery of its debt and levied upon the property mortgaged to the bank. The bank thereupon brought replevin for the recovery of the property. The drug company defended the action upon the ground that part of the mortgaged property was intoxicating liquor.; that the bank, having no permit to sell intoxicants, could not take a mortgage upon them to secure a debt. The bank sought to uphold the mortgage upon the alternative grounds that it did not know or understand that there were any intoxicating liquors among the mortgaged goods, and that all intoxicating liquors were excluded from the mortgage by oral agreement made at the time of the execution of the instrument. Verdict and judgment were rendered in favor of the plaintiff bank, and the defendant drug company prosecutes error to this court.
It is strenuously insisted that the court erred in re ceiving evidence in behalf of the bank tending to show that it had no knowledge or understanding that the mortgage covered intoxicating liquors, and also tending to show the contemporaneous parol agreement to exclude them from the list of- mortgaged property. Upon this last point the familiar rule that parol evidence will not be received to contradict or vary the terms of written instruments is cited. Upon examination of the record we find that no objection was made to the admission of this class of testimony and it becomes, therefore, unnecessary to pass upon the question. The onty testimony to which objection was made was as follows :
Ques. “Did you know there was any intoxicating liquor in the drug-store when you took the chattel mortgage?” Ans. “No, sir.”
Q,. “Did you understand ' that any intoxicating liquors were included in the chattel mortgage?” A. “No.”
The admission of this testimony does not raise the question whether parol evidence of a contemporaneous oral agreement may be received to contradict or vary the terms of an instrument of contract. The testimony does not relate to the making of a mortgage, but to the existence of knowledge and understanding upon the part of the bank as to whether intoxicating liquors were contained in the stock on which the mortgage,was taken. It will be observed that the language of the mortgage descriptive of the mortgaged property is very general. Intoxicating liquors are not specifically mentioned in it. If covered by it they are included in the words “ all of the stock of goods, etc.,” or in the words “and other personal property connected with and heretofore used in the drug-store,” etc. "We are quite clearly of the opinion that in such a case as this a party may show that he did not know that such contraband articles as intoxicating liquors were included in the mortgage, and did not understand that he was, by the use of such general language, doing an act which would defeat the instrument he was endeavoring to procure.
Among other instructions the court gave the following :
“A druggist who has no permit from the probate judge to sell intoxicating liquors for medical, mechanical and scientific purposes may legitimately and properly have in his drug-store alcohol and other intoxicating liquors for the purpose of compounding and preparing tinctures, camphor and medicines which include intoxicating liquors and other ingredients,, which, when so prepared and compounded, do not come under the head of intoxicating liquors whose sale is forbidden by the prohibitory law. And alcohol and other intoxicating liquors kept for preparing and compounding medicines not forbidden to be sold under the prohibitory law may be properly included in a chattel mortgage of the stock of goods in a drugstore without making the chattel mortgage void.”
The first sentence of this instruction correctly states the law, but the last sentence does not, .and the court committed error in giving it. The defendant bank had no permit to sell intoxicating liquors. If they could be mortgaged to the bank they could be mortgaged for all purposes — for the purpose of sale as a beverage as well as for compounding tinctures and medicines. The mortgagor, Wheldon, could not limit the bank to the keeping And sale of the intoxicating liquors for lawful purposes. The validity of the mortgage in question did not depend upon the fact that the liquors were such as Wheldon might have kept or did keep in stock for legitimate purposes, but upon the question whether the disposition he made of them was for a purpose prohibited by law. He mortgaged them to secure a debt, and a mortgage for this purpose is illegal and void. (National Bank v. Gerson, 50 Kan. 582, 32 Pac. 905; Flersheim v. Cary, 39 id. 178, 17 Pac. 825; Gerlach v. Skinner, 34 id. 86, 8 Pac. 257; Korman v. Henry, 32 id. 49, 3 Pac. 764.) Criticism of other instructions is made, but without just foundation. However, for the error in the one above quoted the judgment is reversed and a new trial is ordered.
Johnston, J., and Allen, J., concurring. | [
-16,
-18,
-8,
-99,
26,
96,
40,
-70,
74,
-124,
53,
83,
-23,
-62,
5,
105,
-26,
61,
84,
72,
-25,
-73,
3,
-24,
-42,
-45,
-70,
-59,
-79,
73,
-28,
-44,
76,
48,
66,
-75,
-58,
-128,
-45,
92,
-54,
1,
-88,
65,
-35,
-128,
48,
59,
112,
78,
1,
23,
-45,
60,
29,
-49,
73,
40,
75,
61,
-16,
-72,
-101,
-107,
109,
23,
17,
52,
-100,
37,
-56,
14,
-110,
49,
25,
-24,
123,
-76,
-58,
52,
37,
-103,
45,
102,
99,
-94,
17,
-17,
-20,
-100,
46,
-17,
13,
-122,
-110,
-39,
99,
40,
-66,
-99,
124,
26,
-121,
-38,
-5,
21,
29,
108,
7,
-97,
-74,
-45,
15,
56,
-97,
3,
-1,
-125,
48,
113,
-57,
120,
92,
71,
120,
27,
-114,
-108
] |
The opinion of the court was delivered by
Doster, O. J. :
This was an action for damages against the Atchison, Topeka & Santa Fe Railroad Company for injuries received on the line of the Atlantic & Pacific Railroad Company on account of the alleged negligence of the latter. The question for determination is whether or not there was such identity of interest or other character of relationship between the two companies as to make the former liable for the torts of the latter. Upon this question a number of written instruments —traffic agreements — to which the two companies and others were parties, were introduced in evidence, and in addition quite an amount of oral testimony explanatory of the action taken by the companies under and in pursuance of the traffic agreements was introduced, showing the practical interpretation of the agreements made by the several parties thereto. Elaborate findings of fact were made by the court below, which we have read, together with the documentary and oral evidence.
Stated in quite brief terms, though with sufficient fulness to disclose all pertinent matter, the facts are as follows : The Atchison, Topeka & Santa Fe and the St. Louis & San Francisco railroad companies both have lines projected and partially completed to the Pacific coast, that of the former terminating at Albuquerque, N. M., and that of the latter at a point on the line of the former in the Arkansas valley in Kansas. The Atlantic & Pacific Railroad Company has a line beginning at Albuquerque, N. M., and extending, partially by construction and partially by the lease of another line, to Barstow, Cal., where connection is made with an'other road to San Francisco and other points on the coast. The line of the Atlantic & Pacific Railroad Company furnishes to the Atchison, Topeka & Santa Fe and the St. Louis & San Francisco companies the shortest and most desirable route for through traffic to the Pacific coast, and they were desirous that it should extend its road to the coast in order to accommodate the through traffic they were able to secure. Therefore they bought and held seven-eighths of its stock, and, together, they undertook to finance its affairs by guaranteeing its bonds and maintaining it in a solvent condition. The agree.ments referred to set out in detail the schemes agreed upon for upholding its credit and managing its finances. They provided for divisions of earnings upon through business and for the application of the earnings of the Atlantic & Pacific Railroad Company to the payment of the obligations guaranteed by the other companies. They also provided for financing the affairs of the one company under the management and in the interest of the other two companies to the end of securing them against loss on their guaranty of its bonds.
The primary object of these agreements appears to be the mutual benefit of the three companies through an interchange of traffic, and, as a means to that end, the upholding of the credit of the Atlantic & Pacific Railroad Company and its maintenance in a solvent condition as an independent company. None of these agreements seems to have or to seek the effect of merging the actual existence of the Atlantic & Pacific Railroad Company into those of the other two, or seems to have or to seek the effect of reducing the one to the character of a nominal corporate entity, or seeks to establish relations of principal and agent between the several companies or relations of partnership between them in the profits and losses of the business of railroading. They seek and seem only to have the effect of putting the finances of the one under the control and management of the others to the end and for the purpose stated. None of these agreements provides for the control or management of the operating department of the Atlantic & Pacific Railroad Company by the others, except that in some particulars the adjustment of time-cards and train schedules was made to devolve upon the others. The employment, supervision and discharge of employees of the Atlantic & Pacific company and the payment of the expenses of the operation of its line from Albuquerque to its western terminus were left to the managers of its own operating department, except that by one of the agreements some of the employees at Albuquerque and, to an extent, the terminal yards at that station were placed under the control of the Atchison, Topeka & Santa Fe management. By the terms of one of the agreements it was stipulated as. follows: “The western division of the Atlantic & Pacific railroad shall be under the management of the Atchison company.” By another stipulation it was agreed : “The central division of the Atlantic & Pacific railroad shall be under the management of the San Francisco company.” However, the context of this agreement shows that the language quoted refers not to the train service or the operating department of the Atlantic & Pacific company, but to its management in respect to rates and traffic arrangements generally. The quoted provisions, read in full, show that they were inserted for th,e purpose of securing equality of right between the Atchison, Topeka & Santa Fe and the St. Louis & San Francisco companies in respect to rates, and to prevent discrimination by the Atlantic & Pacific company against either of the other companies, and not to confer upon either of them any supervision over the operating department of the Atlantic & Pacific company.
On the 3d day of January, 1893, the plaintiff in error purchased of the agent of the Atchison, Topeka & Sante Fe Railroad Company at Kansas City, Mo., a through round-trip coupon ticket from that station to San Francisco and return. The coupons called for passage over the Atchison, Topeka and Santa Fe, the Atlantic & Pacific, the California Southern and the Southern Pacific railroads. This ticket, as is usual in such cases, contained a contract for passage made up of various stipulations, one of which was in the-following language : “In selling this ticket for pas-’! sage over other roads this company acts only as agent, and assumes no responsibility beyond its own line.” It concluded with an agreement in the following language : “In consideration of the reduced rate at which this ticket is sold, I hereby agree to accept all the provisions of the above contract.” This was signed by the plaintiff in ei’ror as'purchaser. Starting upon her trip she went aboard a car called a “tourist sleeper,” owned by the Pullman Palace Car Company, but which the defendant in error and its connecting lines were in the habit of using for transportation of their through passengers without change. At a point on the line of the western division of the Atlantic & Pacific railroad she was injured by the negligence of the employees of that road. She sued the Atchison, Topeka & Santa Fe Railroad Company for damages on account of the injuries received by her', and, as before stated, .the question relates, under the facts above set forth, to the liability of the one company for the negligent acts of the other. The court below held against her right of recovery, and from its judgment she prosecutes error to this court.
Her claim of error, however, is unavailing. In A. T. & S. F. Rld. Co. v. Roach, 35 Kan. 740, 12 Pac. 93, it was held:
‘ ‘ The sale of a through ticket for a single fare by a railroad company to a point on a connecting line, together with the checking of the baggage through to the destination, is evidence tending to show an undertaking to carry the passenger and baggage the whole distance, and which, in the absence of other conditions or limitations and of all other circumstances, will make such carrier liable for faithful performance and for all loss on connecting lines the same as on its own.”
In this case, however, in addition to those elements of the transaction which, as above stated, evidence a contract of liability for through passage, the conditions, limitations and other circumstances show that a contract of liability for through passage was not entered into by the defendant company. The contract for passage itself, that is, the ticket, in plain terms disavows responsibility for the acts and conduct of the connecting lines, and limits the responsibility of the defendant company to passage over its own line. Yef do not wish to be understood as holding that the acceptance of this contract of passage and the signature of the plaintiff in error to its terms of necessity relieved the defendant in error of liability. Tickets such as the one in question are in stereotyped forms prepared by the companies themselves. The passenger ; must purchase or refrain from the contemplated journey. The terms of the agreement of passage cannot be negotiated for by the passenger. They must be accepted as proposed by the company itself. As a rule, these tickets, with their incident stipulations of limited liability for passage, are not read by the passenger before purchase, nor do time and opportunity exist for reading them. They are imposed by the. company upon the passenger as a condition to the transportation facilities desired. If they contain no illegal or exceptionally onerous conditions violative of the obligations of the carrier, the passenger will be bound by their terms ; otherwise, not. In this case the question as to whether or not the ticket or contract of passage was one which the company might lawfully impose, and by which the passenger would be bound, has not been raised, nor do we mean to intimate that it could be successfully raised. Ve desire simply to prevent misconception of the statement made by us that, the contract of passage being in this case unlike the one in the case of A. T. & S. F. Rld. Co. v. Roach, supra, and being, as it was, a contract of limited liability, the plaintiff in error can claim nothing upon the mere ground of the purchase of a through ticket over several connecting lines.
/ In the case of Roach it was stated that arrangements 5 in the form of traffic agreements might be made and | frequently were made between companies owning {connecting lines which would constitute them part/ners as to third persons, and this is undoubtedly true, ; but we are unable to view the agreements entered into ; between the defendant in error and the Atlantic & I Pacific Railroad Company as a partnership arrangement as to patrons of their connecting roads. There was not that merger of different interests, that blend- ; ing of different individuals into a whole for the attainment of a single purpose and object, that mutual sharing of burdens and* benefits, which constitute a partnership. This conclusion, however, cannot be argued out in view of the prolix and technically worded traffic agreements before mentioned without extending this opinion to great length. The facts as we have stated them are generalizations, correctly drawn, as we believe, from the oral evidence and from the many pages of matter which these various agreements contain. We attach much importance to the fact that the Atlantic & Pacific Railroad Company retained in these agreements the management of its own operating department. It was through the negligence of the employees of that particular department that the injuries of the plaintiff in error were received. Cases may occur in which the potential existence of one railroad company is so nearly absorbed in or dominated by that of another company that the maintenance by them of separate organizations, or separate operating departments within their respective organizations, becomes a mere fiction, but this case, under the facts stated, is not one of that kind.
No great weight, in our judgment, is to be attached to the fact that the Atchison, Topeka & Santa Fe Railroad Company was a large stockholder in the Atlantic & Pacific company, or was the guarantor of its bonds. Such facts may constitute controlling reasons in the judgment of the management of the two companies for entering into close traffic agreements, but they do not of themselves constitute reasons for holding the two companies to be partners, or one company to be the servant or agent of the other. In the case of A. T. & S. F. Rld. Co. v. Davis, 34 Kan. 209, 8 Pac. 530, it was held :
“Where a great railroad company, operating a long line of road in the state, aids, as stockholder or bondholder, or as the guarantor of bonds, another railroad company in constructing its road, under the provisions of chapter 105, Laws of 1873, such auxiliary company does not become, on account of such aid, the servant or agent of the parent company ; and the parent company is not, on account of being such stockholder or bondholder or guarantor of bonds, responsible for the negligence or other default of the auxiliary company in constructing its road in its own name.”
The principle involved in this decision applies in. the determination of the point in question. If the-one company cannot be held liable for the negligence-of the other in constructing its road, it cannot, for the same reason, be held liable for its management or-operation.
The judgment of the court below is affirmed. | [
-16,
106,
-15,
-65,
90,
96,
58,
-104,
101,
-95,
-92,
83,
-51,
-55,
-124,
117,
-49,
45,
-48,
42,
-10,
-109,
86,
-29,
-46,
-77,
-13,
-59,
-79,
88,
110,
-42,
77,
32,
74,
85,
102,
66,
65,
28,
-50,
4,
-85,
-20,
-39,
64,
60,
126,
82,
78,
49,
-113,
-13,
40,
28,
-37,
45,
45,
-21,
41,
-111,
113,
-102,
-108,
125,
18,
1,
0,
-99,
7,
-56,
63,
-40,
-111,
25,
-3,
115,
-92,
-105,
-12,
101,
-39,
76,
106,
99,
33,
21,
-81,
124,
-120,
14,
122,
-115,
-26,
32,
24,
-85,
105,
-65,
29,
52,
20,
7,
-2,
-4,
5,
89,
116,
5,
-117,
-74,
-94,
-33,
102,
-98,
7,
-53,
-75,
49,
116,
-52,
-78,
77,
71,
58,
-101,
31,
-76
] |
The opinion of the court was delivered by
Smith, J. :
On January 15, 1897, judgment was rendered in the district court of Bourbon county in favor of plaintiffs below, Carrie A. Cornell and others, against the Neosho Valley Investment Company, for the sum of $5665, with interest at the rate of ten per cent, per annum and costs, declaring- the same to be a first lien upon certain real estate located in said county, and directing foreclosure. Upon the summons in the cause was indorsed the following return :
“Received this summons May 17, 1896; executed it by delivering to the Neosho Valley Investment Company, by delivering a true and certified copy of the within summons to L. M. Bedell, its cashier and treasurer ; the president or other chief officer not found in my county. May 19, 1896. J. W. Bennett,
Sheriff Labette County, Kansas.”
The judgment was rendered by default, the investment company making no appearance. On April 19, 1897, the investment company filed its petition for a new trial of the foreclosure case, under section 606 of chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶ 4671), wherein it attacked the service of summons in the cause, and alleged that L. M. Bedell, mentioned in the return of the sheriff, was not during the month of May, 1896, nor had he ever been, the cashier of the comxiany, and that the vice-president, secretary and treasurer of the company, during the month of May, 1896, had resided in the city of Chetoxia, in Labette county, Kansas.
Coujffed with this attack on the service was an allegation in the petition for a new trial in substance as follows : That in March, 1886, the land foreclosed was owned by one Heilman, who on that date gave L. M. Bedell his note for $5000, due in five years, and secured, the same by a mortgage on the land described in the decree; that prior to February 29, 1892, and after said note matured, Bedell sold it, without recourse, to Cornell, Read, and Wood, who on January 1, 1892, entered into a contract with, the Neosho Investment Company, whereby the latter, in consideration of the release by the former of a prior mortgage lien on the land, agreed to make all reasonable effort to sell the property on terms to be approved by Cornell, Read, and Wood, and to apply the proceeds, first, to the liquidation of the $5000 note of the company, and second, to the payment of the amount of the prior lien above referred to, the remainder, if any, to go to the investment company; that the company, in 1892, acting for Cornell and others, foreclosed the mortgage on the land given by Heilman in 1886 and took title from the sheriff in its own name, and since has had charge of it. It is admitted that the execution of the note and mortgage signed by it was the basis of the judgment rendered January 15,1897, followed by an allegation that it was given solely for 'the purpose of showing that Cornell had a lien on the real estate to the amount of $5000, that Cornell and associates never advanced the. company any money for the note, that it was not indebted to them, that the land was really owned by them, and that the company did not own it but held the legal title as a mere form. It was further alleged that the judgment was taken in fraud of the rights of the company, that the plaintiffs below knew all of the facts stated in the petition for a new trial, that the company was agent for Cornell and associates from 1891 to 1896, and that as such it rendered services and looked after the land for them'and paid the taxes. An account showing the alleged result of the agency is attached. The statement follows that the company had paid Cornell interest on the note amounting to $953.50, that its president was a non-resident and absent from Kansas, except in the latter part of 1896, and that its other officers lived in this state, that the agreement touching the mortgage was entered into between the president and Cornell and others, and that the other officers knew nothing about it, and that when the summons was served on Bedell he was very-ill, was compelled immediately to go to Colorado for his health, remaining away until the succeeding fall, and was therefore unable to give the cause any attention. i
The petition for a new trial then avers that the president of the investment company and one Jillson, an agent of Cornell .and others, made another agreement similar to that first set out, that in consequence of Bedell’s illness the company knew nothing about the action being merged into judgment until after the rendition of said judgment, that no other officer had any knowledge of the pendency of the action, and that the company believed it had a good defense. Then follows a tender of a deed in court, for the use of Cornell and others, to the property in question, to be delivered to them upon such terms and conditions as the court might impose. The petition was duly verified, as required by statute. A demurrer was filed and, on June 5, 1897, it was sustained by the court, but there seems to have been no judgment rendered thereon.
The case rested in this condition until the sheriff was about to execute the decree of foreclosure by selling the land upon which the judgment was a lien. On September 9, 1897, this action was commenced and a temporary injunction obtained restraining the sale. The petition in this case, filed by the Neosho Valley Investment Company against defendants in error, contains the same allegations as those previously incorporated in the petition for a new trial above referred to, except that the so-called defense is not pleaded. An issue being made up on this petition, an agreed statement of facts was signed and trial had. The temporary injunction was dissolved and judgment rendered against the investment company, plaintiff below, for costs,'and in favor of the defendants in error.
Our view of this case renders it unnecessary to consider the questions raised on the sufficiency of the service of the summons. That question has been put past our consideration by the act of the plaintiff in error. In the petition for a new trial the investment company was not content with an attack upon the service of summons only, but sought to impeach the validity of the judgment on other grounds not jurisdictional in character. This appeal to the court for relief against the judgment, for reasons other than that the court failed to obtain jurisdiction over the person of the party defendant, involved the admission that the judgment was valid, and the plaintiff in error by this act treated it as such. In one paragraph of the petition for a new trial it is alleged that the court was without jurisdiction by reason of a fatal defect in the service. In another, paragraph the judgment is attacked on the ground that there was no consideration for the note sued on, etc.
In Adolph Cohen v. C. B. Trowbridge, 6 Kan. 385, it is held that the filing of a motion to set aside a judgment, based partly on lack of jurisdiction and partly' on error in the judgment itself, is a general appearance. (2 Encycl. Pl. & Pr. 632.) . Where a party voluntarily appears in court it is unnecessary to in quire what, if any, process-has been served upon him. (Carr v. Catlin, 13 Kan. 393.) In Meixell v. Kirkpatrick, 29 Kan. 679, a party filed a demurrer to the petition upon several grounds, some j urisdictional and some not, claiming that the court had no jurisdiction of the person of the defendant, that the petition did not state facts constituting any cause of action, and that several causes of action were improperly joined. This demurrer was sustained on the ground that several causes of action were improperly joined'. Justice Brewer, speaking for the court, said:
“When served with the summons he (the defendant) appeared and filed a demurrer, which, while it alleged a lack of jurisdiction, presented also a number of other defenses, and defenses on the merits. Such plea, by the prior adjudications of this court, was equivalent to an appearance. A party who denies the jurisdiction of a court over his person must first present this single question. He may not mingle with his plea to the jurisdiction other pleas which concede jurisdiction, and thereafter insist that there was error in overruling his plea to the jurisdiction. As heretofore stated, the defendant by his demurrer raised a number of questions other than those which were jurisdictional, and invoked the judgment of the court thereon. By such other pleas he submitted himself and his rights to the jurisdiction of the court, and can no longer be heard to say that it had no jurisdiction.”
The plaintiff in error earnestly contends that this petition for a new trial, being filed after judgment, cannot be construed into an entry of appearance in the cause, for the reason that the judgment was originally based upon void service and was wholly inoperative to affect any rights or property of the defendant below. ' This contention cannot be sustained under the authorities. The case of Life Association v. Lemke, 40 Kan. 142, 19 Pac. 337, is substantially similar in its facts to the case at bar. There, after judgment, defendant filed a motion on jurisdictional and non-jurisdictional grounds to set the. judgment aside, and it was held that he entered a general appearance to the action.
The latest expression of this court is found in Frazier v. Douglass, 57 Kan. 809, 48 Pac. 36. Douglass was served with a summons, which he alleged to be void, and moved the court so to rule. Coupled with this motion was a sworn statement, in which he alleged “that he is the owner in fee, and has the valid title to the land described in the said plaintiff’s petition filed in said cause, and is in the peaceable and rightful possession of the same, and that said plaintiff has no right or title thereto or to its possession ; and further says that the said land is of great value, to wit, of the value of $3000.” In the opinion in that case it is stated :
“As will be readily seen, the plaintiff sets up matters which were non-jurisdictional and had no bearing upon the motion he had made. Where a defendant alleges and submits to the court matters that are nonjürisdictional he recognizes the general jurisdiction of the court and waives all irregularities which may have intervened in bringing him into court. Whatever may have been the purpose of the defendant in alleging these matters, it is clear that they do not relate to the question of service or of jurisdiction. Although not entirely formal, the averments relate to the merits of the controversy, and amount to a complete answer to the allegations of the petition. When the defendant set up . matters and submitted questions which were not jurisdictional, he submitted himself and his rights to the jurisdiction of the court, and he cannot be heard to say that it had no jurisdiction.”
For the reasons above stated, the judgment of the district court will be affirmed. | [
-16,
-28,
-80,
-114,
-118,
-32,
34,
-118,
75,
-80,
-92,
83,
-19,
-56,
16,
109,
-90,
29,
85,
105,
70,
-78,
23,
33,
-46,
-13,
-47,
-51,
-79,
93,
-12,
-41,
73,
48,
10,
-99,
-58,
-32,
-57,
24,
-50,
-123,
41,
-28,
-47,
8,
60,
59,
50,
73,
53,
46,
-13,
47,
57,
66,
9,
44,
-5,
-83,
48,
-8,
-86,
-122,
125,
19,
-79,
36,
-114,
-125,
72,
-70,
-112,
53,
-120,
-8,
118,
54,
-122,
116,
71,
41,
9,
54,
107,
33,
81,
-17,
-8,
-100,
47,
-11,
-115,
-89,
-105,
88,
66,
0,
-66,
-99,
117,
86,
-121,
118,
-25,
1,
88,
44,
-121,
-50,
-42,
-111,
77,
124,
-103,
19,
-9,
-125,
32,
113,
-51,
-78,
92,
70,
121,
59,
-49,
-76
] |
The opinion of the court was delivered by
Wertz, J.:
This is an appeal from an order of the lower court overruling appellants’ motion for leave to file a supplemental petition. This case was before the court earlier on a demurrer to the petition (Barton v. Hackney, 167 Kan. 754, 208 P. 2d 590) in which we held the petition stated a cause of action and the demurrer thereto was properly overruled. Inasmuch as the contents of the petition were fully set forth in the former opinion of this court, only facts sufficient to determine the question involved in the instant case will be noted.
The petition alleged that a restaurant had been in operation at the same address in Colfeyville for over forty years and fpr fifteen years had been commonly known as “Earl’s Café”; that the same employees had worked for the defendant at that restaurant for some seventeen or eighteen years; that defendant offered to sell the business and good will to the plaintiffs and represented that in addition to being the sole owner of Earl’s Café he was a silent partner in the Alvin Café; that he took no active part in the operation of this business; that his health made it necessary for him to retire from the active operation of the restaurant. The petition also alleged that on May 3, 1948, relying on these representations, plaintiffs purchased Earl’s Café from defendant for $10,500 and defendant signed a sales contract, in which he agreed as a part of the consideration not to engage in the café or eating business in Coffeyville for a period of five years except for his interest in the Alvin Café. A copy of the written contract was attached. The petition also alleged that prior to the payment of the purchase price plaintiffs and defendant talked with defendant’s employees and they were all willing to continue working for the plaintiffs as they had been working for the defendant; that plaintiffs took possession of the restaurant and had been operating it ever since until the filing of the action. The petition further alleged that on and until about June 7, 1948, plaintiffs enjoyed the business and good will purchased from the defendant and the regular employees continued to work for them as they had for the defendant and that this condition would have continued except for the acts of defendant alleged. The petition further alleged that immediately after the sale to the plaintiffs, the defendant in violation of the terms of the contract bought the interests of the other owners in the Alvin Café; that he took over its complete ownership and management and induced employees who were working for plaintiffs and had previously worked for the defendant at Earl’s Café to leave plaintiff’s place of business and work for the defendant; that he had offered these employees increases in wages and represented that plaintiffs would be forced to close in a short time on account of the defendant’s taking the business away from them. The petition further alleged that the acts of defendant in violation of the sales agreement in operating a café in competition with the plaintiffs and hiring plaintiffs’ employees had caused plaintiffs great damage and that since June 7, 1948, plaintiffs had been damaged in the sum of $125 per week on account of these violations and the defendant had continued to violate the agreement and was continuing to cause plaintiffs further damage, for which plaintiffs could not be compensated and for which they did not have any adequate remedy at law. The petition further alleged that as a result of defendant’s breach of his contract, plaintiffs had been damaged and are entitled to the sum of $2,375 up to October 18, 1948, and are entitled to recover the additional sum of $125 per week until defendant ceased to violate the contract and in addition plaintiffs are entitled to an injunction for a period of five years from May 3, 1948. The prayer was for the damages alleged and for an injunction.
Issues were joined by appellee’s answer and appellants’ reply thereto, the contents of which are not material to the issue involved herein. Trial of the action on December 19,1949, resulted in a hung jury. The case was continued after the jury failed to agree, and thereafter appellee sold tire Alvin Café. Appellants then asked leave to file a supplemental petition alleging sale of the café on February 4, 1950, and asking damages from the date of filing the original petition October 27, 1948, until February 4, 1950, at the rate of $125 per week. The trial court denied appellants’ motion and refused to permit filing of the supplemental petition, and appellants charge error in such refusal.
The sole question involved in this appeal is whether the trial court abused its discretion in denying appellants’ motion to file a a supplemental petition. G. S. 1935, 60-764 provides:
“Either party may be allowed, on notice, ... to file a supplemental petition, answer or reply, alleging facts material to the case, occurring after the former petition, answer or reply.”
Under our code, great liberality is allowed in amending and supplementing pleadings. Courts may allow corrections of mistakes of all kinds and parties may be permitted to add pertinent facts and insert allegations to make clear that which has not been definitely stated, or which elucidates, strengthens or explains the averments of the original pleading. (Byington v. Comm'rs of Saline Co., 37 Kan. 654, 16 Pac. 105.) However, it has been a long established rule of law in this state that the filing of amended and supplemental pleadings is a matter within the sound discretion of the trial court, and to secure the reversal of a ruling refusing to allow a party to amend or supplement his pleading, he must show affirmatively that the amendment or supplemental pleading proposed was material, and that its refusal was a clear abuse of judicial discretion. (Byington v. Comm'rs of Saline Co., supra; Stewart v. Winner, 71 Kan. 448, 80 Pac. 934; Croner v. Keefer, 103 Kan. 204, 173 Pac. 282: Sheldon v. Board of Education, 134 Kan. 135, 4 P. 2d 430; Board of Education v. Barton County Comm'rs, 144 Kan. 124, 58 P. 2d 40.)
An examination of appellants’ original and proposed supplemental petitions discloses that his supplemental petition contains nothing more in substance than a repetition of the pertinent averments of the original pleading. The original petition alleged the continuing damage to appellants due to the violation of the contract, and the amount thereof, for the duration of the stipulated five-year period, or until such violation should cease. All the supplemental petition added to this was a statement as to the date of termination of the violation, thereby limiting his recovery to a period within the five-year term provided in the contract. We find nothing in the record to show affirmatively that the supplementary matter proposed was material or that its refusal was a clear abuse of judicial discretion.
The judgment of the lower court is affirmed. | [
-16,
-17,
-47,
-116,
10,
-32,
62,
-70,
106,
-89,
39,
83,
-27,
-48,
20,
121,
-9,
13,
81,
123,
-34,
-77,
22,
32,
-42,
-13,
-39,
-43,
-79,
79,
-90,
116,
76,
48,
10,
-97,
102,
-62,
-55,
-98,
-54,
5,
9,
97,
-15,
2,
48,
121,
-12,
75,
49,
14,
-13,
44,
25,
-63,
-23,
44,
91,
47,
-47,
-16,
-109,
13,
95,
23,
17,
38,
-100,
-121,
-40,
42,
-104,
49,
9,
-24,
50,
-74,
-122,
116,
123,
-103,
8,
98,
99,
50,
-111,
-17,
-116,
-104,
14,
-5,
-99,
-89,
-107,
89,
-85,
32,
-68,
-97,
123,
30,
-125,
118,
-18,
21,
27,
-83,
4,
-54,
-106,
-77,
-113,
124,
22,
3,
-21,
19,
16,
113,
-125,
118,
93,
71,
51,
-101,
-114,
-108
] |
The opinion of the court was delivered by
Price, J.:
This appeal involves the construction of a prenuptial contract. The only question is whether, by its provisions, the husband renounced his right to inherit under the law of intestate succession a surviving spouse’s undivided one-half interest in the property, in question.
In June, 1930, Susan A. Blanchett and J. H. Johnson were about to be married. He owned certain property in the state of Idaho and she was the owner of a quarter section of real estate in Ford county, Kansas. She had two sons, Joseph and Orville, by a former marriage. On June 9,1930, they executed the following agreement:
“Pre-nuptial Contract.
“Contract made this 9th day of Juné, 1930, between James H. Johnson and Susan A. Blanchett, both of Fowler, Meade County, Kansas, witnesseth: Whereas the above named parties are about to be married, and each own property, now to the end that each may manage, control, dispose of, alienate and devise said property independent of the other, it is mutually agreed, that the said James H. Johnson is now the owner of Lots Six (6) and Seven (7) in Veazy Park Addition to the City of Boise City, Idaho; that Susan A. Blanchett is now the owner of the Northwest quarter of Section Thirty-six (36), Township Twenty-nine (29) South, Range Twenty-six (26) West, in Ford County, Kansas, and of twelve head of cattle and two head of horses:
“It is mutually agreed that neither of the contracting parties shall acquire any right, title or interest in or to any part of the property hereinbefore described, by virtue of the marriage relation about to be entered into. And that each of the parties hereto may at any time sell, mortgage, assign, dispose of, alienate, will and devise, and manage and control said described property belonging to each separately, as though each party were sole and single, and as though the marriage relation had never existed.
“It is further mutually agreed that the separate ownership herein provided for shall apply only to the property now owned by said parties; and that any and all property by them acquired hereafter shall be owned and held by them separately or jointly according to the laws of the State of Kansas.
“In witness whereof we have hereunto set our hands this 9th day of June, 1930.
“/s/ James H. Johnson
“/s/ Susan A. Blanchett”
(Then follows acknowledgment.)
They were married shortly thereafter and lived together as husband and wife until her death, intestate, in 1948. She left surviving as her only heirs-at-law her husband, J. H. Johnson, and her two sons by the former marriage.
In a probate court proceeding to determine heirship it was held that by virtue of the prenuptial contract the surviving husband was not entitled to inherit any interest in the quarter section of land described in the contract and which she still owned at the time of her death, but that as to all other property owned by her as of her death he was entitled to an undivided one-half interest, the other one-half to go to her sons, share and share alike. In other words, the probate court held that her two sons inherited the full title to the quarter section in question.
On appeal to the district court the findings and adjudication of the probate court were upheld, from which ruling the surviving husband has appealed. No question of homestead is involved and it is admitted by all parties that the only property Susan owned at the time of her death and which she also owned at the time of her marriage to J. H. Johnson was the quarter section of Ford county land described in the contract. Neither are we concerned with the lower court’s disposition of other property owned by her at the time of her death.
And so the question, squarely presented, is whether by the provisions of this contract the husband waived his right to inherit a surviving spouse’s interest in the property in question in the event his wife died intestate.
In their briefs counsel for each party have discussed a number of our leading cases on the subject, among them being Kistler v. Ernst, 60 Kan. 243, 56 Pac. 18; King v. Mollohan, 61 Kan. 683, 60 Pac. 731; Rouse v. Rouse, 76 Kan. 311, 91 Pac. 45; Casey v. Casey, 84 Kan. 380, 113 Pac. 1047; Getter v. Getter, 118 Kan. 150, 233 Pac. 1016; McVicar v. McVicar, 128 Kan. 394, 278 Pac. 36; Hewett v. Gott, 132 Kan. 168, 294 Pac. 897, and Bemarkt v. Prouty, 132 Kan. 228, 294 Pac. 890, in an effort to bolster or overthrow the holding of the lower court that the husband was barred from inheriting. A careful reading of those cases discloses that each was decided upon its own merits, that is, on the basis of the language used in the particular contract under consideration.
It is not disputed that a surviving spouse may bar or limit his or her right of inheritance by a prenuptial contract. When such contracts are fairly and understandingly made, are just and equitable in their provisions, and are free from fraud, deceit and overreaching, they are valid and enforceable and are to be liberally interpreted so as to carry out the intention of the makers. (In re Estate of Schippel, 169 Kan. 151, 218 P. 2d 192.)
However, the right to inherit is a statutory right and is one favored by the law. Before a prenuptial contract will be construed to cut off such right the intent of the parties so to do must clearly and unmistakably appear from an examination of the language used, and no strained interpretation of language will be permitted to strip a surviving spouse of his or her inheritable interest in the property of the other spouse who has died. (McVicar v. McVicar, supra.) In Bemarkt v. Prouty, supra, it was said:
“Can the terms of the instrument be so expanded as to cover the important provision of the right of inheritance? May the court infer from tire language used that the parties intended to set aside the law of descents and distribution when the death of either occurred? The expressed intention of the parties is the controlling consideration in the interpretation of such an agreement, and the rule is that either of the parties cannot be barred from inheritance by a mere implication or a strained construction which may be derived from an extension of the reasonable meanings of the terms employed in the instrument.” (p. 230.)
and in In re Estate of Troemper, 160 Kan. 464, 163 P. 2d 379, the rule was thus stated:
“It is well-established law that rights of inheritance are not denied to a surviving spouse except upon a clear showing that such rights' had been renounced. Contracts relied upon to show such renunciation will not be so construed unless such intention unmistakably appears.” [Citing authorities.] (p. 471.)
In support of the lower court’s ruling appellee sons rely chiefly on McVicar v. McVicar, supra. There the preliminary paragraph of the contract contained language quite similar to that contained in the one before us, and reads:
“ ‘That whereas, a marriage is about to be solemnized between the said parties; and whereas, the said Hattie L. Booth is the owner and possessed of certain real estate, notes, mortgages, stocks, securities and other personal property; and whereas, the said George A. McVicar is the owner and possessed of certain other real estate and other personal property; and whereas, it is mutually desired and agreed by the said parties that the estate of each of said parties shall remain separate, and be subject to the sole control and use of its owner as well after as previous to the solemnization of said marriage.’ ”
The contract there entered into is set out in full in the opinion and in the interest of brevity will not be repeated here, but in substance it reciprocally provided that the estate of each should remain and be his or her separate property subject entirely to his or her individual control and use, the same as though the parties were unmarried, and that neither should acquire as a consequence of the contemplated marriage for him or herself, heirs, assigns or creditors, any interest in the property or estate of the other. Further, each of the par-ties waived, released and relinquished all right to the use and control, including the income therefrom, of the separate property and estate of the other, and each was given the right to dispose of any or all of his or her separate property or estate by deed, will or otherwise, without the consent of the other. ■
This court held that by the execution of the contract the parties . agreed that their respective properties should remain and be their several respective properties the same as though each of them were unmarried, and that the widow had waived for herself and her heirs any interest in her husband’s property or estate.
It would appear that the basis of the decision rested on the fact that the contract specifically provided that the wife was not to acquire, as a consequence of the contemplated marriage, for herself or her heirs any interest in the property or estate of the husband, and such reasoning was cited with approval in Bemarkt v. Prouty, supra, page 232.
Counsel for appellees contend that the contract before us, taken as a whole, clearly evidences the intention that the right of each to inherit from the other any of the property specifically described in the first paragraph be cut off; that the language in the first paragraph is merely preliminary to the real intent and purpose set out in the two sentences in the second paragraph; that the word “acquire” refers to future interest after death as well as present interest; that by the use of the words “right” and “interest” is meant the inchoate right of inheritance, and that by the language of the third paragraph it is clear that the two sentences in the second paragraph refer only to the property then owned by the parties, which is described in the first paragraph, and it is argued that the word “acquire” should be given the same construction as it is contended was given in the McVicar case.
We are unable to agree with this contention of appellees. To do so would do violence to the rule heretofore announced to the effect that rights of inheritance are not denied to a surviving spouse unless such intention clearly and unmistakably appears from an examination of the language used and that no strained interpretation of language will be permitted to strip a siuviving spouse of his or her inheritable interest. Nowhere in this contract do we find any language clearly and unmistakably leading to the conclusion that either party intended to waive his or her right of inheritance upon the death of the other, intestate. It is true that each of the parties was empowered to manage, control, sell, mortgage, assign, dispose of, alienate, and will and devise his or her separate property described in the first paragraph without the consent of the other, but, as was said in Rouse v. Rouse, supra:
“The agreement might have provided that in ease the wife survived the husband she should take no share in his estate by inheritance, but tire provision that the husband should have the option to dispose of his property by will or otherwise cannot by implication be said to mean that, in the event he failed to exercise such option, the laws of inheritance should be set aside and the wife be left in the same situation as though he had exercised the option.” (pp. 317, 318.)
To hold that the right of inheritance in this case is cut off would necessarily be tire result of a strained interpretation of, the very language used, and that, under all of the authorities, is something in which we are not permitted to indulge. Furthermore, it appears to us that a very logical and reasonable interpretation of the contract before us is that each retained the right to manage and dispose of, by will or otherwise, his or her property, then owned, during his or her own lifetime and that in the event of intestacy the survivor would not be barred from his or her statutory right of inheritance in such property. We have given careful consideration to each and every contention advanced by counsel for appellees, but are forced to the conclusion the lower court erroneously ruled that by virtue of the contract appellant husband was barred from his right of inheritance of an undivided one-half interest in the quarter section of land in controversy.
It therefore follows that the judgment of the lower court must be and is hereby reversed. | [
-47,
105,
-11,
127,
26,
-28,
-118,
-103,
114,
-87,
37,
83,
-23,
74,
20,
107,
98,
13,
65,
106,
-42,
-77,
30,
-128,
-46,
-13,
-47,
-51,
-71,
89,
-76,
-41,
76,
32,
10,
85,
102,
-54,
-63,
84,
-116,
-128,
-117,
-24,
-38,
66,
60,
99,
82,
78,
85,
-81,
-13,
42,
61,
-29,
108,
46,
-37,
56,
-64,
48,
-85,
-124,
125,
22,
-111,
33,
-106,
-59,
-56,
-114,
-104,
17,
8,
-24,
83,
38,
-42,
116,
11,
59,
8,
118,
102,
0,
81,
-49,
-112,
-104,
14,
-14,
-83,
-89,
-110,
88,
98,
40,
-66,
-99,
109,
20,
15,
116,
-1,
77,
29,
104,
2,
-114,
-42,
-93,
13,
122,
-104,
3,
-13,
-61,
32,
113,
-53,
-96,
76,
71,
59,
19,
-113,
-70
] |
The opinion of the court was delivered by
Price, J.:
This is an appeal from an order overruling the defendant’s demurrer to plaintiffs amended petition in ah action for damages allegedly sustained on account of the refusal of defendant to release a mortagage on real estate. While the question before us, strictly speaking, is the correctness of the lower court’s ruling on the demurrer, yet the basic question concerns the duty of defendant bank to release the mortgage under the facts and circumstances hereinafter related.
The parties will be referred to as in the court below, and a brief summary of the allegations of plaintiffs amended petition is as follows:
One Isaac March, a resident of Sedgwick county, died intestate on February 1, 1930. At the time of his death he was the owner of 320 acres of Sedgwick county real estate. J. R. March, a son, was one of his heirs-at-law. On August 19, 1933, J. R. March and his wife Ethel signed, executed and delivered to defendant bank their note in the amount of $285, secured by a mortgage on “our undivided interest” in the 320 acres in question. This mortgage was duly filed of record September 29, 1933. During the administration of the Isaac March estate it became necessary to sell this real estate for the payment of debts, and a proceeding for that purpose was had in thp probate court of Sedgwick county, the validity and regularity of which are not in question. Plaintiff purchased this real estate in the probate court proceeding and received an administrator’s deed under date of August 26,1936. This deed was duly filed of record on October 29,1936.
On February 20, 1948, plaintiff entered into a written contract for the sale of the property to Howard Bridgman and his wife Alice. Among other things the contract provided that plaintiff was to furnish the Bridgmans an abstract of title “showing a good, merchantable title, clear and unincumbered from clouds of every kind whatsoever.” When the Bridgmans submitted the abstract of title to their attorneys for examination they were advised that the mortgage to defendant bank, heretofore referred to, should be released of record. There was some discussion of the matter between the Bridgmans and plaintiff. Defendant bank refused to comply with plaintiff’s demands that it release the mortgage unless the latter would pay the indebtedness which the mortgage was given to secure, but later agreed to release it provided plaintiff would pay the sum of $75. Plaintiff refused to make either of these payments and the matter dragged along. Finally, it is alleged, the Bridgmans effected a settlement of their own with the bank, whereupon the sale between plaintiff and the Bridgmans was completed.
Plaintiff’s action is for actual damages in the amount of $1,128.98, on account of expense incurred by him during the negotiations with defendant bank, attorney fees, loss of interest during such interim on the balance of the unpaid purchase price and loss of time. He also seeks punitive damages in the amount of $10,000.
Defendant’s demurrer was based upon three grounds — (1) that the amended petition did not state facts sufficient to constitute a cause of action, (2) that it contained admissions showing that any action which plaintiff could or might have had was barred by laches, and (3) that from the admissions contained therein plaintiff was estopped from recovering any damages either in equity or in law for any alleged wrongful acts of defendant.
While various arguments are made by each of the parties, we think the real solution of this question is to be found in our statute, G. S. 1935, 67-309, which in part provides:
“When any mortgage of real estate shall be paid, or when a mortgage shall be recorded in the office of the register of deeds, covering real property in which the mortgagor has no interest, it shall be the duty of the mortgagee or his assignee within sixty days after demand, ... to enter satisfaction or cause satisfaction of such mortgage to be entered of record without charge; . .
From this provision it is clear that a mortgagee’s duty to release a mortgage arises only when one of the two specified conditions exists, namely, when the mortgage is paid, or when the mortgage covers real property in which the mortgagor had no interest.
Nowhere in the amended petition is it alleged that this mortgage had been paid, and in fact its allegations inferentially admit that it had not been paid.
Plaintiff concedes, and the amended petition so alleges, that as of the date of the mortgage the mortgagor, J. R. March, had an “interest” in the real estate in question — subject, however, to its sale for the payment of debts of the estate.
Notwithstanding the fact that any lien which defendant bank might have had by virtue of its mortgage was effectually extinguished by the administrator’s sale of the property to plaintiff in the probate court proceeding, we fail to discover any duty on the part of the bank to release the mortgage under the existing circumstances. It is not alleged the mortgage debt had been paid and it is admitted that the mortgagor had an “interest” in the property at the time the mortgage was given. The most that can be said is that defendant bank simply refused to release a mortgage which it had no statutory or contractual duty to release. Such being the case it becomes unnecessary to take up and discuss plaintiff’s arguments with reference to the actions of defendant amounting to a wrongful interference with a contract of sale. For the reasons stated we think the amended petition failed to state a cause of action and that the demurrer should have been sustained.
Plaintiff has filed a motion to strike portions of the abstract filed by defendant (appellant) in this appeal. We have examined this question and find the motion to be without substantial merit, and it is therefore denied.
From what has been said it therefore follows that the judgment of the lower court is reversed with directions to sustain the demurrer to the amended petition. | [
-15,
108,
-103,
-97,
-6,
-32,
42,
-102,
-62,
53,
-89,
95,
-69,
-62,
20,
47,
119,
41,
-11,
105,
-58,
-77,
22,
-62,
-46,
-77,
-23,
87,
-79,
-51,
-28,
-41,
77,
32,
66,
21,
-26,
-94,
-59,
80,
-52,
-121,
-103,
109,
-47,
64,
48,
-69,
116,
8,
85,
-81,
-13,
38,
29,
103,
105,
40,
-37,
40,
-48,
-8,
-85,
13,
111,
3,
17,
55,
-104,
2,
-8,
-82,
-112,
57,
2,
-24,
123,
-122,
-42,
116,
65,
-101,
40,
102,
98,
17,
77,
-17,
-80,
-72,
38,
126,
-115,
-90,
-108,
88,
66,
104,
-68,
-99,
109,
0,
6,
-10,
-18,
-116,
28,
108,
13,
-49,
-42,
-79,
-113,
-76,
-104,
-125,
-58,
7,
48,
113,
-49,
-126,
93,
102,
83,
-69,
-122,
-4
] |
The opinion of the court was delivered by
Wertz, J.:
Plaintiff, a minor, brought this action through his father to recover damages for personal injury caused by the negligent operation of defendant’s truck, joining as parties defendant the driver, Schmidt, the owner, Popp, and the insurance carrier. Amendments were filed to the original petition to comply with portions of defendants’ motion to make definite and certain sustained by the court. Subsequently defendants’ motion to strike the amendments was overruled, whereupon defendants filed a motion denominated “Special Demurrer” moving to strike paragraph 8 (e) of the petition as amended, which motion also was overruled. Defendants appeal and urge that the court erred in overruling their special demurrer to that portion of plaintiff’s petition as amended wherein a cause of action was attempted to be stated for willfullness for the reason that the petition failed to state facts constituting willfullness.
Pertinent parts of plaintiff’s petition as amended read as follows;
“5. That on the 24th day of May, 1949, U. S. Highway, number 281, commencing at the south line of Stafford County, Kansas, ran North on the section line to a point about a quarter mile South of the boundary line between Stafford and Barton Counties, at which point said highway made a curve to the left and thence ran in a Northwesterly direction to a point about a quarter mile North to Great Bend, Kansas. That the collision hereinafter described, occurred on said highway approximately four hundred and fifty feet North West of said Stafford county curve and occurred in Stafford County, Kansas; That said U. S. Highway, number 281, has a white painted line along its said entire course, marking the center of the black-top pavement on said highway, which black-top pavement is approximately 24 feet wide. That said highway is and was a well used highway carrying heavy traffic in both directions, all of which facts were well known at the time of said collision by the said Francis J. Schmidt.
“6. That on Tuesday, May 24, 1949, the Plaintiff, Donald Krey, was returning, on said U. S. Highway number 281, to his home in Stafford County, Kansas, from a school he was attending in Great Bend, Kansas, and was driving a 1946 Ford automobile. That about 3:00 P. M. of said day, as he approached tire point at which said collision occurred, he was driving said Ford automobile at a speed of approximately fifty miles per hour, and on the right hand side of said pavement and, traveling in a South Easterly direction; that when he reached the point of said collision, he was passing or about to pass a vehicle driven by a Mr. Kincaide, which vehicle was pulling a horse drawn mower and immediately behind said vehicle and mower was a car being driven by Eric Fischer, both of which cars were traveling at a slow rate of speed, on said pavement and, in a North Westerly direction and, on their right side of the center of said pavement. That following behind said cars, driven by Eric Fischer and Mr. Kincaide, was the truck belonging to the defendant, Harold Popp, hereinbefore described, which truck was being driven by the Defendant, Francis J. Schmidt, as the agent and employee of the said Harold Popp. That the said Francis J. Schmidt, without giving any warning- or signal upon overtaking said preceding cars suddenly turned said truck to the left and across the center line of said pavement and into the line of traffic on which plaintiff was traveling in an attempt to pass the cars driven by said Eric Fischer and said Mr. Kincaide. That said truck side-swiped the left side of the Fischer car and struck the car driven by the plaintiff, overturning the car in which plaintiff was driving, causing the plaintiff to suffer the injuries hereinafter described.
“7. That the plaintiff suffered and sustained injuries from the impact of said collision and from the overturning of the car plaintiff was driving as follows, to wit: . . . (Enumerating injuries.)
“8. That the said collision of said truck with the Ford car plaintiff was driving and, the said injuries sustained by the plaintiff, were brought about and resulted wholly from the negligence of the driver of said truck, Francis J. Schmidt, who at that time was the agent, employee and servant of the said Harold Popp, dba H. M. Popp Truck Line of Hays, Kansas, in each of the following particulars, which was the direct and proximate cause(s) of said collision and injuries, to wit:
“a. That the defendant, Francis J. Schmidt, as he approached the point of said collision, was traveling at too high a rate of speed and at such a speed that he did not or could not stop said truck or turn to the left and pass the cars preceding him in safety, without striking the Ford car driven by the plaintiff. But the plaintiff does not know the rate of speed at which said truck was being driven.
“b. That the defendant, Francis J. Schmidt, did not have the said truck under proper control so as to turn to the left or stop said truck to avoid the collision of the said truck and the Ford car driven by the plaintiff.
“c. That the defendant, Francis J. Schmidt, was following the cars preceding him entirely too close for safety and closer than was reasonable and prudent, having due regard for the speed of said truck and the speed of the said cars immediately preceding him and of the traffic upon and the condition of said highway and he was following the said cars with said truck within less than 150 feet.
“d. That the truck driven by the defendant, Francis J. Schmidt, immediately preceding the collision, was suddenly turned to the left side of the center of the said highway in overtaking the cars immediately preceding him and which said cars were being driven in the same direction as said truck and at a time when the left side of the pavement was not free from oncoming traffic and particularly the Ford car, being driven by the plaintiff; that said cars immediately preceding the truck driven by Francis J. Schmidt was not such a distance ahead as to permit said truck overtaking and passing said cars so as to completely make said passing without interfering with the safe operation of the Ford car, which was being driven by the plaintiff and approaching from the North West and from the opposite direction.
“e. That at the time of said collision and immediately prior to said collision, the said defendant, Francis J. Schmidt was driving said truck in such manner as to indicate a willful and wanton disregard for the safety of other persons on said highway and particularly this plaintiff. That the facts, which plaintiff contends constituted a willful and wanton disregard for the safety of other persons on said highway, are the facts contained in all of the other allegations of said Petition.
“f. That the defendant, Francis J. Schmidt, at the time of said collision and prior thereto, could readily have observed the approach of the Ford car driven by the plaintiff, had he been keeping a proper lookout for other users of the highway and particularly this plaintiff, all of which he failed to do.
"That on the said 24th day of May, 1949, and at the time of said collision, the day was clear, visibility was good and the pavement was dry. That the defendant, Francis J. Schmidt, was the duly authorized agent, servant and employee of the Defendant Harold Popp doing business as aforesaid and was in full charge under said authorization in the driving of said truck at the time and place of said collision.”
The petition closed with a prayer for relief.
The special demurrer filed by defendants was in the following language:
“Special Demurrer.
“Come now the defendants and each of them and demur specially and move to strike all that portion of plaintiff’s petition and amendment thereto wherein plaintiff purports and attempts to state a cause of action for willfullness and more particularly all of paragraph 8 e for the reason that the allegations therein made are mere conclusions and are not supported by any factual allegations.”
Appellee challenges the right of appellants to be heard on this appeal, their contention being that the “Special Demurrer” is nothing more than a motion to strike, and that overruling of a motion to strike is not an appealable order under the provisions of G. S. 1935, 60-3302.
At the outset, we will consider whether the petition as amended states a cause of action without paragraph 8 (e) — that portion of the petition at which the special demurrer is lodged.
G. S. 1935, 60-704 provides in substance that (1) the petition must contain the name of the court and the county in which the action is brought, the names of the parties plaintiff and defendant, followed by the word petition; (2) a statement of the facts constituting the cause of action in short and concise language without repetition; and (3) a demand for the relief to which the party supposes himself entitled.
An examination of the petition as amended — deleting paragraph 8 (e) — discloses that it meets all the requirements of the above statute.
Inasmuch as appellee has stated a cause of action, the next question for determination is whether the pleading filed denominated “Special Demurrer” to paragraph 8 (e) of the petition as amended is such that a ruling thereon is appealable.
G. S. 1935, 60-3302 provides in part as follows:
“The supreme court may reverse, vacate or modify any of the following orders of the district court or a judge thereof, . . . First: A final order . . . Third: An order that involves the merits of an action or some part thereof.”
Special demurrers are not looked upon with favor. They seldom have any real relation to the merits of the controversy. At most they go only to defects in form and add to the terms of a general demurrer a specification of the particular ground of exception. In some jurisdictions such demurrers have been abolished by statute. (41 Am. Jur. 438.)
The general rule seems to be that a demurrer will not lie to a single paragraph of a petition on the ground that it does not state facts sufficient to constitute a cause of action if the pleading as a whole states facts sufficient to constitute a cause of action, and a demurrer to a part of a cause of action or part of a petition will only be entertained when the imperfect part is so material that, being eliminated, it leaves the pleading without a good cause of action. (41 Am. Jur. 454-5.)
Where a petition is in several paragraphs, negligence being alleged in more than one of such paragraphs, and a demurrer is interposed to question the sufficiency of only one of such paragraphs, the demurrer does not extend to the sufficiency of the remaining paragraphs not questioned. In the instant case it may be noted that paragraph 8 in subparagraphs (a), (b), (c), (d) and (f) alleges negligence sufficient to state a cause of action as against a demurrer even with subparagraph (e) deleted.
It may be stated that the special demurrer filed by appellants was ■nothing more than a motion to strike. Being treated as such, a motion to strike is addressed to the sound discretion of the court and ordinarily refusal to grant it will not be disturbed unless it clearly appears that the trial court’s discretion has been abused. In Estes v. Tobin Construction Co., 159 Kan. 322, 153 P. 2d 939, we held that motions to strike and make definite and certain rest in the sound discretion of the trial court and rulings thereon are not appealable unless they affect a substantial right and in effect determine the action. See also in this connection Hendricks v. Wichita Federal Savings & Loan Ass’n, 157 Kan. 651, 143 P. 2d 780; and Wharton v. Zenger, 162 Kan. 69, 174 P. 2d 103.
The court in considering G. S. 1935, 60-3302 in the case of Whitlaw v. Insurance Co., 86 Kan. 826, 122 Pac. 1039, stated that an order overruling a motion to strike out portions of an answer which do not involve the merits nor determine the action is not appealable and can be reviewed in this court only after a final judgment in the action. The same rule has been adhered to in many cases since that decision.
In the case of Wigton v. Donnelly, 122 Kan. 796, 253 Pac. 400, and again in Redfield v. Chelsea Coal Co., 138 Kan. 373, 26 P. 2d 579, we held that for an order striking certain allegations from a petition to be appealable, it must amount to the sustaining of a demurrer. And only recently in the case of Pulliam v. Pulliam, 163 Kan. 497, 183 P. 2d 220, we held that rulings on motions to strike portions of a petition are not appealable unless they affect a substantial right and in effect determine the action.
In the instant case we find nothing to indicate that any substantial right of the appellants has been affected. Moreover, appellee has stated a cause of action against appellants in his petition exclusive of paragraph 8 (e), and therefore sustaining the special demurrer would not involve the merits of nor determine the action and the order thereon is not reviewable in this court.
The appeal is dismissed. | [
-16,
-22,
-47,
28,
11,
96,
34,
26,
117,
-75,
37,
83,
-17,
-53,
4,
121,
-1,
29,
81,
106,
119,
-93,
87,
-110,
-106,
-77,
-21,
-42,
-78,
91,
46,
119,
76,
48,
10,
85,
38,
-54,
-123,
92,
-50,
4,
-119,
-32,
89,
2,
-80,
120,
54,
9,
49,
-81,
114,
42,
27,
-61,
41,
44,
91,
-84,
-61,
-80,
-53,
5,
95,
19,
-95,
0,
-104,
7,
88,
43,
-100,
-71,
56,
-8,
119,
-90,
-124,
-12,
109,
-103,
8,
-90,
103,
33,
21,
-19,
-20,
-104,
14,
122,
13,
-89,
-66,
88,
9,
4,
-74,
-99,
119,
86,
14,
122,
-4,
4,
27,
108,
7,
-53,
-76,
-79,
-49,
-80,
28,
75,
-21,
-123,
50,
113,
-61,
118,
93,
71,
119,
-109,
71,
-68
] |
The opinion of the court was delivered by
Harvey, C. J.:
This was an action for a real estate commission. The appeal is from an order of the court overruling defendants’ demurrer to plaintiff’s amended petition.
In the petition, filed March 18, 1949, and the amended petition, filed in May of that year, plaintiff alleged “that he is a duly licensed real-estate broker under a license issued by the Kansas Real Estate Commission and that he is engaged in the business of a real-estate broker” at a stated address in Russell, Kan.; “that on or about the 18th day of February, 1949, the said defendants who were then the owners” of a described lot in Russell, on which a residence was situated, “orally requested this plaintiff to act as their agent and broker for the sale of said premises, and which premises were listed • for sale at the sum of $9,750”; and in the event plaintiff secured a purchaser for the premises at that price defendants would pay plaintiff a commission of five percent on the first $1000 and two and one-half percent on each additional $1000. Plaintiff further alleged that pursuant to the oral agreement he attempted to secure a purchaser for the premises and contacted one James H. Wigglesworth and showed the premises to him and his wife in an effort to sell it to them; that on February 22, Wigglesworth advised plaintiff that he was willing and able to purchase the property from defendants for $9,750; that on the same day plaintiff notified defendants of that fact, and on the same day Wigglesworth and wife entered into a written agreement with defendants for the purchase of the property; that thereafter, and on or about February 23, defendants refused to proceed with the sale or to make and execute a warranty deed, and canceled the written agreement to sell, although Wigglesworth was able and willing to complete the purchase of the real estate. It was further alleged that by reason of the facts stated defendants are indebted to him in the sum of $268.75, for which sum he prayed judgment.
Defendants filed a demurrer to this amended petition upon the ground that it fails to state facts sufficient to constitute a cause of action in favor of plaintiff and against defendants, and that the court had no jurisdiction of the subject matter of the action. This demurrer was considered by the court and overruled.
In this court, while other questions are argued, appellants’ principal contention is that the petition does not comply with the mandatory terms of the Kansas Real Estate Brokers License Act. This is a comprehensive statute enacted in 1947 (Ch. 411, Laws 1947; the portion important here is now G. S. 1947 Supp. 67-1001 to 67-1021) defining real-estate brokers and real-estate salesmen, providing for their regulation, supervision and licensing, creating the Kansas Real Estate Commission, and prescribing its powers and duties, providing for the enforcement of the act, and providing penalties for violation thereof. The pertinent portions of the act relied upon by appellants read:
“No person, partnership, association or corporation shall engage in, or carry on, or advertise, or hold himself, itself or themselves out as engaging in or carrying on the business of or act in the capacity of a real estate broker or a real estate salesman within the state of Kansas without first obtaining a license as a real estate broker or a real estate salesman, as provided in this act: Provided, That this section shall not apply to partnerships, associations or corporations whose members, officers and employees are licensed as provided in section 12 [67-1006] of this act.” (G. S. 1947 Supp. 67-1004.)
“Any person engaged in the business of acting in the capacity of a real estate broker or real estate salesman within this state, shall not be permitted to bring or maintain any action in the courts of Kansas for the collection of compensation for the sale of real estate without alleging and proving that such person was a duly licensed real estate broker or real estate salesman or a partnership, association or corporation whose members, officers and employees are licensed as required by this act, at the time the alleged cause of action arose.” (G. S. 1947 Supp. 67-1019.)
Appellants point out that the petition does not allege plaintiff was a licensed real-estate broker on February 18 to 23, when this cause of action arose. Counsel for appellee recognize this limitation; but contend that fact may be inferred from other portions of the petition. We think the legislature had a definite purpose in prohibiting any person to bring and maintain any action in the courts of Kansas without alleging and proving that he is a duly licensed real-estate broker at the time the alleged cause of action arose; that this matter was not to be governed by inferences which might be the subject of controversy. Counsel for appellee concede there is merit in appellants’ contention that the amended petition should have alleged that plaintiff was the holder of a certificate or license issued by the Kansas Real Estate Commission on or prior to February 18, but contend the matter was not raised in the trial court when the demurrer was presented and for that reason should now be considered as having been waived by the appellants. There is nothing in the record to show that the point was not raised in the trial court, and tire fact that it was not so raised is not conceded by appellants. Counsel for appellee further say:
“If, however, this court should deem this particular delect to be vital, then it should give the appellee the right to amend this petition by alleging this particular fact.”
We think the matter vital. The legislature made it so. The place to amend the petition, however, is in the trial court and not here. We have not treated other arguments made by appellants as to why the demurrer should have been sustained. In redrafting the petition, however, counsel for plaintiff may give attention to them.
The judgment of the trial court is reversed with directions to sustain the demurrer to the amended petition. | [
-48,
-22,
-80,
-113,
24,
-24,
8,
-102,
97,
-79,
39,
87,
105,
-56,
4,
125,
86,
45,
-16,
104,
-121,
-77,
70,
-88,
-42,
-13,
-47,
-51,
-77,
-35,
-12,
-58,
76,
48,
-62,
21,
-26,
-62,
-59,
-100,
-50,
-125,
8,
-60,
-39,
0,
48,
57,
18,
3,
49,
-82,
115,
44,
57,
-45,
-87,
46,
-21,
-95,
-39,
-72,
-53,
-99,
-33,
23,
0,
52,
-38,
-123,
88,
-22,
-112,
60,
8,
-24,
115,
54,
6,
116,
79,
-117,
40,
38,
99,
33,
-31,
-25,
-8,
-104,
47,
-69,
-115,
-89,
-14,
88,
66,
1,
-66,
-104,
125,
18,
3,
118,
-26,
-108,
29,
108,
7,
-17,
-106,
-15,
15,
122,
-117,
11,
-1,
7,
-96,
112,
-49,
-26,
93,
71,
50,
27,
-116,
-36
] |
The opinion of the court was delivered by
Parker, J.:
This is an appeal from an order of the district court sustaining a motion to dismiss an appeal from a decision of the board of county commissioners of Ford county rejecting a claim filed against such county.
The facts are not in controversy and can be briefly stated. On October 1, 1949, the plaintiffs filed a claim against Ford county for $366.55 which was disallowed by the defendant, board of county commissioners. October 7, 1949, they appealed from the decision of the board to the district court of Ford county by filing a notice of appeal and appeal bond with the county clerk of Ford county, ex officio clerk of such board. Thereupon the last named official approved the bond and certified the appeal to the district court of Ford county.
The bond so filed, approved and certified, reads as follows:
“Whereas", the above-named Buxton & Beck, by and through Jos. Buxton, one of the partners of said claimant’s firm, filed its claim against the Board of County Commissioners of Ford county, Kansas, on the first day of October, 1949, with the clerk of said board;
“And Whereas, the Board of County Commissioners rejected said claim on the third day of October, 1949;
“And Whereas, said claimant has and does appeal from the decision of said Board of County Commissioners rejecting said claim to the District Court of Ford County, Kansas:
“Now Therefore, we the undersigned hereby firmly bind and obligate ourselves to tire said Ford County to faithfully prosecute such appeal and to pay all costs which may be adjudged against the appellant.
“s/ Buxton & Beck
“By Geo. R. Gould, Agent.”
Shortly after the appeal was filed with the clerk of the district court of Ford county the defendant filed a motion to dismiss it on the ground the appeal bond failed to comply with the statute and was wholly void. After a hearing the district court sustained this motion and dismissed the appeal. Its order and judgment reads:
“That the court has no jurisdiction of this matter in that the appeal bond in said matter is not such as is required by the law and is wholly void.
“Therefore, it is ordered that said appeal be dismissed and said appeal is hereby dismissed.”
This appeal is from the foregoing order and judgment.
Before consideration is given to the merits of the cause reference should be made to provisions of the statute governing an appeal to the district court from the decision of a board of county commissioners in denying a claim which has been filed against the county. G. S. 1935, 19-223, provides for the taking of an appeal in such a case. It reads:
“Any person who shall be aggrieved by any decision of the board of commissioners may appeal from the decision of such board to the district court of the same county, by causing a written notice of such appeal to be served on the clerk of such board within thirty days after the making of such decision, and executing a bond to such county with sufficient security, to be approved by the clerk of said board, conditioned for the faithful prosecution of such appeal, and the payment of all costs that shall be adjudged against the appellant.”
It is to be noted the involved bond was executed by the principal only. In other words it does not bear the signature of a surety. Appellee’s position the trial court’s action in dismissing the appeal on jurisdictional grounds should be upheld is based solely upon the premise the phrase "with sufficient security” as used in 19-223, supra, must be construed as requiring a surety on all such bonds and that the lack of surety on the instant bond renders such appeal wholly void. It makes no claim the bond is defective in any other particular. In fact it concedes that, except for that alleged defect, such instrument was executed in conformity with all requirements of the statute (19-223) and is regular in every respect.
So far as our research has been able to disclose the construction to be given the statute now in question is one of first impression. Apparently the parties have a like view. The only case cited by either of them, and that by appellee in support of its position, is Wald v. Bukaty, 139 Kan. 489, 32 P. 2d 456. That action involved the construction of the section of the statute governing appeals from justice court to district court (G. S. 1935, 61-1002), containing entirely different language and is not in point. Moreover, even if it were it would not be decisive here for, while it does hold a motion to dismiss an appeal from justice court to district court on grounds the appeal bond was signed by the attorney for the appellant and the notice of appeal was not served in time was properly sustained, an examination of the opinion reveals the court’s decision was actually based upon failure of the appellant to serve his notice of appeal within time and the right of his attorney, in view of the provisions of G. S. 1935, 78-101, prohibiting that action, to sign the bond as a surety, not on the question whether the failure of any surety whatsoever would deprive the court of jurisdiction to hear the appeal.
A case much closer in point and far more persuasive from the standpoint of legal principles involved, although it too required a construction of another statute, G. S. 1901, Sec. 1041, now G. S. 1935, 14-815, is Ottawa v. Johnson, 73 Kan. 165, 84 Pac. 749. There the appellee pointed to language found in the involved statute requiring a bond “with good, and sufficient security” and — as here— strenuously contended the words “sufficient security” as there used meant “surety” and required the court to so construe the term and hold the bond given in that case, not being signed by any surety at all, failed to comply with the statute and was therefore an absolute nullity and conferred no jurisdiction upon the district court. We rejected the appellee’s contention and held:
“Where a defendant upon conviction in police court offers an appeal bond signed only by himself, and the police judge approves it and discharges him from custody, it is error for the district court to dismiss the appeal because tire bond lacks the signature of a surety, although the statute provides that no appeal shall be allowed unless the appellant enters into a recognizance with good and sufficient security, to be approved by the police judge, for his appearance in the district court to answer the charge against him.” (Syl.)
And at pages 166 and 167 of the opinion said:
“. . . To this we cannot agree. It was held in McClelland Bros. v. Allison, 34 Kan. 155, 8 Pac. 239, that an appeal bond approved by a justice of the peace in a civil case, signed only by the parties against whom the judgment had been rendered, was not entirely void, and might be amended, although the statute (Gen. Stat. 1901, § 5354) required that it should be signed by ‘at least one good and sufficient surety.’ . . .
It is said, and there appears to be no authority to the contrary, that ‘although the statute provides that recognizances shall be executed by two sureties, a recognizance is not invalid because executed by one only.’ (3 A. & E. Encycl. of L. 683. See, also, 2 Cyc. 922.) Upon the same principle it seems clear that a recognizance upon appeal entered into by a defendant without any surety whatever, although it fails to meet fully the requirements of the law, is not utterly void, but if approved and acted upon is effective to bind the signer and confer jurisdiction upon the appellate court.”
Thus it appears Ottawa v. Johnson, supra, which we pause to note, is cited with approval and the rule therein announced adhered to in Elliott v. Bellevue, 82 Kan. 78, 107 Pac. 794, even though it interprets another statute and to that extent is not in point, does definitely establish this court’s view as to the construction to be placed upon the phrase “sufficient security” when used in statutes similar to the one here involved and furnishes sound precedent for rejection of appellee’s claim that such phrase as used in G. S. 1935, 19-223, must be construed as requiring a surety on an appeal bond given to perfect an appeal under its terms and that in the absence of such a surety, even though it has been approved by the official vested with that authority, such bond is an absolute nullity and confers no jurisdiction on the district court to entertain the appeal.
We are convinced, particularly when it is kept in mind that under our decisions and our statute (See McClelland Bros. v. Allison, 34 Kan. 155, 8 Pac. 239, and G. S. 1935, 60-760) appeals are to be favored and mere technical defects or omissions are to be disregarded, the rule announced in Ottawa v. Johnson, supra, is sound in principle and should be adhered to. Therefore we hold the provisions of G. S. 1935, 19-223, do not necessarily require a surety on a bond given to perfect a valid appeal to district court from a decision of the board of county commissioners in disallowing a claim filed against the county. We further hold that when such a bond, without a surety, is tendered to and approved by the clerk of the board, and is thereafter filed with the clerk of the district court, it confers jurisdiction upon the district court to hear and determine the appeal upon its merits. This conclusion we believe conforms with the intent of the legislature in enacting the involved statute. Otherwise, instead of using the qualified phrase to which we have heretofore referred it would have required in express terms, as it has often done under similar circumstances, that bonds of the kind here involved be executed with one or more good and sufficient sureties. Of a certainty it is in harmony with the general established rule (See 11 C. J. S., Ronds, 401 § 9b, also 9 C. J. 10 § 7), to which we find no exception, that unless sureties are required by the statute authorizing its execution, the fact a bond is without a surety is immaterial so long— as is the case here — the involved instrument comes under the legal' definition of a bond.
The record, as we have heretofore indicated, presents no question regarding the right of the appellee, once the bond herein involved had been given, approved by its clerk and filed in district court, to challenge the sufficiency of its security or the power of the district court to require additional security in the event of a finding that challenge had merit. Therefore, since they are not here, questions argued by the appellee regarding the power of the court over questions of that character have neither been considered nor decided. •
The judgment is reversed with directions to set aside the order dismissing the appeal and deny the motion to dismiss. | [
-44,
108,
-12,
29,
9,
-32,
50,
-102,
75,
-79,
39,
83,
-83,
-62,
7,
127,
122,
61,
101,
105,
81,
-73,
23,
-61,
-14,
-77,
91,
-51,
-79,
88,
-11,
86,
77,
48,
10,
-43,
6,
-24,
-59,
92,
-50,
-126,
-119,
-52,
-39,
-120,
56,
107,
50,
11,
81,
-66,
-5,
42,
56,
-29,
-23,
44,
-37,
-87,
81,
-15,
-85,
15,
127,
20,
1,
-124,
-100,
-121,
112,
42,
-112,
49,
0,
-8,
115,
-90,
-122,
116,
45,
-119,
8,
-66,
99,
33,
52,
-17,
-72,
-120,
46,
24,
13,
-89,
-77,
24,
106,
1,
-74,
-99,
117,
18,
-121,
-4,
-29,
5,
31,
108,
-128,
-53,
-110,
-79,
14,
60,
18,
9,
-29,
-128,
50,
113,
-51,
-6,
94,
71,
56,
59,
-50,
-4
] |
The opinion of the court was delivered by
Harvey C. J.:
This was an action on a promissory note which was past due and unpaid. Defendant answered, admitting the execution of the note; alleged it was for a part of the consideration for the purchase of the hay baler; that the purchase was made under an oral contract with plaintiffs, who were dealers in farm machinery; that at the time of the purchase plaintiffs warranted orally that their machine would bale not less than 30,000 bales per season; that the twine used by the baler for tying the bales would hold the hay as well as bailing wire used by other balers, and that the bales would stack and keep as well as if they were baled with wire; that these warranties failed, to his damage in a sum named, for which he sought recovery under a cross-petition. This answer was not verified.
Plaintiffs filed a reply to the answer and answer to the cross-petition, in which they denied selling the machine on an oral contract and denied the oral warranties. They alleged the machine was purchased under a written contract and upon a written warranty, setting up copies thereof. The written warranties did not include the oral warranties alleged by defendant. The reply was verified.
Defendant filed a reply in which he denied that the instrument attached to plaintiffs’ reply was a part of the contract of purchase; and alleged that after the contract of purchase had been completed he was asked to sign an instrument, which may have been the instrument attached to plaintiffs’ reply, but that he understood such instrument was a notation of the price arrangements; that the instrument was a printed form and that his attention was not called to the endorsement of the warranties on the back thereof; that he did not examine it, and that the same was not intended or understood to be a statement of the transaction in writing, and this reply was not verified. Defendant did not charge plaintiffs with any fraud nor seek to set aside the written contract of purchase pleaded by plaintiffs.
When the case came on for trial counsel for defendant assumed the burden of proof and made a lengthy statement of the facts pertaining to the purchase and of the trouble they had using the baler, which appears to have been used throughout one baling season. Defendant was then called as a witness and a question was asked concerning his conversation when he first called on plain tiffs to talk about buying a baler. This was objected to and counsel for defendant made a lengthy statement of what he would offer to prove by the witness. Plaintiffs objected to the statement as not constituting a defense, and moved for judgment on the pleadings. This motion was sustained, and the defendant has appealed.
In this court appellant contends that the trial court erred in not permitting him to show that the oral contract alleged was the only one made by the parties. We think the court was correct in its ruling. (See Fontron v. Kruse, 103 Kan. 32, and cases cited, page 38, 172 Pac. 1007; Thresher Co. v. Nelson, 105 Kan. 517, 184, Pac. 982; Harmon v. Coonrod, 148 Kan. 146, 79 P. 2d 831.) Many other cases to the same effect might be cited.
Appellant further contends that he was entitled to show that even the written warranty of plaintiffs was breached, if it was properly held to be the binding written contract. This is a new theory, which was not raised by the pleadings and was not presented to the trial court, and when defendant was on the witness stand he was not asked any question with respect thereto. Since the question was not presented to the trial court by pleadings or by the opening statement of defendant’s counsel, or any evidence tendered, it is too late to raise it here.
We find no error in the record. The judgment of the trial court is affirmed. | [
48,
124,
-104,
-115,
10,
-32,
40,
-102,
81,
-95,
55,
87,
-23,
-61,
20,
97,
-26,
45,
80,
106,
87,
-78,
103,
75,
-62,
-13,
-15,
-43,
-71,
-20,
-28,
84,
76,
60,
-118,
85,
-26,
-64,
-59,
-102,
-114,
4,
61,
101,
-7,
88,
-76,
43,
22,
75,
113,
-106,
-13,
44,
29,
67,
45,
44,
107,
45,
-48,
-15,
-70,
-115,
95,
2,
18,
38,
-116,
7,
-40,
14,
-112,
49,
1,
-24,
122,
-90,
-124,
-12,
43,
25,
9,
102,
98,
16,
93,
-113,
94,
-104,
39,
-33,
31,
-90,
-48,
88,
43,
96,
-74,
-99,
112,
16,
-90,
118,
-5,
29,
29,
108,
3,
-114,
-106,
-93,
15,
116,
-98,
-113,
-17,
-94,
20,
101,
-51,
-96,
92,
69,
51,
27,
-114,
-78
] |
The opinion of the court was delivered by
Wedell, J.:
This was an action by a depositor against a bank to recover the sum of $5,000 paid out of his account on a series of checks forged by his bookeeper and office assistant. A jury was waived and the action was tried by the court. It rendered judgment for plaintiff on the first of five forged checks in the total sum of $500 and denied recovery on the remaining checks. The plaintiff appeals from the latter portion of the judgment and the defendant cross appeals from the former portion thereof.
The plaintiff was the owner and operator of an oil field, supply and welding business at Chase. He lived at Chase but was frequently away from home. The checks were drawn on the defendant bank at Ellinwood but were paid originally by a bank located at Chase. The court made voluminous findings of fact covering numerous details and conclusions of law. We do not deem it necessary to set forth all the detailed findings of fact. Certain findings of fact were challenged by both parties. An examination of the record discloses the material findings are supported by substantial testimony. It, therefore, follows the findings of fact cannot be disturbed on appellate review.
By reason of the voluminous and detailed findings of fact pertaining to some forty-eight checks covering the period from August 16, 1946, to August 16, 1947, inclusive, and numerous bank statements, material portions thereof will be stated in substance only. A few preliminary findings, however, will be stated as made. They are:
“1. The plaintiff is the sole owner and operator of a business in Chase, Kansas, operated under the name of ‘The Chase Company’. He has been in business in Chase, Kansas, since 1936 and doing business as ‘The Chase Company’ since 1942. In the fall of 1944, he opened a banking account in the Chase State Bank at Chase, Kansas, and gave it his signature card. He maintained this account at all times until November, 1947. During this time he made deposits in said bank, drew checks on his account there, cashed checks there and bought drafts and took up drafts there. He was personally acquainted with all of the officers and employees of said bank and they were well acquainted with him. The officers and employees of said bank were familiar with the plaintiff’s signature.
“2. The defendant, The Peoples State Bank of Ellinwood, Kansas, is a banking corporation, organized and existing under the laws of the State of Kansas. It has as its principal place of business, Ellinwood, Kansas, approximately 20 miles west of Chase, Kansas.
“3. In July, 1945, the plaintiff opened a general checking account in the defendant bank in the name of ‘The Chase Company’. He gave the defendant a signature card which he alone signed. This account was the principal bank account used by him in tire conduct of his business. It was a very active account. He had his own checks printed for use in making withdrawals from this account. The blank checks were printed on pads, without stubs. The blank checks were numbered serially. At the top of each check was printed the name ‘The Chase Company’ and the number of the check. Below the space left for the name of tire payee and the amount of said check and in the lower left corner of said check the name of the defendant bank appeared, and on the lower right comer the name ‘The Chase Company’ appeared, below which was a blank line for the signature of the person executing said check. These pads of checks were so constructed that whenever a check was written a carbon copy of the check with the same serial number was made. These carbon copies of checks so made were filed as a part of the permanent records of ‘The Chase Company’.'
“4. All checks, with their serial numbers, the name of the payee and the amount, were entered upon the books of ‘The Chase Company’, under different headings, indicating whether they were credited to the individual drawing account of H. L. Herbel, expenses, accounts payable, etc.
“5. Substantially all deposits in the defendant bank to the account of ‘The Chase Company’ were made up at Chase, Kansas, and mailed to the defendant bank.
“6. Substantially all checks drawn on said account were received by the defendant in cash letters from The Federal Reserve Bank of Kansas City, Missouri. Approximately from 3 to 10 checks of ‘The Chase Company’ were received in each such cash letter. When these checks were received by the defendant bank the signature on said check was examined by the officers and employees of said bank, who were familiar with the signature of plaintiff, and when they were satisfied with the genuineness of said signature said check was charged to the account of ‘The Chase Company’.”
Other material facts found by the court, in substance, are: The defendant mailed and the plaintiff received monthly, at times bimonthly, bank statements disclosing amounts deposited and withdrawn each day, together with all cancelled checks evidencing the withdrawals; a carbon copy of all checks written in' plaintiff’s office was kept and plaintiff’s books disclosed the purpose of each check; each bank statement sent to plaintiff had printed thereon the following:
“Please examine at once. If no error is reported in ten days, the account will be considered correct.”
The checks ranged in amounts from $48 to $200; the name of the plaintiff, “H. L. Herbel”, as maker, was forged on each check by Billie Mills; the only difference in the checks was that she made the plaintiff the payee in some of them and herself the payee in others; as to the former she forged the name of the plaintiff as indorser and on the latter she obtained the cash by presentation of the check for payment; the first four forged checks in the total sum of $400, cashed between August 16 and September 14, 1946, inclusive, resulted in overdrawing plaintiff’s account in the sum of $142.26; on September 25, 1946, the defendant bank mailed notice of overdraft to plaintiff which he received; the notice stated:
“Our books show your account overdrawn $142.26. If this is correct, kindly call at once; if not correct, please notify us immediately. If an immediate notice is given you that your account is overdrawn, do not misconstrue the haste. It is a wise provision to detect forgeries, raised checks or mistakes.”
The court, in substance, further found: If the defendant officers and employees had used due diligence in examining the first five checks, including the one dated September 25, 1946, the forgeries would have been detected and all subsequent forgeries would likewise have been detected; if plaintiff, when his account became overdrawn and the bank advised him by its notice dated September 25, 1946, had used due diligence and had examined his statement and the returned checks he could and would have discovered the forged checks in the total sum of $400 had caused his account to be overdrawn and that all subsequent forgeries except the check dated September 25, 1946, in the amount of $100 could have been prevented; the last bank statement prior to any complaint from the plaintiff was delivered to him August 29 or 30, 1947, which included five forged checks; on August 31, 1947, plaintiff, for the first time in at least a year, examined the bank statement and can-celled checks; he immediately recognized the five checks as forgeries and then proceeded to examine back statements which contained all the forged checks involved in this action; on September 2, 1947, having completed such examination, he made demand on the defendant bank for the full amount of the checks; the demand was refused.
With respect to the checks covering the entire period the court, in substance, found: The name of H. L. Herbel as maker could and would have been detected by the officers and employees of the defendant bank if they had exercised ordinary diligence in examining the signatures; defendant’s officers and employees made no examination of the indorsements to determine whether or not they were forgeries but relied upon the previous indorsement guarantee by the cashing bank; the defendant bank negligently and willfully failed to examine plaintiff’s checks for forged indorsements.
The court’s conclusions of law were:
“1. The plaintiff was guilty of negligence which was the proximate cause of any loss or damages sustained by him on account of checks to which his name as maker and payee were signed and endorsed by Billie Mills, which were charged to the account of 'The Chase Company’ by the defendant bank, after the check No. 2763, dated September 25, 1946, in the amount of $100.00.
“2. The defendant bank is guilty of negligence in connection with the inspection of tire checks in suit dated August 16, 1946, August 17, 1946, September 4, 1946, September 14, 1946, and September 25, 1946, as to their genuineness or in charging said checks to said account, which was the proximate cause of any loss or damage to the plaintiff.
“3. The plaintiff, by his acts and conduct, with knowledge of the facts or with notice or means of knowledge from which he should have known the facts, has acquiesced in and ratified the genuineness of the signatures on each of the checks subsequent to the check dated September 25, 1946, charged to his account by the defendant bank and the authority of said bank to charge each of said checks to said account, and by his acts and conduct is estopped to deny the genuineness of said checks or the authority of the bank to charge each of said checks to said account.
“4. The acts and conduct of the plaintiff constitute each of said bank statements subsequent to the check dated September 25, 1946, an account stated for the period covered by said statement, and the plaintiff is estopped to question either the validity of said checks charged to said account or the authority of the defendant bank to charge each of said checks to said account or the correctness of said account, and puts the statute of limitations in motion.
“5. The defendant was guilty of negligence in failing to make a reasonably diligent inspection of tire checks in suit, when presented for payment, and in failing to detect that the name H. L. Herbel, as maker on each of such checks, was a forgery.
“6. The defendant was negligent in that it willfully and negligently failed to inspect or examine the endorsement of the name H. L. Herbel where such endorsement appears on the checks in suit.
“7. The plaintiff is not barred from recovery by Section 9-171 General Statutes of Kansas for 1935.”
Refore considering the effect of findings of negligence of the bank’s officers or employees and the negligence of the depositor we are confronted with two statutes covering the period of all the forgeries in question. G. S. 1935, 9-171 provided:
“No bank shall be liable to a depositor for the payment by it of a forged or raised check unless within six months after the return to the depositor of the voucher of such payment, such depositor shall notify the bank that the check so paid is forged or raised.”
That statute was effective until repealed by chapter 102, laws 1947, and by section 58 thereof, a new statute was enacted. (G. S. 1949, 9-1209.) It became effective June 30, 1947, and reads:
“No bank shall be liable to a depositor for the payment by it of any altered, forged or raised check, or a check with an unauthorized signature, unless the depositor shall notify such bank within six months after the return to the depositor of the voucher or canceled check that the check so paid was altered, forged, raised or unauthorized.”
Just why the trial court referred only to the first statute is not apparent. Nor does it appear on what theory it concluded the first statute did not bar recovery on any of the checks. In any event plaintiff contends neither of the statutes bars recovery on forged checks dated more than six months prior to receipt by the depositor of a bank’s statement including the forged checks. In support of the contention he cites Kansas City Title & Trust Co. v. Fourth Nat'l Bank, 135 Kan. 414, 423, 10 P. 2d 896. The case does not support plaintiff’s contention. In fact the opinion clearly indicates the statute is applicable to forged checks. In that case, decided long prior to the enactment of the last statute, it was held the first statute contained no express limitation concerning the time within which an action might be brought against a bank for the payment of a depositor’s funds on a check bearing a forged indorsement. The case relates solely to forged indorsements. The statute of limitations barring the right to bring an action was there involved. Here it is not. Here the first question involved is whether the bank is liable at all, absent the depositor’s compliance with the statute.
The repealed and the new statutes both clearly cover forged checks which all of them were in the instant case. Whether the amended statute was intended to, and does, cover indorsements need not be determined. The mere fact indorsements were forged on the particular checks in which the plaintiff was made the payee in nowise alters the fact that on their face not only the name of the payee but also the name of the maker was forged. They were forged checks. It, therefore, follows both statutes are applicable to all the checks and that the bank was not liable unless the depositor notified the bank in conformity to the provisions of the statute. And such nonliability of the bank resulted by virtue of the statutes irrespective of the bank’s negligence. That is the clear legislative mandate and the courts are bound by it.
The only time plaintiff notified the bank it had paid forged checks was on September 2, 1947. Applying the statutes to undisputed findings we are forced to conclude the bank is not liable on checks paid on August 16, 1946, to and including February 17, 1947, in the sum of $2,300. The only question remaining for determination is whether the bank is liable on the twenty-seven checks in the total sum of $2,700, paid within the statutory period of six months, prior to the notification by the depositor that the checks were forgeries.
Introductory to an answer to that question a few settled principles may be briefly stated. The relationship between the bank and the depositor is that of debtor and creditor. Absent any special agreement, as here, there is an implied contract that the bank will pay nothing out of the depositor’s account except on his valid order. The bank is charged with knowledge of the depositor’s signature. It pays a forged check at its own peril. In contemplation of law a forged check is paid out of the bank’s own funds and not out of the depositor s account. Although no degree of care on the part of the bank will excuse it from liability, it may, under certain circumstances, justify the payment of a forged check by reason of what the depositor does or fails to do. In United Workmen v. Bank, 92 Kan. 876, 142 Pac. 974, it was said:
“It was formerly held that a depositor owed a bank no duty to examine his pass book and vouchers to detect forgeries although the means of detection were thus afforded (Weisser v. Denison, 10 N. Y. 68), but recent decisions hold otherwise (Morgan v. U. S. Mortgage & Trust Co., 208 N. Y. 218, 101 N. E. 371; Note, 7 L. R. A., n.s., 744.) . . . The object of requiring such an examination is to afford seasonable notice to the bank of any unauthorized payment in order that it may have an opportunity to retrieve against losses.” (p. 884.)
See, also, Kansas City Title & Trust Co. v. Fourth Nat’l Bank, 135 Kan. 414, 424, 10 P. 2d 896.
Defenses of the bank for payment of forged checks which have been recognized by certain courts are based on the theory of estoppel, negligence, or misleading conduct of the depositor which directly or proximately caused the bank to pay, and in some instances courts have held a monthly, or other periodical, bank statement delivered to the depositor constitutes an account stated. This court has held a bank statement delivered to the depositor constitutes an account stated for the purpose of starting the running of the statute of limitations on an action by the depositor to recover the amount paid on forged checks. (Kansas City Title & Trust Co., v. Fourth Nat’l Bank, supra.) But what has that to do with the question of a depositor’s right to recover in an action on the merits where the action is filed in time? On the trial the depositor has a right to assert and prove the bank’s own primary negligence and to have the effect thereof determined.
This court has had no occasion to determine the question of the effect on the bank’s liability of its own original and continuing negligence in failing to discover forgeries. It is on this last question that the parties to this action part ways. It frankly should be conceded some of the authorities do likewise. Briefly stated the trial court in the instant case permitted the plaintiff depositor to recover the amount of the forged checks which were paid prior to the first bank statement which included a return of the first forged checks but denied recovery on all subsequent checks on the theory the loss on such checks was due to plaintiff’s negligence notwithstanding the primary and continuing negligence of the bank.
Without attempting to list all the cases it should be stated there is respectable authority for the position adopted by the trial court. Some of the decisions supporting divergent views are collected in annotations following cases cited in A. L. R. See 28 A. L. R. 1435; 67 A. L. R. 1121; 103 A. L. R. 1147. Among additional decisions relied on by the bank are: McCarty v. First Nat. Bank, 204 Ala. 424, 85 So. 754; McNeely Co., Appellant, v. Bank of N. America, 221 Pa. 588, 70 A. 891; Inter. Hos. Mills, Inc., v. First Nat. Bk. Ap., 139 Pa. Superior Ct. 181, 11 A. 2d 537; Atlas Metal Works, v. Republic Nat. Bank, (Tex. Civ. App.), 176 S. W. 2d 350; Production Co. v. Bank of Commerce, 281 Mich. 230, 274 N. W. 774; White Castle System v. Huntington Nat. Bank, (Ohio App.), 43 N. E. 2d 737; First State Bank v. First Nat. Bank, 314 Ill. 269, 145 N. E. 382.
On the other hand numerous authorities hold tire bank cannot relieve itself of liability by defenses previously mentioned unless the bank itself is free from negligence. .In other words they hold the depositor has an obligation to help protect the bank where it acts with reasonable care and diligence in discovering forgeries in accordance with its duty but that the depositor is not duty bound to protect the bank against its own negligence. Some of these authorities are: Leather Manufacturers’ Bank v. Morgan, 117 U. S. 96, 29 L. ed. 811, 6 S. Ct. 657; Critten v. Chemical Nat. Bank, 171 N. Y. 219, 63 N. E. 969; Morgan v. U. S. Mortgage & Trust Co., 208 N. Y. 218, 222, 101 N. E. 871; Screenland Magazine v. National City Bank, 42 N. Y. S. 2d 286, 288; Nat’l. Dredging Co. v. Farmers Bank, 6 Pennewill’s (Del.) 580, 591, 69 A. 607; Fish & Oyster Co. v. First Nat. Bk., 166 Miss. 162, 177-178, 146 So. 116; Wussow v. Badger State Bank, 204 Wis. 467, 471-472, 234 N. W. 720; New York Produce Exchange Bank v. Houston, 169 F. 785; First Nat. Bank v. Farrell, 272 F. 371, 377; Mattison-Greenlee Service Corporation v. Culhane, 20 F. Supp. 882, 886; Irving Trust Co. v. National City Bank of New York, 78 F. 2d 665, 666; Kenneth Inv. Co. v. Nat. Bk. of the Republic, 103 Mo. App. 613, 618, 77 S. W. 1002; Martin v. First Natl. Bank, 358 Mo. 1199, 219 S, W. 2d 312, on related subject; California V. Union v. Crocker Nat. Bk., 37 Cal. App. 743, 749, 174 Pac. 920; Sommer v. Bank of Italy etc. Assn., 109 Cal. App. 370, 376, 293 Pac. 98; Glassell Dev. Co. v. Citizens’ Nat. Bk., 191 Cal. 375, 380, 216 Pac. 1012; Basch v. Bank of America, 22 C. 2d 316, 322, 139 P. 2d 1; Merchants’ Nat. Bank v. Nichols & Co., 223 Ill. 41, 79 N. E. 38; Illinois Tuberculosis Ass’n v. Springfield Marine Bank, 282 Ill. App. 14, 28-29; Rudisill Soil Pipe Co. v. First Nat. Bank of Anniston, 224 Ala. 436, 440, 140 So. 569; Bank v. Richmond Elec. Co., 106 Va. 347, 56 S. E. 152; Graham v. Southington Bank & Trust Co., 99 Conn. 494, 121 A. 812; Coleman Drilling Co. v. First Nat. Bank, (Tex. Civ. App.) 252 S. W. 215; (but see Atlas Metal Works v. Republic Nat. Bank, [Tex. Civ. App.] 176 S. W. 2d 350); Kimball v. R. I. Hosp. Nat. Bank, 72 R. I. 144, 153-154, 48 A. 2d 420; 7 Am. Jur., Banks, § 516; 5 Michie on Banks and Banking, § 284, p. 553; 6 Zollmann on Banks and Banking, §§ 4143, 4144; anno. 103 A. L. R. 1147, 1155; 9 C. J. S., Banks and Banking, §356 (a); 60 Harv. L. Rev., 643, (1946-1947).
Every aspect of the question before us has been fully and ably treated in the cases previously cited herein. Extended quotations therefrom are unnecessary. A few, however, may be helpful. In the early case of Leather Manufacturers’ Bank v. Morgan, supra, Mr. Justice Harlan, speaking for the Supreme Court of the United States, quite tersely, said:
“Of course, if the defendant’s officers, before paying the altered checks, could by proper care and skill have detected the forgeries, then it cannot receive a credit for the amount of those checks, even if the depositor omitted all examination of his account.” (p. 112.)
That principle has been the basis of many of the later cases. We think the statement by the California court contained in the Glassell case, supra, covers the subject quite adequately. It was there said:
“As between the bank and its depositors the payment of forged or altered checks by it is made at its peril and cannot be charged against the depositor’s account unless some negligent act or conduct of his has contributed to induce such payment — the bank itself being free from negligence, or unless by his subsequent conduct in relation to the matter he is upon equitable principles estopped to deny the correctness of such payments, [citations]
“And the weight of authority, and perhaps of reason, supports the view that when a depositor’s pass-book has been written up and returned to him with canceled checks which have been charged to his account, it is his duty to examine such checks within a reasonable time, and if they disclose forgeries or alterations to report them to the bank, failing in which he cannot, if his failure results in detriment to the bank, dispute the correctness of payments thereafter made by it on similar checks, [citations]
“This rule, however, assumes that the bank itself has not been guilty of negligence in making the payment, for when by the exercise of proper care it could have discovered the alteration or forgery, it must bear the loss notwithstanding that the depositor failed in Ills duty to examine the accounts.” (p. 379, 380.)
For cases to the same effect citing many later decisions see Basch v. Bank of America, Screenland Magazine v. National City Bank, Kimball v. R. I. Hosp. Nat. Bank, First Nat. Bank v. Farrell, Mattison-Greenlee Service Corporation v. Culhane, omnia supra, and footnotes in text authorities above cited.
In First Nat. Bank v. Farrell, supra, the federal court said:
“But the general rule arising from the examination of pass-book or statements by the depositor himself, and the variation of the rule arising from the examination of them by his authorized agent, involve in practically every reported instance wrongdoing where the negligence of the bank was not involved and where the wrongful act was entirely that of a person other than the bank. Both the rule and its variations disappear altogether where the bank has been negligent in detecting tire fraud. . . .” (p. 377.)
With reference to the effect of the primary contractual obligation of the bank, see Kimball v. R. I. Hosp. Nat. Bank, supra, and Wussow v. Badger State Bank, supra.
The relaxation of the early rule of absolute contractual liability of a bank which brought into operation the rule pertaining to a depositor’s duty to examine bank statements and to notify the bank of forgeries disclosed thereby is not based on contract, absent a special agreement to that effect as in the instant case. Without such special agreement that duty of the depositor is rooted in equitable doctrine. It, therefore, seems to us that before a bank should, be permitted to invoke as a defense the violation by a depositor of his duty in equity the bank, on equitable principles, should first be required to show it is free from negligence in the performance of its primary contractual duty. Here the bank was originally and continuously negligent in discovering the forgeries.
Concerning the doctrine of estoppel, it properly has been asserted:
“. . . an estoppel in equity does not arise unless the one asserting it has acted with due diligence. Due diligence being necessary to enable one to assert an estoppel, the bank must show due diligence before it can assert the negligence of the depositor. The whole doctrine of estoppel is a creation of equity and is governed by equitable principles. 2 Pomeroy, Eq. fur. (4th ed.) § 813. The bank’s freedom from negligence is treated as a preliminary question’ in . . . [citations] . . .” (Wussow v. Badger State Bank, supra, p. 474.)
To the same effect are, also, Basch v. Bank of America, supra, and Graham v. Southington Bank & Trust Co., supra.
It probably should be noted that in some of the cases relied on by the bank and in which it was held the negligence of the de positor was the proximate cause of the loss, the primary negligence' of the bank was not made an issue. We readily concede if a bank has diligently performed its primary contractual duty it may properly invoke equitable defenses against the depositor.
In the instant case the bank’s negligence was a vital issue. The bank’s failure to discover the forgeries was the first, the primary negligence in the case. The bank’s primary negligence never ceased. Its primary duty to detect forgeries continued with respect to all the remaining checks. Except for its primary and continued negligence, a breach of its contractual duty towards the plaintiff, there would have been no loss on any checks. In order to hold, under such facts, that the depositor’s negligence constituted the proximate cause of the loss is to relieve the bank completely of its contractual duty and to shift the entire responsibility for the discovery of forgeries from it to the depositor, notwithstanding the bank’s own primary and continuing negligence. This court is not willing to relax the rule with respect to a bank’s duty to such an extent.
It seems to us that such a broad exemption of a bank’s liability would tend to invite carelessness by banks in detecting forgeries. Such a broad relaxation of the rule with respect to the duties of a bank, in which a depositor has implicit faith, would mean that the moment a depositor paid an overdraft without first examining Iris returned checks he would be held to have acquiesced in and ratified the bank’s payment of future similar checks notwithstanding they plainly disclosed on their face they were the rankest kind of forgeries. There is something wrong with that kind of a rule. The thing which, in our opinion, is wrong with it is that it unjustly relieves the bank of its continuing duty to use reasonable diligence in detecting forgeries. The negligence of a depositor does not relieve the bank of its continuing duty to exercise reasonable care.
In the Screenland Magazine case, supra, the New York court held the bank could not prevail if it was guilty of negligence which contributed to the loss but rendered judgment in favor of the batik on the ground the depositor was clearly at fault and the bank was not shown to be guilty of any negligence. The court’s statement impresses us as being both realistic and sound. It reads:
“The law applies the rule of reason in dealing with a situation such as is here presented. The bank starts with the burden of strict liability. In the first instance it is virtually the insurer of the validity of its depositor’s signature. That strict liability is modified when it appears that the depositor himself has been guilty of a breach of duty owed to tbe bank, wben because of the carelessness or fault of the depositor a long continued repetition of the forgeries is made possible. When the depositor is so at fault, the liability of the bank ceases to be that of an insurer; it becomes liable to the negligent depositor only if the bank itself has also been negligent in failing to detect the forgery. The strict liability imposed by the law in the first instance is then transformed into an obligation on the part of the bank to use reasonable care — that degree of prudence which could reasonably be expected of a bank.” (p. 290, 291.)
In the instant case the court expressly found the bank did not exercise that kind of care.
The opinion might be concluded at this point except for one matter which may be misunderstood unless clarified. That subject has been deliberately omitted previously herein for the reason this court desired not to confuse it with the duty of a depositor to examine bank statements and to notify a bank of forgeries disclosed thereby. The opinion has been written squarely with that duty of the depositor in mind. We may say, however, a part of the record in which the parties stipulated concerning certain facts clearly indicates the court believed plaintiff noticed the first sentence of the bank statement pertaining to the overdraft but that he did not notice the remaining portion thereof. The court having made no specific finding on that particular point we have omitted it from consideration in the opinion. No special agreement was shown to exist in the instant case, as is found in some cases, whereby the depositor agrees to be bound by the substance of notices on bank statements. We express no views in the instant case relative to the legal effect of that particular part of the bank statement which the trial court believed the plaintiff did not notice.
The judgment of the trial court is reversed with directions to enter judgment in favor of the plaintiff in the sum of $2,700 together with interest thereon at the rate of six percent per annum from and after September 2, 1947, and for the costs of the action. | [
-16,
-20,
-32,
61,
24,
-32,
42,
-102,
65,
-128,
-73,
83,
-23,
-56,
4,
105,
-41,
45,
-12,
104,
-9,
-77,
23,
-53,
-46,
-77,
-39,
-51,
-79,
91,
-76,
-41,
12,
48,
-118,
-107,
102,
66,
-61,
84,
-114,
4,
42,
-62,
-39,
0,
48,
42,
96,
75,
-111,
12,
115,
42,
24,
-38,
105,
44,
-21,
-72,
80,
-15,
-118,
69,
93,
16,
3,
7,
-116,
71,
-40,
47,
-104,
120,
1,
-8,
115,
-74,
-126,
116,
105,
-69,
9,
102,
98,
115,
-75,
-21,
-20,
-116,
54,
-9,
-113,
-89,
-110,
96,
33,
45,
-106,
-99,
127,
18,
7,
-36,
-6,
13,
25,
108,
3,
-54,
-90,
-109,
13,
117,
30,
27,
-21,
-93,
16,
116,
-113,
-94,
77,
87,
57,
27,
-49,
-107
] |
The opinion of the court was delivered by
Wedell, J.:
This was an action to recover damages for alleged unlawful eviction from premises, a gasoline filling station together with vacant ground in the rear of the station on which plaintiff during a portion of the time also operated a trailer camp, and for the conversion of personal property located on the premises. The jury returned a general verdict in favor of the plaintiff and answered special questions. The defendant, Victory Oil Company, a corporation, appeals.
Appellee contends appellant, for several reasons, is not entitled to be heard on appeal. The grounds have been examined but we think only one of them requires treatment. Appellee directs attention to the fact appellant’s specifications of error were set forth for the first time in its brief instead of in its abstract as required by rule 5 of this court. Appellant filed its abstract November 2,1950, and its brief on November 30. Appellee did not file a motion to dismiss the appeal. On January 15, 1951, appellee filed her brief in answer to the specifications of error listed in appellant’s brief. Those specifications of error are the identical points separately fisted in the notice of appeal, which notice was contained in the abstract. There is no basis for concluding appellant’s oversight in fisting the specifications of error in the abstract misled appellee or handicapped her in the slightest in answering appellant’s contentions. Under the circumstances stated we are not inclined to dismiss the appeal.
Before considering other portions of the record a brief statement of the issues joined by the pleadings will be helpful.
In her petition appellee, in substance, alleged:
On November 29, 1946, she and defendant through its president, George W. Martin, entered into a written lease of an oil and gas filling station together with ground at the rear thereof on which appellee later located some trailers; the term of the lease was from December 1, 1946, to December 1, 1947, at the agreed rental of $75.00 per month, payable December 1 and on the first day of each succeeding month; upon expiration of the lease appellee continued to occupy the premises and became a tenant from year to year and remained so until November 2, 1949; on October 31, 1949, appellee gave appellant a check for the rental to December 1,1949, but it was returned to her November 14; on November 2, 1949, during her absence from the premises and without her consent appellant entered thereon and took possession thereof and-converted to its own use personal property (fisting it) of the value of $665.72 and of other articles of equipment (fisting them) of the value of $750.00; appellee made demand on appellant to surrender possession and for a return of the personalty, which demand was refused; appellant served no legal notice terminating the tenancy from year to year and as a result thereof appellee was entitled to remain in possession until December 1, 1950; appellee was damaged in the sum of $4,500 due to loss of profits and in the sum of $1,500 by reason of improvements placed on the premises and was entitled to punitive damages in the sum of $10,000.
Appellant’s answer, in addition to admissions of noncontroversial matters, consisted of a general denial; appellee’s reply was also a general denial.
Appellant was engaged in the business of selling supplies to oil and gas filling stations. It had leased the instant filling station in order to have another, outlet for its supplies. The lease contract provided in part the lease would be terminable immediately if appellee purchased her supplies from others than appellant and that the utility bills were to be assumed and paid by appellee. Other provisions of the written lease need not be stated now.
Appellant contends: The evidence disclosed appellee had violated the previously mentioned lease provisions prior to November 1, 1949; various checks for supplies were dishonored for insufficient funds; the business had fallen off by reason of appellee’s inattention thereto; at the end of the written lease it was definitely understood the rental arrangement would be only from month to month thereafter and that appellee’s son would need to remain active in the operation of the business; the son left the business September 1, 1949; appellee also accepted part time employment at the Hotel Phillips and worked there from 5:30 p. m. to 1:00 a. m. and was seldom at the filling station; the business was left to a partner to whom she previously had sold a one-half interest therein; on October 31, 1949, appellant, being unable to locate appellee, served a written notice addressed to appellee on appellee’s partner, Charles H. McClintock, at the filling station, to vacate the premises on December 1, 1949; (the partnership was conceded) the notice was left at the, filling station and appellee was notified of it by her partner on November 1; appellee entered into an agreement with her partner to sell to him her remaining one-half interest in both the supplies and equipment; in conformity with that agreement she had both the supplies and the equipment inventoried on November 2 or 3; their total appraised value was $665.72, one half of which would be due appellee under the sale contract; appellant thereafter received a check from appellee’s partner for a month’s rent and also $150 to be held by appellant as a deposit to cover the stock of merchandise, its sale and the equipment furnished to operate the station.
We do not deem it necessary to narrate in detail the testimony of the parties. Only such portions thereof as are material to the two primary issues, namely, eviction and conversion of property, will be considered. And as to those subjects we are, of course, not concerned with any conflict in the evidence which the jury has resolved. Not all of the material questions were submitted to the jury by special questions but those submitted and answered were:
“1. When were improvements made by the plaintiff on the leasehold, if any? A. The improvements were made in 1947.
“2. When did plaintiff sell one-half interest in the business she was operating to McClintock? A. November of 1948.
“3. When did Earl Lewis leave the management of the business? A. September 1 of 1949.
“4. Did the plaintiff, her son Earl Lewis, or anyone working for them make any purchases of merchandise other than from the defendant during plaintiff’s tenancy and operation of business? A. Yes, Earl Lewis did.
“5. When, during plaintiff’s occupancy, was the rent increased? A. February, 1948.
“6. When, if ever, did plaintiff offer to sell her share in equipment and business to McClintock? A. November 1 — 1949.
“7. On what date in 1949 did defendant give notice to plaintiff to leave the premises? A. November 15, 1949.
“8. Did plaintiff and her son abandon the tenancy to McClintock? A. No.
“9. What date in 1949 did defendant give notice to McClintock to terminate the plaintiff’s tenancy? A. October 31, 1949.
“10. If you allow any damages to plaintiff, state how much for each of the following:
“Equipment: $816.99 Improvements: Nothing
“Loss of profits: $500.00 Punitive: $1,000.00
“11. How much money do you find that the plaintiff, Elizabeth Lewis, received from her partnership with Charles McClintock during the calendar year 1949. A. Insufficient evidence.”
Appellant filed tbe following motion:
“. . . to strike from answer to question number 10 the finding ‘Equipment: $816.99’ for the reason that there was no evidence of any kind showing that the equipment was valued at such a price, but on the contrary that the total amount fixed for the equipment by both the plaintiff and her partner, McClintock was $665.72, half of which only would accrue to the plaintiff.
“And to strike from said answer ‘Loss of Profits: $500.00’ for the reason that in response to the 11th question ‘How much money do you find that the plaintiff, Elizabeth Lewis, received from her partnership with Charles McClintock during the calendar year 1949? Answer: Insufficient Evidence.’ The answer ‘Insufficient Evidence’ of itself shows that there was no competent evidence upon which the jury could predicate a finding.
“And to strike from said answer ‘Punitive: $1,000.00’ for the reason that if no actual damages were sustained or proven there can be no finding as to punitive damages.”
Did the court err in overruling this motion? We shall first consider the finding touching loss of profits. Assuming for the moment, without conceding, there was evidence to support the charge of wrongful eviction or conversion of property, the jury found the evidence was insufficient on which to determine loss of profits. That being true appellee failed to make her case on that element of damages whether resulting from wrongful eviction, conversion of property, or both. Having so failed there could be no verdict for loss of profits. Absent actual damage there can be no award of punitive damages. (Shore v. Shore, 111 Kan. 101, 205 Pac. 1027; Behymer v. Milgram Food Stores, Inc., 151 Kan. 921, 101 P. 2d 912.) In the Shore case we held:
“Punitive damages are never more than an incident to a cause of action for actual' damages, nominal damages will not sustain a verdict for punitive damages, and punitive damages, when allowed, are allowed only in addition to recovered substantial actual damages.” (Syl. ¶[ 2.)
The foregoing might well end this appeal at least insofar as recovery of loss of profits is concerned. Touching the subject of appellee’s eviction we might also add a careful examination of the record makes it exceedingly difficult, if not impossible, to conclude there was evidence appellee was ever evicted by the appellant, wrongfully or otherwise. Appellant’s notice of October 31, 1949, did not demand possession of the premises until December 1, 1949. Appellant being unable to find appellee served that notice on her partner at the filling station on October 31. R is admitted appellee received the notice from her partner the next day. We think those facts satisfied the purpose of G. S. 1949, 67-510. (See Gunter v. Eiznhamer, 165 Kan. 510, 196 P. 2d 177, and cases therein cited.) The length of notice was sufficient whether the tenancy be properly regarded as one from year to year (G. -S. 1949, 67-505) or a tenancy from month to month. (G. S. 1949, 67-504.) A subsequent notice to vacate the premises on December 1, 1949, served on appellee personally on November 15, 1949, was superfluous and did not invalidate the previous notice. As previously stated, however, assuming appellee was wrongfully evicted, she did not establish loss of profits resulting therefrom.
This brings us to the question of damages for conversion of equipment. For this element of damage the jury awarded $816.99. We can find no possible basis in the evidence for that amount. Appellee’s own testimony, in substance, was: She had agreed to sell her remaining one-half interest to her partner, McClintock; she had both the supplies and the equipment inventoried on November 2 or 3; they were appraised at the total value of $665.72 and she would be entitled to receive from McClintock one-half of that amount, $332.86; her partner continued to operate the station.
Thus far, however, we have dealt only with the amount of damages the jury found appellee had suffered by reason of a conversion of equipment. If appellant wrongfully converted any of the equipment appellee would be entitled to recover some damage, depending upon the value of the article or articles converted. In order to determine whether appellee was entitled to a judgment in any amount for conversion by appellant of any personal property listed in the petition we are obliged to examine the record. For this answer we turn to appellee’s own testimony. As previously stated, George W. Martin was the president of the defendant corporation and it was he with whom appellee had all of her dealings. Appellee was asked and answered as follows:
“Q. At no time during the time you were there, or McClintock for that matter, did Martin have any control over any of these items that you have listed in your petition? A. No, that belonged to Mr. McClintock and I.
“Q. And Martin, never at any time exercised any control over those items? A. No, he knew that they belonged to McClintock and I.
“Q. But he (Mr. Martin) had no control over that, did he? Witness: No, those belonged to McClintock and I.”
In view of those conceded facts it is understandable that appellee did not testify she demanded return of the personal property and that appellant refused its return, as she alleged in her petition, Under the unequivocal admissions of appellee that appellant at no time exercised any supervision or control over the items of personalty involved there is no basis for a recovery of any damages from appellant for wrongful conversion of property. That being true there can be no basis for punitive damages on the theory of conversion. We are in no wise concerned here with a cause of action, if any, which appellee may have had against her partner and, of course, express no views thereon.
Appellant’s motion to strike answer No. 10 should have been sustained. Being compelled to so conclude we need not consider the effect of finding 4 on the general verdict. Nor need we discuss trial errors specified in appellant’s motion for a new trial. The cause must be remanded with instructions to set aside the judgment rendered and to enter judgment for appellant. It is so ordered. | [
-16,
-6,
117,
-99,
26,
96,
42,
-99,
65,
-83,
103,
87,
-81,
-37,
12,
109,
-1,
127,
117,
122,
-45,
-93,
19,
99,
-41,
-77,
-37,
-43,
-80,
126,
-12,
119,
76,
32,
-118,
-43,
-26,
64,
69,
84,
78,
-89,
-71,
108,
-39,
0,
52,
59,
96,
13,
17,
-113,
-29,
44,
25,
-62,
-23,
44,
-21,
53,
80,
-72,
-118,
13,
95,
2,
51,
4,
-100,
-121,
-8,
58,
-112,
-80,
0,
-20,
51,
36,
-122,
116,
107,
-69,
40,
36,
107,
17,
101,
-17,
-4,
24,
14,
-34,
-115,
-92,
-112,
16,
73,
1,
-98,
-99,
112,
2,
101,
126,
-18,
-107,
95,
108,
7,
-117,
-74,
-77,
15,
-24,
-100,
8,
-21,
-89,
17,
116,
-51,
-86,
92,
6,
119,
27,
-113,
-104
] |
The opinion of the court was delivered by
Wedell, J.:
This is an appeal by respondent and its insurance carrier from an award in a workmen’s compensation case.
The district court approved the findings of the commissioner that (1) the injury was caused by accident; (2) the accident arose out of and in the course of the employment; and (3) the workman was entitled to recover certain medical, surgical and hospital expenses. The appeal is from those findings and the award made pursuant thereto.
Appellants recognize the established rule that on appeal in cases of this character our review on factual matters is limited to the inquiry whether there is substantial evidence to support the findings of the district court and not whether there is evidence which would sustain contrary findings.
Appellee was employed by respondent, Co-operative Refinery Association of Coffeyville. He entered respondent’s premises on the morning of December 19,1949, after passing a guard at the gate. He punched the time clock at eleven minutes of eight. He then went to the change house on respondent’s premises, located about a block and a half from where he punched the time clock, to change his clothes preparatory for work, which began at 8:00 a. m. That was the hour the whistle blew to indicate the time for the commencement of work. The change house contained lockers, showers, benches to sit on, wash bowls, soap and other equipment incidental to a change of clothes before starting work and for a cleanup after work. Respondent furnished and maintained the change house, equipment and supplies at its own expense. It was, however, optional with the men whether they used the change house or changed their clothes at home. The workmen were ordinarily assigned specific jobs at the yard house by the foreman at 8:00 a. m.
Appellee had two previous hernia operations on the left side. That side was weak and he wore a truss, at times a double truss, when he did heavy lifting. While in the change house on the morning in question, December 19, 1949, appellee bent over suddenly to untie his shoes. As he did so he heard a gurgle and felt a sharp pain in his left side. He reached into his pants and felt a large knot. The abstract relates the witness said, “I sat down like this to get hold of the shoe,” but the abstract does not reflect the manner in which he did so. He went to the yard office and saw Mr. Gottschalk, the yard foreman. When the foreman told him to take some men, naming them, to a job, appellee interrupted and advised the foreman, “I don’t feel good, I am going home.” The foreman said, “All right.” Appellee then went to the general office of the respondent and, in substance, told Daisy Eaton he had bent over to tie his shoes and had a hernia pop out; that it would be necessary to have it reduced in a couple of hours; he was afraid he was “going to have to go to the hospital.” Appellee stated he knew about being obliged to have it reduced in a few hours by reason of his former trouble with hernia. Miss Eaton replied, “That is too bad.” Appellee was in a hurry to get to the hospital and walked out. He did not ask the company to do anything about the hernia at that time.
Miss Eaton, in substance, testified appellee did come to her office that morning to pick up a claim blank for his wife in order to take his wife to the hospital; appellee told her he was going home; his hernia had slipped out and he was going to see the doctor; appellee stated the hernia had to be put back within two hours or it would cause death; she communicated this information to Mr. Tourney, respondent’s personnel supervisor.
• Appellee admitted he asked Miss Eaton for a claim blank for his wife because he believed she was going to be in the hospital at Christmas and that he stopped to pick up the blank for his wife because he thought he would also be in the hospital and would not have an opportunity to come back to get the slip his wife would need.
Appellee thereafter went directly to the guard house, telephoned to his wife, told her what had happened and asked her to come out for him immediately. Upon reaching home he went to bed and his wife called Doctor Boese (now deceased) who arrived in about ten minutes. The doctor tried, without success, to put the hernia back and he, appellee, passed out. Doctor Boese arranged to take appellee to the hospital. He arrived there at about 9:15 a. m. They gave him a spinal block and Doctor McMillian operated on him at 10:00 a. m. He told Doctor McMillian that when taking a physical examination for insurance he was advised he almost had a hernia on the right side, which felt weak; he asked Doctor Mc-Millian whether there was some way of fixing that, too, while he was under the anesthetic and the doctor operated on both sides.
Doctor J. D. McMillian, in substance, testified: By reason of the two previous hernia operations on the left side appellee had a weak wall there; appellee now had a strangulated hernia on that side and was in quite a bit of pain and there was considerable bulging; this was an emergency operation; he operated for double hernia, that is on both sides, in order to also remedy the weakness that existed on tire light side; his opinion was that the hernia on the left side could, and did, occur in the manner stated by appellee.
Appellee also testified he had never told respondent’s officers or employees or anyone else that he had a recurring hernia on the left side after the previous operations. He further testified he had experienced some soreness but there never had been a hernia, any protrusion, or anything like that.
The instant claim was one to recover compensation for the left hernia and not for disability, if any, resulting from weakness on appellee’s right side. Appellants contended the hernia on the left side existed prior to December 19, 1949. Appellee’s testimony was to the contrary. He admitted a weakness had existed on the left side but testified it had never developed into a hernia. The district court resolved the factual issue in appellee’s favor. For purpose of review the finding is conclusive.
The workmen’s compensation act prescribes no standard of health or physical perfection for a workman. (Carney v. Hellar, 155 Kan. 674, 127 P. 2d 496.) Accidental injuries are compensable where the accident only serves to aggravate or accelerate an existing disease, or intensifies the affliction. Williams v. Cities Service Gas Co., 151 Kan. 497, 99 P. 2d 822; Carney v. Hellar, supra; Workman v. Johnson Bros. Construction Co., 164 Kan. 478, 190 P. 2d 863.)
Was appellee’s injury, the hernia, the result of an accident within the meaning of the compensation act? Appellants contend it was not and cite Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793; McMillan v. Kansas Power & Light Co., 157 Kan. 385, 139 P. 2d 854; Murphy v. I. C. U. Const. Co., 158 Kan. 541, 148 P. 2d 771; Winkelman v. Boeing Airplane Co., 166 Kan. 503, 203 P. 2d 171. We shall not restate the facts in those cases. The elements of the term “accident” are quite extensively covered in the Winkelman case and in others cited therein. In the Gilliland case it was said:
“The word accident does not have a settled legal signification. It does have, however, a generally accepted meaning, which is the same whether considered according to the popular understanding or the approved usage of language. An accident is simply an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force.” (p. 773.)
Later in the same opinion it was further stated:
“He certainly did not intend to kill himself by breaking rock and loading cars at a price per car. He did not know, or in any event he was inattentive to, the limited power of his blood vessels to resist blood pressure aggravated by vigorous muscular effort. Out of this ignorance or miscalculation of forces came misadventure, and the term accident applies to what happened to him. . . .” (pp. 777, 778.)
While it is true appellee’s left side was in a weakened condition he nevertheless continued in the employ of the respondent. Surely he did not intend to produce a hernia by bending over suddenly. True he knew his left side was weakened but he apparently did not think bending over suddenly, whatever the exact position of strain may have been at the moment, would result in the injury he sustained. The injury resulted suddenly, without design, and from force, pressure, which was too great for the weakened portion of his body to withstand. The injury was unexpected at the moment notwithstanding the fact he knew of his weakness.
The elements of the term “accident” must not be construed in a strict and technical sense but in a manner designed to effectuate the true intent and purpose of the compensation act. (Winkelman v. Boeing Airplane Co., supra, and cases therein cited.) So construed we think the injury was accidental in character.
Did the accident arise out of and in the course of the employment as required by G. S. 1935, 44-501. Appellants contend it did not for the reason appellee’s actual labors had not yet begun. Without repeating the facts previously narrated it is sufficient to say there are respectable decisions in some other jurisdictions which support appellants’ contention. The supreme court of this state recognized those authorities quite early but decided to follow decisions holding the compensation act, when liberally construed, was broad enough to cover incidents of the employment. In Corpora v. Kansas City Public Service Co., 129, Kan. 690, 284 Pac. 818, we held:
“Where an employee whose working day began at 7 a. m. arrived at his place of employment a few minutes prior thereto, registered his attendance, and went to a dressing room provided by his employer, and there sustained a fall and injury while putting on his overalls, from which injury and other infirmities he died, it is held that the accidental fall and injury were incidents of the employment and his dependent widow was entitled to compensation.” (Syl. ff 3.)
The principle that the act is broad enough to cover incidents of the employment has been adhered to in a long line of decisions. (Duncan v. Perry Packing Co., 162 Kan. 79, 88, 174 P. 2d 78, and cases therein cited.) Many others might be listed.
Appellants rely on G. S. 1935, 44-508 (k), which provides:
“The words ‘arising out of and in the course of employment’ as used in this act shall not be construed to include injuries to the employee occurring while he is on his way to assume the duties of his employment or after leaving such dúties, the proximate cause of which injury is not the employer’s negligence.”
They argue the foregoing statute was not mentioned or considered in the Corpora case, supra. It is true the statute was not there considered. The reason probably was the claimant, as in the instant case, had already checked in for the day’s work and was actually on the employer’s premises at the time of the accident. Claimant there, as in this case, was not injured while on his way to such premises or after leaving his duties. The distinction between injuries occurring on the premises of the employer and those where the injury occurred on the way to the employer’s premises has been clearly recognized. (Monson v. Battelle, 102 Kan. 208, 170 Pac. 801; McDonnell v. Swift & Co., 124 Kan. 327, 259 Pac. 695; Harrison v. Lozier-Broderick & Gordon, 158 Kan. 129, 131, 145 P. 2d 147; Abbott v. Southwest Grain Co., 162 Kan. 315, 176 P. 2d 839.)
We now reach the last complaint pertaining to medical, surgical and hospital expenses. Appellants argue (1) appellee made no claim to respondent he had sustained an accident; (2) he made no request for medical treatment; and (3) the expenses sought to be recovered were for a double hernia although only one hernia was claimed to constitute the present injury.
The evidence previously narrated with respect to what appellee told Miss Eaton (appellants’ witness), together with her admission she relayed those facts to Mr. Tourney, respondent’s personnel supervisor, are sufficient to disclose the employer had notice of the precise injury.
Touching contention (2) it is true appellee made no direct request for medical attention. The employer, however, was informed of appellee’s condition and that he considered it sufficiently critical to require it to be corrected within two hours in order to avoid death.
G. S. 1947 Supp. 44-510 makes it the duty of the employer to provide the services of a physician or surgeon and such medical, surgical and hospital treatment, including nursing, medicines, medical and surgical supplies, ambulance, crutches and apparatus, as may be reasonably necessary to cure and relieve the workman from the effects of the injury. The statute also specifies the limitation as to allowances for such purposes. It further provides, in part:
“If the employer has knowledge of the accidental injury and refuses or neglects to seasonably provide the benefits herein required, the employee may provide the same for himself and the employer shall be liable for such expense subject to the limitations herein expressed. . . ”
Since appellee did not expressly request medical or other aid it probably cannot be said the employer refused to provide it. However, it will be observed the statute is not limited to a refusal. It also states . . or neglects to seasonably provide the benefits. . . .” (Our italics.) It must be conceded the employer was advised concerning appellee’s urgent need for prompt attention and care. Miss Eaton frankly testified she relayed those facts to Mr. Tourney, the personnel supervisor. She did not say she failed to relay the message to Mr. Tourney promptly and Mr. Tourney did not testify.
It also will be noted the statute does not expressly require that a workman demand the employer provide the benefits. It says, “If the employer has knowledge of the accidental injury and refuses or neglects to seasonably provide the benefits herein required. . . .” (Our italics.) We also think the words “seasonably provide” must be interpreted and applied in accordance with the known urgency of the need. Here there was no response from the employer, no offer to assist. It was an emergency operation and the workman had it performed. In view of the workman’s statement to his employer concerning the urgent need for prompt care and attention it seems to us it would require a rather strict construction of the statute to say the employer did not neglect to provide, or neglect to offer to provide, the benefits required. It does not follow, and what is here said must not be interpreted as meaning, that a request to the em ployer for medical, surgical or hospital care is never required. What is here said applies to the facts of this particular case and not to materially different facts.
The third contention under this heading involves the cost of the benefits which included the operation for a double hernia. We fail to find any separation' of costs for a single and double hernia operation. It is true an award for such benefits must be based on evidence. (Orozco v. Central Coal & Coke Co., 121 Kan. 690, 249 Pac. 604; Brenn v. City of St. John, 149 Kan. 416, 422, 87 P. 2d 546.) The total costs for ambulance service, the anesthetic, hospitalization and the operation were in the sum of $267.15. The surgeon’s fee for the double hernia operation was only $125. Notwithstanding that modest fee it is probably true the fee for the operation would have been somewhat less if there had been an operation for only a single hernia. We would be inclined to say the proof as to this last item was inadequate except for the fact the record discloses the examiner, in referring to these various items of expense, inquired of appellants, “Is there any question about their being reasonable?” The answer of appellants’ counsel was, “No.”
The judgment is affirmed. | [
-48,
-8,
-35,
-115,
26,
96,
34,
-102,
87,
-123,
39,
91,
-19,
-25,
76,
111,
-13,
125,
83,
34,
-35,
-77,
19,
-21,
-14,
-77,
-5,
68,
-79,
107,
118,
95,
77,
48,
2,
-43,
-26,
64,
-58,
92,
-54,
-121,
-70,
-18,
89,
0,
40,
106,
52,
79,
16,
-114,
-22,
42,
24,
-61,
41,
44,
75,
-78,
-48,
-15,
-126,
13,
95,
16,
-93,
5,
-98,
-17,
-8,
26,
-100,
49,
0,
-52,
80,
-90,
-125,
52,
35,
-85,
4,
99,
99,
32,
17,
-25,
124,
-72,
15,
-122,
-97,
-91,
-78,
56,
43,
1,
-108,
-99,
126,
4,
14,
124,
-12,
85,
95,
37,
-121,
-113,
-76,
-77,
-49,
100,
-68,
-118,
-17,
39,
-109,
113,
-50,
-94,
92,
68,
83,
31,
-106,
-102
] |
The opinion of the court was delivered by
Thiele, J.:
This was an action for damages sustained in a collision of two trucks. Defendant appeals from a judgment in favor of the plaintiff. For convenience we shall throughout the opinion refer to the parties as they appeared in the court below.
Briefly stated, the petition alleged that plaintiff, in the daytime, was driving his truck, which was equipped with a rotary water drill, westwardly on a highway west of Ulysses, and that defendant was driving a one and one-half ton truck on the same highway in the same direction; that plaintiff desired to pass the defendant and signaled his intention to do so and crossed to the left side of the highway and as he drove alongside of defendant’s truck defendant drove his truck over the center line of the highway, forcing plaintiff to drive to the left and on to the shoulder to avoid a collision, and while so proceeding and when plaintiff was slightly ahead of defendant, defendant gave a signal to make a left turn; that plaintiff increased his speed to avoid a collision but that defendant, while looking in the opposite direction, turned the left front portion of his truck into the right side of plaintiff’s truck, causing it to turn over completely, causing damages which are set forth in detail. Among other acts of negligence charged was the failure of the defendant to drive on the right side of the road.
Defendant’s answer contained a general denial and an allegation that if plaintiff sustained any damages they were the result of his own negligence.
At the trial the defendant’s demurrer to the evidence of the plaintiff was overruled, and that ruling is the basis of the first appeal. The trial continued, and the cause was submitted to a jury which rendered a verdict in favor of the plaintiff and answered special questions as follows:
“No. 1. Were any vehicles approaching the intersection from the west? Answer: No.
“No. 2. What, if anything, prevented plaintiff from stopping or returning to the right hand lane of traffic? No. 1 — Nothing. No. 2 — 2nd Truck.
“No. 3. How far from the intersection was defendant when he first signalled for a left hand turn by holding his hand straight out? Answer: 86 feet.
“No. 4. What, if anything, could plaintiff have done to avoid the accident? Nothing.
“No. 5. What, if any, signal did plaintiff make to defendant of his intention to pass? Answer: Did not signal.
“No. 6. If you find in favor of plaintiff, state the acts of negligence of which defendant was guilty? Answer: Crossing center line forcing plaintiff to shoulder causing him to slow down and being at intersection at wrong time.
“No. 7. If you find in favor of plaintiff, what do you allow for the following items: (Answers not material.)
“No. 8. How far was the defendant from the intersection at the time the plaintiff started to pass him immediately prior to the accident? Answer: 300 feet.”
Following return of the verdict and the special findings the defendant filed his motion for judgment on the special findings, and his motion that the answers to special questions Nos. 4 and 6 be set aside as not supported by and contrary to the evidence. Each of these motions was denied, and defendant then appealed from those rulings. It is here noted there was no motion for a new trial, and that there is no appeal from the judgment. The two appeals are presented together and the specification of errors covers the matters herein discussed.
The first contention is that the trial court erred in overruling defendant’s demurrer to the plaintiff’s evidence. Before reviewing the evidence we take note of the following: The demurrer lodged against the evidence was on the ground it failed to sustain a verdict or judgment in favor of the plaintiff and against the defendant. The defendant’s argument is that the evidence disclosed that plaintiff was guilty of contributory negligence. Plaintiff directs attention to the fact that the demurrer did not point out such a ground and suggests the question is not properly submitted for review. He calls our attention to various decisions, only two of which are closely in point and need be noticed. In Smith v. Bassett, 159 Kan. 128, 152 P. 2d 794, a motion for a directed verdict was treated as a demurrer. Although appellee there contended that appellant made no contention during the trial that there was contributory negligence, a statement not denied, this court did give consideration to the contention. In Gabel v. Hanby, 165 Kan. 116, 193 P. 2d 239, this court pointed out that such a demurrer did not directly challenge the trial court’s attention to any claim of plaintiff’s contributory negligence. In that case, however, the question was considered. In the case at bar the defendant states the demurrer lodged was stated substantially in the statutory- language (G. S. 1935, 60-2909, Third) and that plaintiff’s contributory negligence was the only question argued to the trial court. Under the circumstance of the case, it is difficult to see where there was any other question and we shall consider whether the plaintiff’s evidence disclosed, as a matter of law, that he was guilty of negligence which contributed to his injury and damage.
Under well recognized rules the plaintiff’s evidence, when attacked by demurrer, is to be interpreted favorably to him, unfavorable parts and inferences are to be disregarded, no weight is to be given contradictory evidence, and no differences between his direct and cross-examination are to be resolved against him. Our review of the evidence is made in the light of those rules and is limited to that part of the evidence bearing on the question under consideration.
U. S. Highway 160 runs west from the city of Ulysses and about four miles west is intersected by a north and south highway. The type of surfacing on the U. S. Highway or its width is not disclosed by the evidence as abstracted. The north and south road is not a paved or surfaced road. Turns into the intersection are sharp and not gradual. The events hereafter stated happened on the U. S. Highway and east of the above intersection, except as otherwise noted. Plaintiff proceeding westwardly in his truck at a speed of about 30 miles per hour caught up with two trucks proceeding westwardly. When he was approximately 50 yards therefrom and 200 yards east of the intersection the rear truck passed the defendant’s truck and it need not be noticed further. Shortly thereafter and when plaintiff was about 500 feet east of the intersection he sounded his horn and turned to the left lane in order to pass defendant, who swerved his truck to the left and plaintiff turned back to the right. A little later and when plaintiff was 300 feet east of the intersection he again started to pass, defendant again edged over, but plaintiff moved over to the shoulder and continued driving a little faster than defendant and moved up abreast of him. Due to defendant’s coming over on the left side, plaintiff’s left wheels were on the shoulder at a point about 165 feet east of the intersection. Both trucks proceeded and later plaintiff’s truck was forced to the ditch. At that time defendant’s truck was slowing down and plaintiff’s truck, traveling at 25 to 30 miles per hour, had forged ahead so that when about 35 feet east of the intersection the cab on plaintiff’s truck was slightly ahead of the cab on defendant’s truck. At that point defendant gave a hand signal of his intenton to turn left. Plaintiff looking to his right saw the signal and that defendant was looking to the right and not to the left. In an effort to extricate himself plaintiff speeded up and his truck- had crossed the intersection to a point about three feet east of the west line of the north and south highway when the front of defendant’s truck, turning to the left, struck plaintiff’s truck about six inches from the right rear end, upsetting it and causing the injuries of which complaint was made. It may also be noted that about 35 feet east of the intersection and in the ditch north of the highway was a highway number sign about four feet high. Plaintiff testified that as he approached that sign he turned right and missed the sign. He also testified his truck was equipped with good brakes and that he could have stopped within 100 feet when traveling at 30 miles per hour.
In support of his contention that the trial court erred in ruling on his demurrer to the plaintiff’s evidence, defendant argues that the evidence disclosed that plaintiff was guilty of negligence in three particulars: (1) In passing in an intersection contrary to G. S. 1947 Supp. 8-540; (2) in failing to stop or to return to the right lane of traffic when it became obvious that defendant did not know of plaintiff’s presence and was crossing the center line of the highway; and (3) in failing to give audible warning with his horn of his intention to pass as required by G. S. 1947 Supp. 8-5,102.
With reference to the first ground urged defendant directs atten tion to G. S. 1947 Supp. 8-540 (b) which provides that no vehicle in passing another vehicle shall be driven to the left side of the roadway (2) “when approaching within 100 feet .. . or traversing any intersection” and to our decision in Gabel v. Hanby, supra, where in discussing the right of a bus driver to pass another car proceeding in the same direction, we mentioned the above section of the statute. It may here be noted that in paragraph 5 of the syllabus of that case, we held that mere violations of the statutes regulating traffic on the highways are not sufficient to make the driver of an automobile guilty of actionable negligence in an action for damages growing out of a collision of vehicles unless it appears that such violations contributed to the accident and were the legal cause of the injuries sustained. And on the same point see Goodloe v. Jo-Mar Dairies Co., 163 Kan. 611, 618, 185 P. 2d 158, where a number of our decisions to like effect are cited. Giving plaintiff’s evidence the construction it is entitled to under the rule above stated, it appears that plaintiff started to pass defendant’s car at such a distance from the intersection and at a place where the passage could have been entirely completed before the intersection was reached, had not the defendant’s own acts prevented, and even with those acts considered where the passage was substantially completed before the intersection was traversed. We realize there was evidence from which a contrary conclusion could have been reached, but that very contrariety in the evidence made the question one of fact for the jury. Considering all of the circumstances, we cannot say as a matter of law that the mere fact the accident occurred in the intersection, the whole course of conduct of the plaintiff in passing was the legal cause of the injuries which plaintiff sustained.
With reference to the second ground, that plaintiff’s failure to stop or to return to the right lane of traffic when it became obvious that defendant did not' know of plaintiff’s presence, we do not think it may be said as a matter of law that the plaintiff’s evidence convicts him of negligence which was the legal cause of his injuries. So far as the evidence is concerned the first time plaintiff knew that defendant may not have been aware of his presence was when the two trucks were about 35 feet east of the intersection when he saw defendant give his hand signal while looking to the right and not to the left. In addition to the evidence outlined above, plaintiff testified to the danger he would have encountered in trying to make a sudden stop. We have previously stated that plaintiff’s truck was then slightly ahead of the defendant’s truck and that plaintiff tried to extricate himself by speeding up. Assuming plaintiff’s testimony was fully true, as the court had to assume as against the demurrer, plaintiff could not turn to the right without colliding with the defendant’s truck. Under the circumstances, it may not be said as a matter of law that because plaintiff did not then stop or turn to his right that his conduct convicted him of negligence which was the legal cause of his injuries.
The third ground is that plaintiff was guilty of negligence which was the legal cause of his injuries in that he did not sound his horn and give warning of his intention to pass, as required by G. S. 1947 Supp. 8-5,102. Reference to that statute discloses the driver must give audible warning when reasonably necessary to insure safe operation of his vehicle, and not otherwise. Plaintiff’s evidence showed that he was passing defendant’s truck and was slightly ahead of it when defendant gave his hand signal for a left-hand turn. It is a little difficult to see what warning the horn could have given that was not already given by the presence of the plaintiff’s truck. The principle that where the absence of a warning signal does not prevent a driver of a vehicle from seeing a vehicle in time to avoid it, the absence of the signal cannot be said to be the proximate or legal cause of the injury, has been repeatedly recognized. See Wright v. Nat’l Mutual Cas. Co., 155 Kan. 728, 129 P. 2d 271; Curtiss v. Fahle, 157 Kan. 226, 139 P. 2d 827, and cases cited. The plaintiff’s evidence indicates that the location of the trucks with reference to one another gave all the warning a sound of plaintiff’s horn would have given. Under the circumstances of the case, and under the statute, it would seem that whether it was necessary for the plaintiff to sound his horn to insure safe operation of his truck was a question of fact for the jury and not a question of law for the court, and we so hold.
Defendant contends that the trial court erred in not setting aside the answers to special questions 4 and 6 for the reason the answers are not supported by or are contrary to the evidence. Heretofore we have pointed out that defendant filed no motion for a new trial. The rule is that where findings of fact are made and no motion for a new trial is filed, questions pertaining to the evidence and its sufficiency to support the findings are not open to appellate review. See Jelinek v. Jelinek, 161 Kan. 362, 168 P. 2d 547, and cases referred to therein. Whether the findings are supported by the evidence is not subject to review.
Defendant’s further contention that the trial court erred in not sustaining his motion for judgment on the answers to special questions is predicated largely on the proposition that the answers to special questions 4 and 6 should have been set aside. A motion for judgment on answers to special questions notwithstanding the general verdict concedes for that purpose that the answers are supported by the evidence (Sams v. Commercial Standard Ins. Co., 157 Kan. 278, Syl. ¶ 3, 139 P. 2d 859, and Lee v. Gas Service Company, 166 Kan. 285, 289, 201 P. 2d 1023, and cases referred to therein).
In considering the defendant’s contentions we bear in mind the rule that a general verdict imports a finding in favor of the prevailing party upon all of the issues in the case not inconsistent with the special findings, which are to be given such a construction, if possible, as will bring them into harmony with the general verdict and that while nothing will be presumed in favor of the special findings as against the general verdict they may be viewed and interpreted in the light of the testimony. (Schroeder v. Nelson, 157 Kan. 320, 326, 139 P. 2d 868.)
The main point urged by the defendant why his motion should have been sustained is that the answers to questions 2 and 5 convicted plaintiff of contributory negligence and most of his argument stresses the failure of the plaintiff to blow his horn. It will be observed that question No. 5 merely asked whether plaintiff gave any signal of his intention to pass the defendant and that neither it nor any other question sought to have the jury say that such failure contributed to the collision as a proximate or legal cause of the collision. What has heretofore been said about plaintiff’s failure to blow his horn as constituting negligence disposes of any contention that such failure constituted negligence and we shall not comment further thereon, other than to say the answer to question 5 is not to be interpreted as one finding plaintiff guilty of negligence which was the proximate or legal cause of his injuries. Insofar as question 2 is concerned, it will be noticed that it was stated alternatively and required two answers, and further that as to either part, it was not limited to time or place. If construed to refer to events immediately preceding the collision, the answer that nothing prevented the plaintiff from stopping was in accord with plaintiff’s own statement, but the question did not seek to learn the further matter testified to by the plaintiff that when defendant gave his signal to turn left, found by the jury to be 86 feet from the intersection, his truck was slightly ahead of that of the defendant, proceeding at a speed of 30 miles per hour and requiring about 100 feet to stop, and he had to extricate himself from the situation as it thus existed. With reference to the second part of the answer, at the trial the defendant contended that plaintiff attempted to pass defendant’s truck and another truck which he said was following him, a matter disputed by the plaintiff. The general verdict was an acceptance of the plaintiff’s version. The answer "2nd Truck” must therefore be held to refer to defendant’s truck for there were only two trucks at or near the collision. In our opinion the answers can be reconciled with the general verdict, and do not convict the plaintiff of negligence which was the legal cause of his injuries.
Defendant’s contentions cannot be sustained and the judgment of the trial court is affirmed. | [
-16,
120,
16,
-116,
10,
64,
18,
24,
85,
-75,
-25,
19,
-17,
-54,
4,
121,
-1,
63,
85,
11,
-27,
-93,
7,
-77,
-78,
-13,
-13,
70,
-110,
-54,
110,
95,
76,
48,
-54,
-43,
102,
72,
-59,
-36,
-50,
22,
-120,
-7,
-39,
10,
48,
26,
6,
15,
17,
-113,
-61,
46,
25,
-62,
-87,
44,
107,
-75,
-31,
48,
-60,
5,
95,
4,
-77,
52,
-68,
1,
88,
11,
-48,
49,
8,
-40,
114,
-90,
-109,
-12,
105,
-103,
12,
38,
99,
34,
85,
-19,
-4,
-104,
46,
126,
13,
-90,
50,
17,
-119,
32,
-105,
61,
118,
54,
4,
106,
-36,
85,
27,
104,
7,
-53,
-80,
-95,
-51,
118,
-108,
74,
-21,
5,
49,
113,
-53,
-30,
94,
69,
115,
-97,
79,
-122
] |
The opinion of the court was delivered by
Price, J.:
This is an appeal from an order overruling a demurrer to a petition in an action brought under the “wrongful death” statute.
The question presented is this:
When the injury which resulted in death occurred while G. S. 1945 Supp. 60-3203 was in effect but death occurred after the passage and effective date of G. S. 1947 Supp. 60-3203, should the action be brought under the former statute or under the statute as amended?
The facts as disclosed by the petition recite that on July 10, 1946, the deceased sustained personal injuries in an automobile collision on account of the alleged negligence of one of the defendants and that as a result of such injuries she. died on November 30, 1947. The action is for damages in the amount of $15,000, and included as elements thereof are mental anguish, suffering and bereavement, loss of society, companionship and protection and loss of attention, advice and counsel to the next of kin of the deceased.
Defendants moved to strike from the petition that portion seeking damages in the amount of $15,000, and those elements of damage above recited. This motion was overruled, whereupon defendants filed a general demurrer on the ground that the petition failed to state a cause of action in favor of plaintiff and against defendants or either of them. This demurrer was overruled.
On July 10, 1946, the date of the injuries, G. S. 1945 Supp, 60-3203 was in effect and reads as follows:
“When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an . action therefor against the latter or his personal representative if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.”
In 1947 this statute was repealed and the following statute, which now appears as G. S. 1947 Supp. 60-3203, was enacted. It became effective June 30, 1947.
“When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter or his personal representative if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two years. In any such action, the court or jury may award such damages as may seem fair and just under all the' facts and circumstances, but the damages cannot exceed fifteen thousand dollars and must inure to the exclusive benefit of the surviving spouse and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased. Damages may be recovered hereunder for, but not limited to: (a) Mental anguish, suffering or bereavement; (b) loss of society, companionship, comfort or protection; (c) loss of marital care, attention, advice, or counsel; (d) loss of filial care or attention; and (e) loss of parental care, training, guidance or education.”
It will be seen that the 1947 law increased the amount of damages recoverable to $15,000, and included therein recovery for mental anguish, suffering or bereavement; loss of society, companionship, comfort or protection; loss of marital care, attention, advice or counsel; loss of filial care or attention; and loss of parental care, training, guidance or education. Under the former statute recovery was limited to the financial loss resulting to plaintiff in an amount not exceeding $10,000. Smith v. Bassett, 159 Kan. 128, 152 P. 2d 794; Krol v. Coryell, 162 Kan. 198, 204, 175 P. 2d 423.
Defendants contend that this action must be brought under the statute in force at the time the deceased sustained her personal injuries and thus recovery would necessarily be limited to the financial loss sustained and in an amount not exceeding $10,000.
On the other hand, plaintiff contends that the cause of action did not accrue until the death of the deceased on November 30, 1947, which was five months subsequent to the effective date of the 1947 statute, and he further argues and cites authorities to the effect that the 1947 amendment is merely remedial in nature and may operate retroactively so as to enable him to bring the action under the latter statute although the injuries were sustained prior to its enactment and effective date.
We do not consider it necessary to go into the question whether the 1947 amendment is remedial in nature for the reason that it is impossible to see how an action could be brought for the alleged wrongful death until death has occurred. Both statutes read:
“When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter or his personal representative if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two years. . . .”
If death had occurred while the former statute was in force but the action not commenced until after the passage and effective date of the new statute the question of the latter merely providing a change of remedy would be pertinent. True, the alleged “wrongful act or omission” occurred before the passage and effective date of the 1947 statute, but no cause of action for the resulting death could accrue until the happening of that event, and when death occurred the new statute had been in force for some five months. This action was commenced by the personal representative of the deceased not only within two years from the date of death but within two years from the date of the injuries, and we have no difficulty in holding that the cause of action did not accrue until the death of the deceased and that the action was properly brought under G. S. 1947 Supp. 60-3203.
From what has been said it follows that the ruling of the lower court was correct and the judgment is therefore affirmed. | [
-16,
110,
-4,
-83,
43,
96,
10,
-102,
115,
-79,
-89,
83,
-21,
67,
85,
127,
114,
-83,
81,
107,
-2,
-73,
87,
-86,
-1,
-109,
-55,
-41,
51,
111,
-26,
127,
76,
48,
66,
-107,
-25,
-54,
-59,
86,
-50,
2,
-117,
-19,
-39,
66,
-80,
125,
-12,
13,
-15,
-50,
-29,
46,
30,
-29,
41,
40,
-39,
-87,
-64,
-80,
-117,
13,
-5,
19,
-79,
7,
-98,
-90,
88,
26,
-104,
57,
0,
-20,
112,
-106,
-126,
20,
99,
-119,
8,
96,
103,
0,
101,
-19,
-104,
-72,
22,
34,
13,
-89,
30,
81,
8,
8,
-66,
-67,
121,
52,
14,
126,
-2,
94,
77,
-84,
70,
-118,
-108,
-79,
-25,
-28,
-100,
-126,
-50,
35,
50,
113,
-55,
34,
93,
102,
83,
-109,
-57,
-100
] |
The opinion of the court was delivered by
Wedell, J.:
This is an original mandamus action instituted by members of the board of supervisors of Little Caney River Drainage District against the county treasurers of Montgomery and Chautauqua counties.
The motion for the writ prays for an order directing the county treasurer of Montgomery county to pay over to the county treasurer of Chautauqua county certain sums of money collected by the former as protested and as unprotested assessments on land in the district; to direct the county treasurer of Chautauqua county upon receipt of such funds to credit them, and also the moneys held by him as protested assessments, to the account of the plaintiff drainage district in order to make them subject to warrants to be drawn thereon by the plaintiff board and to restrain the defendants from refunding any such funds to the taxpayers or other persons pending a decision in this court.
The two defendant county treasurers really are not contentious parties but, as public officials, are merely refusing to act until their official duties in the premises are determined. Various landowners in the district have intervened in opposition to the tax or assessment contending it is wholly illegal and void. As indicated some of them paid the assessments under protest while others paid them, or parts thereof, without protest. For present purposes we need not determine the sufficiency of the protests.
In addition to nine complaining landowners the engineer who was employed by the drainage district board to make a survey, and did so, has intervened and seeks to recover compensation for services rendered.
The action is being tried on an agreed statement of facts. It is unnecessary to set forth all of them in detail. In view of the conclusion we have reached on the principal legal questions involved many of the detailed facts become immaterial. The substance of the material facts agreed upon is appended hereto and made a part hereof.
The principal contention of the intervening landowners is the assessment made (they choose to call it a tax) on the land in the drainage district is illegal and void in that it violates the budget law (G. S. 1935, 79-2925 to 79-2937) and the cash-basis law (G. S. 1935, 10-1101 to 10-1122) and amendments thereof.
On the other hand the drainage board and the intervenor, its engineer, contend those acts enacted in 1933 are not applicable, that they did not expressly repeal the earlier drainage district act here involved and in nowise repealed provisions of that act by implication.
The last contention was in principle upheld by this court in a well reasoned opinion involving the building of a courthouse in Republic county under provisions of another law, G. S. 1935,19-1503, 19-505, pursuant to a petition of resident taxpayers. It was held the provision of the law authorizing the levy of a special tax to procure funds for that purpose was not expressly repealed or by implication rendered inoperative by provisions of the cash-basis law, the budget law or the tax-limitation law of 1933. (State, ex rel., v. Republic County Comm’rs, 148 Kan. 376, 82 P. 2d 84.) Moreover, it was expressly held in that case the authority to build the courthouse by means of the special tax came clearly within the exceptions of the budget law, the cash-basis law and the tax-limitation law. (p. 382, 384.) The analysis of the subject was thorough. What was there said need not be repeated here but is incorporated herein by reference.
Repeals by implication are, of course, never favored (Wolff v. Rife, 140 Kan. 584, 38 P. 2d 102; State, ex rel., v. Republic County Comm’rs, supra, p. 383.) No sound reason is suggested or appears to us for holding the decision and reasoning in the Republic county case is not equally applicable and controlling here. Having so concluded we need not pursue the further question argued by the parties whether it would be possible for the drainage district to function under the budget, cash-basis or tax-limitation laws.
It is well understood an assessment against property by reason of benefits to be derived from an improvement is not in the constitutional sense a tax. Although it has been said assessments for local improvements form an important part of the system of taxation such assessments differ from general taxes. An assessment, as distinguished from other kinds of taxation, is that special and local imposition upon the property in the immediate vicinity of municipal improvements, which is necessary to pay for the improvement, and is laid with reference to the special benefit which the property is supposed to have derived therefrom. (5 McQuillin on Municipal Corporations, 2d ed. rev., § 2165; State ex rel. Drainage District v. Thompson 328 Mo. 728, 41 S. W. 2d 941; Eubank v. City of Ft. Worth, Tex. Civ. App., 173 S. W. 1003; City of Kalispell v. School District No. 5, 45 Mont. 221, 122 Pac. 742; Santa Clara Valley L. Co. v. Meehan, 62 Cal. App. 531, 217 Pac. 787.)
The assessments here are made in contemplation of benefits that will accrue to each tract of land in the district by reason of the improvements. (G. S. 1935, 24-609.) All provisions of the drainage law contained in the General Statutes of 1935 will be designated by sections.
It is true consideration of the engineer’s report by the drainage board resulted in disapproval of the particular project submitted by him. It is, however, also stipulated the drainage district has not been disorganized as it is possible to do under an amendment enacted in 1929. (Section 24-647.) The result is for our present purposes the district must be regarded as a going concern. Section 24-609 requires the board, it has no alternative in the matter, to have a topographical survey made of the district by some competent engineer and to have him assess the benefits accruing to each tract of land. The board employed an engineer and he performed.
The drainage board was also authorized to employ an attorney to represent and advise it. (Sections 24-608, 24-614.) Section 24-617 implies the need for an attorney. Section 24-633 authorizes the board to compensate its attorney, engineer, other officers and employees of the district for services rendered and expenses incurred. The board employed an attorney. He performed. It has been held an attorney’s compensation may be recovered from the board in a mandamus action. (G. S. 1935, 60-1710; Fidelity Nat’l Bank, and Trust Co. v. Morris, 130 Kan. 290, 291, 296, 286 Pac. 206.)
The only remaining question in this case is whether the indebtedness created by the drainage board is to be paid on the basis of the assessments made on each tract of land pursant to the drainage law or whether it is to be paid by a levy made in some other manner. The first chapter of the last cited drainage case is reported in 127 Kan. 283, 273 Pac. 426. In the first case the county clerk was not a party. He was made a party defendant in the second case and was ordered to make a real-estate assessment of the drainage district and extend the levy, pursuant to provisions of G. S. 1935, 79-408, and other statutes pertinent thereto. It, therefore, will be observed the levy was not made upon the basis of assessments made under the drainage act but on the basis of the value of the real estate in the drainage district. The reason for requiring the county clerk to make the assessment on the basis of the value of the real estate was that the drainage district there involved was an abandoned drainage district. It was no longer a going concern.
In the instant case the district is not abandoned. Here the levy must be made pursuant to the drainage district law (section 24-618) which prescribes the plan of levy for a district that is a going concern. (Fidelity Nat’l Bank and Trust Co. v. Morris, 130 Kan. 290, 293, 286 Pac. 206.)
The intervening landowners further contend the assessments are illegal and void for the reason the plaintiff board has acted arbitrarily in refusing to disorganize the district as it is now permitted to do under' the 1929 amendment (section 24-647) but for which there was no provision when the previously cited drainage district cases were decided. This is not an action to compel the board to disorganize the drainage district. The facts which may have prompted the board not to disorganize it are not now before us.
The intervening landowners further argue they have received no benefits from the project and will receive none. We are, of course, not permitted to speculate concerning possible future benefits. Our-consideration must be limited to existing facts. It was the landowners of the district who brought this drainage district into being. It is their organization. It is not claimed the plaintiff board incurred any indebtedness it was not directed or authorized by law to incur. In other words what was done, even if it culminated in nothing more than an unsuccessful experiment as to a particular project, was in legal contemplation done by the landowners themselves and for their benefit. So long as the district remains a going concern it may yet take advantage of what it has learned for the benefit of the landowners. We, therefore, cannot say the landowners have obtained no benefits. The assessments made pursuant to the drainage district law are not illegal and should be collected in accordance with the provisions of that law.
It is the judgment of this court that the writ issue as prayed for by the drainage district, previously set forth herein, and the costs of this action be taxed to the drainage district.
It is the further judgment of the court that counsel for the drainage district recover the sum of $500.00 as compensation for services and expenses incurred in the instant action in this court, the same to be taxed as costs of the action.
The writ is allowed.
Agreed Statement oe Facts
The plaintiff district was fully organized September 4, 1946, as provided by article 6, chapter 24 (G. S. 1935, 24-601 to 24-653) and embraced the land of all intervenors; the larger portion of the drainage district is situated in Chautauqua county; pursuant to section 24-605 the board employed the firm of Burgwin & Geiger (later superseded by William H. Burgwin) to make a topographical survey, classifications, assessment of benefits, maps, profiles, etc., as provided for in section 24-609; the engineers filed their report and a hearing was held thereon, as provided in section 24-613, on April 20, 1948; the board decided it should reject the report and the proposed flood control works as they had been planned; the report provided no flood protection work should be done on certain lands (described) and no assessment for work in other portions of the district should be made against the excluded land; no work was completed or started on any actual project and no benefits were provided for any landowners, except whatever benefits were received by them from the survey, the report of the engineer and the rejection of the report and determination to abandon the project; on July 28, 1948, the supervisors of the district adopted a budget; the notice of adoption and the certification and filing of the budget were in proper form; that was the first time any budget had been adopted for the district.
Paragraphs 9 and 10 of the stipulation read:
“9. It is further agreed that said budget was adopted for the purpose of raising the sum of $11,906.59 by assessment of sixty-one mills against all of the land in the district according to its valuation in money. Included in said sum of $11,906.59 was the sum of $5,400 for the payment of a note in the sum of $5,000 and interest of $400 thereon, which note was given to C. W. Powell of Havana, Kan., on Jan. 25, 1947, for money borrowed by the board of supervisors of said C. W. Powell. That the budget provides for the payment of $6,384.44 for the balance due on the engineers’ contract fee. That said budget also provided for the sum of $400 to pay for attorneys’ service during the year 1949 in the closing of the business of said district and the.sum of $288 for office supplies and miscellaneous expenses in 1949. It is further agreed that said budget for the year 1949 was adopted for the purpose of raising funds to meet obligations incurred by said board of supervisors for said drainage district in the years 1946, 1947 and 1948, with the exception of said items of attorneys’ fees and miscellaneous expenses. That in the event said budget and the levy of the tax provided for therein are valid, the only portion of the funds which will be raised which will be used for defraying expenses incurred in 1949, is said sum of $400 and the sum of $288, miscellaneous expenses. The entire balance of the funds so raised will be used to pay indebtedness incurred prior to July 28, 1949. That at the time of incurring said indebtedness and pledging the credit of the district no budget had been adopted or proposed by said district, but that the contracts and indebtedness created were not authorized by vote of the electors. That no provision has been made for the payment of said indebtedness by issue of bonds as provided by law. That no provision has been made for payment of said obligations by issuance of warrants authorized by the Commission in accordance with the provisions of Section 79-2938 and 79-2939, 1947 Supplement to the General Statutes of Kansas.
“10. That upon the receipt of said budget and certificate the county clerk of Chautauqua County, Kansas, spread the levy as certified upon the real estate located in Chautauqua County, Kansas, included in said drainage district, but the county treasurer of Montgomery County, Kansas, refused to spread said levy upon the part of said real estate located in Montgomery County, Kansas. An action was then brought in the district court of Montgomery County, Kansas, by the said board of supervisors, as plaintiffs, against the county clerk of Montgomery County, Kansas, as defendant, and as a result thereof a judgment was entered in said suit by the district court of Montgomery County, Kansas, by which a peremptory writ of mandamus was issued requiring said county clerk of Montgomery county to spread said levy as certified in said budget, after which said county clerk spread said levy in conformity with said writ of mandamus upon the real estate included in said drainage district, which was located in Montgomery County, Kansas.”
Thereafter the stipulation, in substance, contains admissions concerning certain other facts as follows: A detailed statement of assessments intervenors have paid either without or under protest; a narrative of a hearing before the state commission of revenue and taxation on May 3, 1949, touching the validity of intervenors’ protests; the order of that commission; the demand of the plaintiff board on the county treasurer of Montgomery county and his refusal to pay over to the county treasurer of Chautauqua county funds in his hands; a demand on the latter treasurer to credit certain funds to the drainage district; the specific amounts of money-held by the county treasurer of each county; that no written petition for the disorganization of the drainage district has been filed pursuant to the provisions of section 24-647. | [
-12,
-24,
-3,
92,
74,
-64,
2,
10,
65,
-79,
-29,
115,
-21,
-94,
0,
115,
-30,
-7,
117,
107,
71,
-74,
115,
98,
-78,
-13,
-7,
93,
-77,
125,
-28,
71,
12,
49,
-53,
-107,
-58,
-126,
-59,
92,
-90,
-126,
27,
64,
-39,
64,
52,
15,
118,
79,
21,
-114,
-29,
44,
28,
99,
-21,
44,
89,
-85,
64,
-5,
-98,
-115,
79,
12,
33,
-124,
-100,
-63,
-56,
58,
-112,
112,
-120,
-8,
123,
-90,
-44,
117,
15,
-71,
41,
114,
98,
3,
-91,
-33,
-72,
-119,
6,
-33,
-115,
-89,
-109,
88,
42,
-127,
-106,
-67,
116,
90,
-58,
126,
-22,
-123,
95,
108,
-121,
-113,
-90,
-93,
-113,
60,
-118,
3,
-17,
-93,
16,
113,
-49,
-30,
92,
103,
16,
31,
-98,
-104
] |
The opinion of the court was delivered by
Price, J.:
This is an action for damages for personal injuries sustained by a guest of a hotel, owned and operated by defendant corporation, when she attempted to leave the hotel by a rear door after dark and fell into a ditch outside such door.
The jury answered special questions and returned a general verdict for plaintiff in the amount of $3,500. Defendant’s motions for judgment notwithstanding the verdict, to set aside answers to special questions, and for a new trial, being overruled, it appeals.
For a number of years prior to June 28, 1947, the defendant owned and operated the Kent hotel in Norton. It had four outside doorways — one was the main entrance into the lobby, a second was into the coffee shop, a third opened onto the back yard from the kitchen and was for the use of kitchen employees, the fourth, being the one in question, also opened onto the back yard of the hotel and was for the use of hotel employees in carrying laundry from the rooms to the laundry room at the back of the hotel. It will be referred to as the “back door.”
Shortly after June 1, 1947, construction work, consisting of replacement of steam, pipes, was begun at the rear of the hotel premises and was not yet completed on the date of plaintiff’s injuries. A ditch approximately four feet wide and six feet deep, running north from this back door, was dug so as to expose the steam pipes. There were mounds of dirt paralleling the ditch and other obstructions in the back yard.
Plaintiff, a woman fifty-four years of age, testified that in June, 1947, she was living in.Nebraska, but came to Norton on either the 26th or 27th and obtained a room on the ground floor of the hotel. She had stopped there on several previous occasions, was familiar with its ground floor layout and various entrances, had used this back door herself on those previous visits and had seen other people, guests as well as employees, use it; that on Saturday night, June 28, about 9:30, she decided to leave the hotel for a cup of coffee, but not considering herself properly dressed to go out through the lobby or coffee shop entrances, where she would have to pass “a lot of people,” started down the hall to go out the back door and to a nearby restaurant.
“Q. Go ahead, Mrs. Harral. A. And went out down the hall, the out side door, I mean the wooden door, the main door, was open. The screen door was closed. I just walked to the door, opened it, and stepped out— stepped down rather, into this hole or ditch. Terrible sensation, went down through there.
“Q. Now, did you take over one step until you was into that hole? A. No, I didn’t take any step at all. I .opened the door and stepped right down into this ditch. This ditch, I don’t know whether it run up underneath the building or not, but it was up flush with the door, that I know.
“Q. Do you recall as you fell whether you struck anything on the way down? A. I did. I went all the way down. My feet slipped, I went on down further. These pipes, sewage pipes, water pipes, I went on it and went down through those. It was quite some time before I could get out of there. I don’t know whether I hollered or not, that I couldn’t say, because I was too scared. I had to — I tried to get out, I could just reach the bottom part of the door, I could slip my fingers underneath the bottom of that door, pulled it open, and I pulled on that, got up to those pipes with my knee and body in a little ledge on the bank. I pulled myself up into the hall, then from there on I crawled down to my door, waited a few minutes, I called Mr. Yockers at the desk and he came back.
“Q. Was a doctor called there afterwards? A. Yes, Dr. Cooper was called.”
“Q. I believe you stated you do not recall how long you were down in there, in that hole? A. I really don’t know how long I was down in there.
“Q. It has been indicated here before the jury in the opening statement that was made by the defendant’s counsel that you unwired a door to get out there. Was that door, that screen door wired shut, fastened in any way? A. It wasn’t fastened in any way, because I just walked to the door, put my hand on the door, pushed it open and walked out.
“Q. Was there any resistance to your push on that door at all? A. No, not at all.”
She further testified that no one had ever told her not to use this back door, that there were no warning signs, no lights or anything indicating danger; that the ditch was open and uncovered and that before the ditch was dug one went out this door on a cement walk to the sidewalk just a few feet from the main street. That after she had crawled back to her room, Mr. Yockers, the manager, came in and said, “How in the World did you do it?” and “My God, I will have to fasten that -door before somebody else gets hurt.”
On cross-examination she testified that she had been in and out of the hotel several times on the day in question but had used the lobby door; that her last previous visit to the hotel was a month or six weeks prior to this time; that she had seen various people use this back door on this particular visit and that she had gone out of the door at night on previous visits.
One Deweese, who had been a bellhop at the hotel for about two years, testified concerning the ditch, that he used this door about twice a day; that he could step from the door over to a ledge oi cement; that on June 28 he used it once and that at no time did he ever recall the door being wired or nailed shut.
Another witness, a maid on the lower floor, testified that she had occasion to use this door both before and after the ditch was dug and including June 28; that she had never seen the door wired shut and that she had had no difficulty in being able to step across or get around the ditch. That- she had seen people other than employees using the door in going to and from the hotel to the street not far from it.
Another witness, a schoolteacher in Norton, testified that she visited the plaintiff the night after the accident and at that time the screen door was hooked and wired shut by use of nails and small wire.
In addition to the foregoing plaintiff also introduced considerable evidence concerning her injuries, and which will be referred to later.
At the conclusion of plaintiff’s evidence defendant demurred “for the reason that the plaintiff had not proved facts sufficient to entitle the plaintiff to recover from the defendant; that the plaintiff had failed to prove culpable negligence on the part of the defendant; and that her evidence proved contributory negligence on her part.”
The demurrer was overruled.
Yockers, the manager of the hotel during the month of June, 1947, resided in Denver at the time of trial and his testimony was taken by deposition. He testified to the general floor plan of the hotel, that this back door was not usually used by guests in entering and leaving the hotel; that it would have been much simpler and a shorter route to go outside had plaintiff used the lobby entrance, and that during the construction work he had instructed his employees not to use the back door. That a few days before the night in question he had wired the screen door shut by driving a heavy nail into the door sill and one into the screen door and then wrapped wire from one nail to the other in order to hold it shut securely; that it thus could not be opened without unwinding the wire from the nails and that to his knowledge no one other than plaintiff had attempted to use it after he had wired it shut. That he personally checked the wiring on the screen door at six o’clock on the evening in question and that it was wired shut at that time; that after plaintiff sus tained her injuries he checked it and found that the wire had been unwound. On cross-examination he testified that he had not put any warning sign on the door; that there was no light outside other than what came in from the street; that after plaintiff was injured he caused her to be taken to the Norton hospital for examination; that the hotel company paid the hospital 'and a local doctor for their services, and that plaintiff was not charged for her room for the week or ten days she remained in the hotel following her injuries. He denied that he stated to plaintiff after the accident that he guessed he “would have to wire the door shut.” He admitted that this door had frequently been used by guests of the hotel prior to the time in question; that he had not instructed any of the guests not to use the door; that right over the door there was a sign marked “exit” and that the ditch into which plaintiff fell was located just outside the door.
Mr. Frame, the contractor in charge of the construction work, testified concerning the ditch and that about noon of the day in question he attempted to use this door but found it was wired shut; that he unwired it at that time and then at five o’clock in the evening when he left work he wired it shut again. He testified in some detail as to the manner in which the door was fastened and wired, but which will not be narrated here.
The manager of the hotel coffee shop testified that after June 24 she and her fellow employees used the lobby entrance of the hotel because of the construction work being done in the rear, and that Mr. Yockers had asked them to do so.
Two other witnesses for defendant, a cook in the coffee shop and a chambermaid, testified in substance that they had been told by Mr. Yockers not to use this door while the construction work was going on and one of them stated that she had noticed the door was wired shut on June 28.
Another witness, a local physician, who examined plaintiff on January 14, 1948, testified as to her injuries, reference to which will be made later.
Special questions were submitted to the jury and they, together with the answers, are as follows:
“1. Q. Did the defendant, on the night of June 28, 1947, maintain a front entrance and exit at its hotel for the use of its guests, which was well-lighted and safe, and opened upon the public sidewalks at Norton, Kansas, at the time the plaintiff received her injury? A. Yes.
“2. Q. Did the plaintiff for her own convenience voluntarily choose to leave the defendant hotel by the rear door on the night of June 28, 1947? A. Yes.
“3. Q. Was the plaintiff familiar with the conditions which existed at the rear of the defendant hotel from June 24, 1947, to the time of her injury? A. No.
“4. Q. Was it so dark at the rear of the defendant hotel, at the time the plaintiff attempted to leave the hotel by the rear door, that she could not see the excavation and other conditions which existed outside the rear door? A. Yes, it was dark.
' “5. Q. If you answer the last question ‘Yes’ then state what the plaintiff did to find out whether she could safely leave the hotel by the rear door before she went out? A. She had no warning and did nothing.
“6. Q. If you find that, at the time the plaintiff started to go out the rear door of the hotel, there was sufficient light that by the exercise of ordinary care the plaintiff could have seen the excavation and conditions existing outside said door before stepping out, then state what plaintiff did for her own protection prior to stepping out said door? A. She had no chance to do anything.
“7. Q. Was the screen door at the rear of the defendant hotel securely fastened shut with baling wire by Harold Frame at approximately 5 p. m., June 28, 1947? A. No.
“8. Q. Was said screen door found by C. A. Yoekers to be securely wired shut at 6 P. M., June 28, 1947? A. No, it wasn’t wired.
“9. Q. If you find that said screen door was wired shut at 5 P. M., June 28, 1947, then state:
“(a) Who unfastened said wire on said door? A. -0-. and
“(b) When was said wire unfastened? A. -0-.
“10. Q. If you find the defendant guilty of negligence which was the proximate cause of plaintiff’s injury, state in detail the facts constituting such negligence? A. Failed to notify her — Failed to fastened door and failed to cover hole — failed to have a warning sign.”
Following the return of the general verdict for plaintiff and the answers to special questions, the defendant filed a motion to set aside that portion of the answer to question number 4 following the word “yes” for the reason that such words are surplusage and argumentative; the words “she had no warning and” in the answer to question number 5 on the ground they are surplusage, argumentative and an attempt to evade the question; and to set aside the answers to questions 7, 8 and 10 on the ground they are contrary to and not sustained by the evidence and given under the influence of passion and prejudice of the jury in an effort to make their answers conform to the general verdict.
Defendant also moved for judgment on the answers to special questions notwithstanding the general verdict, and for a new trial.
All of these motions were by the court overruled. Judgment was entered on the general verdict, following which defendant perfected this appeal.
Defendant’s first complaint is that the court erred in overruling its demurrer to plaintiff’s evidence, and relies upon Kurre v. Graham Ship By Truck Co., 136 Kan. 356, 15 P. 2d 463, in support thereof. In that case it was held:
“Where a business invitee enters the premises of the inviter and follows a course of his own choosing, with which he is unfamiliar, and which is so dark that he cannot see, resulting in his injury, he is guilty of contributory negligence.” (Syl. IT 2.)
We have no fault to find with this rule but do not believe that the facts of that case justify its application here. In that case the basis of the decision was that plaintiff was not familiar with the path he was pursuing and that he had some warning of the danger when he came in contact with boxes and other obstructions. In the case now before us plaintiff’s evidence showed that on several previous occasions, when staying at the hotel, she had used the back door, had observed other guests doing the same and that she had no warning or knowledge of the hidden danger immediately outside the door. The rule to be followed in testing the sufficiency of evidence as against a demurrer is well stated in Jones v. McCullough, 148 Kan. 561, 83 P. 2d 669:
“In testing the sufficiency of evidence as against a demurrer, the court shall consider all of plaintiff’s evidence as true, shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between his direct and cross-examination, and, if so considered, there is any evidence which sustains the plaintiff’s case, the demurrer should be overruled.” (Syl. ¶ 1.)
“In determining whether a plaintiff is guilty of contributory negligence, when tested by demurrer or on motion for a directed verdict, the question must be submitted to the jury if the facts are such that reasonable minds might reach different conclusions thereon.” (Syl. If 2.)
In the case of Criswell v. Bankers Mortgage Co., 128 Kan. 609, 278 Pac. 722, this court said:
“Whatever refinements may be discovered in particular decisions, the rule is general that wherever men engaged in business invite the public to come upon their premises to patronize them, whether the business be that of hotel keeper, or merchant, or railway carrier or what not, there is a duty resting on the proprietor or manager in control of the business to keep in a reasonably safe condition those portions of his premises where guests or customers may be expected to come and go, and where he fails in that duty and a guest or customer is injured thereby a cause of actionable negligence will arise.”
and it was held:
“It is the duty of a hotel keeper to keep in a reasonable safe condition those portions of his hotel where his guests may be expected to come and go, and it cannot be said as a matter of law that there was no actionable negligence in his failure to sufficiently light a hallway through which the plaintiff had to go to reach her room and whereby she walked through an open doorway and fell down a stairway and was injured, but the issues of fact concerning the hotel keeper’s negligence and of plaintiff’s contributory negligence were for the jury.” (Syl. ¶ 2.)
See, also, Bass v. Hunt, 151 Kan. 740, 100 P. 2d 696.
Appellant’s argument that as a matter of law appellee was guilty of contributory negligence is untenable under the evidence introduced in her behalf and under the rule stated. Furthermore, as a matter of law one is not guilty of negligence who does not look for danger where there is no reason to apprehend any. Buck v. Miller Amusement Co., 166 Kan. 205, 200 P. 2d 286. We think the demurrer to plaintiff’s evidence was properly overruled.
Appellant’s next three assignments of error, namely, that the court erred in not setting aside answers to special questions, in overruling the motion for judgment notwithstanding the general verdict, and in overruling the motion for new trial, may be discussed together. From the journal entry of judgment it appears that the lower court considered the answer to question number 4 to be an affirmative answer; the answer to question number 5 to be a negative answer, and that such explanation in both answers was of some value in showing the theory of the jury when considered in connection with answer to question number 10. To take up and discuss in detail each of the answers returned by the jury and the evidence in support thereof would unduly extend this opinion and we consider it sufficient to say that each of the answers is supported by substantial, competent evidence. Appellant’s complaint as to answers 7 and 8 cannot be sustained for the reason that apparently the jury did not believe the testimony concerning the condition of the screen door at five and six o’clock P. M. of the evening in question. Moreover, even if those answers were stricken out plaintiff would still be entitled to recover on the remaining answers. This was primarily a fact case and it was entirely within the province of the jury, under proper instructions, to determine what the facts were. No complaint is made concerning instructions given by the court and so we can assume that the jury was properly instructed concerning the law of negligence, proximate cause, damages and other material matters. We are unable to find the lower court erred in overruling these three motions.
This brings us to appellant’s last complaint, namely, error of the court in rendering an excessive judgment. Plaintiff sued for damages in the amount of $5,000. The jury’s verdict was for $3,500, and the lower court rendered judgment thereon in that amount. The elements of damage were not itemized by the jury and from the record it would appear that it was based chiefly on shock, pain and suffering resulting to plaintiff. Error based on an alleged excessive verdict and judgment is seldom an easy question for an appellate court to review and is particularly difficult where the sum allowed is for pain and suffering. Many verdicts have “shocked the conscience of this court” so that a remittitur or reversal has been ordered, but there is no uniform yardstick or hard and fast rule by which the excessiveness of a verdict can be measured in a case such as this. We find nothing in the record to substantiate appellant’s argument that the verdict was returned under the influence of passion and prejudice, in which event, under the rule, we would be compelled to order a new trial rather than a remittitur.
Was this verdict excessive? No good purpose would be served in detailing the evidence with reference to plaintiff’s being confined to her bed for over a week following her injuries, her pain and suffering, her sprained and swollen ankle, the cut and sprain to her back, the fact that she had to use crutches for over two months, her loss of work, the permanency of the injuries to her back and legs, her inability to sleep and the resulting shock otherwise to her physical and nervous system — the jury heard all of this testimony, had the opportunity to observe the plaintiff and the other witnesses, and found in her favor in the amount stated. As was said in Rosson v. Wichita Transportation Corp., 167 Kan. 24, 204 P. 2d 591:
“In order to hold this verdict excessive we would have to substitute our judgment for that of the jury and the trial court and under the facts and circumstances of this case we do not feel compelled to do so.”
We find no error in the record before us and the judgment of.the lower court is therefore affirmed. | [
-15,
122,
-40,
-83,
10,
98,
42,
-70,
99,
-123,
-73,
83,
-21,
-62,
20,
105,
54,
111,
-48,
105,
-45,
-93,
23,
34,
-10,
-69,
51,
-44,
-71,
127,
-12,
-11,
72,
32,
-54,
85,
102,
-54,
-63,
84,
-114,
31,
-118,
-24,
113,
66,
48,
58,
-28,
15,
-79,
-115,
-13,
40,
29,
-49,
41,
44,
75,
41,
112,
-7,
-62,
-123,
127,
22,
16,
38,
-98,
-125,
-8,
16,
-100,
-75,
40,
-88,
114,
-73,
-126,
124,
103,
-69,
4,
98,
98,
34,
5,
-29,
-24,
-87,
46,
80,
-83,
-93,
-70,
72,
89,
8,
-99,
-99,
114,
0,
20,
86,
-1,
93,
89,
104,
-127,
-49,
-108,
-79,
-51,
-75,
-12,
-71,
-57,
55,
50,
113,
-52,
-88,
94,
-60,
113,
-101,
-113,
-78
] |
The opinion of the court was delivered by
Smith, J.:
This was an action for money. Judgment was for defendant. Plaintiffs have appealed.
The petition first named eight plaintiffs and one defendant and gave their addresses; then stated that prior to January 20, 1943, plaintiffs and defendant and Hossack, Dettman and Wendstrand were stockholders of the Inland Construction Company, which had 2,300 shares of stock outstanding; on January 20, 1943, Hossack, Dettman and Wendstrand offered in writing to sell their stock to plaintiffs and defendant; this offer was attached to the petition; that plaintiffs and defendant accepted this offer and purchased the 1,220 shares owned by the three parties named, of which 140 shares sold by Hossack were purchased by defendant for $160 per share; that the offer provided, in part, that—
“This offer to sell the Inland Construction Co. common stock is based and predicated upon renegotiation proceedings the net income for the year 1942 by about $259,000.00 or leaving a net income of about $100,000.00, subject to $40,000 federal taxes. If, after renegotiation the net income is more or less, adjustment is to be made between the buyers and sellers for any increase or decrease in net return to stockholders. Adjustment is also to be made on any increase or decrease in federal income and excess profits taxes for the years 1941 and 1942.”
The petition further stated that after the renegotiation was finished the net income for 1942 was $81,333.89 after taxes or $21,-332.89 more than the estimated amount in the offer to sell and plaintiffs thereby became jointly and severally liable to Hossack, Dettman and Wendstrand for $8.53 per share for the stock sold by them respectively; that plaintiffs paid to Hossack, Dettman and Wendstrand this amount and defendant failed to pay Hossack the amount due from him on account of the shares purchased by him and plaintiffs were compelled to and did pay him $8.53 per share, or $1,194.20, about December 31, T946, at which time Hossack assigned to them any right of action they might have under the offer and acceptance; that defendants were indebted to plaintiffs in the sum of $1,194.20. Judgment was prayed for that amount.
The defendant’s demurrer to this petition was overruled.
The defendant first answered with a general denial; he then admitted that he did sign certain documents but that since he had no copies denied plaintiffs’ exhibits “A” and “B” to be true copies; he admitted that he bought certain shares of the Inland Construction Company, 40 shares, the property of Grace Hossack, and that his wife purchased 100 shares, part of which was owned by Grace Hos-sack, and a part by Hossack; that the offer of Hossack contained the provision already quoted in this opinion; that he had no knowledge of the renegotiation proceedings conducted by the war department with the Inland Construction Company, so the allegations with reference thereto were denied; he denied the allegation with reference to the payment of Hossack; denied that there had been any increase in net return to the stockholders of the Inland Construction Company on account of renegotiation proceedings; denied that he had ever been indebted to Hossack or the plaintiffs. The reply was a general denial.
The action was submitted to the trial court and on December 16, 1948, the court found the facts generally for the plaintiffs and against the defendant and gave judgment for $1,194.20.
The defendant’s motion for a new trial was sustained. At the new trial the parties announced that it might be submitted on the record made at the first trial. On February 11,1949, the trial court made a journal entry, in which was contained a statement, as follows:
“On and prior to January 20, 1943, plaintiffs and defendant and John Q. Hossack, Charles L. Dettman and Ralph T. Wendstrand were stockholders of Inland Construction Company; at all times material herein said Inland Construction Company had 2500 shares of capital stock outstanding; on January 20, 1943, said Hossack, Dettman and Wendstrand executed and delivered to plaintiffs and defendant a written offer to sell’ their stock in Inland Construction Cpmpany, a true and correct copy of which is attached as Exhibit 'A’ to plaintiffs’ petition; that pursuant to said written offer to sell, plaintiffs and defendant accepted such offer in writing on January 23, 1943, a true and correct copy of said written acceptance being attached as Exhibit ‘B’ to the petition; that pursuant to such offer and acceptance, plaintiffs and defendant purchased all of the 1220 shares of the capital stock of Inland Construction Company described in said offer, of which defendant purchased 140 shares of the 500 shares sold by said Hossack, and certificates for such 140 shares were duly issued and delivered to defendant or his nominee, and defendant paid said Hossack therefor $160.00 per share, one-fourth in cash, and the remaining three-fourths by his promissory note as provided in said offer.
“The renegotiation proceedings referred to in said Exhibit ‘A’ were with the War Department, and were concluded during the year 1944, and the Federal income and excess profits tax liability of Inland Construction Company for the years 1941 and 1942 were finally determined during the year 1945, and that after said renegotiation proceedings had been concluded and such tax liability finally determined the net income of said corporation for the year 1942 was $81,333.89 after taxes, or $21,332.89 more than the estimated amount as stated in said Exhibit, and that plaintiffs paid to Hossack, Dettman and Wendstrand the sum of $8.53 per share for the stock purchased by plaintiff pursuant to said offer and acceptance. Exhibit ‘A’; that defendant refused to pay Hos-sack the sum of $8.53 per share for the 140 shares purchased by defendant, and plaintiffs paid the same in the aggregate sum of $1194.20 on or about December 31, 1946, at which time Hossack executed and delivered to plaintiffs the assignment, a copy of which is attached to the petition as Exhibit ‘C.’
“There was no ‘net return to the stockholders’ of Inland Construction Company of the sum of $8.53 per share by the declaration of dividends, and that defendant Myers had sold all of his stock in Inland Construction Company to said company prior to the time the renegotiation proceedings had been completed, and plaintiffs were the directors and stockholders of Inland Construction Company.
“That by reason of the premises plaintiffs are not entitled to recover, and judgment should be rendered for the defendant.”
Judgment was entered for the defendant.
Plaintiffs filed a motion for a new trial on the grounds of abuse of discretion, erroneous rulings, judgment and decision contrary to evidence and newly discovered evidence.
This motion was overruled, hence this appeal.
The appeal is from the order of January 11, 1949, sustaining defendant’s motion for a new trial, the order, judgment and decision of February 11, 1949, in favor of defendant and against the plaintiffs and the order of March 4, 1949, overruling plaintiffs’ motion for a new trial.
The specifications of error are that the trial court erred in allowing defendant’s motion for a new trial, in its interpretation of the meaning of the offer to sell, in making the following findings and conclusions:
“There was no ‘net return to the stockholders’ of Inland Construction Company of the sum of $8.53 per share by the declaration of dividends, and that defendant Myers had sold all of his stock in Inland Construction Company to said company prior to the time the renegotiation proceedings had been completed, and plaintiffs were the directors and stockholders of Inland Construction Company.
“That by reason of the premises plaintiffs are not entitled to recover, and judgment should be rendered for the defendant.”
In their brief plaintiffs state the question to be, Did the court err in its interpretation of the contract and did the court err in making the findings and conclusions as set out above?
There is not much real dispute in the evidence. All parties concede the terms of the written offer, its acceptance and the result of the renegotiation and that the corporation made $21,332.89 more than was estimated would be made when the stock was sold. One of the plaintiffs testified that as a result of the renegotiation proceedings there was a net return to the stockholders of the Inland Construction Company of more than $60,000 spoken of in the offer. He testified further, however, that the money was in the surplus of the corporation and the individual stockholders received nothing personally as a result of the renegotiation. There seems to be no doubt about that. This testimony was no doubt what caused the trial court to make the statement “There was no ‘net return to the stockholders’ of Inland Construction Company of the sum of $8.53 per share by the declaration of dividends.”
Plaintiffs argue that this statement indicates that the trial court had the wrong theory of the case. They argue that the trial court violated the rule that in the interpretation of a contract effect should be given to the real intent of the parties. They point out that the Inland Construction Company had been engaged in work for the war department and their contracts were subject to renegotiation — hence no one could tell what would be the profits and on that basis Hossack, Dettman and Wendstrand were willing to sell so long as the buyers would agree to see that they should not lose. The authorities cited and relied on by plaintiffs to sustain this position are sound. They do not require the conclusion contended for by plaintiffs here, however. The offer of sale did provide that the adjustment in the price should depend on an increase or decrease in net return to the stockholders. Plaintiffs would have us interpret this offer as though it had provided that the adjustment should depend on net return to the corporation. They did not ask that the offer be treated as a contract and reformed, however. The trial court was justified in considering all the surrounding facts and circumstances. Defendant had sold his stock before the renegotiation proceedings were finished. The stock was closely held. Plaintiffs and defendant were the only stockholders. After defendant sold his stock, plaintiffs owned it all. As matters now stand, they as stockholders have profited by having the $21,332.89. Should they be permitted to prevail here they would have not only that amount in the treasury of the company but the $1,194.20 from defendant, which the defendant never did receive. We have concluded that a fair interpretation of the contract does not permit such a result.
Plaintiffs argue there was no evidence that defendant sold his stock to the company and the court erred in making such a finding. The defendant testified that he was paid for this stock by checks drawn on the company. His offer to sell was made to the stockholders of the Inland Construction Company and accepted by them by the president of it. This was substantial evidence that he sold his stock to the corporation.
The judgment of the trial court is affirmed. | [
112,
126,
-68,
-68,
26,
-32,
42,
-101,
120,
-24,
-89,
83,
-55,
75,
4,
125,
-25,
61,
81,
122,
-9,
-93,
23,
-70,
-41,
-77,
-7,
-35,
-67,
79,
-12,
87,
76,
32,
-62,
-99,
-26,
-110,
76,
20,
78,
-123,
-102,
-19,
-35,
96,
48,
-101,
100,
75,
49,
-116,
-13,
36,
29,
75,
105,
46,
123,
-8,
-63,
-8,
-78,
-52,
-33,
6,
33,
48,
-100,
-61,
-56,
30,
-104,
49,
41,
-23,
114,
-74,
-121,
-12,
33,
-21,
44,
32,
98,
3,
81,
-25,
88,
-104,
46,
-2,
-115,
-91,
19,
24,
2,
96,
-66,
-97,
-8,
2,
7,
126,
-2,
13,
29,
108,
5,
-117,
-26,
-77,
-33,
-2,
30,
3,
-21,
-109,
50,
100,
-53,
-86,
94,
71,
58,
-105,
-113,
-108
] |
The opinion of the court was delivered by
Smith, J.:
This action was brought to review an order of the corporation commission. Judgment was for the plaintiff. Defendant has appealed.
The action arises out of activity of the commission to administer G. S. 1947 Supp., 55-701 to 713. This is commonly known as the gas proration statute. G. S. 1947 Supp., 55-703, provides that whenever the available production of gas from any common source of supply is in excess of the market demands for such gas or whenever the demands can only be fulfilled by production under conditions constituting waste or whenever the commission finds that the orderly development of and production requires the exercise of its jurisdiction, then
“Any person, firm or corporation having the right to produce natural gas therefrom, may produce only such portion of all the natural gas that may be currently produced without waste and to satisfy the market demands, as will permit each developed lease to ultimately produce approximately the amount of gas underlying such developed lease and currently produce proportionately with other developed leases in said common source of supply without uncompensated cognizable drainage between separately-owned, developed leases or parts thereof.”
The statute then confers on the commission power to regulate the taking of gas and to promulgate such rules and regulations as may be necessary and that before any gas shall be produced from any well, a certificate shall be obtained from the commission for the construction of the facilities necessary and for the utilization of the gas and the commission shall issue the certificate unless it finds after a hearing that the contemplated production of gas shall be in violation of the act.
Acting pursuant to the rule making and regulatory power conferred, the commission on March 21, 1944, after extensive hearings adopted what it termed the Basic Proration Order for the Hugoton Gas Field. It was properly filed with the revisor of statutes and its provisions have the force and effect of duly enacted statutes. (See G. S. 1947 Supp., 77-405 to 414.)
This basic order recognized that there were many problems common to all oil and gas leases. It first found the facts necessary to give the commission jurisdiction. After referring to several facts having a bearing, the commission found that one well could adequately and sufficiently drain the gas from 640 acres and that in the proration formula to be prescribed later in fixing the allowable production from a well the acreage feature should be 640. Paragraph {ff) of this Basic Order then contained the following provisions:
“To be considered as attributable to a well, the acreage shall be contiguous or adjoining with the well located as near as practicable in the center thereof, and in no event nearer than 1250 feet from any boundary line of the unit; except, however, that this restriction shall not apply to leases or tracts which have already been unitized in compliance with previous orders issued by the Commission, or to wells now in existence and located on tracts containing less than 640 acres. Such wells, now in existence, and located on tracts containing less than 640 acres may be attributed acreage which is held by production from such well, if such acreage is located within a two mile radius of the well, or upon application, and after notice and hearing, the Commission may authorize the inclusion of acreage as being attributable to a well now in existence if the acreage lies within a three mile radius of the well and if upon hearing it is shown to the Commission that it is impossible or impracticable to unitize the tract upon which such well is located with other acreage lying within two miles thereof; provided however, that the Commission may, either on complaint filed, or upon its own motion, after notice and hearing, exclude any acreage from inclusion in any unit which, in its judgment, is not productive and which should not be considered as proven acreage.”
Paragraph (Ji) provided, in part:
“It shall be lawful for the owners of two, or more separately owned tracts of land, or, of the minerals located thereunder, by appropriate contract between such owners, to cause such lands or minerals to be consolidated as one production unit and to apportion the royalties accruing from the production of the well or wells, to be divided among them as they may agree and when such agreement shall have been made, the royalties arising from the production of the well or wells shall be allocated as the parties thereto may agree.”
Paragraph (;') contained, amongst other provisions, the following:
“The adoption of a formula that will enable each well to currently produce its allowable and ultimately produce approximately the amount of gas underlying the lease upon which it is located is the object sought to be accomplished by this order. The testimony at the numerous hearings held by the Commission indicates that there are many factors which should be considered in connection with the formula, such as, acreage, pressures, open-flow, porosity and thickness of the pay. It is conceded by practically all of the witnesses that acreage is one of the most important of these factors and should be one of the factors included in the formula.”
Paragraph (k) prescribed a formula by which the factor of deliverability of a well should be determined.
The application out of which this action grew was made on account of the provisions of Paragraph (g) that have already been quoted. The application alleged that the applicant was the owner of an oil and gas lease on the north half of section 10 and the south half of section 6; that it had bound itself to drill a gas well on these lands; that it had drilled a well on one of the quarters of the north half of section 10 and it had been completed as a producing well and applicant sought to unitize the two half sections into a 640-acre drilling unit; that the two tracts were not contiguous and the south half of section 6 was not adjacent to the tract upon which the gas well had been drilled; and if the two tracts were not permitted to be unitized either one or both of them would become isolated and unable to share in the gas production from the Hugoton field. The prayer was that the commission grant an exception to paragraph (g) of the Basic Order permitting the south half of section 6 to be attributed to the north half of section 10 and for an order fixing an allowable in accordance therewith. The Northern Natural Gas Company protested the application and filed as a part of its protest a map marked in this record as Exhibit 1. This map has been furnished us. It shows the north half of section 10 to be surrounded on all four sides by land upon which Northern Natural Gas has an oil and gas lease and that at the nearest point the northern half of section 10 is two miles from the south half of section 6. After several hearings the commission issued an order reciting that the well drilled did not have 640 acres attributable thereto; that the applicant had a market for the gas produced from the well; that the granting of an exception to the provisions of said paragraph (g) of the Basic Proration Order would adversely affect and violate the correlative rights of landowners who have adjacent or adjoining acreage; and that applicant’s request for said exception should be denied.
The order was that the application for an exception to paragraph (g) be denied and that applicant be permitted to attribute to the well the 320 acres contiguous to the land upon which it was drilled.
In accordance with the statute, the applicant filed a petition for a rehearing on the ground that the order was contrary to the evidence adduced at the hearing; that the commission took into consideration factors not within its jurisdiction; that the denial of the application invoked an invasion of the rights of the mineral owners in the lands involved; that the order was arbitrary; that the order was inconsistent with the previous orders of the commission wherein assignments of allowables were granted under similar circumstances; that the gas well affected by the commission’s order was being drilled subject to the terms and provisions of an oil and gas lease executed by the United States of America under date of December 31, 1938, and antedated the date of basic proration order for the Hugoton Gas Field, and that the denial of the allowable for said gas well as prayed by applicants was an impairment of the lease contract and a violation of the constitution of the United States; that the denial was a violation of the Fourteenth Amendment; that it was a violation of the constitution because it impaired the obligation of a contract; that all the acreage situated within two miles of the tract upon which the well was drilled, with the exception of two sections, was owned by the Northern Natural Gas Company and the evidence at the hearing showed that the Northern Natural would not unitize with applicant except on terms disadvantageous and the order of the commission operated unlawfully against the rights of applicant. After hearing, the commission found that an allowable had been assigned the well; that by this order applicant would be enabled to take from the well such portions of the gas as might be produced without waste and denied the rehearing. In due time applicant filed its action for a review in accordance with G. S. 1947 Supp., 55-707 and 55-606.
In this petition it first alleged facts about as they had been alleged in their application. It then alleged the filing of the application, the opposition of the Northern Natural Gas Company and the denial of its prayer. It further alleged that the issue before the commission was whether it should be entitled to an allowable based on an attributable acreage of 320 acres in accordance with the Basic Order or whether an exception should be granted in order that they might be assigned a full allowable based on 640 acres and that the commission’s order denying that relief aggrieved them. The petition further alleged that the denial of their request involved a violation of the correlative rights of the mineral owners in the lands involved and resulted in a dissipation and waste of natural gas under the premises and resulted in an irreparable injury to the mineral rights of the owners. It further stated that the orders were not supported by any competent evidence; that they were contrary to the evidence; that the commission took into consideration factors regarding the price of gas and contractual provisions of gas purchase contracts not in the jurisdiction of the commission; were arbitrary and capricious and discriminatory against the plaintiffs. The petition then contained the following allegations:
“Plaintiffs further state that said orders of the Commission are inconsistent with previous orders of the Commission in determining matters involving the same issue, and, therefore, the action of the Commission does not result in the application of the gas proration statute of the State of Kansas, and the rules and regulations promulgated by the Commission, fairly, equally and uniformly to the entire area recognized by the Commission as being a common reservoir of gas.”
It alleged the constitutional grounds already set out here, as contained in the application for a rehearing. It prayed that the orders of the commission be held unreasonable, illegal, arbitrary and null and void and asked that the order be superseded by the court and that the court assign an allowable for the well described, based on the south one-half of section 6, to be attributable to the north one-half of section 10. To this petition the defendants filed first a general denial and then a special denial of the allegations that the order was not supported by competent evidence and were discriminatory against plaintiffs. The answer also denied that the orders appealed from were inconsistent with previous orders of the commission. They further denied the constitutional grounds alleged.
The reply of the appellees was a general denial.
In accordance with G. S. 1947 Supp., 55-606, the applicant filed with the clerk of the district court an abstract of the record of all the evidence and proceedings before the commission. The district court found the orders of the state commission were not supported by the complete record; that they were unfair and discriminatory and inconsistent with other orders of the commission made in matters involving same or similar issues and further found that they did not result in the application of the Gas Proration Statute and the regulations promulgated by the commission fairly, equally and impartially. The court set aside the orders of the commission inasmuch as it denied the assignment of an allowable for the well on the basis of 640 acres as attributable thereto. The court made a further order, as follows:
“That this action is hereby remanded to the State Corporation Commission with directions that it further consider its order of July 8, 1948, taking into .consideration other orders of the Commission in regard to the same or similar situations as are under consideration herein, and enter its order assigning to the said gas well known as U. S. A. No. 1, an allowable based on the attribution thereto of the acreage described as the North Half of Section Ten (10) and the South Half of Section Six (6), Township 25 South, Range 34 West, Einney county, Kansas, constituting a full 640 acre allowable thereto.”
The motion of the commission for a new trial was denied — hence this appeal.
The appellant assigns error that the court erred in overruling its motion for a new trial, in entering judgment, in making findings not predicated on evidence, in its finding that the order entered did not result in the application of the gas proration statute fairly and uniformly; that the court erred in remanding the matter to the commission requiring it to enter an order assigning an allowable to a gas well not in conformance with the commission’s Basic Order; and the court erred in setting aside the commission’s order.
Two of the questions first argued by the appellant are stated, as follows:
“1. Does a district court have jurisdiction to set aside an order of the State Corporation Commission made pursuant to a Basic Proration Order for a gas field in Kansas and to substitute its judgment for that of the Commission without authority either from the statute or by the Basie Proration Order for the field?
“2. Can a district couxt, without statutory authority, set aside and remand to the State Corporation Commission an order of the Commission, made pursuant to a Basic Proration Order for a certain gas field of Kansas and pursuant to statutory authority granted to said Commission, and direct said Commission to enter an order not in accordance with the Basic Proration Order and pertinent statutes?”
This argument sends us to an examination of the sections providing for review of actions of the commission. G. S. 1947 Supp., 55-707, is a section of the gas proration statute and provides that actions to review decisions of the commission may be brought and should be governed by the provisions of G. S. 1947 Supp., 55-606. This section is part of the oil proration statute.
It provides first for the venue of actions for judicial review of orders of the commission; next for the parties by whom such actions may be brought; and the time within which they may be brought. With none of these provisions are we concerned here.
The statute next contains a provision, as follows:
“Any rule, regulation, order or decision of the commission may be superseded by the district court upon such terms and conditions as it may deem proper.”
The section then provides:
“In any such action an abstract of the record of all evidence and proceedings before the commission shall be filed by the complaining party and a counter abstract may be filed by the commission or any other interested party. The district court may, when it deems it necessary and in the interest of justice, remand any such action to the commission with directions that the same be further investigated or additional evidence taken by the commission.”
The section then provides for further hearing and orders by the commission and then provides:
“The court shall not be bound by any finding of fact made by the commission. The authority of the court shall be limited to a judgment either affirming or setting aside in whole or in part the rule, regulation, order or decision of the commission.”
It will be readily noted the above statute does not provide that the trial court should hear or consider any evidence other than what was heard and considered by the commission. To hold otherwise would be to hold that the provisions for the court remanding a proceeding for further hearing was meaningless. This is in accordance with our holding in Southern Kansas Stage Lines Co. v. Public Service Comm., 135 Kan. 657, 11 P. 2d 985, also Union Pac. Rld. Co. v. State Corporation Commission, 165 Kan. 368, 194 P. 2d 939. In those cases we were considering G. S. 1935, 66-118 (d), the general statute for review of orders of the corporation commission. The provisions of it, however, and those of G. S. 1947 Supp., 55-606, are to the same effect. (See, also, Wakefield v. State Corporation Comm., 151 Kan. 1003, 101 P. 2d 880.)
We gather from statements of counsel at the oral argument be fore us and from colloquy of counsel before the trial court as it appears in the record, the commission had in the past made orders permitting acreage to be unitized for the purpose of setting up a tract of 640 acres where some of the tracts were not contiguous. That such has happened must be conceded. Indeed such action is contemplated by the provisions of paragraph (g) of the basic order. The burden of the argument of appellees stated in its brief, is as follows:
“If, therefore, the Commission has granted exceptions to paragraph (g) of the Basic Order, it has a duty to grant further and additional exceptions where the refusal to grant such exceptions would result in discrimination, inconsistency and unfairness. The Commission does not have the power under the statute, or otherwise, to establish a rule and to depart from that rule only when it sees fit. By making exceptions to the rule in favor of certain producers, it gives the right to other producers to be granted similar exceptions where the same or similar facts exist.”
The argument is certain companies have been permitted to unitize noncontiguous tracts in the past and to deny appellee the same right is to deprive it of a right and advantage other companies have had, hence, is to fail to administer the statute fairly and impartially, and to invade the correlative rights of the mineral owners under the land involved.
The trouble with that argument is it depends for its force upon whether in the other cases the same or similar facts existed. This record does not disclose such a situation. The case should have been tried upon the record brought to the attention of the commission at the hearings before it. It does not appear the attention of the commission was there called to orders it had made permitting the unitizing of noncontiguous acreage under circumstances similar to those prevailing here. Counsel state in their brief that counsel for the commission stipulated that such orders had been made. We have examined the record, especially the colloquy between counsel at the hearing in district court and do not find counsel went that far. That orders permitting unitization of noncontiguous acreage had been made could not be denied. That they were made under the same or similar circumstances, however, is something else.
The hearing before the commission was had pursuant to paragraph (g) of the basic order. That paragraph provides the commission may after notice and hearing authorize the inclusion of noncontiguous acreage, if it is shown it is impossible or impracticable to unitize the tract upon which the well is located without acreage within two miles. This provision places a broad discretion in the commission. No one argues here that any producer has the privilege as a matter of right to unitize noncontiguous acreage. To so hold would be to render meaningless the provision for a hearing and notice and would impede if it did not strike down the general purposes of the act.
The appellee here, the applicant before the commission, had the burden not only of establishing that allowing the south half of section six to be attributed to the north half of section ten was necessary to prevent the two tracts from becoming isolated, thereby making it impossible for the tracts to share in the gas production from the Hugoton field. It also had the burden of establishing that such unitization would not adversely affect and violate the correlative rights of other landowners in the field who owned adjacent acreage. Several hearings were had. The testimony for the most part consisted of the story by a representative of the White Eagle on one hand and of the Northern Natural on the other of their negotiations in an effort to bring about a businesslike adjudgment of the matter. When it became apparent that these efforts had resulted in failure to agree the commission denied the order. In denying it, the commission found, in part:
“That the granting of an exception to the provisions of said paragraph ‘G’ of the Basic Proration Order would adversely affect and violate the correlative rights of landowners who have adjacent or adjoining acreage; and that applicant’s request for said exception should be denied.”
In its motion for a rehearing and later in its'petition for review the appellee elaborated somewhat on the allegations of its original application. For instance, in its petition for a rehearing it made an allegation, as follows:
“That the order of the Commission is inconsistent with the previous orders of the Commission wherein assignments of allowable were granted under similar facts and does not result in the application of the gas proration statute of the State of Kansas, and the rules and regulations promulgated by the Commission, fairly, equally and uniformly to the entire area recognized by the Commission as being a common reservoir of gas.”
No evidence was tendered the commission, however, to prove this allegation. In its petition for review an allegation of similar import was made, already quoted in this opinion. Since no evidence to prove this allegation had been offered the commission at the hearing before it, the allegation was unavailing when it was made because the trial court was limited in its consideration to evidence introduced before the commission. This was the evidence counsel for appellee endeavored to bring to the attention of the trial court by means of stipulation, as we have already noted:
With such a record the trial court found:
“That the orders of the State Corporation Commission dated July 8, 1948, and August 4, 1948, in Docket No. 35,906-0 (C-1930), are not supported by the complete record, and that said orders are unfair and discriminatory to plaintiffs, and inconsistent with other orders of said Commission made in matters involving the same or similar issues; and said orders do not result in the application of the gas proration statute of the State of Kansas and the rules and regulations promulgated by the Commission fairly, equally, and uniformly to the area recognized by the Commission as being a common reservoir of gas.”
And entered judgment, as follows:
“That this action is hereby remanded to the State Corporation Commission with directions that it further consider its order of July 8, 1948, taking into consideration other orders of the Commission in regard to the same or similar situations as are under consideration herein, and enter its order assigning to the said gas well known as TJ. S. A. No. 1, an allowable based on the attribution thereto of the acreage described as the North Half of Section Ten (10) and the South Half of Section Six (6), Township 25 South, Range 34 West, Finney County, Kansas, constituting a full 640 acre allowable thereto.”
It will be readily noted the trial court considered evidence which had not been offered the commission. Provision for such a contingency is in G. S. 1947 Supp., 55-606, where it is provided that:
“The district court may, when it deems it necessary and in the interest of justice, remand any such action to the commission with directions that the same be further investigated or additional evidence taken by the commission.”
When it became apparent at the trial the White Eagle was relying on evidence that had not been presented to the commission it became the duty of the court to remand the action to the commission for further taking of evidence, as provided by the statute.
It follows that so much of the trial court’s order as remanded the action to the commission for reconsideration was correct. That portion of it which directed the commission after consideration to enter its order assigning to the gas well an allowable based on the attribution thereto of the north half of section ten and the south half of section six was incorrect. The order should have been simply that the action was remanded to the commission with directions that it further consider its order.
The judgment of the trial court is reversed with directions to enter judgment in compliance with the views expressed herein. | [
-16,
-6,
-44,
92,
26,
96,
24,
-101,
93,
-5,
-25,
19,
-83,
-58,
16,
113,
-53,
107,
85,
104,
-9,
-78,
1,
82,
87,
-45,
17,
-39,
55,
77,
-20,
77,
72,
32,
-54,
-43,
-26,
10,
-57,
94,
-50,
33,
-119,
-31,
89,
0,
50,
42,
18,
15,
81,
15,
-29,
36,
25,
-53,
41,
38,
-3,
40,
-55,
-8,
-70,
-107,
15,
20,
49,
102,
-128,
39,
-40,
62,
24,
57,
24,
-24,
115,
-94,
4,
-4,
47,
-5,
40,
32,
111,
1,
117,
-17,
72,
-40,
23,
-74,
-99,
-89,
-47,
24,
99,
-30,
-98,
29,
114,
16,
-121,
126,
-22,
5,
95,
124,
1,
-98,
-42,
-93,
7,
105,
-104,
17,
-53,
-93,
0,
48,
-51,
-78,
93,
15,
115,
-101,
-49,
-24
] |
The opinion of the court was delivered by
Price, J.:
This is an eminent domain case and involves the question of compensation for land taken in the laying out of a public road. The facts of the case, material for our purposes, are as follows:
The appellant, T. W. McIntyre, is the owner of an eighty acre tract of land, hereinafter referred to as the west eighty. His wife, Ruby, owns an adjoining eighty acre tract, hereinafter referred to as the east eighty. Certain proceedings were had by the board of county commissioners of Doniphan county for the establishment of a public road and as established and laid out it took approximately one-fifth of an acre from the southeast corner of the west eighty, owned by appellant, in making a curve to the northeast, after which the road continued directly north completely across the east eighty owned by Ruby, the north and south course of the road being approximately eighty feet east of the dividing line between the two eighty-acre tracts and upon that tract owned by Ruby. Both tracts had been operated together as one farm unit ever since the land was cleared by one Searles, the father of Ruby, and appellant had operated the two tracts as one farm unit for about thirty years. There was no written contractual arrangement between appellant and his wife concerning the operation of the two tracts as a unit. The west eighty is what is known as rich bottom land and the east eighty, belonging to Ruby, is termed rolling or hill pasture land. Appellant and Ruby moved to California and the two eighties were being farmed by their son, who is not a party to this action. The barns, feed lots and water supply are located in the southeast corner of the west eighty, and the remainder of his tract is devoted primarily to the raising of corn and alfalfa. The house and corncrib are located in the southwest corner of the east eighty, belonging to Ruby, and the rest of her tract is devoted chiefly to pasture. Normally two hundred head of livestock are fed and watered on the west eighty and pastured on the east eighty. The public road, as laid out, roughly bisects the one hundred sixty-acre farm unit from north to south, separating barn lot from pasture, the water supply from the pasture land, and cuts between the house and the barn, feed lots and water supply.
Appellant filed a claim with the board of county commissioners in the sum of $14,850. That body allowed him $500, from which award he appealed to the district court. We are advised that Ruby also filed a claim in the sum of $14,850, which was disallowed, and that she has appealed to the district court where the case is still pending.
At the trial in the lower court appellant, over the objection of appellee, was permitted to introduce evidence to the effect that the two tracts had been farmed as a single unit for a period of years, and also evidence showing damage resulting to appellant’s tract by reason of interference with the use to which it was put in connection with the tract owned by Ruby. In passing, it may be noted that according to several witnesses the damage resulting to appellant’s tract, when considered with Ruby’s tract as a single farm unit, on account of the laying out of the road in question varied from $2,500 to $6,000. After the introduction of such evidence the lower court sustained a motion on behalf of the board of county commissioners to strike this evidence of appellant relating to the farming of the two eighties as one unit and relating to damages to appellant’s tract because of the construction of the road upon the entire tract and limited the issue to damages to appellant’s tract by reason of the roadway constructed only on his tract alone, and in this connection the jury was instructed as follows:
“You are further instructed that evidence has been introduced in this case tending to show that for the past ten or twelve years the T. W. McIntyre tract has been farmed in conjunction with the land owned by Ruby McIntyre and that the two farms were farmed as a single unit. You are instructed that there has been no evidence tending to show the contractural relationship by and between T. W. McIntyre and Ruby McIntyre providing for the farming of said land as a single parcel or unit and that in your deliberations you are to completely disregard all evidence as relates to the Ruby McIntyre farm and evidence which tends to show that the T. W. McIntyre tract was farmed in conjuction with the Ruby McIntyre tract as a single farming unit and any inconvenience which the evidence tended to show resulted from the building of said road to the use of the Ruby McIntyre tract is not to be considered as an element of damages.”
The jury returned a general verdict finding for appellant in the amount of $125 and answered special questions as follows:
“1. At what amount do you value the Ys acre of land taken for road? A. $80.00.
“2. What amount of damage has the appellant sustained by reason of necessity of constructing additional fence on the West 80 acres tract? A. $45.00.
"3. If you find that appellant has sustained any damage on account of the location of the road other than the value of the land taken, state the amount and the items of damage sustained. A. None.”
His motion for a new trial being overruled, an appeal was perfected to this court, and while appellant sets out nine specifications of error really the only question presented to us is the propriety and correctness of the principle of law stated by the lower court in its instruction above quoted.
That the two separately owned tracts had been farmed as a unit for many years is not disputed and from the record before us it probably is an established fact that, considering the use to which it had been put, appellant’s tract was diminished in value on account of the road being built across his wife’s tract, but the real question is — may the owner of one tract recover for such alleged damage to his tract on account of the taking of land belonging to another — or is his recovery limited to the damage resulting from, the taking of a part of his tract?
The statutory authority for the condemnation before us, G. S. 1935, 68-106, provides that the county commissioners shall “assess and determine the amount of damages sustained by any person or persons through whose premises the said road is proposed to be established.”
Appellant contends the trial court erred in instructing the jury to disregard the evidence showing the use to which his tract had been put in conjunction with Ruby’s tract and in effect limiting his recovery to damages sustained solely by the taking of a part of his tract.
The general rule for determining what is just, adequate and fair compensation for land taken is that the owner is entitled to show the best and most advantageous use to which the property may be put and this, of course, takes into consideration its contiguity to and use in connection with land not taken. Irrigation Co. v. McLain, 69 Kan. 334, 76 Pac. 853; Saathoff v. State Highway Comm., 146 Kan. 465, 72 P. 2d 74; 29 C. J. S., Eminent Domain, § 140, P. 981, § 160, P. 1024. But is the rule so broad as to include damages resulting from the taking of another’s land, under those circumstances?
Appellant relies heavily on the case of Comm’rs of Smith Co. v. Labore, 37 Kan. 480, 15 Pac. 577 (cited in the note in 29 C. J. S., p. 983) as authority for his contention. In that case a father and two sons each owned a quarter section of land lying together in one body. Under a written contract of copartnership they used the three tracts for raising cattle owned by them in common. A public road was constructed across each tract, the effect of which was to separate a large part of the grazing land from the water supply, thus rendering the use of the land in a body, under the contract, less valuable, thereby lessening the value of each tract. The court held that each owner was entitled to damages for the loss of value as to his own land based on its use in connection with the other tracts under the contract. While there is some language in the opinion which might support appellant’s theory, yet in summing up the court said:
“Now it is not necessary in this case, in order to sustain the judgment of the court below, that any one of the Labores should be awarded anything as a tenant or lessee, or anything for any injury done to the land of either of the others. Each originally claimed, and we may consider each as still claiming, damages only for injuries done to his own land.”
It is further contended that appellant’s interpretation of the La-bore case, supra, is strengthened by this court’s holding in L. N. & S. Rly. Co. v. Wilkins, 45 Kan. 674, 26 Pac. 16. However, close analysis of the latter case would indicate that the court merely decided that a cause of action for injuries to land owned by one party could not be joined with an action for injuries to land owned by him and another jointly, and in the fourth paragraph of the syllabus it is held:
“In an action for damages for injuries to lands by reason of the appropriation of a right-of-way for a railroad company across the same, damages must be confined to the tract of land over which the right-of-way is condemned, unless the owner has other lands contiguous thereto, and so situated with respect to the same that the value is appreciably augmented by their use in connection therewith as a single farm, and the appropriation of said right-of-way has destroyed or seriously interfered with such use.” (Emphasis supplied.)
Counsel have not cited and our independent search has failed to disclose any case squarely in point to the question at hand. However, there is an abundance of general authority in support of the theory upon which this case was tried in the lower court. In 18 Am. Jur., Eminent Domain, § 271, p. 912, we find the following general rule:
“Tracts held by different titles vested in different persons cannot be considered as a whole where it is claimed that one is incidentally injured by the taking of the other for a public use. This is the rule although the owner of the tract taken holds an interest in the property claimed to be damaged, and although the two tracts are used as one.”
At 6 A. L. R. 2d, beginning on page 1197, there appears a lengthy annotation on the general subject matter. Several decisions digested therein are helpful in the instant case.
In Glendenning v. Stahley, 173 Ind. 674, 91 NE 234, where one tract was owned by a man and his wife as tenants by the entirety and the other was owned by the husband alone the court said:
“It is settled that in determining the amount of special benefits or damages sustained by any one proprietor, all land belonging to him lying in a contiguous body and used together for a common purpose will be considered as one tract or farm, without regard to governmental subdivision. . . . This principle cannot be extended to cover lands owned by different proprietors, although contiguous and used under one management and for a common purpose. Claims for damages in proceedings of this character are personal, and must be asserted in the name of the actual owners of the lands affected. One person may not recover damages sustained by another, and manifestly special damages suffered by one proprietor could not be compensated by benefits accruing to another.”
In Tillman v. Lewisburg & N. R. Co., 133 Tenn. 554, 182 SW 597, L. R. A. 1916D 259, where the part of a farm lying on one side of a road was owned by plaintiff individually, but that on the other side was owned by her and her husband as tenants by the entirety, it was held that she could not recover for injury to the tract owned by her individually caused by the location of a railroad across the tract owned with her husband, notwithstanding the fact that the two tracts were and had been continuously used and operated together as one farm and that the residence, barn and servants’ houses situated on the one were supplied with water by means of a reservoir located on the other, and the court said:
“The two tracts are held by different titles vested in different persons. Separate condemnation proceedings would be required to condemn a right of way over them, and separate suits would have to be brought for damages by the distinct owners against an appropriator for injuries done the tracts.”
In the case of Duggan v. State, 214 Iowa 230, 242 NW 98, two tracts had long been leased and used as one farm. The tract through which the location was made was owned by a brother and sister jointly, whereas the other tract was owned by the sister alone, and the question was whether damages for a highway location across one of the tracts should include the injury to the farm as a whole. It was held that damages could be assessed only as to the tract crossed by the location.
It is true that in a great majority of the adjudicated cases the taking was from only one of the tracts used in conjunction with another tract or tracts owned by another but used together as one unit, while in the case before us we not only have a diversity of ownership of the two tracts used and operated as one farm unit, but we also have a taking from each tract in question. However, the same general principle must apply, that is, the pieces of land alleged to be a single tract must be owned by the same party and one owner is not entitled to recover compensation for land taken from him because of alleged damage resulting to that portion of his land remaining on account of the taking of land belonging to another even though, as under the facts of this case, the two tracts had been farmed and operated as one unit. The theory of compensation in eminent domain cases is that the owner is to be compensated fully for all land taken from him, including the diminution in value of that remaining owned by him, but full compensation does not include diminution in the value of the remainder caused by the acquisition of adjoining lands of others for the same undertaking. See Annota tion at 170 A. L. R., beginning at page 721; also, State, ex rel. Wirt, v. Superior Court, 10 Wash. 2d 362, 116 P. 2d 752.
By the very great weight of authority we think the lower court was eminently correct in removing from the jury’s consideration all evidence of alleged damage to appellant arising out of the taking of land belonging to another and in limiting the issue of his recovery to the damage he sustained solely on account of the taking of land owned by him.
It therefore follows that the judgment of the lower court must be and the same is hereby affirmed. | [
-16,
-18,
-107,
-67,
42,
96,
26,
-104,
75,
-93,
-10,
83,
-81,
-54,
29,
113,
-29,
61,
65,
106,
-42,
-94,
87,
-31,
-71,
-69,
-109,
-52,
-71,
77,
-26,
86,
77,
1,
-54,
85,
98,
-96,
69,
84,
-50,
-114,
-117,
92,
-55,
66,
62,
123,
0,
75,
49,
-113,
-45,
45,
29,
-61,
45,
44,
-37,
41,
1,
120,
42,
-100,
95,
14,
16,
38,
-72,
-63,
-56,
106,
-104,
49,
0,
-8,
83,
-90,
-106,
116,
75,
-101,
12,
-90,
106,
1,
76,
-49,
104,
-104,
14,
-2,
-115,
-26,
-128,
24,
90,
66,
-98,
29,
112,
20,
-34,
126,
-3,
-115,
93,
104,
5,
-117,
-106,
-93,
-49,
-72,
-120,
2,
-53,
-121,
18,
113,
-53,
-30,
76,
101,
116,
-97,
-117,
-47
] |
The opinion of the court was delivered by
Arn, J.:
This is an appeal by Washington township of Nemaha county from an order sustaining a demurrer to the petition and from an order sustaining a motion to quash the alternative writ of mandamus in a mandamus proceeding instituted by the township to require the county treasurer to distribute and pay to the township certain taxes which the Chicago, Rock Island and Pacific Railroad Company had paid under protest. In addition to the county treas urer of Nemaha county, the Chicago, Rock Island and Pacific Railroad Company and the three members of the State Commission of Revenue and Taxation were made defendants.
The petition alleges that pursuant to and as authorized by G. S. 1947 Supp., 80-1413, the township submitted to the qualified electors of the township residing outside the corporate limits of any city at a general primary election the question of levying a special tax of three mills for two years to raise funds for the purpose of improving the township roads; that the election was held August 2, 1948, and, a majority voting in favor thereof, the township levied a tax of 2.725 mills on all the taxable tangible property in the township outside the corporate limits of any city; that the levy was made and extended upon the tax rolls of Nemaha county by the county clerk. A tax of $441.61 was levied against property of the defendant Chicago, Rock Island and Pacific Railroad Company; that the railro.ad company paid this amount less two percent discount ($440.16) under protest; that said protested tax was placed in the “protested tax account” by the county treasurer and has not been disbursed. The defendant railroad company protested the payment of said tax upon the sole and only ground that the tax was excessive, illegal and unlawful in its entirety as being contrary to the budget law of the state of Kansas and particularly G. S. 1947 Supp. 79-2930, and a copy of the protest is made a part of the petition as exhibit A. The railroad company made application to the state commission of revenue and taxation and pursuant thereto said commission made an order on March 14, 1949, finding that the 2.725 mill levy was illegal and ordered that the county treasurer refund to the railroad company the protested tax in the amount of $440.16; and a copy of the commission’s order is attached to the petition as exhibit B. The petition further alleged:
“The 2.725 mill levy, voted and extended as above set forth, was not included nor shown in the 1948 budget prepared, adopted and filed prior to the date of said election, by the Township Board of plaintiff township; the laws of the State of Kansas, including the budget law, do not require that levies and expenditures authorized by a vote of the municipality be shown in the budget; any levy authorized by a vote of the municipality may be lawfully and legally made and extended without being first included and shown in the budget of such municipality.
“Plaintiff has demanded of the defendant Treasurer the distribution and payment to it of said protested taxes in the amount of S440.16, but said defendant Treasurer has refused to make distribution and payment thereof to plaintiff. Plaintiff has no adequate remedy at law.”
Exhibit A attached to the petition is the protest filed by the railroad company which included a copy of the Washington township proposed budget made pursuant to G. S. 1947 Supp., 79-2929, and published June 17, 1948, as follows:
“SPECIAL ROAD FUND
Preceding Year 1947 Current Year 1948 Proposed Year 1949
Total Expenditures.............. 4279.59 4250.00 172.77
Receipts :
Unencumbered Township Bal., Jan. 1 ...................... .98 1154.77
Received from county treasurer (general property tax)....... 4280.57 3611.01 0
Receipts from residue sales tax 774.78 0
Receipts from back tax collections .................. 18.00 18.00
Total Receipts, inch Jan. 1 Bal... 4280.57 4404.77 172.77
Less: Expenditures............ 4279.59 4250.00 172.77
Balance Forward ........... .98 154.77”
This protest further alleged in part:
“It will be noted from the above that the total to be expended in the year 1949 from the Special Road Fund was $172.77 and this expenditure was to be financed only by a balance on January 1, 1949, and back tax collections during the year 1949 and an ad valorem tax requirement was unnecessary. '
“The Special Road Fund levy of 2.725 mills extended by the county clerk in Washington Township is excessive, illegal and unlawful in its entirety and is contrary to Section 79-2930, G. S. 1947 Supp.”
Exhibit B attached to the petition is the order of the state commission of revenue and taxation dated March 14, 1949, finding that the adopted budget would exceed the amount of funds in the special road fund as originally published in the proposed budget and that the governing body did certify a tax levy which would produce revenue in excess of that which is required to finance the appropriation of the fund budget; and that the special road fund levy made in Washington township, Nemaha county, Kansas, was and is illegal to the extent of 2.725 mills, which applied to protestant’s valuation of $163,159 in said taxing district, produced an illegal and excessive assessment against the protestant in the sum of $440.16; and ordering that the county treasurer refund to the railroad company the $440.16 tax paid under protest.
The township’s verified motion for alternative writ of mandamus contained many of the allegations of the petition and further alleged:
“The 2.725 mill levy, voted and extended as above set forth, was not included nor shown in the 1948 budget prepared, adopted and filed by the Township Board of plaintiff township; the laws of the State of Kansas, including the budget law, do not require that levies and expenditures authorized by a vote of the municipality be shown in the budget; any levy authorized by a vote of the municipality may be lawfully and legally made and extended without being first included and shown in the budget of such municipality.”
The district court allowed an alternative writ of mandamus commanding the county treasurer either to distribute and pay to the plaintiff township the taxes paid by the defendant railroad company under protest, or to show cause why he had not done so. The defendants demurred to the petition and moved to quash the alternative writ. From an order sustaining both the demurrer and motion to quash, and rendering judgment in favor of defendants for costs, the plaintiff township appeals.
Appellant contends that G. S., 1947 Supp., 80-1413 (enacted 1945 and amended 1947) authorized calling an election, and then after a favorable vote, authorized the subsequent tax levy for improvement of township roads, although this item had not been mentioned in the budget of June 17. Section 80-1413 provides:
“The township board of any township may, upon resolution adopted by a majority of the board, submit to the qualified electors of the township who reside outside of the corporate limits of any city, at any general election or special election called for that purpose as provided by law for bond elections, the question of levying a special tax of not to exceed ten mills for not to exceed two years for the purpose of raising funds with which to improve township roads. The township board shall have the authority to call such elections. At such election the question on the ballot shall be stated in substantially the following form: (Shall ................ township in ................ county, Kansas, levy a tax of ............ mills for ............ year(s) to raise funds for the purpose of improving the township roads?’ The judges of the election shall have power to determine the residence qualifications of voters under this act. If a majority of those voting on such question shall vote in favor thereof the township board shall levy the lax as authorized on all the taxable tangible property in such township which has a tax situs outside the corporate limits of any city. Such levy shall be in addition to all other taxes authorized or limited by law. In counties not operating under the county road unit system, the proceeds of such levy shall be used by the township board for the sole purpose of grading, sanding, graveling or otherwise improving township roads and shall first be used on township roads which are mail routes and on roads leading from mail routes to schools and cemeteries in the township. In counties operating under the county road unit system, the county treasurer shall place the proceeds of such levy in a special fund to be used by the board of county commissioners for the sole purpose of grading, sanding, graveling or improving roads in the township voting such levy and shall first be used on roads which are mail routes and on roads leading from mail routes to schools and cemeteries in the township.” (Emphasis supplied.)
Since the deadline for making the budget was August 1, 1948 (G. S. 1947 Supp., 79-2927), appellant further argues that it would have been impossible to itemize this proposed expenditure in the June 17 budget because it was not known then whether it would be adopted by the electorate, and it was not then known what amount a three mill levy would raise.
Another section of the statutes upon which appellant relies is G. S. 1947 Supp., 79-2935, which provides:
“It shall be unlawful for the governing body of any taxing subdivision or municipality in any budget year to create an indebtedness in any manner or in any fund after the total indebtedness created against such fund shall equal the total amount of the adopted budget of expenditures for such fund for that budget year. Any indebtedness incurred by the governing body or any officer or officers of such taxing subdivision or municipality in excess of said amount shall be void as against such taxing subdivision or municipality: Provided, That indebtedness may be created in excess of the total amount of the adopted budget of expenditures for the current budget year only when payment has been authorized by a vote of the municipality. . . .” (Emphasis supplied.)
Appellee argues that the word “created” as used in the last quoted statute is in the past tense, and therefore does not apply to any indebtedness to be created in the future pursuant to a vote of the electorate. This argument seems to make too much of a play on words — and this court takes the view that section 79-2935 anticipated the very thing that was later authorized by the enactment of section 80-1413.
Isn’t the purpose of the budget law to require that all proposed expenditures be itemized and published for the scrutiny of the public, to the end that every constituent of the governing body may examine the items of anticipated expenditures? We think that is a fairly good analysis of its purpose, or one of them at least. That being so, it seems obvious that such purpose is accomplished when the question of a proposed expenditure is stated on the ballot and voted upon by the electorate at a general election after the proposition thus voted upon has been previously published as required by law.
A similar question was before this court in State, ex rel., v. Re public County Comm’rs, 148 Kan. 376, 82 P. 2d 84, and appellant relies heavily upon that case. There the voters had authorized a building indebtedness for the construction of a new courthouse, the old one having been destroyed by fire. Appellee attempts to distinguish that case in that there the authority had been granted for payment of indebtedness by the issuance of anticipation warrants, which brought that situation directly within section 79-2935, G. S. 1947 Supp., because the indebtedness had been actually created by the vote of the electorate. Here again, appellees stress their contention that “created,” as used in section 79-2935, implies past action. In the Republic County case, this court said:
“. . . the legislature wrote into each of these statutes [the cash basis law, the budget law, and the tax limitation law] sections stating to what they do not apply. For example: ... In the budget law: ‘. . . Provided, The provisions of this section shall not apply to contracts and indebtedness created, the payment for which has been authorized by a vote of the electors of the municipality . . .’ (Laws 1933, ch. 316, § 11; G. S. 1935, 79-2935.)”
Section 79-2935 has been amended since that decision and while the wording of the proviso is substantially the same now as then, the present language seems to quite clearly permit a tax levy for expenditures to be made during the current budget year in excess of the adopted budget when (and only when) the payment, the expenditure, or the tax levy necessary to pay therefor, is authorized by a vote of the electorate.
Appellees also cite G. S. 1947 Supp., 79-2930 as one of the specific sections of the budget law violated by the instant tax levy. A portion of that section reads:
“. . . Each fund of the adopted budget filed with the county clerk in no event shall exceed the amount of such fund in the proposed budget as originally published: Provided,, The governing body of each taxing subdivision or municipality shall not certify a levy to the county clerk which will raise an amount in excess of that portion of said budget to be derived from said tax levy, or which will exceed the maximum levies prescribed by law. . . .”
The language of section 79-2930 is quite clear, and of course has general application unless exceptions are elsewhere made, as in cases where there has been a vote by the electorate.
The real question before this court in the instant case, therefore, is whether the vote of the electorate authorized the payment of an indebtedness. A majority of this court concludes that it did by reason of the proviso contained in section 79-2935. When the electors voted the levy, it became an obligation authorized by popular vote. That vote actually authorized the payment of an indebtedness by a levy to be made in the current year, and it was mandatory upon the township board to levy the tax as provided by section 80-1413. The budget law has no application to such a tax levy authorized by a vote of the electors. It follows that the protest of the Chicago, Rock Island and Pacific Railroad Company should not have been allowed.
Appellee, the State Commission of Revenue and Taxation, devotes considerable argument to the proposition that it acted within its jurisdiction in determining the protest involved. There is no doubt but that this commission does have jurisdiction to exercise its administrative judgment or discretion in the interpretation of our taxing laws (Robinson v. Jones, 119 Kan. 609, 240 Pac. 957; Kaw Valley Drainage Dist. v. Zimmer, 141 Kan. 620, 42 P. 2d 936). However, it does not follow that there is no recourse to courts of law to determine whether such interpretation was a proper one— and the appellee tax commission does not contend that its ruling on the allowance or denial of a protest is final and unappealable.
In Chicago, R. I. & P. Rly. Co. v. Ford County Comm’rs, 138 Kan. 516, 518, 27 P. 2d 229, we held that a decision of the tax commission does not preclude this court from examining the questions submitted and rendering a proper judgment thereon.
It follows that the levy made by the township was valid and the trial court erred in sustaining the demurrer of the state commission of revenue and taxation, and the railroad company’s motion to quash the alternative writ of mandamus.
Another proposition necessary of mention but not briefed or argued by counsel for the parties hereto, is the validity of a protest when taxes are paid voluntarily. Previous decisions of this court indicate that when the full amount of the tax is paid prior to December 20 for the purpose of obtaining a discount as to the last half of the tax, such last half is paid voluntarily (Railway Co. v. City of Humboldt, 87 Kan. 1 [Syl. ¶ 2], 123 Pac. 727; Bush v. City of Beloit, 105 Kan. 79 [Syl. ¶ 3], 181 Pac. 615; Atchison, T. & S. F. Rly. Co. v. Montgomery County Comm’rs, 121 Kan. 428, 247 Pac. 442; First National Bank v. Sheridan County Comm’rs, 134 Kan. 781, 782, 8 P. 2d 312), and therefore could not be recovered by the taxpayer, even though illegally collected.
The judgment of the trial court is reversed. | [
-12,
-22,
-75,
-36,
58,
-64,
18,
-117,
75,
-79,
-91,
83,
-23,
-40,
4,
125,
-2,
61,
112,
107,
66,
-77,
87,
-21,
-106,
-78,
-15,
-51,
-77,
91,
-92,
-58,
77,
-79,
74,
-107,
70,
-60,
79,
28,
-50,
-122,
-85,
-51,
-39,
64,
60,
47,
114,
75,
49,
46,
-13,
46,
24,
-63,
105,
44,
-39,
-87,
-119,
-69,
-70,
-43,
127,
22,
1,
0,
-102,
-121,
-56,
43,
-104,
49,
114,
-24,
127,
-90,
-122,
-74,
3,
-7,
9,
-18,
34,
33,
-99,
-65,
-88,
-120,
14,
91,
29,
-26,
-78,
25,
98,
9,
-106,
-99,
101,
18,
7,
126,
-27,
5,
25,
44,
-128,
-54,
-12,
-77,
-97,
52,
-126,
23,
-17,
32,
16,
97,
-59,
54,
95,
71,
50,
59,
-34,
-68
] |
The opinion of the court was delivered by
Wedell, J.:
This action was instituted to enjoin the defendant from practicing medicine and surgery by reason of alleged violation of a written contract. Plaintiff prevailed and defendant appeals.
Defendant was a young doctor from Chicago, 111. He was well qualified by educational training but his practice experience was limited to less than one year. He was seeking a location and contacted appellee, a physician and surgeon with a well established practice in the city of Hutchinson, through a Chicago placement agency. Appellee was sixty-nine years of age and anxious to secure a good young doctor who would relieve him of some of his heavy responsibilities. After a visit and conference with appellee- at Hutchinson covering a period of a few days the following contract was executed:
“This Agreement, Made and entered into this 29th day of December, 1947, by and between J. E. Foltz, of Hutchinson, Reno County, Kansas, party of the first part and Erling Struxness, of Chicago, Cook County, Illinois, party of the second part;
“Witnesseth: Whereas both parties hereto are duly qualified, licensed and practicing physicians and surgeons, and whereas it is the mutual desire of said parties to enter into this agreement- upon the terms and conditions listed below, it is now therefore agreed and covenanted by and between said parties as follows:
“The said parly of the first part hereby hires and employs the said party of the second part, in the business of the said party of the first part, in the City of Hutchinson, Kansas, in the capacity of a physician and surgeon, and agrees to pay him during the time he shall remain in such employment the sum of $400.00 per month all upon the terms and conditions herein stated.
"Second party hereby covenants and agrees that he will devote his exclusive time, energy, skill and efforts as a physician and surgeon in the employ of the first party turning in any and all fees received to said first party; and further, that said second party will make all housecalls, hospital visits and will perform any and all medical services as designated for him to do by said first party.
“First party, at his sole option and provided he deems second party’s services warrant such, hereby agrees to increase said second party’s salary from $400.00 to $450.00 per month commencing the seventh month wherein this agreement is in effect. It is further agreed and understood that at the expiration of this Agreement, and provided that same is agreeable to both parties, the said parties hereto will enter into a partnership agreement under such terms and conditions as shall then be determined.
“It is further understood and agreed by. and between the parties hereto that this Agreement may be terminated at any time by either party on giving the other one month’s notice in writing; and further, that upon termination of this agreement and failure on the part of the parties hereto to agree and enter into a partnership agreement as afore-mentioned that second party will not engage in the practice of medicine or surgery within a radius of 100 miles from Hutchinson, Reno County, Kansas, for a period of 10 years from the date of this Agreement.
“This Agreement shall be for the term of one year from the date first above written unless otherwise terminated by mutual agreement of the parties hereto, or in the manner as set forth heretofore herein.
“Witness our hands the day and year first above written.” (Our italics.)
After executing the contract appellant left for Chicago, and on February 1, 1948, returned to Hutchinson and started work pursuant to the executed contract. Appellee was anxious that appellant’s acquaintance and active participation in the practice should progress as rapidly as possible. Accordingly he did everything in his power to further that objective. Appellant cooperated in the same spirit. He was a good young physician and his services were very satisfactory to appellee. It appears except for matters of minor consequence the -relationship was pleasant and satisfactory.
The parties started in November, 1948, to discuss terms of a pro posed partnership agreement. In view of the terms of the previous contract it is unnecessary to detail the various suggestions of the respective parties relative to terms and provisions each of them sought to have incorporated in such agreement. Quite naturally each of them, as the court found, sought to protect his own interests as he viewed them. The trial court found each of them acted in good faith. The unfortunate but important fact, in view of the terms of the previous contract, is they did not agree upon the terms of the contemplated future agreement. They did not agree by December 29, 1948, or by February 1, 1949. By mutual agreement appellant remained on a salary basis while the parties continued their effort to reach an agreement. Failing in such effort appellant left appellee on March 2, 1949, and started his own practice in the city of Hutchinson. Appellee informed appellant by letter if he engaged in the practice in violation of the contract he would be obliged to seek legal redress to protect his interests. Appellant continued his practice. Being a competent young physician and having ingratiated himself with appellee’s patients it was quite natural a substantial number of them should follow him. That occurred and appellee’s practice suffered accordingly.
The trial court made findings covering, in substance, the foregoing facts and others which will be noted as required.
Appellant does not claim duress or fraud in the execution of the contract. He does contend the contract was not fairly and equitably entered into. This issue was sharply litigated. The trial court resolved the issue against appellant’s contention. On appellate review this court is concerned only with evidence which supports the findings made and not with evidence contrary thereto. Notwithstanding this well-recognized rule we have studiously examined the entire record. There is ample evidence to support the finding and conclusion of the trial court on this issue and we cannot disturb it.
Appellant argues the events in this case never brought the restrictive provision of the contract into operation. The argument is based on the theory the words, “. . . upon termination of this agreement,” cannot be interpreted to mean “upon expiration of this agreement” and that the word “termination” can apply, only in the event a thirty-day notice to terminate the contract has been given. The trial court disagreed with that interpretation. It took the position the contract, considered as a whole, was intended to mean that if the contract expired or was discontinued for any reason and no partnership agreement was entered into by the parties the restrictive provision should apply. We think the trial court was correct in concluding appellant’s interpretation of the word “termination” was too narrow and that the restrictive provision did apply.
The real question in the lawsuit is the validity of the restraint imposed on appellant by virtue of the restrictive covenant. The reports are replete with cases involving similar restrictive provisions. The last time this court had occasion to consider such provisions was in Heckard v. Park, 164 Kan. 216, 188 P. 2d 926, 175 A. L. R. 605, 617. In that action plaintiff, a person employed as a teacher and trainer of a young musician, sought specific performance of an agreement after the young artist had violated the contract. A part of what was there said is pertinent here. We stated:
“At the outset it should be stated the authorities are consistent and.clear in the view that no hard-and-fast rule govering all cases of this character can be laid down. Abstract tests which have been suggested are not always adequate. The real question is never whether there is any restraint of trade but always whether the- restraint is reasonable in view of all the facts and circumstances and whether it is inimical to the public welfare. If it is reasonable and does not contravene public welfare the contract will be upheld. (2 Page on Contracts, § 776; Restatement, Contracts, § 514; 5 Williston on Contracts, Rev. Ed., § 1636.) Our own decisions are to the same effect, A few of them are: Mills v. Cleveland, 87 Kan. 549, 125 Pac. 58; Kent Oil Co. v. Waddill, 127 Kan. 704, 274 Pac. 1113; Berkey v. Smith, 138 Kan. 792, 796, 28 P. 2d 763; Southwest Kan. Oil & G. Co. v. Argus P. L. Co., 141 Kan. 287, 39 P. 2d 906.
“The old rule as to limitations of time and space has given way to that of reasonableness. (Fox v. Barbee, 94 Kan. 212, 146 Pac. 364.) The question of reasonableness of a contract of this character frequently depends upon fundamental elements of common fairness in view of the facts and circumstances of the parties.” (p. 223, 224.)
We shall first discuss the reasonableness doctrine and later the subject of public policy. Appellant contends the restraint in the instant case covering a one-hundred-mile radius was unreasonable and, therefore, the entire contract is invalid and no part of it is enforceable. There is no doubt the practice of some physicians and surgeons extends over territory far beyond a one-hundred-mile radius from the place of their residence. That fact requires no demonstration.
Was the one-hundred-mile radius reasonable here? We need not answer. The trial court believed, in view of the- record, appellee could be reasonably protected in his practice of medicine and surgery by reducing that territory as follows:
. . the City of Hutchinson, Kansas, and within five miles from said City as now constituted, and in the hospitals or elsewhere in’such space or territory. . . .”
In rendering this judgment the court' followed authorities which adopt the doctrine that courts of equity should and will enforce restrictive covenants to a territorial extent reasonably necessary to afford protection to an established business or profession but no further. Among such decisions are: Hill v. Central West Public Service Co., 37 F. 2d 451 (1930); Edgecomb v. Edmonston, 257 Mass. 12, 153 N. E. 99 (1926); John T. Stanley Co. v. Lagomarsino, 53 F. 2d 112, 115 (1931); Fleckenstein Bros. Co. v. Fleckenstein 76 N. J. Laws 613, 71 A. 265, 24 L. R. A. (n. s.) 913 (1908); Goldstein v. Maisel, 67 N. Y. S. 2d 410, 411 (1947); Whiting Milk Co. v. O’Connell, 277 Mass. 570, 179 N. E. 169 (1931); New England Tree Expert Co. Inc. v. Russell, 306 Mass. 504, 28 N. E. 2d 997 (1940).
Appellee has not cross-appealed and is not complaining concerning the reduction of territory. In view of the record there can be no doubt appellee’s field of professional activity embraced at least the area fixed by the judgment. The reduction of the area was in appellant’s favor. Such reduction, however, does not aid appellant materially as it appears he desires primarily to practice in the city of Hutchinson.
Appellant contends the territory described in the contract is a unit, indivisible, and unless the entire territory designated in the contract was reasonable the contract must fall and no relief can be granted thereunder. The old rule undoubtedly was that if the territory described was divisible in the form stated courts would enforce the contract as to such part thereof as was reasonably necessary for protection of an established business or profession and would refuse to enforce it as to the remainder, but if the territory as designated constituted a single indivisible unit, unreasonable in extent, the contract w&s unenforceable. Now, however, many courts have done away with this distinction and hold courts of equity have the power and will enforce restrictive provisions to the extent reasonably necessary to carry out the protective intent of the parties whether the territory, in the form described, is divisible or not. (John T. Stanley Co. v. Lagomarsino, supra, p. 115.) The group of cases last cited herein are among those sustaining the later doctrine.
The trial court construed the instant provision, “within a radius of 100 miles from Hutchinson,” (our italics) to be divisible by its own terms and second, held it to be divisible on equitable principles.
Appellant emphasizes the word “from” in the provision “within a radius of 100 miles from Hutchinson.” He contends literally and strictly speaking that provision does not bar appellant from the practice within the city of Hutchinson. That is the city in which the parties were practicing. Manifestly they intended to contract with regard to it. A contract should be read and construed in the light of the intention of the parties at the time it was entered into, if possible, without doing violence to it. (Johnson v. Stumbo, 277 Ky. 301, 126 S. W. 2d 165.) It has also been held contracts of this and similar character will be construed as being divisible, if possible, and therefore at least partially valid. (John T. Stanley Co. v. Lagomarsino, supra.)
We have no doubt the parties intended appellant should not be permitted to practice within the city of Hutchinson or anywhere else within a radius of one hundred miles from the city. Whether the beginning point of the measurement be fixed at the center, or at the outer edge, of the city obviously becomes immaterial. It would embrace this city in either case. Interpreting the contract in harmony with its intention it is possible to construe the contract as being divisible with respect to territory. (Fleckenstein Bros. Co. v. Fleckenstein, supra.)
In any event we regard the equitable doctrine, the second ground of the trial court’s decision, entirely sound whether the territory, in the form stated, be divisible or not. Courts repeatedly have granted relief on equitable grounds to physicians, surgeons, dentists and related professions to an extent necessary to carry out the, protective intent of the agreements. That has been declared to be the test of reasonableness of the restraint. Some of these cases are: Herrington v. Hackler, 181 Okla. 396, 74 P. 2d 388; Granger v. Craven, 159 Minn. 296, 199 N. W. 10, 52 A. L. R. 1356, 1362; Andrews v. Cosgriff, 175 Minn. 431, 221 N. W. 642; Shaleen v. Stratte, 188 Minn. 219, 246 N. W. 744; Erikson v. Hawley, 12 F. 2d 491; Proctor v. Hansel, 205 Ia. 542, 218 N. W. 255, 58 A. L. R. 153; McMurray v. Faust, 224 Ia. 50, 276 N. W. 95; Larsen v. Burroughs, 224 Ia. 740, 277 N. W. 463; Johnson v. Stumbo, 277 Ky. 301, 126 S. W. 2d 165; Styles v. Lyon, 87 Conn. 23, 86 A. 564; Freudenthal v. Espey, 45 Colo. 488, 102 Pac. 280; Tarry v. Johnston, 114 Neb. 496, 208 N. W. 615; Foster v. White, 290 N. Y. S. 394, 248 App. Div. 451; Wilson v. Gamble et al., 180 Miss. 499, 177 So. 363; Randolph v. Graham (Tex. Civ. App.), 254 S. W. 402; see, also, anno. on same subject in 58 A. L. R. 156.
In view of our adoption of the equitable doctrine the foregoing cases are cited without regard to whether territory therein described was in form divisible or indivisible. They are all grounded on the fundamental equitable principle of upholding such contracts in harmony with plain justice and fairness and the expressed intention of the parties to protect an established business of the owner.
Many years ago (1901) a barber in this state sold his furniture, tools and fixtures to another barber and agreed not to engage in the barber business in the town of Russell. He violated the agreement and was enjoined by reason of the restrictive covenant. (Pohlman v. Dawson, 63 Kan. 471, 65 Pac. 689.) This court in language quite pertinent said:
“Like the surgeon or dentist, when the barber moves he attracts to himself those having confidence in his ability, and the greater his professional skill the more difficult it is to alienate from him those to whom his services have given satisfaction.” (p. 473.)
So here the whole purpose and intent of the restrictive covenant was to protect encroachment on a professional business appellee had devoted most of his life to building. Appellee said, “I certainly expected him to leave town because I wanted to protect my, reasonable protection for my own interests, because I turned over everything I had in God’s world to the man, and I never kept him from taking any business.”
We shall not extend this opinion unduly by quotations from the various cited cases. They contain a complete answer to every contention made by appellant. Many of them denounce the violation of contracts of this character in unusually robust language.
The subject of public policy, as applicable to cases of this precise character, is fully discussed in many of the cases heretofore cited and what is said there need not be repeated here. The instant contract is not violative of any positive statute or well-established rule of law. It is the duty of courts to sustain the legality of contracts in whole or in part when fairly entered into, if reasonably possible to do so, rather than to seek loopholes and technical legal grounds for defeating their intended purpose. It also has been said, and we think rightly, the paramount public policy is that freedom to contract is not to be interfered with lightly. (12 Am. Jur., Contracts, § 172, p. 670.)
The trial court found:
“That since the close of World War Two the city of Hutchinson has not lost the services of any doctors by death or retirement and since that time ten additional doctors have commenced the practice of medicine and surgery in that city, and'that the city of Hutchinson is no more in need of further doctors and surgeons than many other communities of like and similar circumstances in the State of Kansas.”
and concluded:
“. . . and that no public policy or public interest is involved under the facts and circumstances of this case sufficient to avoid or render unenforceable any reasonable restraint upon the practice of medicine and surgery by the defendant.”
In the Wilson case, supra, it was held:
“Contract of assistant physician not to engage in practice of his profession in city or within five miles of corporate limits thereof within five years from date of termination of contract with principal was valid, where the number of physicians in city was amply sufficient for rendition of necessary medical services to citizens thereof and of its vicinity.” (Syl. ¶ 2.)
Other cases, among those previously cited, are to the same effect. There is no attempt at monopoly here. Every other physician and surgeon is at liberty to practice within the territory involved. We can find no reasonable basis for disturbing the trial court’s finding and conclusion on the ground of public policy.
One other subject requires attention. Appellant concedes the trial court found appellee attempted in good faith to negotiate a partnership agreement. He contends, however, there is no evidence to support the finding. Among other things appellant places particular emphasis on the contention one of appellee’s proposals showed he did not want a partnership but an employment contract. On the other hand appellee stresses proposals made by appellant which appellee regarded as unreasonable.
The evidence touching the lengthy negotiations looking to the formation of a partnership has- been diligently scrutinized. It has been examined not only with respect to particular points stressed but generally. We shall not attempt to narrate the different terms of the various proposals, oral and written, which formed all the negotiations. There is evidence which tends to support appellant’s contention a “rough draft” proposal by appellee contained elements of an employment rather than a partnership agreement. But on the entire record we cannot say, as a matter of law, appellee did not in good faith attempt to negotiate a partnership agreement. Irrespective of the many negotiations prior to appellant’s leaving appellee on March 2, 1949, there is evidence to support the trial court’s finding appellee attempted in good faith to negotiate a partnership agreement. There is evidence that even at that late date appellee had not closed the door to further negotiations but on the contrary was anxious to reach the contemplated agreement. At that time appellee requested that appellant remain for another month and offered to increase his salary to $600 for that month. Appellant testified that when he was ready to leave appellee said to him, “Don’t be so hasty; if you want, I will pay you $600 for the'month of March, and it will give further time for negotiations.”
Whether this overture if accepted would have been fruitful we, of course, cannot now determine. The contract provided:
“. . . that upon termination of this agreement and failure on the part of the parties hereto to agree and enter into a partnership agreement as aforementioned that second party will not engage in the practice of medicine or surgery. ...” •
They did not agree. The judgment of the trial court is affirmed. | [
-48,
-22,
-12,
29,
26,
106,
34,
27,
91,
-87,
39,
115,
-19,
-35,
5,
111,
35,
61,
16,
123,
-9,
-13,
6,
104,
-78,
-109,
-37,
-59,
-71,
79,
-12,
-35,
77,
40,
10,
-43,
-26,
66,
73,
84,
-54,
4,
-119,
-32,
80,
-126,
48,
59,
80,
64,
53,
30,
-13,
42,
54,
-61,
-24,
36,
-37,
36,
16,
-80,
-103,
-115,
95,
81,
-112,
0,
-100,
-121,
88,
110,
-112,
57,
24,
-8,
83,
-74,
-62,
116,
7,
-87,
44,
99,
102,
33,
16,
-19,
120,
-68,
30,
-38,
-115,
-91,
-109,
88,
-30,
-119,
-98,
-68,
116,
20,
7,
126,
-11,
21,
31,
36,
11,
-117,
-12,
-77,
-33,
-68,
-108,
15,
-21,
7,
17,
85,
-57,
54,
93,
71,
51,
19,
-70,
-112
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.