text
stringlengths 9
720k
| embeddings
sequencelengths 128
128
|
|---|---|
The opinion of the court was delivered by
Arn, J.:
This is a damage action to recover for loss of a standing wheat crop which was destroyed by fire. The jury’s verdict was for defendant and plaintiffs appeal. The facts may be sufficiently noted from the following résumé of the pleadings.
In the second amended petition, plaintiffs allege they are rési dents of Rawlins county, Kansas, and are co-owners of a wheat crop located on a tract of land in that county; that the defendant is a resident of the same county and engaged in the business of selling and repairing combines; that on July 10, 1946, plaintiffs were engaged in harvesting their wheat crop with a combine harvester-thresher, when the defendant at the request of the plaintiffs came to the wheat field for the purpose of inspecting and repairing the combine which defendant had sold to the plaintiffs; that on his arrival, defendant drove his automobile into the field through the dry and highly inflammable wheat stubble; that after driving about twenty rods into the wheat field, fire or sparks from the automobile came in contact with straw which had accumulated on the under part of defendant’s vehicle and the stubble burst into flame which spread into the field and destroyed and burned 78% acres of unharvested wheat. The petition further alleges that the wheat stubble, which had value as a fertilizer for the next year’s crop, was also destroyed; that the proximate cause of plaintiffs’ loss was the careless and negligent manner in which defendant operated his automobile in driving it through the straw and stubble when it was unnecessary for him to do so and when he should have known that it was unsafe to do so, and when he knew or should have known that there was danger of igniting the inflammable stubble. It was alleged that plaintiffs’ damage amounted to, and plaintiffs ask recovery of $5,971.87 for the wheat destroyed, and $210 for destruction of the wheat stubble.
The defendant’s answer contained a general denial and admitted plaintiffs’ ownership of the wheat crop; alleged that it was being harvested on July 10 with a combine sold to the plaintiffs by defendant; that defendant was in the act of driving his car through the stubble for the purpose of taking his tools and equipment to the location of the combine for the purpose of making an inspection at plaintiffs’ request; that after he had driven into the wheat stub•ble, a fire was discovered and the unharvested wheat was burned so that the net value of the wheat destroyed was $5,971.87. The answer continued as follows:
“5. Defendant alleges that at the time of said fire of July 10th, 1946, the plaintiffs had fire insurance on said field of wheat, issued to them by The Home Insurance Company of New York on June 15th, 1946, insuring said field of wheat against destruction by fire in any amount up to $10,000.00 (Ten Thousand Dollars), and that said insurance was written for plaintiffs by E. C. Melliek of Atwood, Kansas, who was at said time, the agent of The Home Insurance Company of New York, for the writing of fire insurance on fields of wheat and other property and that the said burning of said wheat on July 10th, 1946, was reported by the plaintiffs to said E. C. Mellick, agent of The Home Insurance Company of New Yoi’k, as alleged, and that said company on or about August 12th, 1946, paid the plaintiffs the said sum of $5,971.87 in full payment of all damages claimed by plaintiffs to have been sustained by them because of said fire.
“6. Defendant specifically denies that the plaintiffs sustained any damages or loss over and above said sum of $5,971.87, so paid to them by said Insurance Company, as hereinbefore set out. Defendant further specially denies each and every allegation and all matter contained in Paragraph 4 of Plaintiffs’ second amended petition.
“7. Said defendant, Norman Leiehliter, therefore alleges that the plaintiffs have not sustained the damages, or any of the damages alleged by them, because of said fire, and that said insured wheat which was burned did not have any value exceeding the amount of the insurance paid to plaintiffs as hereinbefore alleged, and that plaintiffs have no legal right to maintain this action because they are not the real parties in interest.”
Plaintiffs filed a motion to strike the above quoted paragraphs 5, 6 and 7 of the answer for the reason that such paragraphs did not constitute a defense to the plaintiffs’ second amended petition, and this motion was by the trial court overruled.
Plaintiffs’ reply consisted of a general denial of new matter contained in the answer and continued with the following allegations:
1. “Plaintiff admits that at the time of the fire, on July 10, 1946, the plaintiff was insured, as alleged in paragraph 5 of defendant’s answer, and that plaintiff has received full compensation for the amount of his loss, as alleged in paragraph 6 of said answer; plaintiff states that this action is brought by plaintiff for the use and benefit of the Home Insurance Company of New York against the defendant wrongdoer, who caused said loss.
2. “Further replying to defendant’s answer, plaintiff states that at the time of the fire, on July 10, 1946, above referred to, the defendant had an automobile liability policy of insurance in the Hardware Mutual Casualty Company, of Stevens Point, Wisconsin, and that under the terms and provisions of said policy, said insurance company agreed and was bound to indemnify defendant from any liability to third persons, arising from the negligent operation of defendant’s automobile, and that said Hardware Mutual Casualty Company, under the terms of their policy, would be obligated to pay any judgment that plaintiff might recover against defendant in this action.”
A motion to strike the second and last paragraph of plaintiffs’ reply was filed by the defendant for the reason that it was irrelevant, immaterial and incompetent, and did not constitute a denial or admission of any of the allegations of defendant’s answer. This motion was sustained and said paragraph two was stricken from plaintiffs’ reply.
Upon these pleadings a trial was had. The record before us indicates that the jury was fully instructed, but the court’s instructions are not abstracted. The jury’s verdict rendered on November 10,1948, was for the defendant, and nine special questions submitted by the court were answered thus:
“1. Did defendant’s automobile set fire to and destroy plaintiffs’ wheat? A. Yes.
“2. Did the defendant know of the danger of a motor vehicle, such as he was driving, setting fire to plaintiffs’ stubble when he drove into it? A. Yes.
“3. Did the defendant know or should have known that there was likelihood that a fire would result from his driving his automobile into the stubble field of plaintiffs on a hot dry day? A. No.
“4. Did the defendant’s lack of due care in driving into the stubble field cause the plaintiffs’ wheat to be destroyed? A. No.
“5. Did the defendant deliberately drive into plaintiffs’ stubble field? A. Yes.
“6. Was the act of the defendant of driving into plaintiffs’ field the proximate cause of plaintiffs’ damage? A. Yes.
“7. Could the defendant, Norman Leichliter, by the use of ordinary care and prudence, on July 10, 1946, have foreseen that the wheat stubble of plaintiffs would be set afire by his automobile in driving through it? A. No.
“8. Was the combine of plaintiffs entirely surrounded by standing wheat or stubble when the defendant came to the plaintiffs’ wheat field on July 10, 1946? A. Yes.
“9. Was it necessary for the defendant, Norman Leichliter, to drive his automobile through either stubble or standing wheat to get his repair equipment and tools to plaintiffs’ combine? A. No.”
Plaintiffs in due time filed a motion for judgment upon the special findings notwithstanding the verdict, and also a motion for new trial, both of which motions were overruled, and plaintiffs appeal. None of the grounds which were made the basis for the motion for new trial are urged in this appeal, except “the erroneous rulings of the court.” In complaining of such erroneous rulings, appellant argues that the motion for new trial should have been sustained because the jury’s answers to the special questions are irreconcilably inconsistent. This will be discussed in connection with appellants’ other contentions.
Appellants contend:
1. Plaintiffs’ motion for judgment on the special findings notwithstanding the verdict should have been sustained and judgment rendered thereon for the plaintiffs';
2. The trial court erred in overruling plaintiffs’ motion to strike paragraphs 5, 6 and 7 from defendant’s answer; and
3. The trial court erred in sustaining defendant’s motion to strike the second and last paragraph from plaintiffs’ reply.
Appellants argue that the special findings of the jury cannot be harmonized; that the answer to special question number 2 is inconsistent with the answers to questions 3 and 7 and the answer to question number 4 is inconsistent with the answer to question number 6. Appellants then contend that by the jury’s answer to question number 2, it in effect found that the defendant was guilty of negligence, but it is difficult for us to give that effect to this special finding. Most anyone with a meager knowledge of harvesting operations might know that there is always some danger of an automobile, a combine, or any other gasoline propelled vehicle setting fire to dry wheat stubble while moving along through the stubble under its own motive power — but the danger of that possibility is accepted by everyone as being inherent in the business of carrying on a wheat harvest. The defendant in all probability was cognizant of this danger and perhaps he did know that there was some danger of a fire when driving a car through dry wheat stubble. While this may have been true, he may not have known that a fire was likely to result. His act of driving into the wheat stubble was one that is customary in the harvest fields — and it is common knowledge that a fire is not anticipated or expected to be the likely result every time a gasoline propelled vehicle moves across wheat stubble. That is to say, the realization that there may be some danger in this connection does not necessarily imply that the defendant in driving through the field, by the use of ordinary care and prudence, should have expected a fire to be the natural and probable result of his act. Consequently, the answer to special finding number two is not inconsistent with the answers to special questions numbered three and seven.
It is next urged by appellants that insofar as the inconsistency between answers four and six is concerned, number four is in the nature of a conclusion and should give way to finding number six. According to special finding number six, the defendant’s act of driving into the wheat stubble was the proximate cause of the fire. This is not denied by defendant. But to be the basis for a judgment for damages, the act constituting the proximate cause of the loss and damage must be a negligent act. Findings numbered four and six, taken together, clearly indicate the jury recognized defendant’s act of driving his car into the wheat stubble as being the proximate cause of the fire, but found in answer to question number four that such act of the defendant was not the result of any lack of due care on his part — that is to say, it was not a negligent act. When thus analyzed, these answers are not inconsistent with each other. None of the special findings of the jury are to the effect that defendant failed to use ordinary care and prudence. In fact, finding number four completely excuses him from any lack of ordinary care or prudence. Appellants, in effect, now ask this court to say that the defendant’s act of driving into the wheat field was negligence as a matter of law, and, under the circumstances here, requires a judgment in favor of plaintiffs notwithstanding the jury’s findings. This we should not and cannot do. Furthermore, we are bound to follow the well established rule that special findings must be given such construction, if possible, as will bring them in harmony with the general verdict (Marley v. Wichita Transportation Corp., 150 Kan. 818 [Syl. ¶ 2, and cases cited, p. 822], 96 P. 2d 877; Jilka v. National Mutual Cas. Co., 152 Kan. 537 [Syl. ¶ 4], 106 P. 2d 665). It is not difficult to harmonize the general verdict and the special findings in the instant case.
Aside from any question as to harmonizing the special findings and the general verdict, there is another matter deserving some attention. Paragraph five of defendant’s answer, quoted above, alleges in effect that plaintiffs are not the real parties in interest because they have been compensated in full for their loss by the Home Insurance Company of New York in the amount of $5,971.87. Paragraph six of the answer also specifically denies that plaintiffs sustained any damage or loss over and above the said sum of $5,971.87 so paid to plaintiffs by the insurance company. Paragraph one of plaintiffs’ reply then admits that plaintiffs were insured as alleged in paragraph five of defendant’s answer and that plaintiffs have received full compensation for the amount of their loss as alleged in paragraph six of said answer. From this admission by plaintiffs, we are compelled to the conclusion that plaintiffs’ only loss was $5,-971.87, for which amount plaintiffs have received full compensation as set out in paragraphs five and six of defendant’s answer. That being true, the Home Insurance Company of New York and not plaintiffs were the real parties in interest in the prosecution of this action; and by making such admission in their reply, plaintiffs pleaded themselves out of court.
In this connection, appellants contend that plaintiffs’ petition alleged a $210 loss for destruction of wheat stubble in addition to the loss of grain, and under the rule announced in City of New York Ins. Co. v. Tice, 159 Kan. 176, 186, 152 P. 2d 836, 157 A. L. R. 1233, the property owner, where he has not received full compensation for his loss, is a real party in interest although he has been partially reimbursed from a third party source. But this argument ignores the admission contained in plaintiffs’ reply that “plaintiff was insured, as alleged in paragraph 5 of defendant’s answer, and that plaintiff has received full compensation for the amount of his loss, as alleged in paragraph 6 of said answer.” (Emphasis supplied.)
We are not concerned with any motion by defendant for judgment on the pleadings since none was filed, and defendant has not appealed. We assume, however, that the’jury was fully instructed (instructions not abstracted) upon the rule of law that plaintiff must have a beneficial interest in the action and be the real party in interest as provided in section’ 60-401, G. S. 1935. Counsel for both parties frankly stated in oral argument before this court that no evidence whatever was offered at the trial as to any damage to wheat stubble nor as to any loss or damage to plaintiffs other than the $5,971.87 grain loss. Plaintiffs’ lack of beneficial interest was pleaded as a defense, and if there was any factual issue on that point, the jury under proper instructions was justified in concluding, as it must have concluded, that the plaintiffs were not the real parties in interest — and this would sustain the general verdict and the judgment rendered by the trial court irrespective of any of the nine special findings. No special findings were made upon this issue but the general verdict was for the defendant.
As heretofore indicated, appellants filed a motion to strike from defendant’s answer all of paragraphs five, six and seven which contain the allegations that plaintiffs had received full compensation in the sum of $5,971.87 from the Home Insurance Company for their wheat loss and by reason thereof plaintiffs were not the real parties in interest and have not sustained any damage by reason of the alleged acts of defendant. This motion was overruled and appellants complain of error in such ruling. It was proper pleading on the part of defendant to set up this defense in his answer, and plaintiffs’ motion was properly overruled. (Klingberg v. Atchison, T. & S. F. Rly. Co., 137 Kan. 523 [Syl. ¶ 1], 21 P. 2d 405; Krol v. Coryell, 162 Kan. 198, 175 P. 2d 423; Gibbs v. Central Surety & Ins. Corp., 163 Kan. 252 [Syl. ¶ 3, and cases cited, p. 259], 181 P. 2d 520; Elam v. Bruenger, 165 Kan. 31, 37, 193 P. 2d 225.)
Apparently upon the premise that if defendant may plead “insurance” the plaintiffs should also be permitted to do so, plaintiffs’ reply contained the allegation that defendant had an automobile liability policy on the car which he had driven into the wheat stubble, and that his insurance company would be obligated to pay any judgment which might be rendered against defendant in this action. Defendant moved to strike that last paragraph of the reply and his motion was sustained by the trial court. Appellants also complain of and have appealed from that ruling. However, with commendable frankness, appellants concede that under the decisions of this court (Powell v. Kansas Yellow Cab Co., 156 Kan. 150 [Syl. ¶ 3, and cases cited, pp. 153-155], 131 P. 2d 686), it is improper to inject into an automobile negligence case (with certain exceptions involving licensed carriers) the inference that any judgment rendered will be paid by an insurance company rather than by defendant. Appellants’ argument is that this court should here and now modify this long established rule, particularly in a case such as this, because it is difficult to' obtain a fair and impartial jury trial where the fact of plaintiffs’ insurance coverage is pleaded in defendant’s answer but the fact of defendant’s insurance coverage is stricken from plaintiffs’ reply.
Obviously the allegation of the reply that defendant had automobile insurance coverage did not amount to a denial or defense, generally or specifically, of any new matter set forth in the answer (G. S. 1935, 60-717). Nor is it sound argument to contend that an allegation of defendant’s automobile liability insurance coverage is proper in the reply merely because defendant was permitted in his answer to raise the issue as to whether plaintiffs were the real parties in interest. The two situations are entirely different. There is a sound basis under the rules of pleading for the one allegation being immaterial and the other being material to the issues involved. On the one hand we have plaintiffs bringing an action in which they have no interest whatever. Their action is for a claim already paid to them in full by a third party, who is subrogated to whatever rights plaintiffs may have had, and which third party is now the real party in interest. On the other hand, we have a defendant who is singularly obligated to pay any judgment rendered against him. Defendant would not be excused from that obligation by the mere promise of some third party to pay it or any part of it for him, if and when the judgment becomes final. The promise of a liability insurance company to pay any judgment rendered against defendant is a matter of contract between the defendant and the insurance company, the terms of which may or may not be carried out. Such an executory promise to defendant is entirely different from the completely executed transfer of interest in the pending litigation from plaintiffs to their insuror. There is no merit to appellants’ contention that the appellee Leichliter was not the (to use appellants’ phrase) “real defendant in interest.” These rules of pleading are so well settled by decisions of this court cited above that we are bound to follow them here.
The judgment of the district court is affirmed. | [
-16,
104,
-8,
-116,
8,
98,
106,
90,
65,
-91,
-90,
83,
-23,
-53,
5,
41,
102,
29,
81,
42,
-42,
-89,
19,
-54,
-106,
-65,
-39,
-59,
-72,
79,
-28,
118,
72,
16,
10,
85,
-94,
-64,
69,
92,
-50,
4,
-119,
121,
93,
96,
-74,
47,
114,
75,
49,
63,
-13,
46,
29,
-57,
77,
36,
-21,
45,
65,
-8,
-88,
13,
111,
-110,
33,
6,
-98,
69,
-8,
46,
-104,
57,
1,
-24,
115,
-96,
-122,
-44,
43,
-119,
8,
-26,
102,
33,
60,
-25,
-20,
-120,
46,
-33,
47,
-28,
-112,
72,
67,
35,
-98,
-99,
119,
16,
6,
126,
-7,
13,
29,
108,
6,
-54,
-44,
-77,
-113,
120,
-104,
-103,
-21,
-93,
50,
97,
-51,
-90,
93,
71,
114,
-101,
-50,
-76
] |
The opinion of the court was delivered by
Parker, J.:
This is an action for cancellation of contract and for the recovery of money. The defendant appeals from an order overruling its demurrer to a first cause of action for cancellation of the contract as set forth in an amended petition. The plaintiffs appeal from an order sustaining a demurrer to the second cause of action for recovery of money and an earlier ruling requiring them to separately state and number their causes of action.
The over-all picture to be gleaned from a lengthy and involved amended petition, giving that pleading the benefit of all inferences to which it is entitled when attacked by demurrer, can be stated thus:
On July 7, 1937, the defendant, Panhandle Eastern Pipe Line Company, entered into a gas purchase contract with R. K. Wilson. This contract provided that such individual should sell all the natural gas he was able to produce through drilling wells upon certain oil and gas leases owned by him, covering and upon approximately sixty-four hundred acres of land in Grant county, and that the defendant should at its own cost and expense construct a gather ing line a distance of approximately fourteen miles and thereafter take and pay for all gas so produced from such leases at a price of four cents per one thousand cubic feet. By its terms the contract ran with the land and the oil and gas leasehold estate and provided that it was to be binding upon the parties, their respective heirs, successors and assigns. The contract, attached to and made a part of the petition, contains numerous other provisions of no particular importance to a decision of the issues involved.
While there are no express allegations to that effect, it may be assumed, since the plaintiffs’ interests depend upon title acquired from him, that sometime after the execution of the contract Wilson in some manner legally transferred his interest in the leases to Theodore F. Parish and Frank P. Parish who thereby succeeded to all his rights under the gas purchase contract.
On or about May 31,1941, the Parishes entered into an agreement with plaintiffs, by which the latter advanced the Parishes $90,-000 and they agreed to assign to plaintiffs as security an undivided 1062/1350ths of the 7/8ths working interest of the first oil and gas produced from the leasehold until the loan with interest at four percent was fully paid. Thereafter division orders were delivered to the defendant notifying it of such action.
On the same day the identical parties entered into a second contract whereby in consideration of a waiver of the interest payments required by the terms of the loan agreement, covenants pertaining to sharing in expense to be shortly incurred in the acidization and reconditioning of the gas wells on the premises in question and payment of the sum of $100 the Parishes gave plaintiffs an option to purchase an undivided 81/135ths of the 7/8ths working interest in their oil and gas leases.
The assignments referred to in the contract of May 31, 1941, were duly executed, and later on June 16, 1941, deposited with The Fourth National Bank of Tulsa, Okla., together with an escrow agreement providing they were to be delivered by that institution to plaintiffs in the event of their exercise of the option heretofore mentioned.
December 13, 1944, defendant filed an action for recovery of a substantial sum of money against the Parishes in Grant county, Kansas. Two days later an attachment was issued out of the district court of that county and levied on their interest in the oil and gas leasehold. Thereafter a receiver was appointed to take charge of and handle the property.
On December 16, 1944, one day after the attachment levy, plaintiffs exercised the option granted under the contract of May 31, 1941, procured the assignments from the escrow agent and on December 18, 1944, caused them to be placed of record in the office of the register of deeds of Grant county.
February 6, 1945, the action in the Grant county district court was removed to the United States District Court of Kansas, Second Division. There, the plaintiffs intervened, asserted title to sixty percent of the oil and gas leases based upon the transactions heretofore related and asked for a judgment discharging the attachment.
The attachment was discharged by order of the federal court on October 1, 1947. Following that action the receiver paid plaintiffs all money collected by him for gas produced from and attributable to their interest in the leases.
The amended petition further states that defendant at all times material to the action has taken all gas produced and saved from the oil and gas leases described in the purchase contract into its pipe line but asserts that all moneys due them since January, 1945, inuring by virtue of such contract, have been paid plaintiffs solely pursuant to court orders resisted by defendant and that the latter still questions plaintiffs’ title to the interest acquired by them, in the leases under the option agreement and have informed them it does not recognize their interest therein and will not pay them any of the proceeds accruing from gas runs arising therefrom.
In addition to what has been heretofore related such amended pleading states that the gas purchase contract has become an improvident bargain and is, therefore, a contract against public policy which should be canceled. It also contains charges, supported by appropriate allegations, in 'substance to the effect defendant has breached such' contract because (1) it contested dissolution of the attachment; (2) it attempted to acquire title to plaintiffs’ properties by asserting the transfer to plaintiffs was obtained by a usurious contract; (3) it attempted a conspiracy by an offer to the Parishes to dismiss the action against them if they would join with it in a suit to set aside and annul the transfer to plaintiffs on grounds of usury; (4). it failed to pay for gas runs while the attachment proceedings against the Parishes were pending and has refused to recognize plaintiffs’ leasehold estate and their title therein .and pay for gas runs accruing thereafter, and (5) its action with respect to all such matters has prevented plaintiffs from effecting a profitable merger with Aberdeen Petroleum Corporation, a Delaware corporation.
Up to this point our relation of factual allegations has been limited to the first cause of action. The second cause of action includes all pertinent averments of the first by reference and one further allegation which reads:
“That by virtue of the defendant Having breached the hereinbefore referred to gas purchase contract, Exhibit ‘B,’ in a wilfull, deceitful and malicious manner, as hereinbefore alleged in their first cause of action, that the Court should award, in addition to the cancellation of said gas purchase contract, Exhibit ‘B,’ a punitive amount that to the Court seems meet in equity to punish the defendant for said wrongs and conduct.”
In conclusion plaintiffs pray (1) that under their first cause of action they have judgment for rescission, cancellation and surrender of the gas purchase contract together with any and all equitable relief to which the court may deem them entitled, and (2) that on their second cause of action they recover a money award by way of punitive damages in such an amount as will compensate them for the wrongful and malicious acts perpetrated upon them by the defendant.
Following the filing of the amended petition the defendant demurred to each cause of action therein set forth on grounds of (1) lack of plaintiffs’ legal capacity to maintain the action; (2) misjoinder of causes of action; (3) failure of each cause of action to state a cause of action and, (4) lack of jurisdiction on the part of the trial court of the subject of the action, due to the nonjoinder of indispensable parties. This demurrer was overruled as to the first cause of action and sustained as to the second. The parties then perfected the appeals to which we have heretofore referred.
The status of this appeal is so involved that use of the terms appellant and appellee, or others of similar import, will not only confuse the issues but result in a waste of time and space. For that reason, throughout remaining portions of this opinion, the respective parties frill be referred to as Toklan and Panhandle.
Since they are in a sense preliminary to a disposition of the main issue we shall first refer to errors assigned by Toklan with respect to rulings on motions to the pleadings. The first is that the trial court erred in requiring it to amend the original petition by separately stating and numbering the causes of action therein set forth. We fail to see where this ruling affected a substantial right or resulted in any prejudice to Toklan. By reference it incorporated everything in its second cause of action that had been included in the original pleading. Thereafter, the trial court refused to sustain Panhandle’s demurrer to the first cause of action for cancellation of the contract. In such a situation the established rule of this jurisdiction is that the ruling on the motion is not appealable. Even if we were to so regard it the trial court’s action with respect thereto would not be reversed. (See Nelson v. Schippel, 143 Kan. 546, 56 P. 2d 469; Hasty v. Bays, 145 Kan. 463, 66 P. 2d 265; Gibson v. Bodley, 156 Kan. 338, 342, 133 P. 2d 112; Estes v. Tobin Construction Co., 159 Kan. 322, 324, 153 P. 2d 939; Sanders v. Visser, 165 Kan. 336, 338, 194 P. 2d 511.)
The second claim of this character has reference to the sustaining of a motion to strike an allegation from the amended petition relating to an estimated loss to Toklan resulting from failure to effect a merger with Aberdeen Petroleum Corporation. The ruling on this motion was not included in the notice of appeal and on that account there is sound authority for holding it is not subject to review. (See Weigand v. Wilson, 107 Kan. 445, 193 Pac. 1065; Hardman Lumber Co. v. Spitznaugle, 130 Kan. 346, 286 Pac. 235; Dolan Mercantile Co. v. Wholesale Grocery Subscribers, 131 Kan. 374, 291 Pac. 935; West’s Kansas Digest, Appeal and Error, §§ 418 to 421, incl.) Moreover, under the facts as pleaded, there is much merit to Panhandle’s contention that for purpose of appellate review its status and that of the order requiring Toklan to separately state and number its causes of action are identical (see the decisions heretofore cited, also Munger v. Beiderwell, 155 Kan. 187, 124 P. 2d 452; Wharton v. Zenger, 162 Kan. 69, 174 P. 2d 103; Giltner v. Stephens, 163 Kan. 37, 180 P. 2d 288). Be that as it may, we need not base our decision on this point upon either of the two grounds last mentioned. The trial court acted on the motion on April 23, 1948. Assuming its action was tantamount to a ruling on a demurrer Toklan made no attempt to appeal until March 10, 1949, more than nine months thereafter. The statute (G. S. 1947 Supp. 60-3309) allows but two months. Consequently, the appeal from this particular ruling is too late (Hubert v. Board of Public Utilities, 162 Kan. 205, 206, 174 P. 2d 1017) and we have no jurisdiction (Eikelberger v. Saline County Comm’rs, 151 Kan. 619, 100 P. 2d 651; Palmer v. Helmer, 159 Kan. 647, 157 P. 2d 531) to consider it.
We can now turn to the real issue in this lawsuit. Panhandle contends it appears upon the face of the amended petition certain persons, namely those holding the forty percent interest under the gas purchase contract who were not joined as parties plaintiff, are indispensable parties to the action and that hence their demurrer to the first cause of action should have been sustained on several of the grounds therein set forth.
As we approach consideration of this contention it is well to keep in mind applicable provisions of the statute.
G. S. 1935, 60-401, provides that every action must be prosecuted in the name of the real party in interest except under certain circumstances not here involved.
G. S. 1935, 60-412, reads:
“Of the parties to the action, those who are united in interest must be joined, as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason being stated in the petition.”
It must, of course, be conceded that under the provisions of G. S. 1935, 60-705, a petition is demurrable when on its face it appears the plaintiff has no legal capacity to sue or that it does not state facts sufficient to constitute a cause of action.
It should be noted, without attempting at this point to discuss the reasons for the conclusions therein announced, that under our decisions objections founded on grounds that a plaintiff is not the real party in interest (Gibbs v. Central Surety & Ins. Corp., 163 Kan. 252, 181 P. 2d 520; Lawrence Nat’l Bank v. Howard, 125 Kan. 85, 262 Pac. 561) or that a proper party has not brought the action or had no legal capacity to maintain it (Federal Savings & Loan Ins. Corp. v. Hatton, 156 Kan. 673, 135 P. 2d 559) must be made by demurrer to the petition or by answer, otherwise they will be deemed to have been waived.
Next let us see who are necessary or indispensable parties to an action wherein the plaintiff seeks to invoke the equitable remedy of cancellation. The general rule can be found in 9 Am. Jur. 395, 396, Cancellation of Instruments, §§ 54, 55, where the following statement appears:
“When instituting a suit for the cancellation of a written instrument, the plaintiff or complainant should join as parties, either plaintiff or defendant according to the nature of their interests, all persons whose rights or privileges may be in any way affected by the granting of the relief he seeks to obtain. Thus, all parties to the instrument must be made parties. The judgment or decree in such an action operates in personam, and one who is not a party to the suit cannot be compelled to deliver up an instrument for cancellation. The successor in interest of the grantee in the instrument in question is always an indispensable party defendant, even though such successor be the United States, which cannot be sued without its consent.
“It is only when the rights in the instrument of those before the court are completely separable from the rights of those who are absent that the latter are not indispensable parties to an action to cancel or rescind a contract or written instrument. . . .”
To the same effect is 12 C. J. S. 1027, Cancellation of Instruments, § 52, which reads:
“The rules of equity with reference to parties control in a suit wherein plaintiff seeks to enforce equitable rights through the equitable remedy of cancellation or rescission. All persons whose rights, interests, or relations with or through the subject matter of the suit would be affected by the cancellation or rescission are proper and necessary parties in order that they may have an opportunity to be heard; and unless they are made parties the court is precluded from rendering a judgment or decree of cancellation. Where such persons are not made parties originally, they may be brought in by amendment, but until the omission is corrected the court should not proceed further, even though no objection is made by any party litigant.”
Our own decisions, obviously in conformity with the specific provisions of G. S. 1935, 60-412, which have long been in force and effect in this state (see G. S. 1868, ch. 80, sec. 37), are in line with the general rule.
Long ago in Hill v. Lewis, 45 Kan. 162, 25 Pac. 589, we held:
“In an action to set aside certain conveyances of real estate, it was alleged that the plaintiffs, L. and husband, owned and resided on a tract of land as their homestead, and that while so occupying it the husband executed a conveyance of the same to H., without consent of his wife; that subsequently H. and his wife, Lydia H., executed a deed with the usual covenants of warranty to P. The action to set aside both of these conveyances was brought against H. and P., without joining as a defendant Lydia H., one of the grantors of P. Held, That she is a necessary party in the action to cancel the deed in which she joined as grantor, and that the petition disclosed upon its face a defect of parties defendant.” (Syl.)
Another early case, Constant v. Lehman, 52 Kan. 227, 34 Pac. 745, holds:
“The rescission of a contract must be made by a restoration to each of the parties thereto of that which has been received under it; and, in order to obtain such rescission, all of the parties interested in the property involved must be brought before the court.” (Syl. f 1.)
As recently as Tamsk v. Continental Oil Co., 158 Kan. 747, 752, 150 P. 2d 326, in affirming a judgment refusing to cancel an oil and gas lease, we said:
“. . . There is a further reason why we shall not order a cancellation of the lease on this record. By a reference to the stipulation it appears that the lease on all this land has been released to plaintiff except that on a place 200 feet square where the producing well is located. The only interest the defendant has in that lease is a one-sixteenth of the working interest. This action for forfeiture is not brought against the other parties who own the balance of this working interest. Any order of cancellation that might be entered would operate against this one-sixteenth interest only.” (p. 752.)
At pages 208 and 209 of the opinion in Hubert v. Board of Public Utilities, supra, we quoted extensively from 39 Am. Jur. 902, § 35, on the subject of indispensable parties and the necessity for their joinder, stressing a statement appearing on page 884, §25 of the same volume of that work to the effect the burden of procuring the presence of all such parties is on the plaintiff.
A further illustration of the rule is to be found in Price v. Carmean, 136 Kan. 744, 18 P. 2d 197, where three of seven heirs attempted to recover a sizeable amount alleged to be due on fifteen shares of stock which had passed into the possession of the administratrix of their deceased father, three-sevenths of which was claimed to belong to the plaintiffs. There we held:
“Where there is a unity of interest in a number of parties in a cause of action, all should be joined as plaintiffs or defendants, and if any party so interested will not consent to join as plaintiff he may be made defendant, the reason being stated in the petition.” (Syl. ¶ 3.)
And at page 749 of the opinion said:
“Whether the order relating to the ownership of the shares is of any validity or may be redetermined in the district court, is not necessary now to decide. In any event, such a question cannot be reexamined and determined in the district court until all interested parties are brought in on proper pleadings which present the distinct issue so that it can be tried out in conformity with the governing rules of procedure.
“When the defects mentioned were presented to the court, and it became apparent that under the petition plaintiffs were not entitled to recover, they did not ask to amend the petition to make necessary parties, to eliminate improper parties, or to cure the misjoinder of actions. In this situation the court had no alternative than to dismiss the action.”
Other decisions, not necessarily decisive but nevertheless informative, dealing with various phases of the same doctrine but particularly with the consequences of failure to insist upon joinder of necessary parties are: Thomas v. Reynolds, 29 Kan. 304; Coulson v. Wing, 42 Kan. 507, 22 Pac. 570; Hurd v. Simpson, 47 Kan. 245, 26 Pac. 465, and 47 Kan. 372, 27 Pac. 961; Maezler v. Swan, 75 Kan. 496, 89 Pac. 1037; McGinnis v. General Exchange Ins. Corp., 142 Kan. 338, 46 P. 2d 876; Grolier Society v. Foster, 110 Kan. 306, 203 Pac. 920.
Toklan insists failure to join parties, even though they are united in interest and therefore indispensable under allegations of a petition, constitutes a mere defect in parties which is not one of the grounds for a demurrer. It is true the statute no longer contains any such ground. However, that does not mean a petition is not demurrable when indispensable parties have not been joined. When that is apparent there is not only a defect of parties but a lack of legal capacity to maintain the action.- There is nothing mysterious about what is meant by “capacity to sue” as that term is used in 60-705, supra. It consists of the right to come in to court for relief concerning the subject of the action (Howell v. Cement Co., 86 Kan. 450, 452, 121 Pac. 346; Braden v. Neal, 132 Kan. 387, 390, 295 Pac. 678). So where a plaintiff pleads facts clearly disclosing he has no right to come into court and maintain his action because of failure to join indispensable parties he lacks legal capacity to sue and his petition is demurrable on that ground. More than that when on the face of a petition it appears there is a unity of interest in the subject of the action and that the plaintiff has not joined persons so united in interest it cannot be said the action has been instituted by the proper party or is being maintained by such plaintiff as the real party in interest. Toklan concedes that if its petition is susceptible of such a construction the demurrer would be good.
We have not failed to examine the numerous decisions cited by Toklan in support of its position on the subject just disposed of. Thiessen v. Weber, 128 Kan. 556, 278 Pac. 770, on which they place much weight, was an action for forfeiture and cancellation of an oil and gas lease. Resort to the decision will reveal that it was decided upon an entirely different state of facts. Indeed, at one point in the opinion it is said “by the terms of the lease, therefore, the interests of the parties to the instrument were recognized as being divisible.” Moreover, it there clearly appears the plaintiff had made all persons interested in the involved lease parties defendant to the action and that the court was not concerned with any defect of parties in deciding the case. Such decision is clearly distinguishable and therefore not decisive. The other decisions on which Toklan relies are more easily distinguished and for that reason do not merit specific attention.
From the authorities to which we have heretofore referred we have little difficulty in concluding that Toklan cannot maintain the instant action for cancellation of the gas purchase contract without joining, either as plaintiffs or defendants, all other persons who have a forty percent interest in that agreement. Clearly under its terms the parties entitled to its benefits are united in interest if for no other reason than they have an undivided interest in each and every cubic foot of gas produced and delivered from the leasehold estate in which they have a like interest. Therefore, under our decisions the holders of the forty percent interest are indispensable parties to the action, without whom the court could not render an effective decree of cancellation. It follows the demurrer to the first cause of action should have been sustained on the ground that under the allegations of the petition Toklan had no legal capacity to maintain the action.
But that is not all. The court should have sustained the demurrer to such cause of action on the additional ground it failed to state facts sufficient to constitute a cause of action for cancellation of the contract. In Shawnee County Comm’rs v. Cook, 141 Kan. 677, 42 P. 2d 568, an action to foreclose a mortgage on participation bonds in which a number of persons were united in interest, we held:
“In an action brought by the holder of a part only of such participation mortgage bonds, to foreclose the original mortgage, a petition which does not allege failure or refusal of the trustee to declare the debt due and to institute foreclosure proceedings, or, if such failure or refusal be alleged, to join as parties plaintiff all those united in interest by reason of being owners of the remainder of such participation mortgage bonds, or if they will not consent to so joining, to make such nonconsenting holders defendants in the action, giving the reason therefore, does not state a cause of action. ” (Syl ¶3.)
It may be suggested the amended petition contains an allegation to the effect that if the holders of the forty percent interest in the contract were necessary parties they should be given an opportunity to intervene in the action. The trouble is they did not intervene and Toklan did not make them parties as it was required to do under the provisions of G. S. 1935, 60-412, before the demurrer was ruled upon. The burden, as we have heretofore indicated, of procuring the presence of all indispensable parties was on plaintiff in the action, not the trial court.
The conclusions just announced do away with all necessity for discussion of other theories advanced by Panhandle as to why allegations of the first cause of action failed to state facts sufficient to constitute a cause of action for cancellation of the contract. The same holds true of arguments made by Toklan in support of their sufficiency.
On the same premise little need be said with reference to Toklan’s contentions pertaining to the sufficiency of the second cause of action. It suffices to say all claims to punitive damages therein made were based primarily on its right to have the contract canceled and that in the absence of its legal capacity to maintain the action for that purpose the trial court properly sustained the demurrer to such cause of action.
The judgment of the trial court in overruling the demurrer to the first cause of action is reversed with directions to sustain such demurrer and its judgment sustaining the demurrer to the second cause of action is affirmed. | [
-48,
108,
-16,
12,
27,
32,
40,
-101,
89,
-79,
-9,
83,
-87,
91,
4,
121,
-25,
121,
116,
106,
-73,
-77,
4,
34,
-46,
-77,
-15,
-35,
-79,
77,
-28,
87,
72,
32,
-54,
-43,
102,
66,
-59,
84,
78,
33,
-103,
77,
-55,
72,
48,
74,
48,
73,
65,
-113,
-13,
32,
25,
-61,
105,
46,
-7,
57,
-47,
-72,
26,
-115,
95,
22,
17,
101,
-104,
7,
-24,
30,
-112,
49,
8,
-24,
115,
54,
-58,
116,
35,
-69,
40,
34,
98,
34,
-27,
-17,
-36,
-104,
39,
-34,
-99,
-90,
-48,
120,
3,
65,
-65,
-99,
124,
30,
-121,
118,
-10,
5,
31,
109,
21,
-118,
-106,
-93,
15,
-4,
-102,
75,
-21,
-93,
4,
100,
-51,
-94,
92,
71,
115,
-97,
-121,
-8
] |
The opinion of the court was delivered by
Wedell, J.:
This was an action against a surety on a replevin bond. From an adverse judgment the surety appeals.
Before treating appellant’s, Carl Johnson’s, contentions in the instant action on the replevin bond we shall briefly sketch the narrative of evidence in the replevin action as that forms the basis of appellant’s contentions.
In the replevin action Lester W. Haden was the plaintiff and Wendell R. Prather was the defendant. The replevin action was instituted October 14, 1947, at which time a replevin bond was filed on which Carl Johnson was the surety. Within twenty-four hours Wendell R. Prather furnished a redelivery bond and retained possession of the automobile, the property in question, until December 13, 1947. The surety on the redelivery bond had learned that her principal, Wendell R. Prather, had accepted employment out of the state, in Kansas City, Mo., but he had left the car at Wichita. The surety on the redelivery bond then delivered the car to the sheriff who it is said released that surety and Wendell R. Prather, principal on the redelivei’y bond. The sheriff retained the redelivery bond. Wendell R. Prather was notified in Kansas City, Mo., the car had been delivered to the sheriff. On December 13, 1947, the sheriff delivered the car to the plaintiff in the replevin action by reason of the replevin bond the plaintiff, Haden, and Johnson as surety, had executed. Haden thereafter retained possession of the caz\
The replevin action between Haden and Wendell R. Prather was tried April 14, 1948. On May 17, 1948, judgznent was rendered against Haden and in favor of Wendell R. Prather pursuant to the following verdict:
“We, the jury impaneled and sworn in the above entitled case duly sworn on oath, find for the defendant (plaintiff in this action) for the recovery of the possession of one Dodge convertible automobile and we further find the value of said automobile at the time it was taken by the plaintiff (Haden) to be $2,200.00.”
No appeal was perfected from the judgment in the replevin action by Haden or his surety, Johnson. On July 21, 1948, execution was issued and returned unsatisfied. On August 19, 1948, the instant action was instituted by Wendell R. Prather, the defendant who prevailed in the replevin action, against Carl Johnson, the surety on the replevin bond.
The pertinent part of the replevin bond provided:
“Now Therefore, We, Lester Haden as principal, and Carl Johnson- as surety, hereby undertake to the said Defendant in the sum of $5,000.00 that the said Plaintiff shall duly prosecute this action and pay all costs and damages which may be awarded against him; and if the said property be delivered to him that he will return the same to the Defendant if a return thereof be adjudged.” (Our italics.)
As previously indicated the car was not delivered to the defendant, Prather, in the replevin action pursuant to the judgment rendered and execution was returned unsatisfied. Hence this action against the surety on the replevin bond.
In his answer, in the instant action, the surety, in substance alleged: He had no knowledge of and did not consent to the acts of Wendell R. Prather and his surety on the redelivery bond in surrendering the car to the sheriff and to the sheriff’s delivery of it to the plaintiff in the replevin action; the plaintiff in the replevin action did not obtain possession of the car by virtue of the replevin bond; if he, the surety on the replevin bond, was at any time liable the liability was discharged by the voluntary delivery of the car to the plaintiff in the replevin action pursuant to directions of the surety on the redelivery bond.
Touching the surety’s, appellant’s, knowledge of the fact his principal had acquired possession of the car the record, in substance, disclosed: Haden, the principal on the replevin bond, was employed by the surety, Johnson, before that bond was executed; he was so employed by the surety from October 8, 1947, to February 28, 1948; appellant, the surety, knew the car had been returned to Haden within a few days after its return by the sheriff; Haden drove the car around appellant’s place of business and parked it in a parking lot at appellant’s place of business; appellant saw Haden driving the car on several occasions prior to the trial of the replevin action; Haden drove the car every day.
Appellee argues the foregoing facts show appellant, surety bn the replevin bond, knew and consented to his principal, Haden, having possession of the car after its delivery to Haden. These facts may be entitled to some secondary consideration to which we shall refer later. In passing we may say this is not a case in which a plaintiff in a replevin action and his surety consented, or attempted to consent to the release of a surety on a redelivery bond and thereafter brought an action on the redelivery bond to hold such surety liable.
The instant action is on the replevin bond given by a plaintiff for the benefit and protection of a defendant who prevailed in the replevin action.
The first question in this case is when did the liability on the replevin bond beccime fixed? The next question is how long did that liability continue? The liability on a replevin bond attaches and becomes fixed when the bond is approved. No subsequent action by the surety on the redelivery bond in an attempt to rid himself of his own liability on that bond can affect the liability of the surety on the replevin bond. It has even been held no conduct of the parties to a redelivery bond could work a withdrawal of that bond or release the surety on it from liability after the redelivery bond had been posted. (Bank v. Martin, 81 Kan. 794, 798, 106 Pac. 1056.)
The question when liability on a bond attaches in a replevin action and whether sureties may be subsequently released therefrom is well treated in Bank v. Martin, supra. In that particular case liability on a redelivery bond was involved. It was claimed certain actions, fully stated there which need not be repeated here, relieved defendants in a replevin action from liability on their redelivery bond. In denying such contention the court held the bond remained valid and the parties were bound by the judgment in the replevin action. The same principle applies here.
How long did the force and effect of the replevin bond continue? The protection of a replevin bond continues until the action in which it is given is brought to final judgment and, if it be determined against the plaintiff, until such judgment is performed. (McCormick v. Fisher, 63 Kan. 199, 201, 65 Pac. 223.) To the same effect are decisions of foreign jurisdictions. (Markall v. Peterson, 59 C. A. 2d 248, 139 P. 2d 70; Kurzweil v. Story & Clark Piano Co., 159 N. Y. S. 231; York Ice Mach’y Corp., Aplnt., v. Robbins et al., 323 Pa. 369, 185 A. 626.)
Appellant argues the defendant in the replevin action posted a redelivery bond and the car was, therefore, not delivered to the plaintiff in that action pursuant to the replevin bonds In other words appellant contends the condition of the replevin bond that “. . . if the said property be delivered to him . . . [the plaintiff] . . did not occur in the replevin action at the time the replevin bond was given and therefore appellant is not liable on the bond. The contention is not good. That situation arises in every case where both a replevin and a redelivery bond are given. The question who is entitled to possession of the property always re mains until determined by judgment. Both bonds remain as protection to the successful party.
So in the Pennsylvania case, supra, it was said:
“Notwithstanding that defendant has retained possession of the goods sought to be replevied by eounter-bond, the bond of the plaintiff necessarily remains as security to defendant for his damages and costs incurred should he prevail in the action.” (p. 372.)
There are also certain facts in the instant case which may be entitled to at least secondary consideration. As previously indicated appellant and his principal acquiesced in the surrender of the car by defendant’s surety in the replevin case and to its delivery to the plaintiff in that action. That such plaintiff actually retained possession of the car is conceded. That such plaintiff might have acquired possession of the car from defendant in the replevin action only by virtue of a replevin bond is clear. Except for a replevin bond the property would have remained in the possession of the defendant in that case even though no redelivery bond had been given. It follows that whether the redelivery bond remained effective or not appellant was not released of his liability as a surety on the replevin bond.
The judgment is affirmed. | [
84,
-21,
-16,
-66,
10,
-32,
10,
26,
115,
-116,
39,
-45,
-87,
-18,
0,
61,
126,
63,
117,
121,
-116,
-77,
83,
-80,
-45,
-77,
-39,
-43,
-69,
94,
116,
87,
12,
112,
-118,
-43,
102,
-118,
-43,
84,
-52,
-123,
56,
-28,
-39,
80,
52,
33,
84,
73,
101,
-114,
-45,
46,
25,
-57,
105,
40,
-53,
43,
64,
-15,
-103,
15,
-17,
21,
-127,
6,
-104,
97,
120,
10,
-100,
57,
20,
-24,
115,
-74,
6,
-44,
107,
-119,
8,
34,
98,
2,
113,
-115,
-72,
-104,
46,
-74,
-113,
-121,
16,
88,
75,
33,
-74,
-97,
123,
22,
39,
124,
-18,
4,
21,
108,
7,
-50,
-106,
-79,
-19,
48,
14,
9,
-5,
1,
53,
112,
-49,
-32,
93,
55,
91,
-69,
-57,
-4
] |
The opinion of the court was delivered by
Arn, J.:
Plaintiff brought this action to recover for personal injuries and property damage arising out of a rear-end collision between two trucks, one driven by plaintiff and the other by defendant. Defendant’s demurrer to plaintiff’s petition was overruled and defendant appeals, contending that the petition does not state facts sufficient to constitute a cause of action in favor of plaintiff and against defendant in that it reveals upon its face that plaintiff was guilty of contributory negligence.
The petition alleges that plaintiff and defendant áre brothers; that they were engaged in hauling hay between two points, and at the time of the collision were traveling the usual route for another load. The petition continues:
“4. That as they approached the intersection of the east and west county road upon which they were, traveling with the north and south township road between Harper and New Gottland Townships, which intersection was three miles east from the comer where they had turned east and two miles west of U. S. Highway No. 81, they were driving approximately 30 miles per hour and plaintiff was following defendant at a distance of approximately 150 feet. That as they approached said intersection another automobile was proceeding south on the township road and north of the intersection and likewise approaching the intersection, and that such automobile came to a stop on the north side of the intersection. That as defendant was about to pass the automobile stopped on the north side of the intersection he saw that it was driven by Bernard Olson, that defendant knew Bernard Olson was manager of the Rodney Milling Company elevator at Hilton, Kansas, and which elevator had a scale, that defendant suddenly decided he wanted to talk with Bernard Olson about weighing baled hay that afternoon, that defendant immediately applied his brakes with sufficient force to suddenly stop his truck, released the clutch, rolled down the window on the left side of his truck, suddenly stopped in the center of the main traveled portion of the road, and started to put his head out of the window to call to Bernard Olson when the collision hereinafter set forth occurred, and that the defendant suddenly stopped his truck in the center of the main traveled portion of the road without any signal or warning to the plaintiff who he then knew was following him immediately to the rear when he had an opportunity to give a signal, and without turning his truck to the right and driving it off of the main traveled portion of the road when it was practical to, do so.
“5. That as plaintiff approached said intersection following the defendant as aforesaid, the plaintiff saw the automobile which he subsequently learned was driven by Bernard Olson, being driven south on the township road north of the intersection and approach said intersection and stop, that plaintiff also observed that there was no other traffic on either the county or township road except the defendant, the automobile driven by Bernard Olson, and the plaintiff, that as plaintiff approached and entered said intersection he was observing the automobile driven by Bernard Olson to see that it did not enter the intersection immediately behind the defendant and between the defendant and plaintiff, that the windshield of the automobile driven by Bernard Olson was partially covered by frost and plaintiff did not know whether or not the driver of such automobile also saw the plaintiff following the defendant and would wait for plaintiff to pass through the intersection or whether the driver of such automobile had stopped for the defendant, that as plaintiff passed the automobile driven by Bernard Olson he looked ahead of him and saw the defendant either stopped or about to stop suddenly in the center of the road immediately ahead of him and at a distance of approximately 20 to 30 feet, that before plaintiff could apply his brakes or attempt to turn aside he crashed into the defendant’s truck causing the injuries and damages hereinafter set forth, and that such collision occurred approximately 25 to 30 feet east of the east side of said intersection. That the collision of plaintiff’s truck with defendant’s truck was proximately caused by the negligence of the defendant by suddenly stopping without first giving an appropriate signal as required by law to the plaintiff who he knew was following him and when he had an opportunity to give such signal, and by the negligence of the defendant in failing to turn his truck to the right and drive it off of the main traveled portion of the road when it was practical to do so.”
Appellant also complains of a trial court order overruling his motion to strike certain allegations of the petition concerning the practices of these parties in buying and hauling hay. Those allegations do not pertain to the allegations challenged by the demurrer. Neither do they affect any substantial right which would in any way determine this action, and that ruling was therefore not appealable. (Estes v. Tobin Construction Co., 159 Kan. 322, 153 P. 2d 939.)
The allegations of the petition that defendant (appellant) suddenly applied his brakes and suddenly stopped his truck in the center of the main traveled portion of the road, without giving any warning signal, and knowing that plaintiff’s truck was following directly behind him, sufficiently alleges negligence on the part of defendant — and appellant does not contend otherwise. It is appellant’s contention that paragraph 5 of the petition alleging that as plaintiff crossed the intersection following defendant’s eastbound truck he was observing another car which was waiting to cross the intersection on a north-south road, constitutes contributory negligence as a matter of law. Appellant attempts to invoke the rule that a driver of a motor vehicle must so operate his vehicle that he can safely stop within the distance that he can clearly see any other vehicular traffic in the roadway ahead of him. That is a well established rule, but it does not apply to a situation where a sudden emergency arises, as by the sudden application of brakes and sudden stop without warning of another vehicle just ahead. (Towell v. Staley, 161 Kan. 127, 166 P. 2d 699; Drennan v. Penn. Casualty Co., 162 Kan. 286, 176 P. 2d 522; and Henderson v. National Mutual Cas. Co., 164 Kan. 109, 187 P. 2d 508.)
Construing the allegations of the petition liberally in favor of the pleader, as we must in such a case, we cannot say as a matter of law that the plaintiff’s petition shows upon its face that plaintiff was guilty of contributory negligence in the manner in which he kept a lookout for other traffic on the north-south road. The demurrer to the petition was properly overruled and the judgment is affirmed. | [
-16,
104,
-48,
-114,
11,
106,
34,
-102,
117,
-75,
101,
19,
-19,
-53,
4,
113,
-2,
29,
-47,
42,
119,
-93,
79,
-30,
-110,
-77,
-15,
-58,
-80,
-53,
102,
-16,
73,
48,
10,
21,
38,
-120,
69,
92,
-50,
4,
9,
-8,
-55,
0,
-72,
42,
22,
9,
49,
15,
-61,
46,
24,
-61,
41,
44,
107,
44,
-47,
-15,
-55,
5,
95,
2,
-95,
4,
-102,
5,
120,
59,
-112,
-71,
40,
120,
50,
-90,
-128,
-12,
107,
-103,
12,
-82,
99,
33,
21,
-51,
-84,
-104,
14,
-6,
29,
-121,
-80,
24,
27,
33,
-106,
29,
115,
54,
6,
126,
-3,
5,
31,
104,
7,
-54,
-76,
-111,
-49,
116,
20,
89,
-21,
5,
50,
97,
-123,
-26,
93,
71,
82,
59,
-97,
-74
] |
The opinion of the court was delivered by
HortON, C. J.:
On November 16, 1874, the plaintiff recovered a judgment against Samuel Crane and Peter B. Crane before a justice of the peace of Johnson county, in this state, for $102.12 and $73.20 costs. At the time of the rendition of this judgment, it does not appear that either Samuel Crane or Peter B. Crane had any property with which to satisfy the same. Subsequently, and in the month of April, 1878, Barton Crane, the father of Samuel and Peter B. Crane, died intestate, seized and possessed of the quarter-section of land in controversy. He left eight children surviving him as his sole and only heirs. On September 3, 1879, plaintiff filed an ab-. st-ract of his judgment in the office of the clerk of the district court of Johnson county, upon which execution was issued September 6, 1879, and levied upon the interests of said Samuel Crane and P. B. Crane in the land inherited by them from their father. The land was not sold under this execution, for want of bidders. On October 17, 1879, another abstract of the judgment was filed in the office of the clerk of said district court, and after the filing of this abstract — called in the record an amended or corrected abstract — an alias execution was issued, December 5, 1881. This was levied upon the undivided interests of Samuel Crane and P. B. Crane in said land, which was appraised, advertised and sold on January 26,1882, to the plaintiff. The sale was confirmed March 6, 1882, and on March 16, 1882, a sheriff’s deed was executed to the plaintiff. On August 28, 1882, this action was commenced against William Crane and the other defendants, to partition the land. William Crane, in his answer, denied that the plaintiff had any interest in the same. The other defendants were in default. The referee, who reported his conclusions of fact and of law, decided that the abstract of judgment filed September 3, 1879, was void for uncertainty. The court below affirmed this ruling. The first question, therefore, in the case, concerns this abstract. It was as follows:
“State of Kansas, Johnson County, ss. — A. A. Dickens, plaintiff, v. P. B. Crane, and Samuel Crane, defendants.— In Justice Court, before Daniel Rolfe, Justice of the Peace, Lexington Township, November 16,1874. — Judgment entered for plaintiff: debt, 1.0212; costs, 7.3,20. I hereby certify that the foregoing is a full and correct abstract of a judgment rendered by me in the suit above entitled.
Daniel Rolfe,
A Justice of the Peace for Lexington Township, Johnson County, Kansas.”
The contention of the defendant is, that the abstract was not in regular form; that it did not show any amount of judgment, or rate of interest; and that as the dollar-marks and proper punctuation to denote dollars and cents were omitted, the abstract was a meaningless thing. With all this we do not concur. The abstract was somewhat defective, but was not wholly void for uncertainty, or for any other reason. The form of the abstract was in substantial compliance with the statute. (Comp. Laws of 1879, ch. 81, §119.)
It was said in Hunt v. Smith, 9 Kas. 137, that—
“Whenever figures are used intending to represent money, such figures must of course be understood to represent ‘ dollars/ unless a different intention is clearly expressed. The point or dot resembling a period in punctuation, separating certain figures on the right from those on the left, is the decimal point. It makes the figures on the right decimals of a unit or whatever is intended to be expressed by those on the left. Those on the left, as we have already seen, are intended to represent dollars; hence, those on the right must represent decimals of dollars.”
Applying this rule, the most that can be claimed of the abstract is, that the judgment shown was too small. The abstract should have stated, debt, $102.12; costs, $73.20. Instead of this, it shows a judgment in plaintiff’s favor for debt, 1.0212; costs, 7.3,20; that is, debt, one dollar and two hundred and twelve ten-thousandths dollars; costs, seven dollars and three hundred and twenty thousandths dollars, or seven dollars and thirty-two cents. Therefore, while the abstract shows the judgment too small, it cannot, for that reason, or for the omission of the dollar-mark or other punctuation points, be called void or invalid. The alias execution of December 5,1881, cannot now be declared void, on the ground that the amount of the judgment and costs mentioned therein were at variance with the abstract of September 3,1879, even if that were the only abstract filed, as there has been a levy, a sale, and a confirmation under the execution. (Freeman on Executions, § 43; Hunt v. Loucks, 38 Cal. 372.) The defendants in the execution have at no time attempted to set aside the execution, or alias execution or sale, or any of the proceedings under the execution, and the question at this time is not what the district court would have done with the alias execution and sheriff’s sale if the defendants in the original judgment had moved to set them, or either of them, aside, as they might have done. Therefore, even if the alias execution were irregular, it was voidable only, not void. (Cross v. Knox, 32 Kas. 725; Freeman on Executions, supra.) If, however, the abstract filed October 17, 1879, be considered as an amendment or correction of the original abstract, then, as the alias execution followed that, said execution was not even irregular.
The next important question is, whether the sheriff’s deed, executed March 16, 1882, is prima facie evidence of the title in the grantee — the plaintiff. As we have already held that the abstract of judgment filed September 3,1879, was not void, and-that it is too late after confirmation to challenge for irregularities the execution, or alias execution, the plaintiff has a good title to the interest in the land claimed by him, if the sheriff’s deed is valid upon its face. The sheriff’s deed reads as follows:
“Know all Men by these Presents, That whereas, Ambrose Dickens, on the 16th day of November, 1874, obtained a judgment before Daniel Rolfe, a justice of the peace of the township of Lexington, county of Johnson, and state of Kansas, against P. B. Crane and Samuel Crane, for the sum of one hundred and two and dollars, together with interest on said sum of money at the rate of 10 per cent, per annum, from November 1,1874, until paid, and also for the sum of seventy-three and dollars as costs therein expended; and whereas, on the 3d day of September, 1879, a transcript of said judgment was filed in the office of the clerk of the district court Avithin and for the county of Johnson, state of Kansas; and whereas, on the 17th day of October, 1879, an amended transcript of said judgment was duly filed in said clerk’s office; and whereas, on the 6th day of September, 1879, an execution was duly issued on said judgment, and delivered to the sheriff of said county on said day, and for want of goods and chattels of said defendants was duly levied by the sheriff of said county upon the lands and tenements hereinafter described, on the 6th day of September, 1879, which said lands and tenements were duly appraised and advertised, but were not sold for want of cash bidders, and said execution was afterwards by said sheriff duly returned unsatisfied in whole or in part; and whereas, afterward, to wit, on the 5th day of December, 1881, an alias execution of that date was issued to the sheriff of Johnson county, Kansas, upon and in pursuance to said amended judgment, commanding him that of the goods and chattels of the said P. B. Crane and Samuel Crane he cause to be made the said judgment and costs aforesaid, and for want of goods and chattels he cause the same to be made of the lands and tenements of the said P. B. Crane and Samuel Crane, and that he have the same before the court aforesaid in sixty days from the date of said execution, and that he then and there certify how he executed the same,” etc.
It is claimed that the deed is void upon its face, because it shows that different executions were issued upon different abstracts. It is is further claimed that the deed is void upon its face, because the levy and appraisement under the first execution had never been set aside, and therefore that the sale upon the second levy and appraisement under the alias execution rendered the sale and all proceedings void. It is also claimed that the deed is void upon its face, because it shows that the second abstract was filed on October 17, 1879, and that the alias execution was not issued until December 5,1881; and it is contended that at that date the judgment was dormant, and therefore that the execution was improperly issued. None of the supposed defects render the deed invalid. The deed does not state different abstracts, or different judgments. According to the deed, the abstract was filed September 3,1879, and was amended October 17, 1879. As recited in the deed, it does not appear that two separate and distinct abstracts were filed. On the other hand, it does appear that the second abstract was merely an amendment to the former. As the first, abstract was not void, the execution thereon of September 6, 1879, was issued within less than five years from the rendition of the judgment, and this arrested the running of the statute. The alias execution was issued within less than five years from the date of the first execution, and therefore the judgment was not dormant when the alias was issued and the land sold. Any irregularities in the appraisement cannot now be brought into question even by the defendants in the execution, much less in a collateral action by a stranger to it.
Finally, it is contended by the defendant that the evidence on the part of the plaintiff shows that Samuel Crane, one of the persons under whom the plaintiff claims, was in the penitentiary of the state, serving out a sentence of five years, during' the time a greater part of the proceedings under the judgment and abstracts were had, and that all the proceedings taken against him or his estate were absolutely void. The evidence does not sustain this statement. The judgment was rendered November 16,1874. Crane was not sentenced to the peuitentiary until November, 1877. The alias execution was issued December 5, 1881. The evidence shows that Samuel Crane must have been out of prison before the issuance of this execution, because on December 27, 1880, he appeared before a notary public in Johnson county, in this state, and acknowledged a deed to one Millie Crane. Further than this, there is no special finding by the referee that Samuel Crane remained in the penitentiary during the term for which he was sentenced.
The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring. | [
-16,
108,
-48,
60,
24,
-32,
42,
24,
73,
-94,
-80,
83,
-55,
-53,
5,
121,
86,
13,
81,
123,
-58,
-77,
31,
-61,
-110,
-14,
-45,
-35,
-77,
77,
-28,
-57,
76,
32,
74,
85,
-62,
64,
65,
84,
-124,
4,
-88,
72,
-47,
72,
52,
123,
22,
66,
117,
46,
-13,
46,
29,
-29,
-55,
44,
-37,
61,
-111,
-8,
-86,
-123,
13,
19,
-109,
34,
-104,
7,
-56,
46,
-104,
61,
-120,
-40,
115,
-76,
6,
124,
7,
-119,
13,
-10,
103,
17,
-51,
-17,
56,
-104,
47,
-2,
-119,
-90,
-108,
8,
98,
65,
-66,
-119,
117,
112,
7,
-10,
-25,
4,
28,
124,
-127,
-114,
-42,
-109,
-113,
60,
-104,
65,
-45,
-113,
32,
97,
-51,
-94,
89,
-25,
48,
-71,
-98,
-8
] |
The ojiinion of the court was delivered by
Hobton, C. J.:
The cattle described in the written contract of the parties were delivered and accepted by Dowell, defendant below, who gave to Williams, defendant in error, his check for $1,031.25 — the price of the cattle less the cost of weigh ing. Subsequently the payment of the check was stopped, probably on account of the sum of $250 which had been advanced on the contract not being deducted; but as it has never been paid, Williams is entitled to recover for his cattle.
The principal contention of the parties at the trial was over the hogs. When the case was called for hearing, Williams “ stated to the jury he did not claim that the hogs mentioned and referred to in the petition and for the recovery of the value of which in part the action had been brought, complied with the contract.” The important question of fact in the case, therefore, for the jury to determine, was, whether Dowell waived a compliance with the terms of the contract regarding the hogs alleged to have been delivered. Williams, among other things, testified: That he lived half a mile north of Robinson; that he had two conversations with Dowell after the contract, first, five or six days before July 9th, and then again on the 9th; that Dowell told him he wanted the hogs on the morning of July 9,1883; that he told him (Dowell) the hogs would not fill the contract, as they were not large enough; hat he told him he could get him others from his neighbors; that Dowell said “ he would see about it; ” that Dowell further said “that he had sold the hogs to Beattie, and whatever Beat-tie would take he would take; ” that at the time he (Williams) had 120 or 130 hogs; that he took his hogs and cattle to the stock yards at Robinson, on July 9th; that at Robinson he met Dowell, who helped weigh the hogs; that he made no objection to them; that when they got them weighed, they put them into the railroad stock yard — the shipping yard; that Dowell helped to put them in; that when this was done, he (Williams) and Haverfield went back for the cattle; that it was near five o’clock when they got through weighing the cattle; that after the cattle were weighed, they went to a hardware store and Dowell called for the weigh-tiekets of the cattle, and the cattle were then figured up; that Dowell then gave him a check for the cattle, except the cost of weighing, but before Dowell gave him the check for the cattle h¿ said “they would not take the hogs, and he could not také them on account of their being too light;” that this was about five o’clock; that there was not much said, except “that they would not take them;” that he told him (Dowell) he would fill the contract with heavy hogs before sundown, if he would take them; that Dowell said “ Beattie would not take them, and therefore he would not;” he said “that anything he (Williams) could do with Russ. Dowell would be all right;” that he (Dowell) refused to figure on the hogs; that he (Williams) had made arrangements with some parties for heavy hogs to put in on the contract, if he wanted them; that on the night of July 9th, he went to see Beattie about it; that Beattie would not receive the hogs unless twenty small ones were taken out, and five pounds deducted for shrinkage.
Upon this and other similar evidence, the court gave the following, among other instructions, to the jury:
“ If you find from the evidence that at or before the offering of said hogs to the defendant at the scales or yards in Robinson, the defendant was informed by the plaintiff that some of the hogs were too light, or too rough or too lean to comply with the contract, but that the defendant then said that he did not object on these grounds, or words to that effect, or that he would just as soon have hogs of the kind offered; or if you find that the plaintiff offered to the defendant to get heavy hogs in lieu of the light ones, but that the defendant, not expressly accepting or refusing the proposition, said that ‘he would see about it/ and thus delayed the matter till it was too late to get the hogs on that day, and then refused to take the hogs offered, and that at the time the plaintiff made such proposition he had the disposition and the ability to procure such hogs as would fill the terms of the contract in time, then this would be a waiver by the defendant as to the weight, smoothness and fatness of the hogs offered.”
We think that this instruction was misleading and erroneous. It is doubtful whether there was any evidence in the case to sustain the first part of the instruction. Even, however, if Dowell had said, five or six days before the hogs were delivered at Robinson, “that he did not object to them because they were too light, or too rough, or too lean,” that would not necessarily be a waiver of the terms of the contract, if, at the time Williams offered to deliver the hogs, he made his objections to receiving them under the contract.
Again, when Dowell told Williams “that he had sold the hogs to Beattie, and whatever Beattie would take he would take,” this was a notification to Williams that unless the hogs were delivered in accordance with the terms of the contract, he would not take them, if Beattie would not. So much of the instruction as conveyed to the jury the intimation that if Williams offered to get heavy hogs in lieu of the light ones to comply with his contract, the conduct of Dowell was such as to constitute a waiver of the contract, is erroneous. Under the contract, it was the duty of Williams to deliver at Robinson hogs that would comply with its terms, and the mere offering to get hogs that would comply, without actually getting them and delivering them, amounted to nothing. Dowell was not called upon to accept or refuse any proposition that Williams made not. in accordance with the contract. It was not necessary for Dowell to say whether he would accept other hogs, or not. If Williams had fully complied with his contract, Dowell could not have refused a compliance on his part, without being liable for damages.
If Dowell had fraudulently acted so as to delay Williams from performing his contract, such conduct might have relieved Williams from a compliance with its terms; but we do not perceive any evidence in the record to sustain such a theory. Williams was notified in ample time to deliver the hogs on the morning of July 9th. He did not start with the hogs to Robinson until after dinner, and they were not weighed until the afternoon of that day. Soon after they were weighed, Dowell told Williams “ he would not take the hogs, on account of their being too light.” If Williams had the disposition and ability to get other hogs from parties near Robinson, to comply with the terms of the contract, as was testified to, he had time after the refusal of Dowell to get other hogs; he did not get other hogs to deliver, and he cannot now claim that Dowell waived a compliance with the terms of the contract by refusing to say whether or not he would accept other hogs.
The 7th instruction was as follows:
“If you find that the defendant assisted in weighing or grading the hogs offered, and knew the hogs did not comply with the terms of the contract, but made no objection on that ground, and received and accepted the hogs, this would be a waiver as to the weight, smoothness and fatness of the hogs.”
Of course if Dowell received and accepted the hogs offered to him, that would have been a waiver of the terms of the contract, but the reference of the court to weighing and grading the hogs was out of place in that instruction.
Upon the trial, evidence was offered that one Haverfield helped select the hogs before they were delivered at Eobinson. Some of the evidence was to the effect that he was sent there by Beattie to see that the cattle were yarded and guarded away from the water. Other evidence was to the effect that Dowell sent Haverfield to Williams’s farm for the purpose of assisting Williams in selecting the hogs. Haverfield was a witness on the part of Dowell, and it was sought to prove by him whom he represented at the time of assisting Williams in selecting the hogs, and whether he had any authority from Dowell or Beattie to receive the hogs. Williams objected to this evidence, and the court sustained the objection. This was error. Williams had testified that Haverfield came up on the morning of the 9th of July to receive the stock. Dowell had the right to show that this was not true, and to show for whom Haverfield acted, and his authority in the premises. In this connection, we may also say that if Haverfield had authority only to assist Williams in selecting the hogs, it was not within his power to change the terms of the contract, as agent of Dowell, or to accept the hogs upon the farm of Williams. The contract provided that the hogs were to be delivered at Eobinson. During the argument of counsel for Williams, the remark was made to the jury, with the express sanction of the court, that “if the defendant received the cattle, he was bound also to receive the hogs.”- Under the circumstances of the case, the reply of the court to counsel was liable to mislead the jury.
To the original case-made are attached suggestions of amendments, marked “allowed,” “withdrawn,” etc. Those allowed have been inserted in their appropriate places in the case-made, and the case-made is complete. Therefore the attachment of the suggestions of amendments is not only unnecessary, but not good practice. The amendments allowed by a trial court should always be incorporated in the case-made at the proper places, so that they can be paged and read in their proper connection. The suggestions not allowed are no part of the case-made, and ought not to be attached to it. If the amendments allowed are not incorporated at the proper places in the case-made, any intelligent examination of the case is rendered impossible without the greatest labor.
In closing we may refer to the fact that although this ease has been submitted at two different terms of the court, and additional time given to "Williams for filing briefs, no briefs have been filed by him, or in his behalf, and therefore we have been compelled to dispose of the case without the assistance of any suggestions from his counsel.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
48,
-19,
-72,
-113,
8,
64,
40,
-102,
71,
-95,
119,
87,
-23,
86,
21,
105,
55,
125,
84,
104,
-58,
-73,
33,
83,
-45,
-45,
-125,
-57,
-79,
107,
-92,
-41,
79,
6,
-54,
29,
-26,
-30,
-63,
-36,
-116,
4,
-85,
-20,
117,
-112,
56,
105,
54,
71,
53,
-114,
-37,
46,
24,
71,
105,
44,
111,
43,
-48,
-15,
62,
7,
-1,
2,
-112,
102,
-117,
5,
-22,
126,
-104,
49,
-117,
-8,
123,
-76,
-122,
84,
13,
-103,
12,
38,
34,
17,
-51,
-51,
56,
-68,
47,
-1,
-117,
-89,
-112,
72,
10,
2,
-74,
29,
54,
-46,
6,
116,
-9,
13,
-100,
96,
7,
-50,
-108,
-29,
15,
60,
-102,
-117,
-31,
-121,
17,
117,
-51,
-78,
89,
101,
120,
-101,
-122,
18
] |
The opinion of the court was delivered by
HortoN, C. J.:
This was a prosecution for burglary and for larceny committed in connection with burglary, under §§ 68 and 72, ch. 31, Comp. Laws of 1879. The defendant was found guilty of burglary in the second degree, and was also found guilty of larceny. For the crime of burglary he was sentenced to be confined at hard labor in the penitentiary of the state for the term of five years from and including the 29th day of March, 1884. For the crime of larceny he was sentenced to be confined at hard labor in the penitentiary of the state for the term of two years, to commence at the expiration of his sentence for burglary. The defendant appeals to this court.
First, It is contended that the evidence does not establish that the crime of burglary was committed, because it is urged that there is no sufficient evidence introduced of an actual breaking within the meaning of the law. It is said that the building in which the crime is alleged to have been committed must have been closed or latched, and that this must be shown to be true beyond a reasonable doubt. Said section 68 reads:
“ Every person who shall be convicted of breaking and entering in the night-time: First, Any building within the curti-lage of a dwelling house, but not forming a part thereof; or, second, any shop, store, booth, tent, warehouse or other building, or any boat or vessel, in which there shall be at the time some human being, or any goods, wares, or merchandise, or other valuable thing, kept or deposited, with intent to steal or commit any felony therein, shall, on conviction, be adjudged guilty of burglary in the second degree.”
The evidence conduced to show that Oliver Hall was the owner of and in the possession of a frame house or building, in Mitchell county, occupied and used by him as a granary; the granary was divided into three rooms — one large room on the south end, two other rooms in the north part, divided by a board partition — the east one being the larger, was used for storing rye; oats were stored in the south room; there was .an outside door on the east and west side, opening into the south room; there was no outside door opening into the room where the rye was kept; a door opened into the room where the rye was, from the south room; this door was made of pine flooring, the same as the partition, and was hung to the partition on the inside of the room containing the rye; on this •door there was no latch; there were boards placed cross-wise on the inside of the room against the door, about three feet high, to prevent the rye from running out; the boards were not nailed, but were loose, and held in their place by the weight of the rye; the rye was about twenty-eight inches deep in the room; there were about one hundred and twenty bushels of rye at the time of the burglary; the oats occupied mostly the whole of the south room; Hall was at the granary on the evening of January 23,1884, a little before dark, to get a barrel of oats; after getting the oats, he shut the outside door and latched it, but did not lock it; the next morning — January 24th — he noticed rye and oats scattered along the road, and in front of the granary; he found the outside ■door of the granary was open, and the inside door off at the hinges and set up against the partition; about twenty bushels of oats had been taken, and about sixty bushels of rye.
From this evidence, the jury were justified in finding that the defendant, if otherwise guilty, must have unlatched and pushed open the outside door of the granary. When the owner last saw the granary, a few hours before the crime was committed, the outside door was shut and latched.
The next morning after the burglary he found that this door was open. It must therefore have been unlatched and pushed open, and was no doubt unlatched and pushed open by the person or persons who broke into the granary, and carried away the oats and rye therefrom. Within the authorities, the lifting of a latch may, when that is the ordinary mode of fastening, constitute a breaking. (The State v. Jansen, 22 Kas. 498.) In State v. Reed, 20 Iowa, 413, it was de cided that “the pushing open of a closed door will constitute an actual breaking.” (Mason v. People, 26 N. Y. 200; People v. Nolan, 22 Mich. 229; Frank v. State, 39 Miss. 705; The State v. Comstock, 20 Kas. 650.)
Upon the trial, certain samples of grain were admitted as evidence against the defendant. It is contended that the court erred in not first passing upon the preliminary proof of the competency of this evidence, before the samples of grain were submitted to the jury. This point is not tenable, as it is evident that the court first passed upon the preliminary proof in permitting the evidence to go to the jury. “Generally, the decision of the court that the preliminary proof is sufficient, is only provisional, and the question of its sufficiency must also, and at the close of the trial, be passed upon by the jury.” (The State v. Cook, 17 Kas. 395.) The identity of the grain was sufficient.
The defendant complains of the following instruction, given to the jury at the request of the state:
“ The court instructs the jury that they are not bound to believe all the statements made by the defendant in explanation of his possession of recently-stolen property, if you find he was in possession of property which had been recently stolen; but you are to weigh the evidence of the defendant as you weigh all other evidence in the case, and give credit to only such evidence as commends itself to your judgment.”
In this there is no error. The jury were bound to consider all the evidence offered by the defendant, but they were not bound to believe all that the defendant personally testified to. It was for the jury to say whether the alibi set up by the defendant was fully established; and it was also for them to say whether the possession of the stolen property was satisfactorily explained by the defendant.
“When twelve jurymen who hear the living voice and see the man who utters it, believe one witness and disbelieve four, and the judge who has the same opportunities of judgment declares that he thinks that they ought to have so believed and disbelieved, it seems very like trifling with the sacredness of jury trials for us, who know nothing but. the written story of what was said and done, and that story too often imperfect and incomplete, to decide all this is wrong, and that the jury and judge ought to have believed and found the other way.” (Railway Co. v. Kunkel, 17 Kas. 171, 172.)
The defendant asked the court to give the following instruction:
“If there is any reasonable doubt as to the reality of the connection of the circumstances of the evidence with the crime as charged, or as to the completeness of the proof of the crime as charged, or as to the proper conclusion to be drawn from the evidence, you must find the defeudant not guilty.”
This was refused. The court, however, directed the jury as follows:
“Iu this as in all criminal cases, the defendant is to be presumed innocent as to each offense until his guilt and every essential ingredient of such offense is established by the evidence beyond all reasonable doubt.” . . . “A few facts or a multitude of facts proven, all consistent with the supposition of guilt, are not enough to warrant a verdict of guilty. In order to convict on circumstautial evidence alone, not only the circumstances must all coucur to show that the prisoner committed the crime, but they must, all considered together, be inconsistent with any other rational conclusion.” .... “That in order to justify the inference of legal guilt from circumstantial evidence, the existence of the inculpatory facts must be absolutely incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.”
The directions so given fully embraced the law upon all points included in the instruction asked for, but not given. Therefore, under the circumstances, there was no error in the refusal.
The judgment of the district court must be affirmed.
VALENTINE, J., concurring.
Johnston, J., not sitting. | [
-15,
-6,
-35,
-65,
42,
-32,
42,
-8,
66,
-127,
-96,
95,
-23,
-46,
4,
105,
19,
77,
85,
121,
-64,
-105,
19,
-29,
-110,
-5,
-29,
-43,
59,
75,
-28,
-41,
8,
36,
-62,
113,
-26,
-56,
97,
92,
-114,
5,
-86,
-62,
-43,
80,
44,
58,
37,
10,
113,
-98,
-13,
42,
20,
-50,
11,
45,
-55,
61,
56,
-7,
-76,
15,
77,
22,
-93,
38,
-102,
5,
-86,
28,
-100,
17,
0,
-8,
115,
-122,
-122,
92,
71,
-117,
13,
102,
98,
33,
45,
-49,
96,
1,
47,
-90,
-107,
-89,
-104,
96,
43,
96,
-65,
-103,
112,
16,
38,
124,
-27,
-108,
25,
108,
-128,
-121,
-72,
-105,
13,
40,
-106,
-5,
-37,
39,
-95,
113,
-52,
-126,
93,
-59,
113,
-69,
-114,
-47
] |
The opinion of the court was delivered by
Harman, C.:
This is a pre-unification controversy between certain school districts in Chase and Marion counties.
It appears that plaintiff, appellant herein, the board of education of the city of Florence, a second-class city in Marion county, commenced annexation proceedings of territory in the Joint Common School District No. 3, Chase and Marion counties, and Common School District No. 2, Chase county, which territory was also in two rural high school districts. The method sought to be used was by piecemeal transfers of territory based upon nine separate petitions by resident electors filed in March and April, 1962, pursuant to G. S. 1961 Supp., 72-1627. The Florence board made its orders of attachment of the territory in question and forwarded them to the county superintendent and county clerk of Chase county which officials failed to make the requested transfers upon the appropriate records. At substantially the same time it appears that pursuant to petitions for disorganization both the rural high school districts held elections and both voted to disorganize. The results of these elections were recognized by the Chase county officials and appropriate orders made, thus placing the territory into that of the Chase County Community High School.
Plaintiff filed its petition November 8,1962, alleging the regularity of its annexation proceedings and asking (1) mandamus to compel the Chase county superintendent and county clerk to transfer the disputed territory to it, (2) for an order setting aside the disorganization order of the two rural high school districts, and (3) for an order restraining the distribution of school funds acquired by tax levy upon the land in question. The answer filed denied the validity of the annexation proceedings and challenged the good faith thereof. Trial was eventually had upon stipulation of facts and introduction of testimony. The court rendered an initial opinion January 31, 1964, and a supplemental one July 6, 1964. It held valid die transfer proceedings based on two of the petitions, and, for various shortcomings, held the balance to be invalid and it also denied the relief mentioned in subsections (2) and (3), supra. Plaintiffs appeal therefrom was initially docketed in this court March 10,1965.
Appellees have now requested this court to take judicial notice under K. S. A. 60-409 and 60-412 of certain facts and legislation occurring since this controversy commenced, giving notice thereof, and now urge dismissal of the appeal for the reason this court could not now render an effectual judgment and for the further reason the case has become moot.
As mentioned, this case was filed November 8, 1962. On May 15, 1963, what is now known as the “first unification act,” being K. S. A. 72-6734, et seq., became effective. This was a broad comprehensive act prescribing a new type of school district intended to embrace all land within the state of Kansas, with all districts operating under a uniform law, and was enacted by the legislature pur suant to its constitutional mandate to provide equal educational opportunities for all children in Kansas. The particular method of doing so was held to be constitutional in Tecumseh School District v. Throckmorton, 195 Kan. 144, 403 P. 2d 102, in which the interested reader will find a more complete discussion. The instant case was heard at various dates in 1963, the last occurring July 16, 1963. Meanwhile, pursuant to the first unification act planning boards were convened in both Chase and Marion counties; complete plans were produced for each county, which plans were approved by the state superintendent of public instruction. The electors in Chase county approved the plan; the voters in Marion county did not. The Chase county planning district, which includes virtually all of the now disputed territory, has been declared a unified district by the state superintendent, being designated “Unified District No. 284 of Chase County, Kansas.” This district was validated by action of the 1965 legislature (Laws of 1965, ch. 420, § 1) as a part of the “second unification act.” We are also advised that plaintiff has now petitioned the state superintendent to become a unified district under the school unification acts, but it appears to be controverted as to whether or not the territory involved in this case was included in its petition.
In any event it is difficult to see how any order this court might make in the premises could be effectual in carrying out any intended purpose. The movement for school unification commenced prior to this litigation; it has not been stayed in any way but has continued during the course of the litigation in an orderly fashion; and the situation has changed. Clearly the passage of time has militated against the position, right or wrong, of the Florence school board as to the disputed area. If the requested order in mandamus directed to the Chase county superintendent (and other officials) were to issue she could hardly comply with it and if she attempted to do so it would be an ineffectual act. The state superintendent of public instruction, in whom ultimate power to organize school districts and to give final approval of transfers of territory now generally rests, is not a party to this litigation and his action cannot be controlled thereby. It is not made to appear how new boundaries established under new laws can be affected or how effective relief could be granted herein. Our attention is directed to section 29 of chapter 410, Laws of 1965, (known as the “third unification act”) which provides:
“Nothing contained in the second unification act shall he construed to retroact upon any controversy which has proceeded to summary judgment or judgment on the merits in any district court."
It should be reiterated that unification procedures are not here involved. The second unification act generally supplemented the first and further provided for interim financing and government of school districts within the transitional period besides validating certain districts. Although a valid unified district appears as an accomplished fact, the court does not rely on anything in the second unification act as dispositive of this appeal, and the purported exemption proviso is simply not applicable here.
Plaintiffs second cause of action was to declare void the disorganization of the two rural high schools. These districts have gone out of existence and whether the disorganization process was void or not cannot now make any difference and is moot. Plaintiffs third cause of action sought to restrain disbursement of certain previously acquired school tax funds. These together with those of succeeding years have long since been disbursed, no temporary orders of restraint having been secured. While this particular cause has been abandoned it serves to illustrate the difficulty the court would have in taking any kind of affirmative action.
This court has held many times that it will not consider a moot question and it is equally well established that where, by reason of lapse of time, circumstances have changed so that the court cannot render a judgment which can be made effective the appeal will be dismissed (see 1 Hatchers Kansas Digest, rev. ed., Appeal and Error, §§ 6, 7, 385-389; 2 West’s Kansas Digest, Appeal and Error, § § 781, 790). In view of the foregoing, appellees’ motion to dismiss is sustained and the appeal is dismissed.
APPROVED BY THE COURT. | [
116,
-20,
-95,
60,
26,
-28,
58,
-125,
105,
-77,
117,
83,
-87,
-39,
5,
121,
90,
47,
85,
120,
-28,
-10,
83,
-56,
82,
-13,
-39,
-35,
-69,
-37,
-12,
-41,
72,
-95,
-117,
85,
70,
74,
-123,
-44,
-50,
6,
-117,
-54,
-40,
-126,
52,
97,
50,
14,
53,
14,
-13,
45,
24,
-61,
72,
44,
-39,
-20,
0,
-15,
-66,
-43,
125,
2,
49,
-91,
-98,
-127,
64,
42,
-112,
49,
-96,
-8,
26,
-26,
-122,
-28,
1,
-119,
-120,
44,
99,
3,
-68,
-17,
-68,
-116,
14,
123,
-99,
-26,
-74,
9,
98,
1,
-106,
29,
117,
86,
3,
116,
-25,
5,
95,
124,
-83,
-50,
-112,
-109,
-51,
61,
-118,
31,
-13,
51,
48,
81,
-55,
-26,
92,
70,
50,
27,
75,
-80
] |
The opinion of the court was delivered by
HoetoN, C. J.:
It is claimed on the part of the plaintiff in error, defendant below, that when Glenn paid off the note of one hundred and fifty dollars, executed on March 25, 1882, by Ramsey to Guilliams, the effect thereof was a full payment of the note, and hence satisfaction of the chattel mortgage given to-satisfy the same. Further, that when Glenn attached the mortgaged property of Ramsey, the interplea of Guilliams brought the parties before the justice on the validity and priority of the chattel mortgage and attachment of tlje property, and that the decision was in favor of the priority of the mortgage. Finally, that Glenn could not first apply the proceeds arising from the mortgaged property to the payment of his judgment and costs in the attachment action, and then apply the remainder upon the mortgage debt.
In answer, it may be said that when Glenn paid Guilliams for the note and mortgage of Ramsey on January 11, 1883, and took a written transfer and assignment thereof to himself, that this was an actual purchase of the note and mortgage; and hence the transaction was not a mere satisfaction of the note and mortgage.
While the interplea of Guilliams brought the parties before the justice of the peace to test the validity and priority of the mortgage and attachment, yet, after the appeal from the decision of the justice, the judgment was vacated. After Glenn purchased the note and mortgage, Guilliams abandoned his interplea, and no judgment was rendered in the circuit court that the chattel mortgage was paramount to the attachment. If we are to be controlled by the laws of Missouri, the mortgage had no validity against the attachment. (Wagner’s Rev. Stat. of Mo., p. 287, § 8; Foster v. Gillespie, 68 Mo. 644.)
On the other hand, if we assume that the laws of Missouri are the same as the laws of Kansas, then we must also decide that the attachment lien was prior to the chattel mortgage. (Lawsof 1879, ch. 68, § 9; Jones on Chattel Mortgages, § 177.) Guilliams did not take actual possession of the mortgaged property upon the execution of the mortgage, and did not deposit the mortgage in the office of the register of deeds until after the levy of the attachment. (Sec. 9, ch. 68, supra.) The property levied upon in Missouri was sold under the attachment proceedings instituted there. The judgment and costs were paid, and there was not sufficient of the proceeds to satisfy the chattel mortgage. As the remainder of the note was due and unpaid, Glenn was entitled, under his chattel mortgage, to the possession of the sorrel horse wherever he could find it. As Ramsey refused to deliver possession thereof, Glenn had no other recourse than to commence his action to recover by law the possession of the animal. The removal- of the horse from Missouri, by Ramsey, into Kansas, did not change the status or rights of property or the parties. As the owner of the note and chattel mortgage, Glenn had the right to follow the property to Kansas and take possession of it. (Denny v. Faulkner, 22 Kas. 97; Feurt v. Rowell, 62 Mo. 524; Smith v. Hutchings, 30 id. 380.)
Is is said that the court committed error in permitting Glenn to testify concerning the record of the actions in Missouri between him and Ramsey, and between him and Guilliams. It does not appear from the record that any exceptions were taken on the trial to the introduction of evidence, and it is too late, at this time, to present any objection thereto. All of the evidence appearing in the record was submitted to the court, by the parties, without exceptions, and upon this evidence the court could not do otherwise than find for the defendant in error, plaintiff below.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
-74,
120,
-104,
126,
74,
-32,
10,
-103,
120,
-96,
-73,
83,
107,
-54,
5,
45,
-12,
41,
97,
105,
-43,
-77,
39,
72,
-46,
-13,
-47,
-35,
-79,
-35,
-28,
-41,
76,
36,
74,
-67,
102,
74,
-59,
84,
-50,
-124,
8,
69,
-39,
-64,
52,
-69,
16,
74,
17,
-121,
-13,
38,
25,
75,
73,
47,
89,
57,
-48,
-8,
-97,
5,
127,
23,
-109,
53,
-56,
69,
88,
-114,
-112,
49,
17,
-24,
114,
-74,
-122,
116,
77,
27,
41,
-26,
102,
-96,
72,
-49,
-24,
-104,
47,
-9,
21,
38,
-110,
88,
-118,
47,
-74,
-99,
124,
80,
6,
116,
-29,
5,
29,
108,
7,
-113,
-74,
-109,
13,
124,
27,
11,
-1,
7,
33,
96,
-51,
-96,
93,
67,
59,
-69,
-114,
-7
] |
The opinion of the court was delivered by
VALENTINE, J.:
Many of the facts of this case are similar to those of the case of The State v. Brooks, just decided, and the same decision must follow; but in this case there is one question that was not involved in the Brooks case. In this case, as in that, the defendant was charged upon information, in four separate counts, with four separate violations of the prohibitory liquor law of 1881; but in this case he was convicted and sentenced under each count, and under each of the first three counts he was sentenced to imprisonment in the county jail for the term of ninety days, as follows: Under the first count the imprisonment was to commence at the date of the sentence, under the second count the imprisonment was to commence at the expiration of the imprisonment under the first count, and under the third count the imprisonment was to commence at the expiration of the imprisonment under the second count — making in all 270 days’ imprisonment; and under the fourth count he was sentenced to pay a fine of $500; and he was also sentenced to pay the costs of the prosecution.
The defendant claims that such a cumulative sentence cannot be imposed upon him; that as each of these offenses is charged as a first offense, and as the limit of punishment for a single first offense is imprisonment in the county jail for a term not to exceed ninety days, or a fine not to exceed $500, he could not be imprisoned under the information for more than ninety days, and could not be required to pay a fine under the information of more than $500, and only one of such punishments could be imposed upon him under a single information, however many counts might be contained in the information, and of however many offenses under such information he might be found guilty. We think, however, that the sentence of the court below in this respect is correct. The court had the right, and it was its duty, to sentence the defendant separately under each count; and it had the right to impose the maximum punishment under each count; and under each count could sentence the defendant to pay a fine of $500, or to be imprisoned in the county jail for ninety days. (Prohib. Liquor Law of 1881, §7.) And the court also had the right, in sentencing the defendant under the several counts, to adjudge that the imprisonment under one count should begin at the termination of the imprisonment under another count. (Crim. Code, § 250.)
Technically, we suppose the costs incurred under each count should be taxed separately under such count; but it is wholly immaterial in this case whether the costs were taxed separately under each count, or in the aggregate under all the counts.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
-80,
-18,
-35,
-2,
26,
96,
42,
-104,
-62,
-107,
-76,
115,
-23,
-44,
1,
121,
-69,
123,
85,
121,
-55,
-73,
39,
-63,
-14,
-13,
-63,
-44,
-79,
109,
-27,
-9,
12,
48,
-118,
-11,
-26,
73,
-63,
-44,
-118,
5,
-71,
-23,
81,
24,
52,
107,
75,
15,
49,
-113,
-89,
46,
28,
-54,
41,
40,
73,
45,
16,
-71,
-104,
127,
77,
22,
-77,
38,
-104,
-123,
-8,
60,
-104,
17,
0,
-23,
115,
-124,
6,
117,
79,
-119,
13,
34,
99,
33,
13,
71,
-72,
-87,
44,
42,
-67,
-90,
-104,
89,
107,
4,
-74,
-107,
118,
20,
-121,
122,
-25,
-43,
89,
44,
5,
-126,
-76,
-77,
79,
44,
-106,
118,
-53,
39,
49,
101,
-50,
-18,
84,
101,
115,
27,
-121,
-42
] |
The opinion of the court was delivered by
Wertz, J.:
This action was instituted by plaintiffs Jacob E. Klassen, Harry Gossen, Harley R. Koop, and D. L. and Edna Wiens (hereinafter referred to as appellants) against defendants H. J. and Jack Regier (hereinafter referred to as appellees) to enjoin the appellees from changing the course of a stream and putting into operation a flood control plan approved by the chief engineer of the division of water resources, and for an order directing the appellees to remove an existing levee.
The pertinent facts may be summarized as follows: On December 21, 1962, appellee H. J. Regier, under the provisions of G. S. 1949, 82a-301 to 305, filed an application and accompanying plans with the chief engineer of the division of water resources requesting permission to enlarge and straighten the existing channel of Wall creek in the southwest quarter of Section 11, Township 20 South, Range 2 East, Marion county. On February 1, 1963, Regier filed a petition with the chief engineer of the division of water resources pursuant to G. S. 1961 Supp., 24-105, which, after stating that upstream landowners had not taken measures to prevent Wall creek from overflowing on their land, requested permission to construct a levee at a designated location in the same quarter section. Regier also submitted an application under G. S. 1961 Supp., 24-126, requesting the chief engineer s approval of a plan to repair an existing levee.
After notifying the parties, the chief engineer, accompanied by the applicant, Regier, and nineteen other interested parties, examined the location of the proposed levee in accordance with the provisions of G. S. 1961 Supp., 24-105, on May 5, 1963. Following the field examination a public hearing was held at Hillsboro. Thereafter, appellants and appellees filed with the chief engineer briefs containing their respective arguments and the law in support thereof. On July 26, 1963, the chief engineer entered his findings and approved the construction of the entire flood control plan submitted by Regier on the basis that the plan was feasible and not adverse to public interest.
On September 24 appellants filed the present action in the district court of Marion county seeking injunctive relief and, in substance, alleged the chief engineer’s conclusions were erroneous. Thereafter, appellees filed their answer, which incorporated the order of the chief engineer of the division of water resources. Appellees filed a motion for summary judgment which was sustained by the district court on April 27, 1964. The order reads:
“The Court is of the opinion that the motion as filed by the defendants on February 18, 1964, in this case should be sustained and it is sustained for the reason that the plaintiffs and the defendants from the record have had a full and complete hearing on all of the questions involved before the Water Resources Board and the department authorized to make such decisions and conduct such hearing.”
The appellants have appealed from the above order, contending the trial court erred in sustaining appellees’ motion for summary judgment on the theory they are entitled to a full and complete hearing de novo before the district court on all issues of law and fact relating to the flood control plan.
At the outset attention is invited to the provisions of G. S. 1961 Supp., 24-105, 24-126, and G. S. 1949, 82a-301 to 305, pursuant to which the chief engineer’s findings and orders were made. It would unduly lengthen this opinion to quote each of the foregoing statutes. It suffices to say their provisions commit to the division of water resources the administration of a broad legislative policy for the conservation and control of waters within this state. The chief engineer is given authority, and it is made his duty, to pass upon applications for permits to build levees for the purpose of repelling surface waters (24-105); to maintain or construct levees or other improvements along or near any stream which is subject to overflow, so as to control, regulate or otherwise change the flood waters of such stream (24-126); and to make obstructions or changes in the course, current or cross-section of any stream (82a-301 to 305). The chief engineer is given the discretionary power either to grant or withhold a permit as he may deem advisable, according to whether the proposed construction or improvement is feasible and not adverse to public interest. On the other hand, since the division of water resources is an administrative body, the chief engineer’s orders must be reasonable. (State, ex rel., v. Dolese Bros. Co., 151 Kan. 801, 814, 102 P. 2d 95.)
None of the foregoing statutes provides for a method of appeal to the district court. Appellants concede that in 1963, when the instant action was filed, there was no statutory right of appeal to the district court from orders of the division of water resources. This court, in City of Kansas City v. Jones & Laughlin Steel Corp., 187 Kan. 701, 360 P. 2d 29, held that district courts have no inherent appellate jurisdiction over the official acts of public boards and public officers where no legislative grant or appeal exists. However, courts are always open to hear meritorious complaints against illegal or oppressive acts of nonjudicial public boards and officials, either at the instance of the state or of a private citizen especially aggrieved thereby. In the absence of a statutory right of appeal, judicial redress for illegal, fraudulent or oppressive official conduct must be invoked through some appropriate extraordinary legal remedy recognized in our practice—injunction, mandamus or quo warranto. (In re Chicago, R. I. & P. Rly. Co., 140 Kan. 465, 468, 37 P. 2d 7; State, ex rel., v. Davis, 144 Kan. 708, 710, 62 P. 2d 893; City of Kansas City v. Jones & Laughlin Steel Corp., supra, p. 703.) Regardless of the legal remedy followed, where fact-finding powers have been conferred on public boards and officials, their determinations and orders will not be set aside unless an abuse of discretion is pleaded and proved, that is, unless it is both alleged and proved that the officials acted arbitrarily, capriciously or fraudulently.
In the instant case the petition does not charge the chief engineer with fraudulent conduct or with abuse of discretion. The purport of the charge is that his conclusions pertaining to the flood control plan were erroneous. In any event, the charges and innuendoes leveled at the chief engineer are not charges of bad faith which would entitle the appellants to a judicial review. Moreover, the record contains ample evidence to establish that the chief engineer undertook to perform his duties honestly and efficiently. Before approving the flood control plan, he examined the location of the proposed levee in accordance with the provisions of G. S. 1961 Supp., 24-105; he held a public hearing at which the proposed improvements were discussed; and he examined affidavits and briefs. No illegal, fraudulent or oppressive official conduct or bad faith having been charged in the petition or shown in the record, the trial court was not at liberty to grant appellants a trial de novo. This would be true even though the chief engineer’s conclusions may have been erroneous. Error of judgment does not invalidate discretion exercised in good faith. In other words, judicial power may not be interposed to limit or direct the exercise of discretion by administrative officials with respect to matters pending within their authority and control, except where there is a manifest and flagrant abuse of that discretion. (Allen v. Burrow, 69 Kan. 812, 821, 77 Pac. 555; Warburton v. Warkentin, 185 Kan. 468, 479, 345 P. 2d 992; 2 Am. Jur. 2d, Administrative Law, § 671.) In the Allen case this court said:
“. . . No rule is better settled than that courts will not interfere with public officers in the discharge of any duty involving the exercise of judgment or discretion, but this rule presupposes the existence of good faith, and relates to acts done under the guidance of opinions honestly formed, however mistaken in fact; it has no application to acts done under the influence of a corrupt motive. . . .” (p. 821.) [Emphasis supplied.]
Appellants rely principally upon Horn v. Seeger, 167 Kan. 532, 207 P. 2d 953, and Horn v. Seeger, 174 Kan. 224, 255 P. 2d 1000, to support their position, but these decisions are not persuasive. In the original Horn v. Seeger case, an action was brought by lower landowners for a mandatory injunction to direct defendants to remove a levee on the ground that it caused surface water and overflow water to be discharged on their land. The trial court ordered the defendants to remove a part of the levee, and the judgment was affirmed on appeal. Thereafter, defendants commenced the construction of another levee at a point adjacent to the location of the former one which, when completed, would have had the same effect upon the plaintiffs’ land as the levee ordered removed. The proposed levee was approved by the chief engineer of the division of water resources. Defendants in Horn v. Seeger, 174 Kan. 194, 255 P. 2d 997, maintained the approval of plans by the chief engineer and the authorization to construct a levee in accordance therewith superseded the trial court’s mandatory injunction. This court held that where a district court has taken jurisdiction, made findings of fact, and entered a judgment thereon, the chief engineer has no power or authority to supersede that judgment. The Horn v. Seeger cases are distinguishable in that, unlike the case at bar, the original findings of the district court were made prior to the findings of the chief engineer.
We have considered numerous other contentions raised by appellants in their brief but have been unable to discern any error in the trial court’s judgment. In view of what has been said, the judgment of the trial court is affirmed.
It is so ordered. | [
-11,
-22,
-75,
-4,
8,
-63,
120,
-125,
73,
-80,
-27,
83,
-19,
-101,
0,
113,
-25,
111,
-48,
121,
68,
-94,
51,
-118,
23,
-45,
-69,
-49,
-6,
-33,
-28,
71,
72,
32,
-118,
-33,
-58,
-62,
-51,
92,
-58,
6,
-117,
-63,
-47,
64,
52,
75,
50,
79,
53,
13,
-13,
44,
28,
-61,
41,
44,
-37,
-67,
65,
-72,
-72,
20,
-33,
4,
-95,
-124,
-104,
-63,
76,
58,
-104,
50,
-110,
-68,
119,
-90,
-106,
55,
73,
-103,
12,
-14,
103,
3,
116,
-49,
-24,
-104,
30,
-37,
-83,
-122,
-110,
25,
66,
32,
-76,
-100,
121,
18,
-122,
118,
-19,
-123,
91,
108,
5,
-122,
-108,
-15,
-57,
-72,
-109,
3,
-53,
1,
48,
116,
-61,
-42,
79,
71,
115,
27,
26,
-103
] |
The opinion of the court was delivered by
Price, J.:
This is an appeal from an order denying relief under the provisions of K. S. A. 60-1507.
The background of the matter is this:
In 1961, plaintiff (appellant) in this proceeding, was convicted in the district court of Reno county of the offense of statutory rape. The girl in question was his thirteen-year-old stepdaughter. He was committed to the state penitentiary pursuant to K. S. A. 21-424. He appealed from his conviction. On June 8, 1963, the judgment was affirmed in State v. Miles, 191 Kan. 457, 382 P. 2d 307. On July 10, 1963, his motion for a rehearing was denied by this court.
Subsequently, plaintiff, being confined in the penitentiary, filed a petition in the sentencing court for a writ of habeas corpus in which he attacked the proceedings of his trial and conviction. His petition was treated by the court and all parties as a petition for relief under K. S. A. 60-1507. He was returned to Reno county for the hearing and counsel was appointed to represent him. He testified in his own behalf. Following the hearing the court denied relief and made findings of fact and conclusions of law as follows:
“Memorandum Opinion
“This matter comes on for hearing on the motion of the petitioner denominated ‘Writ of Habeas Corpus’ which has been treated as a motion for relief pursuant to Kansas Code of Civil Procedure 60-1507.
“E. Dexter Galloway, an experienced attorney, was appointed by the court to represent the petitioner and petitioner was produced and testified in his own behalf.
“The court finds:
“1. Petitioner was charged with the crime of statutory rape.
“2. Petitioner was represented by counsel at his preliminary hearing and was bound over to the district court for trial and was free on bond pending the trial.
“3. Petitioner was examined by a sanity commission duly appointed by the court, and on October 3, 1961, said commission made a finding that the petitioner was not insane and able to comprehend his position and make his defense.
“4. Petitioner was afforded a jury trial and was represented by counsel of his own choice.
“5. Petitioner was found guilty as charged by a jury on November 20, 1961.
“6. Petitioner was furnished a transcript at state expense and thereafter perfected his appeal to the Supreme Court of Kansas in Case No. 42,990. The conviction was affirmed in an opinion filed June 8, 1963, and a motion for rehearing was overruled by the court.
“7. Petitioner was represented by counsel at all critical stages of the proceeding. -
“Petitioner contends that he was not properly or adequately represented by counsel. The record shows that the petitioner was represented by experienced counsel of his own choosing, and that said counsel perfected his appeal to the Supreme Court of Kansas. Petitioner in his pleading alleges that he is in possession of evidence essential to the defense of his case; that he was discriminated against and prejudiced by the Clerk of the Supreme Court, the Kansas Attorney General, the Reno County District Court, State’s counsel, and the Supreme Court. These allegations must fail for want of satisfactory proof. Much of the petitioner’s testimony at the hearing related to trial errors and defense tactics at the trial, and is not relevant o he issues cognizable under a 60-1507 motion.
“Conclusions of Law
“1. The petitioner’s constitutional rights have been protected at every critical stage of the proceeding.
“2. The evidence and records of the case show conclusively that the petitioner is entitled to no relief.
“It is ordered that the relief prayed for be and is hereby denied.
“Petitioner has subsequent to the hearing filed a ‘Motion for Change of Venue,’ and the same is hereby overruled.
“It is further ordered that a copy of his Memorandum be sent to petitioner by the Clerk of the District Court.
“Dated November 18, 1964.”
In this appeal from the order denying relief, plaintiff, through his court appointed counsel, makes ten contentions—eight of which refer to alleged errors occurring prior to or during his trial, several of which were urged by him and considered by this court in the appeal from his conviction referred to above.
We therefore have this situation:
Plaintiff was charged with a felony. At his preliminary examination, throughout his trial, and in his appeal to this court—he was represented by experienced counsel retained by him. The conviction was affirmed. Later, while confined under the sentence imposed, he brought a proceeding attacking the judgment and sentence, alleging various trial errors. He was denied relief, and now, in this appeal from that order, again urges the invalidity of his conviction because of alleged errors occurring prior to or during his trial.
The answer to the matter presented is found in Rule No. 121 of this court (194 Kan. xxvn) prescribing the procedure under the provisions of K. S. A. 60-1507. The pertinent portion of the rule is:
“(c) . . . (4)a proceeding under section 60-1507 cannot ordinarily be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal.”
Indicative of the fact that at some point there must be a finality to such matters, subdivision (cl) of Rule No. 121 provides that a sentencing court shall not entertain a second or successive motion for relief on behalf of the same prisoner where the same ground presented in the subsequent application was determined adversely to the applicant on the prior adjudication, or where the prior determination was on the merits.
In this case plaintiff, through his own counsel, appealed from his conviction and raised such points as he considered had merit. They were answered adversely to him. In the matter presently before us plaintiff is not only attempting to raise trial errors which could have been, or were raised in his former direct appeal, but he also is attempting to convert this proceeding into a substitute for a second appeal. We have no question here of his right to raise trial errors which could have been raised upon appeal provided there were exceptional circumstances excusing the failure to appeal in the first place—for he did appeal.
The ninth ground urged is that this court erred in denying plaintiff s motion for a rehearing on July 10, 1963, the point being that through alleged failure of the county attorney to keep an agreement whereby counsel were to submit the appeal without oral argument —plaintiffs then attorney was prevented from appearing in person and arguing the appeal, notwithstanding he had filed an abstract and brief which were considered by this court. This matter was the ground of the motion for a rehearing. The motion was considered and denied by this court and that ruling is adhered to.
The tenth and last ground now urged is that the trial court erred in failing to grant relief in this proceeding under K. S. A. 60-1507. The contention is without merit. The findings and conclusions o£ the trial court are supported by the record, and are approved.
The judgment is affirmed. | [
-48,
-22,
-83,
61,
11,
96,
10,
18,
67,
-13,
118,
83,
-81,
78,
1,
123,
27,
45,
84,
105,
-46,
-73,
87,
-63,
-2,
123,
-103,
-35,
-77,
-33,
-28,
-12,
72,
80,
10,
21,
34,
-54,
-91,
20,
-114,
3,
-119,
-44,
64,
10,
-80,
106,
60,
15,
49,
-98,
-29,
42,
28,
-61,
-55,
44,
75,
-83,
-35,
-111,
-101,
23,
63,
20,
-80,
-94,
-108,
-59,
80,
62,
-104,
49,
0,
-24,
122,
-90,
-122,
-12,
103,
-117,
-88,
-90,
98,
1,
21,
-54,
56,
-7,
30,
23,
-83,
-25,
-110,
88,
98,
101,
-106,
-99,
97,
20,
11,
124,
-15,
36,
125,
108,
-118,
-117,
-76,
-111,
-49,
57,
10,
-103,
-29,
-79,
96,
117,
-49,
-80,
92,
-42,
122,
-101,
-81,
-78
] |
The opinion of the court was delivered by
Price, J.:
Plaintiff brought this action against his former wife to set aside a property settlement agreement executed by them in contemplation of a divorce, or, in the alternative, to discharge him from liability thereon on grounds hereafter mentioned.
Upon plaintiff’s petition, exhibits and affidavits filed by the parties, the court sustained defendant’s motion to dismiss the action. Plaintiff has appealed from that ruling.
Highly summarized, the background of the matter as related in the aforementioned pleadings is substantially as follows:
Plaintiff and defendant were formerly husband and wife. In connection with their divorce action they entered into a written property settlement on September 19, 1959. It provided that she was to have custody of their four minor children and that he was to pay $400.00 monthly child support. The agreement further provided that he was to pay through the clerk of the district court the sum of $48,000.00 as permanent alimony over a period of twenty years at the rate of $200.00 per month. In addition, it provided that she was to receive the equity in the family home, together with the household furnishings. On November 30, 1959, a decree of divorce was granted to the wife—defendant here. The husband— plaintiff here, having entered a waiver of summons, did not appear either in person or by counsel. The decree recited that the property settlement entered into by the parties “is hereby approved and confirmed in its entirety, and the terms therein contained are made a part hereof.”
In the fall of 1959 plaintiff, although a responsible business executive with a large life insurance company, was in such a state of shock and under such extreme emotional stress because of his marital troubles that he was mentally unable to cope with his problems and was incapable of entering into or giving his consent to the property settlement agreement. He was under the care of a physician during that period. Although urged by defendant and her attorney to retain counsel—he refused to do so.
As above related, a decree of divorce was granted to defendant on November 30, 1959. Ever since that time plaintiff, by depriving himself and through great personal sacrifice, has paid the $400.00 monthly child support. Up until July 1,1960, he made the alimony payments. In the meantime defendant had remarried and was financially well off. On July 1, 1960, and likewise on July 1, 1961, 1962 and 1963, she executed and delivered to plaintiff an instrument in writing whereby she, on an annual basis, waived the payment of alimony barring some “catastrophic event or occurrence.” The annual “receipt” executed by her, however, included a statement that it did not in any way alter, amend or modify the journal entry of the decree of divorce.
Relying on the repeated assurances by defendant that, barring “unforseen expenses amounting to a catastrophe,” she was waiving and would make no demand for the alimony payments, plaintiff made plans to remarry—which plans were known by defendant. On February 3, 1964, plaintiff, through his present attorney, wrote to defendant’s attorney explaining the situation and asked him to consult with defendant to see if she would consent to waive future alimony payments. On February 21, 1964, defendant’s attorney replied as follows:
“Since receiving your letter of February 3, 1964, I have just been able to discuss this with Nancylee and her position is the same as it has been for the past four years as to the alimony. She feels that in all fairness to the children and herself, she cannot change the manner in which she has been handling it, with the idea that unforeseen expenses could arise or some catastrophe occur which would make collection of the alimony necessary.
“I am therefore at this time not authorized to make any change in the manner in which the alimony payments are being handled.”
On the strength of the foregoing, plaintiff, in May, 1964, remarried, and thus assumed new and additional obligations. Within twenty days after his remarriage he received a letter from defendant’s attorney demanding that alimony payments be resumed immediately, notwithstanding there had been no change in defendant’s financial circumstances and no unforeseen need on her part had occurred. Her demand that he, for the first time, pay alimony, created a financial burden which he was unable to meet without extreme financial hardship.
No satisfactory settlement being reached, plaintiff filed this action on September 25,1964. His petition was framed essentially on three theories—(a) to set aside the original property settlement agreement because of his mental and emotional instability at the time and because it was unfair, inequitable and just: (b) that of “detrimental reliance,” based upon the assurances, both written and verbal, made by defendant as late as February, 1964, to the effect that all alimony would thereafter be waived, barring a catastrophe or unforeseen expenses on her part, and (c) that there was a modification of the property settlement agreement by the consent of the parties as authorized by K. S. A. 60-1610 (d).
On October 12, 1964, defendant filed a motion to dismiss the action on the ground, among other things, that the petition failed to state a claim against defendant upon which relief could be granted.
On December 30, 1964, the court, after a review of the petition, exhibits and affidavits above summarized, sustained defendant’s motion to dismiss and entered summary judgment in her favor— presumably on the general ground mentioned in the motion.
In opposition to plaintiff’s appeal from that ruling, defendant contends that plaintiff has failed to act upon his rights, if any, and therefore is guilty of laches and is estopped from bringing the action; that by his conduct plaintiff has ratified the property settlement agreement and decree of divorce and cannot maintain the action; that plaintiff’s right of action, if any, accrued under G. S. 1949, 60-3007, et seq., and was barred after two years; that the property settlement agreement was merged into the decree of divorce (citing In re Estate of Shideler, 172 Kan. 695, 242 P. 2d 1057, and other decisions to like effect) and therefore cannot be attacked in the manner now sought; that the original property settlement agreement was not modified, and that her motion to dismiss was properly converted into a motion for summary judgment by operation of the new code of civil procedure (K. S. A. 60-212 (c) and 60-256).
Plaintiff, on the other hand, while agreeing that the motion to dismiss was properly converted into a motion for summary judgment, contends the property settlement agreement was not merged in the decree of divorce because there was no finding that it was just and equitable, and therefore is subject to attack by this independent action; that the various writings and actions of the parties constitute a modification of the agreement under the provisions of the new code of civil procedure [K. S. A. 60-1610 (d)], and that as to his claim and theory of “detrimental reliance,” the defendant, because of her waivers consistently made, is equitably estopped from now asserting her claim for alimony, and in support thereof relies on the definition of equitable estoppel found in Gas Service Co. v. Consolidated Gas Utilities Corp., 145 Kan. 423, 65 P. 2d 584.
“ ‘That a person is held to a representation made or a position assumed, where otherwise inequitable consequences would result to another who, having the right to do so under all of the circumstances of the case, has, in good faith, relied thereon. Such an estoppel is founded on morality and justice.’ ” (pp. 435, 436.)
It further is contended that under rules applicable to motions for summary judgment (K. S. A. 60-256) the ruling in question was erroneous and should be reversed.
From all of the foregoing it readily will be seen the parties contend for many things. Notwithstanding—it appears to us that essentially and in reality this is an action to enforce a separate and independent contract allegedly entered into by the parties whereby defendant, absent certain specified events not having been shown to have occurred, agreed to waive alimony payments, and that plaintiff, in reliance thereton, acted according—all to his alleged detriment and damage. It further appears that it may not be said there is no genuine issue as to any material fact. That being the case, under applicable rules discussed fully in Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964, it was error to render summary judgment in favor of defendant.
The judgment is reversed. | [
-16,
124,
-108,
77,
-102,
96,
42,
-54,
118,
-90,
-89,
83,
-9,
114,
16,
105,
126,
105,
64,
106,
-45,
-77,
87,
98,
-9,
-77,
-39,
-35,
-79,
-17,
-4,
-41,
76,
48,
-126,
-41,
98,
-110,
-127,
84,
66,
-122,
-119,
100,
-64,
66,
48,
123,
80,
11,
17,
-113,
99,
45,
61,
-54,
108,
44,
27,
-5,
-60,
-88,
-117,
12,
127,
3,
-111,
36,
-98,
68,
120,
14,
-104,
57,
0,
-24,
50,
54,
-106,
116,
89,
-69,
9,
98,
98,
1,
69,
-18,
-40,
-104,
6,
-11,
-115,
-90,
-110,
88,
0,
64,
-68,
-67,
100,
20,
-83,
118,
-4,
28,
15,
108,
74,
-118,
-42,
-111,
-115,
126,
28,
10,
-17,
-125,
33,
113,
-49,
-94,
92,
70,
123,
-101,
15,
-106
] |
The opinion of the court was delivered by
Robb, J.:
The state appeals from the order of the trial court sustaining defendant’s motion to discharge in a criminal prosecution for first degree robbery under K. S. A. 21-527 because defendant, who had been confined to the locked ward of the Veterans Administration Hospital for the past four years, was legally insane. This is the only question here for appellate review.
Defendant was charged with first degree robbery of the Wiseman Liquor Store by use of a gun and in the presence of Robert Hoff-sett. Immediately after the jury - was sworn to try the cause in the district court, and during a court recess, defendant’s counsel moved to dismiss because defendant “was legally insane and committed by Jackson County, Missouri Probate Court and legally adjudged insane and has been a ward of the Veterans Administration Hospital the past four years in the locked ward, and we feel it is a matter for the Court to determine before submission of the facts in the case.”
In support of the motion to dismiss, defendant’s witness, Glen-wood C. Henderson, assistant chief of the registrar division at the Veterans Administration Hospital in Topeka, Kansas, identified an order of hospitalization issued by the probate court of Jackson County, Missouri, on December 6, 1960. He testified that on February 20, 1961, defendant, as a transferee, had been received at the Topeka hospital from the hospital in Kansas City, Missouri, and that while at the hospital defendant was on locked or semi-closed wards. Subsequently defendant had been discharged "for administrative reason” but not as cured.
Lawrence Hoopengarner, father of defendant, testified that since defendant’s discharge from the Marine Corps in 1956 he had had trouble with defendant mainly by reason of defendant’s alcoholism. The father stated defendant had originally been committed because he had attempted suicide.
The record of defendant’s preliminary hearing was introduced and admitted and it indicated this same motion to dismiss had been introduced at that time. The trial court took the matter under advisement and later sustained defendant’s motion with the following remarks:
“. . . Without question, defendant was committed to the Veterans Hospital in Topeka and housed in a locked ward when he eloped and perpetrated the offense with which he now stands charged. The record discloses this fact was shown at the preliminary hearing in the Court of Topeka. It has been stated that there is no case in the Kansas Reports involving a situation of this kind. This Court is of the opinion that such is true simply because no county attorney has heretofore received the assistance of a magistrate which made it possible to bring such a situation to the level of the District Court.
“Gentlemen, this defendant should never have been bound over to this court. In the interest of justice, the motion to discharge is sustained. The case is dismissed.
“I have been assured by counsel for defendant that he will be returned to the Veterans Hospital in Topeka. In making this ruling I am relying upon such assurance and urging that it be done with all proper speed, complying with the orders of the Court of original jurisdiction and commitment in Jackson County, Missouri, and the requirements of the United States Veterans Administration.”
Hence this appeal by the state.
The record further discloses that on December 6, 1960, defendant’s father, in applying for a hospitalization order for defendant in the probate court of Jackson County, Missouri, submitted a certificate of a licensed physician stating, “he has examined the aforesaid proposed patient and is of the opinion that said patient is mentally ill and should be hospitalized. . . .”
The Jackson County, Missouri, probate court made the following finding:
. . the said Robert L. Hoopengamer is mentally ill and is in need of custody, care and treatment in a mental hospital and, because of such illness, lacks sufficient insight and capacity to make responsible decisions with respect to such hospitalization and is a fit subject to be sent to a Veterans Hospital . . . as a private patient, to undergo observation and treatment therein for an indeterminate period of time.”
The probate court then ordered:
“. . . that said Robert L. Hoopengamer be committed to a Veterans Hospital, at_, there to be detained by the person in charge of said hospital until discharged by law and to undergo observation and treatment thereat for an indeterminate period of time as a private patient, and that the clerk of this court make out a certified copy of this judgment which, together with a detailed medical history of the ease prepared by Dr. A. R. Mueller, shall be delivered to said hospital.”
No brief has been filed or appearance made herein by the defendant.
The question presented in this case is not difficult in view of the provisions of K. S. A. 62-1532 which, in part, are:
“Whenever during the trial of any person . . . evidence is introduced to prove that he or she was insane ... or person of unsound mind, at the time of the commission of the ogense, and such person shall be found to have been at the time of the commission of the offense alleged . . . insane . . . or person of unsound mind, and he or she shall be acquitted on the ground, the jury shall so state in the verdict. . . .”
The above statute was interpreted and applied in Fisher v. Fraser, 171 Kan. 472, 233 P. 2d 1066, where it was said:
“. . . [1] we have recognized that the defense of mental unsoundness is a procedural matter which must be brought to the attention of the court at the time of trial ... [2] 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 issue ... [3] the test of liability for commission of the crime ... is whether he was capable of distinguishing between right and wrong at the time and with respect to the act committed.” (Our emphasis.) (p. 476.)
See, also, other cases cited under K. S. A. 62-1532.
Thus we conclude the trial court in our present case erred in treating this as a jurisdictional matter because it was, in fact, a procedural one. We are, therefore, compelled to hold that the appeal be sustained upon the state’s contention of error reserved.
Appeal sustained. | [
-112,
-24,
-67,
-98,
10,
-32,
34,
-104,
115,
-93,
55,
115,
-19,
10,
5,
107,
122,
15,
85,
121,
-57,
-105,
71,
-119,
-10,
-13,
82,
-59,
-77,
-33,
-28,
118,
72,
96,
-82,
85,
102,
-56,
-57,
20,
-114,
5,
-88,
-63,
80,
-102,
32,
43,
-82,
2,
17,
30,
-5,
42,
26,
-62,
73,
40,
91,
-72,
-48,
-16,
-117,
21,
79,
4,
-93,
2,
-100,
5,
80,
62,
-104,
49,
1,
-2,
113,
-106,
-122,
52,
111,
-103,
12,
102,
98,
33,
93,
-17,
-31,
-87,
31,
18,
-115,
-25,
-101,
88,
73,
5,
-106,
-103,
125,
20,
15,
-4,
-21,
20,
85,
108,
1,
-49,
-80,
-79,
73,
60,
18,
-5,
-21,
-91,
32,
113,
-115,
-30,
92,
87,
115,
59,
-82,
-108
] |
The opinion of the court was delivered by
Harvey, C. J.:
In their motion for rehearing counsel for appellants contend that since the large percentage of the gas produced or purchased by appellants in the Hugoton gas field is transported in interstate commerce and sold for resale in other states the authority to determine a wellhead value of gas and to make a price fixing order is vested in the Federal Power Commission under the Natural Gas Act (15 U. S. C. A. 717) and not in the State Corporation Commission, citing Interstate Gas Co. v. Power Comm’n, 331 U. S. 682, 67 S. Ct. 1482, 91 L. Ed. 1742, as having fully determined the matter. The point is not well taken and the case cited does not support that view. The opinion cited and the opinions in the same case in the inferior courts clearly demonstrate the contrary. The case originated by a complaint filed in 1939 by the Louisiana Public Service Commission with the Federal Power Commission, complaining of rates for the sale of gas in Louisiana, transporting it interstate by the Interstate Natural Gas Company. On December 5, 1939, the Federal Power Commission enlarged the scope of the investigation to include the reasonableness of all of Interstate’s wholesale and transportation rates under the provisions of the Natural Gas Act. The cities of New Orleans and Baton Rouge were permitted to intervene. Pursuant to notice and after pretrial conferences hearings were had in June and July, 1942. Pending the consideration of the matter Interstate voluntarily reduced rates for the sale of its gas. After a full investigation of the matter the Federal Power Commission made an order requiring Interstate to file a new schedule of rates and charges for the transportation and sale of natural gas in interstate commerce to its customers for resale for ultimate consumption, in amount not less than $1,100,345 annually, computed upon the amount of gas sold in 1941. (See F. P. C., Vol. 3, pp. 416 to 435.) It appears this schedule of rates reduced the price to the other pipe line companies from 7.39-cents to 4.66 cents per M. c. f. The Interstate petitioned the United States Circuit Court of Appeals to review that part of the order. The court’s opinion is reported in 156 F. 2d 949. There Interstate contended, (1) “that the sales were not within, but were expressly excluded from, the jurisdiction of the commission; and (2) that the order as to them is confiscatory.” On the first point Interstate relied on the language of the act and what it called “authorized statements of commission representatives,” and “legislative history.” The court said:
“On the jurisdictional point, we think the language employed in the bill as it finally passed, ‘The provisions of this act shall apply ... to the sale in interstate commerce of natural gas for resale for ultimate public consumption, and to natural gas companies engaged in such transportation or sale’ leaves in no doubt that the sales in question are within its purview. That they are sales in interstate commerce, we think is settled by the authorities. That the gas was sold for resale for ultimate public consumption, we think may not be doubted. (This was conceded before the Federal Power Commission, see 3 F. P. C. 419.) This being so, the exception of the statute that it shall not apply to ‘any other . . . sale of natural gas’ is unavailing to petitioner, for if the sale is the kind named in the first quoted clause, it certainly cannot be ‘any other sale.’ ”
There is further discussion on this point in which the court cites Peoples Natural Gas Co. v. Federal Power Commission, 127 F. 2d 153, and Canadian River Gas Co. case, 324 U. S. 581, at pp. 602-603, 65 S. Ct. 829, 839, 89 L. Ed. 1206. The court pointed out that the portion of the petitioner’s brief devoted to legislative history shows that it does not distinguish between the Lee bill, House Bill No. 11,662, proposed in 1936 but never passed, and the bill which became the law now under review, and said:
“Legislative history ‘cannot be resorted to for the purpose of construing a statute contrary to the natural import of its terms. ... If the language be clear, it is conclusive.’ (Citing cases.) . . . Certainly the legislative history of a bill that was not adopted cannot be resorted to to construe a bill that was. ...
“The purpose of the Natural Gas Act, as shown in the Senate and House Committee reports, which are identical, was to provide for the regulation of natural gas companies transporting and selling natural gas in interstate commerce. Its proponents were not interested in the production of gas or the individual sales of gas at the well. Nor were they interested in the gathering of the gas in the field. What they were interested in, as the report in terms states, what they were trying to reach, was wholesale sales of gas.” (Our emphasis. )
This is followed by further quotation from the report.
Since the sales in question were to other natural gas companies the court sustained the jurisdiction of the Federal Power Commission. On the point argued, that the reduction was confiscatory, the court held that the order to reduce rates must be considered in its entirety, and since it did permit a reasonable return upon Interstate’s investment details of the order would not be considered separately even though the Commission suggested evidence that would have sustained it had it been considered alone. The United States Supreme Court granted certiorari limited to the question of jurisdiction, which it considered thoroughly and sustained the judgment of the Court of Appeals, and this is the opinion relied upon now by appellant. Not in any of the opinions was there any indication that the Federal Power Commission considered a wellhead price of gas, or did anything indicating that it had authority to do so.
The case now relied upon by appellant was cited in Federal Power Comn v. Panhandle Eastern Pipe Line Co., 172 F. 2d 57, 337 U. S. 498, 69 S. Ct. 1251, 93 L. Ed. 1499, cited and relied upon in our opinion, and there no such interpretation was given to it as appellant now contends that it deserved. We have examined all the cases construing the Natural Gas Act which were cited by appellants in their brief, and many others, and do not find any of them in which the Federal Power Commission attempted to or claimed authority to fix a wellhead price for gas. On the other hand, we do find cases in which the Federal Power Commission construes the cost of gas at the wellhead as an operating expense of the Interstate Natural Gas Company irrespective of what that price may be. For example, see Cities Service Gas Company, 3 F. P. C. 489.
Aside from Interstate Gas Co. v. Power Commission, supra, upon which appellants rely so heavily in the motion for rehearing, and which, obviously, they have not studied sufficiently to realize that it has no application to this case, the motion for rehearing does but little more than reargue questions previously argued and which were considered and treated in our opinion or found to have no substantial merit. They do rely somewhat upon the dissenting opinion. The points raised therein had been considered and disapproved by the court when the opinion was written. We find no necessity to go over these matters in detail.
We do call attention to the opinions of the United States Supreme Court in Cities Service Gas Co. v. Peerless Oil & Gas Co., et al., (340 U. S. 179, 71 S. Ct. 215, 221, 95 L. Ed. 156), which affirmed the supreme court of Oklahoma in Cities Service Gas Co. v. Peerless Oil & Gas Co., 203 Okla. 35, 220 P. 2d 279, which affirmed an order of the Corporation Commission of the state of Oklahoma which fixed prices at the wellhead on natural gas produced within the state and sold interstate under statutes substantially as our own.
When we wrote our opinion in this case we were familiar with the decision of the supreme court of Oklahoma, but we preferred not to cite it, since appeals had been taken from it to the United States Supreme Court. The decisions of that court on those appeals were adverse to the contention of the appellants here upon all of the controlling points urged by them.
There is no need for us to say more. The motion for rehearing is denied.
At their specific request, Mr. Justice Wedell and Mr. Justice Price are noted as adhering to their dissent in the original opinion. | [
-16,
-22,
-10,
-84,
72,
-32,
24,
-102,
84,
-94,
-25,
83,
-87,
70,
-127,
21,
-113,
111,
117,
123,
-44,
-77,
19,
114,
83,
-45,
121,
-49,
51,
-36,
-28,
-49,
72,
104,
-54,
-43,
102,
66,
-59,
86,
-50,
5,
-71,
-55,
73,
-128,
52,
42,
86,
79,
85,
-82,
-29,
44,
24,
-53,
105,
46,
-7,
121,
75,
120,
26,
-113,
63,
4,
48,
102,
-104,
39,
-8,
14,
-104,
52,
120,
-24,
115,
-90,
2,
124,
13,
-103,
-116,
-86,
99,
17,
101,
-81,
-84,
-72,
39,
-33,
-115,
-90,
64,
24,
35,
64,
-105,
-107,
92,
2,
-113,
126,
-2,
-123,
-33,
124,
9,
-114,
-98,
-93,
7,
69,
-104,
19,
67,
-29,
20,
96,
-49,
-78,
92,
7,
58,
-105,
14,
-86
] |
The opinion of the court was delivered by
Thiele, J.:
This appeal involves the right to have an administrator appointed under the circumstances later set forth.
On August 11, 1949, Charles Spear and Earl Dean Spear, minors, by their father and next friend, filed their petition in the probate court of Decatur county, in which they set out their minority and residence; that May Wright, a resident of Decatur county, died October 19, 1946, leaving surviving her Ianth Wright Rogers, a daughter, the petitioners and other named children and grandchildren as her heirs; that May Wright was possessed of a bank account of $700 and the equitable title to certain described real estate of the probable value of $28,800; and that the appointment of an administrator was necessary for the conservation, care, collection and administration of the assets of her estate according to law. Petitioners also alleged that they did not know until about January 1, 1949, that the interest of May Wright in and to the real estate described was a part of the assets of her estate, for which reason the same had escaped administration. They prayed that the probate court set a time and place of hearing, order notice to be given, and upon hearing appoint Ernest T. Wright, one of the heirs, as administrator.
To the above petition Ianth Wright Rogers filed a demurrer, a pleading not recognized by the probate code. (See In re Estate of Fast, 170 Kan. 352, 225 P. 2d 1056.) The probate court sustained this demurrer and further found that by reason of such ruling administration could not be had. It further found that appointment of an administrator should be refused and the prayer of the petition denied. In due time the petitioners appealed to the district court.
After the appeal reached the district court Ianth Wright Rogers filed in that court an answer in which she alleged that at one time May Wright had a bank account of $700 but that it had been distributed to her heirs at law and accepted by them. She then alleged that May Wright had no interest in any land at the time of her death; that on December 1, 1939, May Wright had sold the land to her son-in-law Leo J. Rogers, and that the deed to him was recorded March 19, 1943. Then follow allegations concerning an action by Ernest T. Wright against Ianth Wright Rogers, which on appeal reached the supreme court and that the decision therein wholly bars the petitioners (see Wright v. Rogers, infra). It was further alleged that the petition for administration showed on its face that the court had no jurisdiction of the subject of the action and did not state facts sufficient to constitute a cause of action.
The petitioners filed a lengthy reply, the allegations of which are summarized. After denying generally the allegations of the answer, they admitted that the $700 bank account had been distributed and alleged that the interest of May Wright in the described real estate arose out of the estate of her husband; that prior to his death the real estate had been mortgaged to the Federal Land Rank and the Land Rank Commissioner; that at the time of her husband’s death in 1939 May Wright was in failing health and unable to farm the lands and her financial condition was such that it was difficult to pay taxes and installments of principal and interest on the mortgages, the rents for 1938 and 1939 being insufficient therefor. That on December 1, 1939, Leo J. Rogers, husband of Ianth Wright Rogers, represented to May Wright that he had funds and at the instance and request of Ianth Wright Rogers and Leo J. Rogers, May Wright executed a quit claim deed to Leo J. Rogers and delivered it to him upon agreement, understanding and conditions: (1) That Leo J. Rogers and Ianth Rogers would advance from their own funds and pay such sums as May Wright could not pay on the taxes, principal and interest on the lands, and May Wright would become indebted to the Rogers for such advancements, the same to be repaid from the rents and profits of the real estate or from the proceeds of its sale, if necessary. (2) That upon the advancement being repaid the Rogers would convey the property to May Wright or to those persons who would be her heirs at law should she be deceased at the time of such repayment. (3) That the deed from May Wright to Leo J. Rogers was made and delivered for the purpose of securing to Leo J. Rogers and Ianth Wright Rogers such sums as the Rogers should advance for May Wright, and it was the intent that such instrument was in fact a mortgage although in form a deed. It was also alleged that Leo J. Rogers withheld the deed from record until March 19, 1943; that at the time of its execution and delivery the value of the land conveyed was greatly in excess of the indebtedness and that since that time and since the recording of the deed the value of the land has increased and now is greatly in excess of any indebtedness from May Wright to the Rogers; that on March 13,1943, Leo J. Rogers executed a quit claim deed for the described lands to his wife Ianth Wright Rogers, and at that time Ianth Wright Rogers well knew all of the facts and had complete notice that the deed to Leo J. Rogers was only a mortgage and his •conveyance to her was nothing more than an assignment to her. It was further alleged that after the delivery of the deed to Leo J. Rogers, he and Ianth Wright Rogers paid.certain sums, the installments of principal and interest on the above mentioned mortgage, taxes and operating expense, but that petitioners are unable to ascertained the amounts so paid and the Rogers should be compelled to show to the court the exact sums as have been paid by them and which are secured by the deed as a mortgage. ' After denying that the action of Wright v. Rogers, above mentioned, determined matters presently in issue, the petitioners prayed they have judgment according to the prayer of their petition.
Ianth Wright Rogers demurred to the reply for the reason that the reply, together with the petition, showed on its face that the court had no jurisdiction of the subject of the action; that the petition and reply do not state facts sufficient to constitute a cause of action and for the further reason the petitions are barred by G. S. 1947 Supp. 59-2239 and by the general statute of limitations of the State of Kansas. The trial court, without specifying any of the grounds stated therein, sustained the demurrer and the petitioners perfected then- appeal to this court.
Refore taking up for consideration the contentions of the appellants and appellee, we note that under our probate code (G. S. 1947 Supp. Ch. 59) any person interested in an estate after the death of an intestate, may petition for administration of the decedent’s estate (59-2221) and that such a petition must state the name, residence and date and place of death of the decedent, the names, ages, residences and addresses of the heirs of the decedent so far as known ór can with reasonable diligence be ascertained, the general character and probable value of the real and personal property, and the name, residence and address of the person for whom the letters are prayed (59-2219). Although all such allegations are not fully stated in our review of the petition, it may be said the petition met the statutory requirement. There being no contention that statutory requirements as to notice of hearing were not met, we do not review them. The answer of Ianth Wright Rogers and the reply of the petitioners thereto contain allegations making an issue as to what constitutes the assets of the estate. It has been held that upon the hearing of a petition for appointment of an administrator disputed questions as to what constitutes assets are premature. See In re Estate of Brasfield, 168 Kan. 376, Syl. ¶ 4, 214 P. 2d 305, which was an intestate estate. For an analogous holding see In re Estate of Osborn, 167 Kan. 656, 208 P. 2d 257, a testate estate where the question was what was for consideration on a petition for probate of a will. And we therefore look no further than to see whether the petition alleges the existence of assets for administration, and it does, and that the reply does not negative that allegation, and it does not.
In our review of the allegations of the petition it was stated that petitioners were minors and that they did not discover until January 1, 1949, (less than one year preceding filing of the petition) that the interest of May Wright in the real estate was an asset of her estate. Appellants direct attention to language in Wright v. Rogers, infra, page 302, to the effect that it does not follow, because of G. S. 1947 Supp. 59-2250, that there are no circumstances under which heirs of a decedent can protect their right in the property of a deceased ancestor if they have failed to have his estate administered within a year, and where the question of administering assets which have escaped administration is discussed. Appellants seem to contend that minority creats an exception. Appellee directs attention to Hoppas v. Bowman, 167 Kan. 761, 207 P. 2d 950, where the question of omission in the new code of the words found in the old code “saving to infants” etc. was noticed. Because an answer to these contentions is not decisive here, we shall not comment further on the effect of the allegations as to minority.
On the assumption that appellants by their petition for administration are seeking to recover a portion of the estate of May Wright, deceased, appellee contends the matter was settled by our decision in Wright v. Rogers, 167 Kan. 297, 205 P. 2d 1010. It is true that in that case the real estate belonging to May Wright was involved but that action was one commenced in the distinct court after the death of May Wright to set aside a deed made by her in her lifetime as result of fraud. This court held the district court was without jurisdiction and directed dismissal of the action. Wright v. Rogers does not determine the present appeal.
The real question is whether the petitioners may maintain a proceeding for the appointment of an administrator after one year after the death of the decedent.
In support of their contention that appellants waited too long, appellees direct our attention to Jardon v. Price, 163 Kan. 294, 297, 181 P. 2d 469, where it was said:
“Anyone having a claim against a decedent’s estate, whether it be for money or to a portion of his estate, is obliged to have an administrator appointed within one year after decedent’s death in order that his claim may be asserted within the time prescribed by the code.” (citing cases.)
In the cited case an action was commenced in the district court to determine interests in lands, to have the lands partitioned and to set off against the interests of defendants a claim for money alleged to be due on notes, in which it was sought to have adjudicated claims represented by notes made by a deceased person whose estate had not been administered, all as more fully set forth in that opinion. The excerpt quoted above is from a paragraph dealing with the duties of creditors, and is applicable to the case at bar if it be concluded that the appellant petitioners are asserting rights other than as heirs entitled to a distributive share of the estate of May Wright.
Appellants direct attention to the first syllabus in Wright v. Rogers, supra, that the conveying instrument (the same deed as is here involved) amounted to nothing more than an equitable mortgage, and to Down v. Austenfeld, 162 Kan. 562, 178 P. 2d 201, an action originally commenced in the district court and where the statement of facts shows that administration was commenced over a year after the death. As has been previously pointed out, we are not now concerned with disputes as to assets, nor do we think that Wright v. Rogers, supra, is decisive on that feature. In Down v. Austenfeld, supra, the question as to when an administrator could be appointed was not an issue and was not decided.
When the trial court ruled on the demurrer, and when counsel filed their briefs in the present appeal, our opinion in In re Estate of West, 169 Kan. 447, 219 P. 2d 418, had not been filed. Although the factual situation differed from the case at bar, the analogies of the case are persuasive. In the West case an administrator had been appointed and after a year had filed his petition for final settlement. Certain heirs then filed objections to the final settlement, alleging in part there were uninventoried and unadministered assets consisting of lands included in deeds not delivered by the decedent in his lifetime; that the administrator was making no effort to reduce those assets to possession and to administer the same; and that he should be removed and a new administrator appointed. Reference is made to the opinion for a complete statement of the pleaded facts. Among other things considered was a contention that the objections to the final settlement constituted a claim and that the claim was barred by reason of the failure to file it within nine months as required by G. S. 1947 Supp. 59-2239, a contention not allowed. In part, this court said:
“Appellant argues however that what appellees now seek is to have the real estate included in the assets of the estate in order that they may share in the distribution thereof and that the effect is a claim or demand which was not timely asserted. Appellees argue, in effect, that what they seek and are entitled to have, is a full and complete administration of the estate; that until all of the assets are collected, there can be no final settlement, and that although the effect if they prevail may increase their share of the estate, they are seeking to bring something into the estate. There may be good reason for holding that had the decedent conveyed the real estate in his lifetime to a grantee who had placed his deed of record, any person otherwise entitled to inherit and contending that the deed was fraudulent or void must make timely assertion in the probate court in the decedent’s estate or be barred, a question not presently before us, but that reason ought not and will not be recognized as applying to the facts of the instant case. In our opinion, limited to the contention being discussed, the purpose of the objectors’ petition was to bring assets of the estate, concededly a part of the estate on the death of the decedent, into possession and for administration, and is not to be denominated as a claim or demand which must be asserted within nine months as provided in the nonclaim statute. Although it has been stated in some of our decisions that an object of the probate code is to provide for a speedy determination of the assets and liabilities of an estate so that it may be settled and a distribution made to the beneficiaries, it is of primary importance that all of the assets be collected and reduced to possession for such distribution and a contention by a beneficiary that all assets have not been collected ought not to be held barred in the absence of a specific statutory provision to that effect.” (1. c. 454.)
In our opinion, in view of the pleadings, it may not be said that merely because petitioners may share in the distribution of unadministered assets, that an assertion by them there are such assets constitutes a claim against the decedent’s estate that becomes barred if not filed within nine months under the provisions of the nonclaim section of the probate code. The facts pleaded by the petitioners are for our purposes admitted, and they include an admission that May Wright, one time full owner of the lands in question, executed her deed to Leo J. Rogers as security for advances to be made by him and Ianth Wright Rogers, his wife, and in effect that the deed was a mortgage and that May Wright at the time of her death held the equitable title. There is no pleading of any fraud in the procuring of the deed, nor is there any effort being made to set that deed aside. On the contrary, it is relied upon as a part of the entire facts showing the agreement for the creation of a debt and for securing its payment. Whether these facts may ultimately be proved is not our present question. What we determine from the pleadings is that there are assets which have not been administered. There is no provision of the probate code fixing a limitation on the time an heir may apply for administration of any estate in which he has an interest. The legislature has seen fit to make a provision fixing the time in which creditors must apply for administration (G. S. 1947 Supp. 59-2239) fixing the time for probate of a written will (59-617 and 618) and for the probate of an oral will (59-619) and had it intended any limitation on an heir seeking administration of an estate in which he had an interest it could have done so. It seems significant that it did not do so.
Appellants also present some argument as to whether they may be barred under some section of the code of civil procedure. We shall limit our discussion to saying that it does not appear from the face of their petition or reply that their action is barred. If there is any such defense, it must be pleaded and proved.
The ruling of the district court is reversed and the cause is remanded with instructions that it overrule the demurrer and remand the proceeding to the probate court with instructions to that court to appoint an administrator. | [
-43,
109,
-20,
28,
-104,
-32,
48,
24,
67,
-15,
-11,
83,
-87,
-33,
80,
109,
127,
13,
81,
107,
-61,
-77,
119,
34,
-46,
-5,
-5,
-33,
-7,
93,
-10,
87,
76,
113,
10,
-107,
-62,
-126,
-51,
-48,
-116,
5,
8,
109,
-39,
66,
48,
47,
58,
-113,
-59,
31,
-77,
41,
53,
-29,
-24,
46,
89,
-88,
121,
-72,
-117,
-116,
-33,
30,
16,
6,
-8,
-123,
72,
46,
-104,
49,
-128,
-24,
51,
-90,
-106,
-12,
79,
9,
9,
119,
106,
19,
-67,
-17,
-96,
-120,
6,
-74,
-123,
-90,
-110,
25,
-30,
109,
-74,
-103,
117,
-112,
67,
-4,
-26,
5,
94,
108,
-115,
-114,
-42,
-127,
11,
-72,
-120,
11,
-21,
-60,
96,
113,
-51,
66,
125,
71,
49,
-101,
-122,
-112
] |
The opinion of the court was delivered by
Wedell, J.:
This was an action to replevin an automobile. Judgment was for defendant and the plaintiffs appeal.
In order to avoid confusion we shall continue to refer to J. R. Rauh and Frank Busboom, copartners doing business under the firm name and style of Finance Credit Company, as plaintiffs, and to Donald H. Dumler as the defendant. The defendant Home State Bank filed no pleadings and is not now involved. It was stipulated there should be no trial on the cross petition of the defendant, Dumler, for damages until the issue of ownership and right to possession of the automobile was finally determined. That issue of damages is, therefore, not before us.
The primary issue here is whether the trial court properly concluded the defendant who purchased the automobile from one Leroy Jones, a registered dealer in new and secondhand cars, should prevail over plaintiffs, holders of a chattel note and mortgage previously executed and delivered to them by Leroy Jones.
It appears this action arises out of the fact Leroy Jones failed to pay off plaintiffs’ note and mortgage out of the proceeds of the sale of the car and became a fugitive from justice. The parties stipulated as to certain facts. The stipulation reads:
“A pre-trial conference was held on May 1, 1950, being the opening day of the regular May term of the District Court of Russell County, Kansas, by Charles O. Boyle, as attorney for plaintiffs, and C. R. Holland as attorney for the defendant Donald H. Dumler, and it was thereby stipulated that no evidence need be introduced by either of the parties to establish the facts hereinafter set forth, and such facts are admitted by the parties to be true and correct to-wit:
“1. That the plaintiffs are residents of Salina, Kansas, and that they are engaged as partners in the operation of a finance company in the making of small loans; that the principal place of doing business is Salina, Kansas, and that they have and have had, and are now maintaining and have maintained a branch office in the City of Russell, Russell County, Kansas, and that they are doing business under the firm name and style of Finance Credit Company.
“2. That on August 3, 1949, one Leroy Jones, who transacted business under the firm name and style of Russell Motor Company, did for a valuable consideration make, execute and deliver to the plaintiffs his certain promissory note in writing whereby and wherein he, the said LeRoy Jones, promised and agreed to pay to the plaintiffs the sum of $1,850.00, which was to be paid on or before September 3, 1949, and bore interest at the rate of six percent per annum. That he did, in order to secure the payment of said promissory note, make, execute and deliver to the plaintiffs his chattel mortgage covering the following described personal property and automobile, to-wit:
“One 1949 Nash 2 door sedan, bearing Serial No. K324594 and Motor No. S75320,
a true and correct copy of said promissory note being set out and attached to the plaintiff’s petition and marked ‘Exhibit A.’
“3. That said chattel mortgage was filed for record in the office of the Register of Deeds of Russell County, Kansas, on the 6th day of August, 1949, and was entered by the Register of Deeds upon Book 39 of Chattel Mortgages at page R, and that a copy thereof has been and is now on deposit with the Register of Deeds of said county.
“4. That thereafter and on or about the 11th day of August, 1949, the said LeRoy Jones sold and transferred said motor car to the defendant, Donald H. Dumler for the sum of $2,112.25, none of which money was paid by the said LeRoy Jones to the plaintiffs.
“5. That the plaintiffs did on or about August 26, 1949, malee an oral demand for the possession of said automobile, and at such time delivered to him (defendant) a copy of said chattel mortgage and promissory note.
“6. That, the said Donald H. Dumler at such time did thereafter to-wit, on or about August 27, 1949,- refuse to deliver possession of said automobile to the plaintiff.
“7. That the agent of the plaintiff, Nyle Watson, lived and resided in the City of Russell, Kansas, during the entire month of August, 1949, and prior thereto, and transacted the business of the plaintiff with the said LeRoy Jones.
“8. That the said LeRoy Jones was a registered dealer under the Kansas Vehicle Laws, and was engaged in the retail sale of new and secondhand automobiles in the City of Russell, Kansas.
“9. That at the time of the execution and delivery of the promissory note and chattel mortgage, a copy of which is attached to the plaintiffs’ petition and marked Exhibit A, the said LeRoy Jones delivered to their agent Nyle Watson the original bill of sale covering or upon said automobile, who have kept and retained the same in their possession since said date, and which may be introduced in evidence without further identification.”
Charles Boyle represented the plaintiffs and C. R. Holland tried the action for defendant. The record further discloses the following:
“ ‘Mr. Boyle: There is nothing in the record to show that the car was purchased as a new car from the Joe Green Motor Company. We would want evidence to show that it was a new car, if that is in dispute.
“The Court: Is that in dispute?
“Mr. Holland: No we bought it as a new car.’ ”
The foregoing stipulations were supplemented with oral testimony of the parties. On oral argument before this court counsel for plaintiffs frankly and commendably admitted this was actually a new car. He contended, however, under the facts of the case the sale from Jones to defendant was, in legal effect, the sale of a secondhand car. The trial court filed a memorandum opinion which, though accurately speaking probably cannot be denominated find ings of fact and conclusions of law, contains some facts in addition to those stipulated and reflects the fundamental basis for the court’s decision. It reads:
“This case arises under an unfortunate situation where it looks as though one of the parties is bound to lose a considerable sum of money by reason of the acts of Mr. Jones. The court thinks that the statute known as the ‘Certificate of Title Statute’ is hardly applicable to this case. That statute has to do I think with secondhand cars or cars that have passed from the original dealer to a user of cars, and its language is hardly applicable to the case here. Section 8-129 refers to application for registration and certificate of title, and it starts out ‘Application for the registration of a vehicle required to be registered hereunder shall be made by the owner thereof. . . .’
“If the court should adopt plaintiff’s theory and say that Jones was the owner of this car by reason of having purchased it from the Joe Green Motor Company and was really the first owner from a registered dealer, then it would appear Mr. Jones should have acquired a certificate of title. The courts, I think, recognize that fact, and possibly by reason of the fact he did not have a certificate of title, that any mortgage or other instrument that he might base on his possession of the car would be just as void as his sale would be. I think that under the testimony of Mr. Green, it was his theory that Mr. Jones was the owner of this car, but I think we can go back of all of that to the time that Mr. Jones and Mr. Watson as representative of the Finance Credit Company of Russell called on Mr. Green at Great Bend and asked for an agency for the Nash automobiles, which Mr. Green couldn’t and didn’t give them, but did enter into an agreement with them whereby he would sell them their cars at cost, and the Finance Credit Company through Mr. Watson agreed to finance these cars, and it was agreed that the Joe Green Motor Company would participate in the profits to the extent of 9 percent. This was an arrangement made by the Finance Company as well as by Mr. Green. Cars were obtained from the Joe Green Nash dealer and placed on the sale lot and show room of Jones here at Russell and were sold as new cars. While this arrangement probably wouldn’t constitute an agency, it was an arrangement whereby all of the parties understood that these cars obtained from the Joe Green Nash Company were to be sold as new cars, and not used. That was one of the specifications that Mr. Green made with Jones and Watson.
“I might say that Jones was selling these cars on a commission or for a percentage of the profits. Having placed these cars on the lot for sale which was known and acquiesced in by the Finance Company, the Finance Company was in no better position than Jones himself would have been to object to the passing of any title to the purchaser buying without actual notice of a hen. The recording of the mortgage given by Jones to the Finance Company was constructive notice to the purchaser, the defendant in this case, of their mortgage, but one that he was not bound to take notice of, as it was clearly the intfent not only of Jones but also of the Finance Company, that this car should be resold. That was what it was put on the lot for.
“The court thinks that the case of Sorensen v. Pagenkopf, 151 Kan. 913 is very applicable here, as well as the case of Emerson-Grantingham Implement Company v. Faulkner, and Bank v. Hartman, 89 Kan. 212, which cases hold in effect that where a mortgagee knows the mortgagor is a dealer, being able to sell in the regular course of business and consents to a sale by the mortgagor, die purchaser takes free from the mortgage lien. Also there is the case of 151 Kan. 715.
“The Court is of the opinion diat the equities of this case are in favor of the defendant and against the plaintiff. Judgment will be rendered for the defendant for the possession of the automobile, if it has been taken from him.
“There is another feature of the case here. The possession of this car alone is not going to solve all difficulties in connection with this case. The Journal Entry should recite that the defendant, unless evidence of title is turned over so that he can comply with the law and get title — it should recite that the court places title in the defendant. The court will award the legal tide to the defendant.”
On review this court, of course, is never concerned with the precise correctness of every statement contained in a memorandum opinion such as this or, for that matter, even with the reasoning disclosed therein. Our concern is with the correctness of the decision.
Plaintiffs insist the delivery of the bill of sale from the Joe Green. Nash Company to Leroy Jones and his payment for the automobile constituted an 'outright sale of the car to Jones; that Jones was obliged to obtain a certificate of title from the state; that he failed to do so and, therefore, failing to make an assignment of a certificate of title to the defendant, the latter did not obtain title. That contention, of course, pertains solely to defendant’s title. What about plaintiffs’ title? This is a replevin action. Generally a plaintiff in a replevin action must recover, if at all, on the strength of his own title or right of possession and not on the weakness of his adversary’s title or right of possession. (46 Am. Jur., Replevin, § 23.)
If plaintiffs are correct in contending Leroy Jones, having no certificate of title, could vest no title in the defendant, what about the validity of their own claim based on the chattel mortgage? Jones exhibited no certificate of title to them. Notwithstanding his failure to exhibit such a certificate they made a loan to him and accepted a note and a mortgage on the car as security.
Furthermore plaintiffs participated in engineering this entire setup for their profit. It was they who advanced the money which made it possible for Leroy Jones to obtain the car and to offer it to the public as a new car, being sold by a registered dealer. They were the ones who insisted the car should not be driven by Jones and should be sold by him as a new car. They helped work out the agreement whereby Jones was able to obtain the car from the Joe Green Nash Company which agreement provided that the latter would receive nine percent of the retail price of the new car. Manifestly in the face of these facts plaintiffs are not in a good position to claim this car was not sold to the defendant by a registered dealer as a new car.
On the other hand, as previously stated, if this was a secondhand car as plaintiffs contend it was after Jones received it from the Joe Green Nash Company, plaintiffs themselves accepted a mortgage thereon from a man who had no certificate of title. Also if plaintiffs’ present position that this was a secondhand car in the hands of Jones is sound, then in order to protect themselves they should have demanded exhibition of a proper certificate of title from Jones. They knew Jones was.able to obtain a bill of sale for this car only by reason of their own previous arrangement to finance its purchase and to take back a mortgage on it as security for their loan. Had they demanded a proper certificate of title it would have disclosed their mortgage. (G. S. 1949, 8-135.) An assignment of that certificate by Jones to the defendant would have imparted actual notice of their mortgage to the defendant. The plain fact is their entire conduct is consistent only with the view that they treated this car as a new car in the hands of Jones as a registered dealer. Plaintiffs did not demand such a certificate. They not only permitted but insisted that Jones, a registered dealer, offer the car to the public as a new car. In so doing they participated directly in throwing the defendant purchaser off guard, led him to believe he was the original purchaser of a new car from a registered dealer and that he was the first person who was required to apply for and obtain a certificate of title.
Should the defendant lose the car to the plaintiffs under such circumstances? We do not think so. This view is abundantly supported, and we think, by sound authority. (Emerson-Brantingham Implement Co. v. Faulkner, 119 Kan. 807, 241 Pac. 431; Trapani v. Universal Credit Co., 151 Kan. 715, 100 P. 2d 735; Sorensen v. Pagenkopf, 151 Kan. 913, 101 P. 2d 928; Gump Investment Co. v. Jackson, 142 Va. 190, 128 S. E. 506; Fogle v. General Credit, 122 F. 2d 45, 136 A. L. R. 814, and anno. 136 A. L. R. 821. See, also, the more recent decision in General Motors Acceptance Corp. v. Davis, 169 Kan. 220, 218 P. 2d 181, which contains somewhat similar facts and is persuasive in principle.
We reaffirm what was said in the Sorensen case, supra, that a purchaser of a new car from a registered dealer under circumstances there existing, similar to those in the instant case, need not examine the records to ascertain whether there is a lien on such a car. In the Fogle case, supra, the following doctrine was asserted:
“A mortgagee cannot throw the buyer of mortgaged property off guard concerning protection which recording act gives to him and take advantage at the same time of what otherwise would or might have been discovered, and thus if the mortgagee clothes mortgagor with indicia of ownership, or gives him authority to sell the property, or stands by in silence and watches tire mortgagor deal with it as owner, the mortgagee nullifies the effect of recording by his inconsistent representation.” (Headpote 8.)
While plaintiffs cite other cases they rely primarily on the following involving automobile transactions: Sims v. Sugg, 165 Kan. 489, 196, P. 2d 191; Bankers Investment Co. v. Meeker, 166 Kan. 209, 201 P. 2d 117, and cases therein cited. Plaintiffs quite properly refer to statements therein contained relative to the plain and unambiguous language of the statute commonly referred to as the certificate of title statute, G. S. 1949, 8-135 and also to G. S. 1949, 8-142. They point out that we have said failure to comply with the certificate of title law renders the sale void. These opinions speak for themselves and we shall not again review them. A reading of those cases will disclose a dissimilar state of facts. It is sufficient to say those decisions were not intended to be controlling under the facts of this case heretofore narrated. We think the decisions previously cited herein in support of the instant decision are controlling. It simply will not do to say that a purchaser from a registered dealer of a car, treated by all the parties to the litigation as a new car, loses his car because he obtained no certificate of title from the registered dealer, who, under the law, is not a party who can obtain a certificate of title, when the mortgagees who engineered, or participated in engineering, the entire deal for their profit clearly misled the purchaser into his dilemma.
Plaintiffs also complain concerning the judgment rendered pursuant to the last paragraph of the court’s memorandum opinion, heretofore quoted. They remind us Leroy Jones holds the original bill of sale, that he was not a party to this action and the court had no jurisdiction over him. They also argue the original bill of sale held by Jones and the judgment of the court granting title to the defendant will cause confusion in the records of the state vehicle commissioner. We fail to see what interest plaintiffs have in that matter. They do not represent Leroy Jones. Plaintiffs’ only concern is whether, as between them and the defendant, they are entitled to possession of the car. That question has been adjudicated against them.
The judgment is affirmed. | [
-16,
-18,
-32,
-98,
74,
-32,
32,
26,
93,
-127,
37,
-45,
-23,
-50,
4,
125,
-2,
29,
116,
107,
-43,
-73,
23,
-119,
-46,
-77,
-39,
77,
-71,
-55,
52,
-41,
76,
48,
-118,
-99,
-26,
64,
-123,
94,
-50,
-124,
-69,
64,
-39,
64,
-12,
17,
86,
77,
-47,
14,
-62,
46,
57,
67,
105,
44,
75,
-87,
-48,
-79,
-55,
-121,
-1,
19,
17,
4,
-102,
-91,
120,
58,
-112,
56,
57,
-24,
-13,
-74,
-126,
-12,
105,
-103,
8,
102,
103,
34,
48,
-55,
-8,
-100,
6,
-9,
-97,
-121,
-78,
80,
3,
33,
-65,
-97,
127,
19,
7,
-2,
-2,
5,
25,
-28,
7,
-49,
-78,
-111,
-17,
118,
27,
11,
-22,
-123,
52,
112,
-51,
114,
93,
6,
26,
59,
86,
-108
] |
The opinion of the court was delivered by
Price, J.:
In this case the respondent employer and its insurance carrier have appealed from a judgment allowing recovery in a workmen’s compensation case.
At the hearing before the commissioner it was stipulated that the accident arose out of and in the course of employment, and the evidence concerning claimant’s injuries, medical treatment and extent of his disability, was substantially as follows:
Claimant, a large husky man, thirty-one years of age and weighing over 200 pounds, was injured on May 20, 1949, while engaged in his work as a boilermaker rigger when a shell weighing approximately twelve to eighteen tons, which he and other workmen were attempting to straighten and adjust, slipped sideways, catching the upper part of his body between the shell and scaffolds upon which the men were working. Immediately thereafter he was given first-aid treatment for scratches and abrasions on his right arm and chest. As it was near the end of a Friday working day and the plant was to be closed on Saturday and Sunday he went on to his home and received no further medical attention at that time. He continued in the employ of respondent employer but was assigned much lighter work in the parts department. On June 15, 1949, he went to the company doctor at which time X rays of his right shoulder and arm were taken. These showed no bones to be fractured but he had rather severe swelling and soreness in his right shoulder. He continued to be treated by the company doctor two or three times a week until July 5, 1949, at which time the company put into effect a new general rule requiring that medical care for injured employees, other than first-aid treatment, be had after working hours. From that date on claimant failed to go to the doctor for further medical care and he testified that this was because such treatments would not only be on his own time but at his own expense. He continued in the employ of respondent company until September 9, 1949, on which date there was a general layoff of employees, including claimant. On October 12, 1949, it appears that he again saw the company doctor when he reported to him for a rating examination.
On October 14, 1949, claimant went to a doctor of his own choosing concerning his injuries, and he went back to this doctor again on January 14, 1950.
In November, 1949, claimant worked as a cab driver for a taxicab company in Kansas City for about two and a half weeks, and on or about December 1, 1949, he went to work as a salesman for a chemical and supply company, calling on garages and service stations, his pay being on a straight commission basis. No evidence was introduced concerning what claimant had earned as a cab driver or what he had earned or was earning as a salesman.
Claimant testified that following the injury his right arm and shoulder were sore; that he was unable to do any heavy work which required lifting or overhead work, and that following his layoff by respondent employer he had not been able to engage in his usual work as a boilermaker rigger due to the condition of his shoulder. He further testified that he had contacted his union on two or three occasions concerning jobs in his line, but that the union officials did not consider him able to perform his former type of heavy work. |
The doctor to whom claimant went on October 14, 1949, a rep.utable orthopedic surgeon, testified concerning his examination of claimant on that date and again on January 14, 1950, and stated that in his opinion claimant sustained a disability of thirty percent of the arm alone in the absence of further treatment, but that in rating his body as a whole he would place the percentage of disability at twenty percent. This witness described the grating and soreness in the right shoulder and stated that he considered some of claimant’s condition to be permanent in nature, but that probably it would be improved with adequate treatment. He defined the condition as chronic subdeltoid bursitis and stated that even had he received continuous treatment from the first day after the accident the condition might still have become chronic.
The company doctor testified in behalf of respondents and he described his first contact with claimant, at which time he gave him heat treatments for his shoulder. According to him claimant complained of the pain and lack of freedom of movement in his shoulder, and the substance of his further testimony was that claimant had not been seriously injured, that he considered him able to do the type of work he formerly had done and that he had sustained no disability to the body as a whole.
It was stipulated by the parties that claimant’s average weekly wage at the time of his accidental injury was $90, and at the conclusion of the hearing the commissioner found that claimant was suffering a fifteen percent permanent partial disability to the body as a whole and allowed compensation for fifteen percent disability for a period not to exceed 415 weeks, payable at the rate of $8.10 per week. The findings and award of the commissioner were upheld and adopted by the lower court, whereupon respondents perfected this appeal.
Respondents urge a number of grounds for reversal, several of which, for the purpose of consolidation and brevity, may be grouped together, and they are that (1) the award and judgment are not justified by the evidence as a matter of law, (2) the award and judgment are erroneous because of claimant’s failure and refusal to submit to medical treatment, and that his disability, if any, was not proximately caused by the accident but was the direct result of his failure and refusal to accept medical treatment, and (3) the award and judgment are erroneous because of the great divergence of medical testimony introduced.
At the outset, in the consideration of these grounds, we are confronted with the rule that.the scope of this court’s appellate review in a workmen’s compensation case is limited to “questions of law” which, in the final analysis, simply means that its duty is to determine whether the trial court’s factual findings are supported by any substantial, competent evidence. (G. S. 1935, 44-556; Hilyard v. Lohmann-Johnson Drilling Co., 168 Kan. 177, 211 P. 2d 89, and cases cited.) It is true that here there was conflicting testimony concerning the circumstances of claimant’s alleged failure and neglect to take further medical treatments subsequent to July 5, 1949, and it is also true that there was a conflict in the medical testimony concerning the extent of claimant’s injuries and whether they would have responded to more frequent medical attention and care, but all of those matters were before the commissioner and the lower court on appeal, and the rule is that when a trial court makes a finding upon conflicting evidence adduced in a workmen’s compensation case such finding is conclusive and will not be disturbed by this court on appeal. (Keltner v. Swisher, 168 Kan. 184, 211 P. 2d 75, and cases cited.) From the record before us we cannot say that the award and judgment have no basis in the evidence and that in any of the aforementioned particulars the judgment of the lower court was erroneous.
We pass now to the complaint most strenuously urged by respondents, namely, that the method of computation of the award used by the commissioner and upheld by the lower court was erroneous and contrary to law.
As heretofore stated, it was stipulated that claimant’s average weekly wage at the time of his injury was $90 and the commissioner arrived at the amount of award by figuring fifteen percent of sixty percent of this $90 per week figure, the result being $8.10 per week for not to exceed 415 weeks, as set by the statute, G. S. 1947 Supp. 44-510, (3) subparagraph 22, which provides:
“(22) Should the employer and the employee be unable to agree upon the amount of compensation to be paid in any case of injury not covered by the schedule, the amount of compensation shall be settled according to the provisions of this act as in other cases of disagreement: Provided, however, In case of temporary or permanent partial disability not covered by schedule the workman shall receive during such period of temporary or permanent partial disability not exceeding four hundred fifteen weeks, 60 percent of the difference between the amount he was earning prior to said injury as in this act provided and the amount he is able to earn after such injury in any employment, such compensation in no case to exceed twenty dollars per week: Provided further, That the minimum of seven dollars per week elsewhere provided in this act shall not apply to injuries covered by the provision of this paragraph.”
Respondents’ argument in this connection is twofold — first, that the compensation awarded claimant was calculated solely on the basis of the percentage of disability against his weekly earnings prior to the injury and was not determined on the basis of the difference between the amount of earnings prior to his injury and the amount he was able to earn after such injury in any employment, as provided by the statute; and secondly, that if such a basis as used by the commissioner in computing the award is to be followed, then the fifteen percent permanent partial disability should apply to the 415 week period — in other words, that disability benefits should not have been allowed for in excess of 62.25 weeks.
It is argued that a literal reading of the statute, above quoted, providing for compensation for an unscheduled injury, such as here, means that compensation shall be computed on the basis of sixty percent of the difference between the amount the one injured was earning prior to the injury and the amount he is able to earn after such injury in any employment, and that since there was no evidence of the amount claimant earned after his injury, or was able to earn in any employment, there was a total lack of proof upon which the commissioner could compute the award.
We have given careful consideration to respondents’ arguments in this connection, but are unable to find any merit in them. In a long line of decisions this court has upheld the method of computation of an award to an injured workman used by the commissioner in this case, even where the evidence showed the injured workman to be earning as much or even more after his injury in the same or other employment.
In Beal v. El Dorado Refining Co., 132 Kan. 666, 296 Pac. 723, the question was gone into and earlier decisions were reviewed. The court said:
“Early in the history of the operation of compensation legislation in this state this court held that loss of earning power may result from ineligibility to obtain work to do, as well as from inability to do procurable work . . .; and that wages paid do not establish ability to earn. . . . These principles have been applied by this court numerous times, and have the approval of the authorities generally.” (p. 672.)
Again, in McGhee v. Sinclair Refining Co., 146 Kan. 653, 73 P. 2d 39, 118 A. L. R. 725, the question was before this court, and after the authorities were reviewed at length, it was said:
“It will be seen that this court has uniformly held that the fact the workman returned to work for the same employer or for another employer, at the same or higher wages, does not prevent him from receiving compensation when the workmen’s compensation commission and the trial court have found on substantial evidence that he has sustained a compensable injury.” (p. 658.)
“Respondent makes a vigorous argument based on paragraph 22 of G. S. 1935, 44-510. This statute has already been set out in this opinion. The respondent points out the provision of that section wherein it is provided that in the case of permanent partial disability the workman shall be awarded sixty percent of the difference between the amount he was earning prior to the injury and the amount he was able to earn after the injury in any employment. The argument is that since' the workman was receiving more from his employer at the time of the hearing than he was receiving at the time of the injury, there would be no difference as provided in the statute, and he should not be awarded compensation under paragraph 22. We have seen, however, in the authorities cited heretofore that the wages a workman receives is not necessarily a test of his earning powers. It is the business of the commissioner of workmen’s compensation to consider all the evidence on the question of the degree of disability of the workman, to reach a conclusion as to the facts from this evidence and to make an award in accordance therewith. The work being performed by the workman at the time of the hearing or at any time subsequent to the injury is evidence to be considered along with other evidence, but is not controlling on the commissioner any more than other evidence.” (p. 659.)
Here there was evidence that claimant was no longer able to perform his usual work as a boilermaker rigger — in other words, he was no longer able to earn on the open labor market in his line of work. We do not understand it to be the intent and purpose of the workmen s compensation act to deprive an injured workman of compensation for his injuries merely for the reason that he subsequently earns as much or more at the same or other employment. The whole theory underlying the act is that by reason of his accident the employer is required to compensate the workman for loss resulting by reason of his inability to perform the same labor he was able to perform prior to the injury. At the many sessions of the legislature since this court has so interpreted the section of the act in controversy that body has not seen fit to amend the act so as to bring about a different result, and we are therefore to assume that our interpretation has met with legislative sanction and approval.
We hold, therefore, that the method of computation used by the commissioner, and approved by the lower court, was in accordance with the statute and the rule many times announced by this court. We find no error in the record and the judgment of the lower court is therefore affirmed. | [
-16,
-7,
-68,
-115,
24,
98,
42,
-38,
85,
-91,
-89,
83,
-83,
-59,
13,
111,
-9,
29,
-48,
35,
-9,
-93,
18,
-85,
-46,
-65,
-15,
-59,
-71,
75,
-92,
-12,
77,
48,
10,
-41,
-30,
-56,
65,
20,
-50,
4,
-21,
-19,
89,
16,
56,
122,
-16,
75,
17,
-97,
74,
46,
24,
-61,
45,
40,
123,
40,
-64,
-15,
-118,
13,
111,
16,
0,
2,
-98,
-121,
-8,
30,
-104,
-79,
64,
-84,
82,
-74,
-126,
-12,
41,
-119,
4,
-30,
98,
49,
21,
-57,
104,
-72,
63,
-100,
-97,
-91,
-78,
56,
-88,
3,
-108,
-99,
106,
20,
22,
126,
-4,
29,
95,
41,
3,
-118,
-74,
-77,
-33,
100,
-100,
-101,
-17,
-121,
-90,
113,
-52,
-78,
92,
-59,
115,
23,
27,
-102
] |
The opinion of the court was delivered by
Smith, J.:
This is a proceeding to probate a will. In the probate court the will was admitted to probate. On appeal to the district court the will was again admitted to probate. The opponent has appealed.
The petition set out the names of the devisees and legatees and the amount of the estate and stated that at the time of the execution of the will testator was of sound mind and memory and not under any restraint or undue influence. A copy of the will was attached.
A second cousin of testator filed a document she designated as a petition, in which she stated she was one of the heirs of testator and the names of the other heirs. She also stated that for many years prior to his death testator was incompetent and not capable of taking care of his business and not of sound mind and memory and that at the time of the alleged execution of the will he was mentally incompetent and unable to make a will and was neither mentally nor physically capable of looking after his business and that on that account the will should not be admitted to probate.
A hearing was had after due notice and the probate court ordered the will admitted and appointed an executor.
An appeal was taken to the district court. That court found that testator was eighty years of age when he made his will; that for several years prior to its execution he had been in poor health, careless and dirty in his habits and at times forgetful of persons and events. The court further found:
“III
“Mr. Regie was not unduly influenced in the making of his will.
“IV
“Mr. Regie was mentally competent to make a will at tifie time of its execution.
“V
“At the time of the execution of the will Mr. Regie knew what property he owned and understood what disposition he desired to make of the same.”
The court’s conclusions of law were that the will was executed in conformity with all statutory requirements and that the probate court properly admitted it. The opponent filed a motion for a new trial and to set aside the findings of fact and conclusions of law, because of abuse of discretion, the court’s erroneous rulings in the exclusion of evidence offered by both parties, because the court erred in overruling the demurrer of opponent to the evidence of the proponents of the will, because the decision and findings of fact were contrary to the evidence, because there was no evidence to support the findings of fact and conclusions of law and decisions made by the trial court, because the decision was contrary to the law and for newly discovered evidence. At the hearing of the motion for a new trial the opponent reintroduced the evidence taken at the trial.
At the conclusion of the evidence of the proponents the opponent demurred to it on the ground that it was not sufficient to admit the will to probate and did not establish any of the requirements of law necessary for the admission of the will to probate. This demurrer, as well as the motion for a new trial, was overruled and judgment entered ordering the will admitted — hence this appeal.
The opponent appealed from the order overruling this demurrer and also from the order admitting the will to probate.
The specifications of error are that the court erred in overruling the opponent’s demurrer, in its findings of fact and conclusions of law, in faffing to grant a new trial, in the exclusion of evidence, in admission of evidence and in rendering judgment in favor of the proponents and against the opponent.
The first argument of- opponent is that the court erred in overruling her demurrer to the evidence of the proponents. She points out that in a proceeding to probate a will the burden is upon the proponents to show not only the testamentary character of the instrument but the capacity of testator. She argues there was no evidence whatever offered by the proponents tending to show the testamentary capacity of the testator. This is hardly a correct statement. The two witnesses offered by the proponents were husband and wife. The wife had written the will at the request of testator. They had both been witnesses to it. She testified that she received the information she put in the will from testator that morning; her testimony was that he had another will some other person had drawn for him; that he referred to it and told her changes he wanted made and that he especially referred to the names of some of the devisees and the property he wished to devise.
From her testimony a reasonable inference drawn therefrom is that testator knew what property he had and to whom he wished to leave it and who were the natural objects of his bounty. It would not do to say that this did not constitute some evidence of testamentary capacity. The rule in such cases is as we have stated in any other case where a demurrer to the evidence is being considered. It is only necessary for the party upon whom the burden falls to make a prima facie case, and all evidence will be taken as true and all reasonable inferences drawn in favor of the party' upon whom the burden rests. (See In re Estate of Wallace, 158 Kan. 633, 149 P. 2d 595.) Especially is this true where, as in this case, the demurrer was overruled the protester proceeded to offer evidence as to the lack of testamentary capacity and the proponents met that in rebuttal with additional evidence. The whole proposition was thoroughly threshed out.
The opponent next argues the court erred in its findings of fact and conclusions of law. and decision and judgment. In this connection she argues that the findings of fact are not supported by sufficient evidence and are contrary to the evidence. In this argument she recites a great deal of the evidence offered by the proponents and much that was offered by her. Suffice it to say the trial court might have reached a conclusion other than the one reached here. To say the findings were contrary to the evidence, however, is a different question. The trial court is given the responsibility of hearing the evidence and finding the facts. Stated succinctly, the opponent relies chiefly on the fact that the testator was old and he had some symptoms of senile dementia; that he did not take care of himself, that is, his person was in filthy condition at times; that he lived very frugally, in fact much more frugally than an ordinary reasonable man would wish to live. The opponent asks us to consider all these surrounding facts and circumstances and reach a different conclusion as to the facts than was reached by the trial court. Aside from the many times we have said we would not do this, where there was substantial evidence to sustain the verdict, we have said in the case of Klose v. Collins, 137 Kan. 321, 20 P. 2d 494:
“The fact that the testatrix at an advanced age when she executed a will, was childish, feebleminded and forgetful, and had never looked after her own business matters herself, is not in and of itself sufficient ordinarily to render her mentally incompetent to make a valid will.”
We have also said in Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634:
“The right to make a will includes the right to make it according to the testator’s own desires, subject only to the statutory restrictions. It is no condition of this right that the will shall please a jury, or a court, or the testator’s relatives, or any one else. The giving of unequal portions to the natural objects of the testator’s bounty raises no presumption of undue influence. The fact may be considered in determining the question, Is this the testator’s will? But in the absence of proof of undue influence it has no weight.” (Syl. 9.)
We also said in Higbee v. Bloom, 108 Kan. 723, 196 Pac. 1080:
“In an action to set aside a will on the ground of tire mental incapacity of tire testator and alleged undue influence exercised by his wife, who was the principal beneficiary, findings of fact considered, and held (following Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634) insufficient to sustain a judgment setting aside the will on the ground of undue influence, and further held (following Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849), that notwithstanding the testator was 76 years of age and suffered through senile dementia, the provisions of the contested will and the findings showing the circumstances under which it was dictated and executed, establish the mental capacity of the testator immediately before and at the time of its execution.”
(See, also, Barnhill v. Miller, 114 Kan. 73, 217 Pac. 274; also Kunkle v. Urbansky, 153 Kan. 117, 109 P. 2d 71.)
We pass now to the argument of the opponent that the court erred in the exclusion of evidence offered in support of the want of testamentary capacity of the testator. This argument leads to a considerable portion of the record where the opponent offered evidence to the effect that the testator lacked testamentary capacity and the trial court sustained objections to it. There were several instances of this sort. It would not add anything to this opinion to set out each instance.
The first one, however, has to do with the testimony of one Corrine Turner. That portion of the record is as follows:
“Q. From your acquaintance with Mr. Regie and your various visits to him, and especially in the year of 1945 when he made the will, the purported will, do you have an opinion as to whether he was mentally competent at those times?
“Mr. Ballweg: To which we object for the reason it calls for a conclusion of the witness.
“The Court: Objection sustained.
“Q. Do you have an opinion as to whether or not he was mentally competent to make a will. A. Yes.
“Mr. Bond: To which we object for the reason, Your Honor, it is incompetent, irrelevant and immaterial.
“The Court: Objection sustained.
“Q. Do you have an opinion as to whether or not he had sufficient mental capacity to know his relatives at that time? A. Yes.
“Mr. Ballweg: To which we object for the reason it is incompetent, irrelevant and immaterial.
“The Court: Objection sustained.”
Counsel for the opponent then called the court’s attention to Kelley v. Kelley, 158 Kan. 719, 150 P. 2d 347 and to Mingle v. Hubbard, 131 Kan. 844, 293 Pac. 513.
These decisions are generally to the effect that on the issue of the testator’s mental capacity the testimony of nonexpert witnesses is competent and they may state their judgment as to that capacity on the basis of what they personally observe from their experiences with him.
After the court’s attention was called to these cases the record shows the following:
,“Q. Do you have an opinion as to whether Mr. Regie had mental capacity to know his property? A. Yes.
“Q. At each and all of the visits.
“Mr. Ballweg: To which we object for the reason it is incompetent, irrelevant and immaterial and calling for a conclusion of the witness.
“The Court: Objection sustained as to the form of the question.
“Q. When you visited him in July of 1945, did you have an opinion as to whether or not he had mental capacity to know his property?
“Mr. Bond: To which we object for the reason it calls for a conclusion and this witness is not qualified to testify; further it is an attempt to testify to transactions with a deceased person.
“Mr. Ballweg: Further, she is an interested party.
“The Court: Objections sustained.
“Q. Do you have an opinion, as to the time of your visit or visits with Mr. Regie in July, 1945, as to whether or not Mr. Regie had mental capacity to know the natural objects of his bounty — what they were?
“Mr. Bond: Same objections.
“The Court: Sustained.
“Q. Do you have an opinion, as to the time of your visit in July of 1945, as to whether Mr. M. R. Regie had mental capacity to know who he would want to leave his property to?
“Mr. Ballweg: We object for the reason it is repetition.
“Mr. Bond: We interpose the same objection as heretofore stated.
“The Court: Objections sustained.
“Q. Do you have an opinion whether or not at the time of your visit with him in July, 1945, he had mental capacity to know what his property consisted of?
“Mr. Bond: Same objection, Your Honor.
“The Court: Objection sustained.”
Upon the objection to this being sustained an offer of proof was made.
Laying aside any question as to the competency of this evidence, we are confronted with the proposition that this evidence was not offered in affidavit or any other form to the trial court on the hearing of the motion for a new trial.
G. S. 1949, 60-3004, provides, as follows:
“In all cases where the ground of the motion is error in the exclusion of evidence, . . . such evidence shall be produced at the hearing of the motion by affidavit, deposition or oral testimony of the witnesses, and the opposing party may rebut the same in like manner.”
We have held many times without such a showing a ruling excluding evidence is not reviewable. (See In re Estate of Casida, 156 Kan. 73, 131 P. 2d 644; also Yarberry v. Hertzler, 151 Kan. 651, 100 P. 2d 629.) We so hold here: We will not review the action of the trial court in sustaining objections to evidence offered by the opponent.
Other specifications of error argued by opponent are examined and found to have been covered by what has already been said.
The judgment of the trial court is affirmed. | [
115,
-4,
-60,
-98,
26,
96,
-70,
-102,
113,
-31,
-93,
115,
111,
-110,
80,
43,
115,
-97,
64,
123,
83,
-77,
6,
1,
-10,
-5,
-14,
-36,
-79,
-19,
-12,
87,
76,
32,
-94,
-43,
-26,
-118,
-27,
-48,
-116,
74,
-119,
101,
-55,
80,
50,
35,
87,
13,
85,
30,
115,
-82,
61,
-54,
8,
44,
123,
-82,
80,
-80,
-115,
-123,
77,
23,
-77,
-122,
-34,
-53,
88,
46,
-104,
57,
-128,
-8,
113,
-74,
-122,
84,
111,
-101,
44,
102,
-30,
32,
93,
-17,
-48,
-120,
-97,
118,
61,
-89,
-109,
88,
-87,
101,
-74,
-37,
117,
20,
47,
-4,
-25,
20,
24,
108,
0,
-113,
-42,
-79,
-43,
124,
-102,
75,
-21,
-95,
32,
113,
-51,
2,
92,
99,
113,
-101,
-122,
-70
] |
The opinion of the court was delivered by
Price, J.:
This appeal arises out of an action by a downstream owner of farm land against an upstream owner for damages on account of flooding allegedly caused by defendant’s construction of a dike or levee on his own land along one bank of a natural watercourse which runs through plaintiff’s and defendant’s lands.
Trial was had by a jury which answered special questions and returned a verdict for plaintiff in the amount of $1,000. Defendant’s motion for a new trial being overruled he has appealed and alleges nine specifications of error.
The amended petition states two alleged causes of action, the first being for damages in the sum of $15,400 for damages to plaintiff’s crops and land, and the second is for a mandatory injunction ordering defendant to remove the levee.
The parties will be referred to as in the court below, and defendant’s first specification of error is that the court erred in overruling his demurrer to the amended petition and the opening statement of plaintiff.
From the record before us it appears that plaintiff’s opening statement, after relating to the jury the residence of the parties, consisted of a reading of the amended petition. At the close thereof defendant demurred on the ground that a cause of action was not stated. This demurrer was overruled. We thus have the question whether the amended petition states a cause of action.
After stating the residence of the parties and the legal description of the tracts of real estate in question, it alleges that defendant’s land was directly south and adjacent to plaintiff’s property; that a natural watercourse or creek flowed in a generally northeasterly direction across both properties, and
“7. That on or about the 5th day of October, 1948, the defendant constructed a levee or mound of dirt, along the northern bank of said creek, beginning at a point about 600 feet before said creek enters the south half of the southeast quarter of Section 4, and running parallel to said creek bank to a point approximately 190 feet from where said creek flows onto the aforesaid land of the plaintiff; that said levee was of the approximate heighth (sic) of four feet, and varied in width of from 15 to 20 feet; that said levee obstructed and held the natural overflow of said natural water course narrowly channeled between the levee and the opposite bank, until it had passed through the aforesaid tracts of land owned by the defendant; . . . that by reason of the damming of the usual and natural course of drainage, the overflow waters were diverted to the land of the plaintiff, and discharged in an unnaturally large amount and velocity; . . .”
and then follow allegations with reference to the flooding of plaintiff’s property and damage alleged to be the natural result thereof.
Defendant contends the amended petition, construed most favorably to plaintiff, merely alleged that defendant, the upper landowner, constructed a levee along the bank of a natural watercourse on his own land to repel flood waters from such natural watercourse, something which, under the provisions of G. S. 1935, 24-105, he was permitted to do, and therefore no cause of action is stated. Applicable portions of that statute read:
“A landowner or proprietor shall not construct or maintain a dam or levee for the purpose of obstructing or collecting and discharging with increased force and volume the flow of surface water to the damage of the adjacent owner or proprietor; but nothing herein shall be construed as preventing an owner of land from constructing a dike or levee along the bank of a natural watercourse to repel flood waters from such natural watercourse: . . . Provided further, That where such surface water is the overflow of a watercourse on the premises of an adjacent upper landowner and such upper landowner has not constructed or maintained a levee along the bank of such watercourse to prevent overflow, any landowner may make application to the chief engineer of the division of water resources stating in such application that an upper landowner, whose name and address is given in tire petition, has not constructed a levee on his land to prevent the overflow from the stream, and requesting permission to build a levee on his own land to repel such flood water. . . .”
We think that defendant’s contention is well-taken. From a reading of the statute it is obvious that defendant had the right to construct a levee on his own land along the bank of the creek in question to repel flood water from such natural water course. The latter portion of the statute has reference to surface water which is the overflow of a watercourse on the premises of an adjacent upper landowner where such upper landowner has not constructed or maintained a levee along the bank of such watercourse so as to prevent overflowing. It is in such latter instance that the lower landowner must obtain consent of the chief engineer of the division of water resources to build a levee on his own land to repel flood water coming down from above. However, that is not the case before us and all that is alleged here is that the levee constructed by defendant held the natural overflow of the creek narrowly channeled between the levee and the opposite bank. There is no allegation that the levee in any way diverted overflow surface water from above onto the land of plaintiff.
Questions pertaining to the respective rights of landowners in situations similar to this have been before this court on numerous occasions. In Horn v. Seeger, 167 Kan. 532, 207 P. 2d 953, the authorities were reviewed and the statute, supra, was again considered. No good purpose would be served in quoting from that opinion, but the holding in that case as applied to the question now before us means that here the defendant was entirely within his rights in confining the waters of the creek in question to its channel so as to protect his oion property from overflow. It therefore follows that plaintiff’s amended petition and opening statement did not state a cause of action and the demurrer thereto should have been sustained.
In view of our decision it becomes unnecessary to discuss other alleged trial errors relied upon by defendant for reversal of the judgment. The judgment of the lower court is reversed with directions' to sustain defendant’s demurrer to the amended petition and opening statement of plaintiff. | [
-14,
108,
-68,
-84,
-118,
96,
-24,
-104,
69,
-95,
-9,
83,
-17,
-61,
4,
99,
-9,
109,
113,
107,
-42,
-78,
127,
-30,
-14,
-13,
-13,
-41,
-78,
124,
-10,
-41,
76,
48,
-62,
-43,
70,
74,
-59,
84,
-50,
-105,
-101,
-51,
-63,
66,
54,
123,
116,
79,
53,
-113,
-13,
44,
29,
-61,
41,
44,
-53,
61,
65,
121,
-114,
12,
95,
4,
49,
-73,
-106,
64,
-54,
58,
-112,
57,
0,
-8,
114,
-74,
-122,
52,
3,
-101,
12,
98,
98,
1,
109,
-49,
-24,
-120,
38,
95,
-119,
-90,
-105,
24,
74,
96,
-66,
-99,
116,
16,
6,
118,
-4,
-123,
91,
108,
7,
-125,
84,
-79,
-49,
-76,
-99,
-63,
-49,
19,
48,
100,
-49,
-30,
92,
69,
81,
-97,
-113,
-100
] |
The opinion of the court was delivered by
Thiele, J.:
This appeal involves rulings of the trial court striking one paragraph of the allegations of a cause of action, sustaining a demurrer to that cause of action and striking another cause of action.
On July 24, 1947, Eldora M. Janzen commenced an action against D. B. Troth, Jr., and William D. Smith, to recover money damages. By reason of motions of the defendants and rulings of the court, amended petitions were filed which need not be noticed here. On November 2, 1949, plaintiff filed her fourth amended petition in which she pleaded three causes of action. The present appeal grows out of the allegations of the first and third causes of action. The second cause of action is not involved and will not be noticed.
In her first cause of action, which will be summarized, plaintiff alleged that she was the widow of Vernon Henry Janzen; that she was his sole heir and that there had been no administration of his estate as that was not necessary; that on April 23, 1946, Troth and Smith were partners conducting the Troth Flying Service and engaged in the business of owning and operating airplanes for the purpose of giving flight instructions to students under contract and that on March 9, 1946, Vernon Henry Janzen had entered into a contract with the Nichols-Troth Flying Service for flight instruction, as more fully set forth in a written contract a copy of which was made part of the petition and is later reviewed; that on March 9,1946, the Nichols-Troth Flying Service was conducted by a partnership consisting of G. H. Nichols and D. B. Troth, Jr.; that on April 17, 1946, defendant Smith announced he had purchased a one-half interest in the Troth Flying Service and that on the date of Janzen s death the service was a partnership of the defendants Troth and Smith; that on March 9, 1946, and prior to the written contract Troth called on Janzen and represented to him that if he would sign the contract for flight instruction “that his life would be insured for $10,000 to protect him and his family if he was involved in any accident while training as a student of the flying service”; that such representation was false and was made as a positive assertion it would be acted upon by Jan-zen and that Janzen so relied and signed the contract; that Janzen was killed on April 23, 1946, while on a solo flight as' a student in a plane owned by the service and while taking instruction as a student of the service; that because of the false and fraudulent representations of defendant Troth, plaintiff had suffered loss in the amount of $10,000 for insurance which defendant falsely represented was placed on the life of Janzen. In response to a motion to make definite and certain, by setting forth the facts which plaintiff claimed made defendant Smith liable, it was further alleged at length in paragraph 13 that defendant Smith, upon becoming a general partner of Troth in the Troth Flying Service ratified and affirmed the contract for instruction with Janzen by continuing the instruction.
In her third cause of action plaintiff made many parts of her first cause of action a part of her third cause of action and alleged that immediately prior to the contract of March 9, 1946, Janzen was told that the Flying Service would be approved by the Veterans Administration as eligible to give flying instruction to veterans, and that when the flying service was so approved that all students, including Jan-zen, would be charged only for the time they had flown prior to the approval, and that veterans taking flight training, including Janzen, would be refunded any excess moneys paid over and above the actual flight training received at the time the flying service was approved. It was further alleged that Janzen paid $100 as a down payment and gave his note for the balance due under his contract; that the flying service was approved and before such approval Janzen received training for which he was charged $27.50; that the United States government reimbursed the defendants for the balance and that plaintiff as sole heir of Janzen was entitled to receive back from defendants the sum of $72.50; that defendant Troth had paid $10 and the balance of $62.50 was due plaintiff.
We notice the contract between the flying service and Janzen provides for flight instruction for which Janzen agreed to pay $350 of which $100 was paid at the time of signing, the balance to be paid in installments. The contract makes no mention of any kind of any insurance coverage.
The petition just reviewed was attacked by the following motions and demurrers. Both defendants joined in a single motion directing attention to the third cause of action alleging that Troth had paid to the clerk of the court the sum of $62.50 and that the matters set forth in that cause of action were “res judicata, moot, defunct, no longer in existence, dead, deceased and incompetent, irrelevant and immaterial” and moved that the cause of action be stricken from the files and records of the case. The defendant Troth filed a demurrer on the ground the allegations of the first cause of action failed to state a cause of action, and the defendant Smith filed a motion which asked the court to strike paragraph 13 of the first cause of action because the matter set forth therein was barred by the statute of limitations; that it was irrelevant and immaterial and that plaintiff in her original and first, second and third amended petitions elected to and based her cause of action against Smith on the ground of fraud and that by reason of paragraph 13 she was now endeavoring to recover from Smith on the ground of ratification of contract.
As disclosed by the journal entry thereon, the trial court allowed the motion of Smith to strike paragraph 13 for the reason it was a departure from the theory of the case as originally filed and inconsistent with her prior election of a remedy; sustained the defendants’ demurrer to the first cause of action and rendered judgment in favor of the defendants for the reason the cause of action was based on fraud and in order to have survived would have had to accrue in the lifetime of Vernon Henry Janzen and under the most favorable construction to plaintiff, the purported cause of action would be barred by the two year statute of limitations; and allowed defendants’ motion to strike the third cause of action for the reason that payment of the money claimed had been made to the clerk of the court.
In due time plaintiff appealed to this court from the adverse rulings, specifying that the trial court erred in making such rulings.
We here note that appellant takes no exception to the fact that appellee Smith did not separately demur to the first cause of action in appellant’s fourth amended petition nor that he did not join in the demurrer filed by appellee Troth, but as Smith’s liability, if any, depends on Troth’s liability, no further discussion will be had thereon.
In her brief appellant presents a series of questions for consideration which include (1) whether she made an election of remedies, (2) what constitutes a departure in pleading, (3) when may a plaintiff be compelled to elect a particular remedy, (4.) the liability of an incoming partner for contracts previously made by the partnership, (5) the applicable statute of limitations, and (6) whether the pay-' ment of an amount sued for in one cause of action where two other causes are pleaded, without payment of costs, constitutes grounds for striking or dismissing that particular cause of action.
The first five questions pertain to the first cause of action, and the sixth one to the third cause of action.
As to the questions pertaining to the first cause of action, the first four seem to be predicated primarily on the statement in the journal entry of judgment that the allegations of paragraph 13 of the petition attacked, constituted a departure from the allegations of the previous petitions. We find it unnecessary to discuss election of remedies, departure and associated questions for the reason that if the trial court ruled correctly on the demurrer the rulings on the four questions are immaterial. The established rule is that if the trial court renders a correct judgment either on the law or the facts, that judgment will not be disturbed merely because wrong reasons were given for its rendition. See West’s Kansas Digest, Appeal & Error, § 854; Hatcher’s Kansas Digest, Appeal & Error, § 433.
An examination of the allegations of the first cause of action discloses that the pleader more nearly set up a cause of action for damages for fraud perpetrated against Vernon Henry Janzen in procuring the flight contract than an action upon that contract, but whichever it might be construed to be, the cause of action was one which survived the death of Janzen. Substantially the same question was before us in Cory v. Troth, 170 Kan. 50, 223 P. 2d 1008, where it was held that under G. S. 1947 Supp. 60-3201, any cause of action accruing to a promisee, either for fraud in procuring the contract or for the breach of the contract, survives the death of the promisee and an action therefor may be maintained only by his personal representative and not by his heir. The present petition clearly discloses that a personal representative had not been appointed; that the action was being maintained by an heir of the decedent and that facts sufficient to enable her to maintain the action were not alleged. Although not specifically urged, if appellant’s argument be construed as one that she may maintain the action as a third party beneficiary under the contract, the contention may not be sustained. (See Cory v. Troth, supra.)
Nor need we devote any space to a discussion of any applicable statute of limitations under G. S. 1935, 60-306, for speaking generally, the petition alleged a cause of action which survived, and that by reason of G. S. 1935, 60-3212, it could have been revived in the name of the personal representative; that under G. S. 1935, 60-3214 and 60-3215, it must have been revived within one year from which an order of revivor could have been first made. The time has passed in which there could have been a revivor.
In the third cause of action pleaded, plaintiff sought to recover $62.50 under an alleged- agreement foreign to any agreement relied on in the other two causes of action. Thereafter the defendants paid that amount to the clerk of the court, but did not pay any costs. Later, as stated above, the trial court sustained defendants’ motion to strike that cause of action because of the payment made. Under G. S. 1935, 60-3303, an appeal may not be taken to this court in any action for the recovery of money unless the amount in controversy, exclusive of costs, shall exceed one hundred dollars except in certain cases of which this is not one. Compare Shaffer v. Brittain, 121 Kan. 385, 247 Pac. 844. Also see Waugh v. Kansas City Public Service Co., 157 Kan. 690, syl. ¶ 4, 143 P. 2d 788, holding that no appeal lies from a judgment where the only matter involved is costs. There being no right of appeal, there is nothing before us for consideration.
By way of summary, we hold that whether the trial court ruled correctly that there was a departure in the first cause of action in plaintiff’s fourth amended petition has become immaterial; that there was no error in sustaining defendants’ demurrer to that cause of action, and that no appeal lies from its ruling sustaining a motion to dismiss the third cause of action of that petition, and as above qualified, the judgment is affirmed. | [
-16,
88,
112,
-84,
24,
98,
56,
-104,
85,
-59,
-25,
83,
-23,
-33,
0,
127,
41,
13,
80,
106,
91,
-77,
22,
-78,
-9,
-45,
-24,
-43,
-79,
79,
-20,
118,
76,
48,
10,
-43,
-30,
-46,
69,
24,
-50,
36,
43,
-3,
-39,
3,
48,
119,
-114,
79,
49,
-113,
-21,
42,
29,
67,
40,
44,
122,
-87,
-63,
-16,
-117,
13,
-3,
2,
1,
4,
-68,
69,
72,
14,
-48,
49,
40,
-40,
48,
-90,
-58,
-76,
99,
-119,
0,
34,
102,
48,
93,
-17,
-72,
-120,
6,
122,
21,
-89,
23,
80,
1,
65,
-66,
-99,
115,
19,
39,
126,
-24,
93,
24,
-96,
11,
-53,
-42,
-79,
-49,
-28,
-100,
7,
-22,
29,
50,
116,
-51,
40,
94,
68,
59,
31,
-57,
-108
] |
The opinion of the court was delivered by
Smith, J.:
This is an action in the name of the state of Kansas on the relation of the county attorney of Finney county and on the relation of the state board of medical registration and examination to enjoin the defendant from what is designated in the petition as the unlawful practice of medicine. The court below overruled the defendant’s demurrer. He has appealed.
The petition stated the official capacity of the county attorney and the state board of medical registration and examination and then stated that defendant, a doctor of osteopathy, was without any right to engage in the practice of medicine but notwithstanding that was usurping that right, and was holding himself out to the public to be lawfully engaged in such practice and had on numerous occasions recommended and for a fee, prescribed drugs and medicine. Instances where defendant had performed acts of surgery were pleaded. The prayer was that defendant be ousted from practicing medicine and surgery in the state of Kansas.
The defendant demurred to the petition on the ground that the state of Kansas and the state board of medical registration and examination of Kansas were improper parties plaintiff; that the state of Kansas, ex rel., and the state board of medical registration and examination had no legal capacity to jointly prosecute the action; that neither one of the two attorneys who had signed the petition as attorneys for the state board of medical registration and examination had any legal capacity or authority to prosecute the action; that plaintiffs being without such legal capacity, the court had no jurisdiction of the subject of the action and plaintiffs being without legal authority the court had no jurisdiction of the person of the defendant.
This demurrer was amended later, adding thereto the ground that the state board and the state on the relation of the county attorney are not the real parties in interest. This demurrer was overruled and the defendant has appealed.
It will be noted the action is entitled:
“State of Kansas ex rel Dale H. Corley, as County Attorney of and for Finney County, Kansas, and The State Board of Medical Registration and Examination, of Kansas.”
The introductory paragraph reads as follows:
“Comes now the State of Kansas, on the relation of Dale H. Corley, as County Attorney of and for Finney County, Kansas, and on the relation of The State Board of Medical Registration and Examination, of Kansas, and for cause of action against the defendant above named, alleges and states;”
The defendant states the questions involved as follows:
“1. Has the State Board of Medical Registration and examination legal capacity to institute and maintain, in its own name, an action in injunction under and pursuant to 65-1010, 1947 Supp., G. S. 1935?
“2. Are the State of Kansas on relation of the County Attorney joined with the State Board of Medical Registration and Examination, as plaintiffs, the real parties in interest?
“3. Has the State of Kansas, on relation of the County Attorney, joined with the State Board of Medical Registration and Examination, legal capacity or authority to institute and maintain an action in injunction under such statute?”
The statute referred to in the first question is now G. S. 1949, 65-1010. That is a portion of the chapter providing for the examination and registration of doctors. It reads as follows:
“An action in injunction or quo warranto may be brought and maintained in the name of the state of Kansas to enjoin or oust from the lawful practice of medicine and surgery any person who shall practice medicine and surgery as defined by the law of Kansas without being duly licensed therefor. Nothing herein contained shall confer upon the probate judges or district courts of the state the right to grant temporary restraining orders or temporary injunctions under this act, and no injunction matter shall be heard or decided until the defendant shall have had his day in court.”
Attention is also called to G. S. 1949, 65-1006. That is part of the same chapter. The last sentence of the section reads:
“It shall be the duty of the secretary of the state board of registration and examination to see that this act is enforced.”
Appellant argues that the foregoing statute did not confer on the state board of medical registration and examination authority to bring actions on the relation of that board. In connection with this argument he cites G. S. 1949, 19-702, an act which defines the duty of county attorneys and G. S. 1949, 75-702, which defines the duty of the attorney general. Each of these sections makes it the duty of the officer mentioned to appear and prosecute in the name of the state on behalf of the people. For the sake of the decision in this case it may be conceded that such is the law. We are not confronted with an action brought in the name of the state of Kansas on the relation of the board of medical registration and examination. As pointed out, this action is brought in the name of the state of Kansas on the relation of the county attorney of Finney county, as well as on the relation of the state board of medical registration and examination and the county attorney. There can be no doubt but that the county attorney has authority to bring such an action. (See The State, ex rel. v. Allen, 5 Kan. 213; The State, ex rel., v. Majors, 16 Kan. 440; The State, ex rel., v. Kelly, 2 Kan. App. 178, 43 Pac. 299; The State, ex rel., v. Baird, 117 Kan. 549, 231 Pac. 1021; State, ex rel., v. Bradbury, 123 Kan. 495, 256 Pac. 149; and State, ex rel., v. Wyandotte County Comm’rs, 140 Kan. 744, 39 P. 2d 286.)
The defendant argues that the state of Kansas on the relation of the county attorney joined with the state board of medical registration and examination are not the real parties in interest. Some opinions are cited holding that in an action where a party who has no interest in the litigation is joined with the party who does have an interest, the action is subject to dismissal. We have examined these authorities and find they are not in point here. The most that may be said for the argument of defendant is that the joining of the state board of medical registration and examination was surplusage.
The defendant argues that the action was not brought by the state, ex rel., county attorney for the purpose of protecting the health of the people, but was actually brought to protect the professional interests of the members of the medical profession.
The enactment of chapter 270 of the laws of 1937, now G. S. 1949, 65-1010 and 65-1011, together with State, ex rel., v. Cooper, 147 Kan. 710, 78 P. 2d 884; State, ex rel., v. Gleason, 148 Kan. 1, 79 P. 2d 911; and State, ex rel., v. Moore, 154 Kan. 193, 117 P. 2d 598, are a refutation of this argument.
The judgment of the trial court is affirmed. | [
-112,
-18,
-67,
29,
26,
-64,
48,
10,
81,
-77,
103,
115,
-19,
-53,
5,
123,
-94,
45,
64,
121,
-25,
-77,
87,
-24,
-78,
-13,
-53,
-41,
-77,
-49,
-26,
-11,
77,
56,
10,
-43,
70,
-118,
71,
-44,
-114,
8,
-119,
-63,
89,
-117,
-72,
43,
86,
66,
17,
15,
-14,
40,
62,
-61,
-87,
44,
91,
-88,
-47,
-111,
-104,
21,
93,
8,
49,
36,
-98,
-121,
-40,
62,
-102,
57,
64,
-4,
115,
-106,
-126,
52,
79,
-103,
12,
118,
99,
33,
17,
-17,
-88,
-84,
15,
59,
-99,
-89,
-109,
88,
-6,
-120,
-106,
-103,
117,
16,
11,
-2,
-31,
84,
31,
44,
0,
-54,
-110,
-77,
-49,
49,
-118,
3,
-21,
7,
0,
81,
-59,
114,
92,
-57,
58,
27,
110,
-76
] |
The opinion of the court was delivered by
Wedell, J.:
This was an action by a lessor of a mill building, machinery and equipment to recover from the lessees an amount equivalent to what it cost to repair a motor which became unusable during the term of the lease.
A jury was waived and the action was tried by the court. The plaintiff, Bowersock Mills and Power Company, a corporation, recovered a judgment against D. S. Jackman and his associates, lessees, from which the latter have appealed. The principal portion of the lease contract involved reads:
“Fourth, It is further agreed between the parties that the lessees shall have possession of the premises herein above leased, from the effective date of the lease until the expiration of 'this lease and the lessees shall, during the term of this lease, keep the premises in proper repair so as to keep them in good work ing condition, and return the leased property back to the lessor at the expiration of this lease in the same condition as said premises now are, ordinary wear and tear excepted, and if lessees should change the flow of the mill from its present status, and if the life of this lease shall extend its full three (3) years period, then the lessees shall restore the flow of the mill to its original status if the lessor so desires. Provided, however, that in event of any unusual structural defect whereby the structure of said facilities shall become unusable, then such structural defects shall be repaired by the lessor. . . .”
The trial court’s final conclusions of fact were:
“1. The main bearing of the motor in question became overheated through no fault of the plaintiff or the defendants.
“2. The damage to the motor in question was the result of wear and tear, in the ordinary and customary use of such motor.
“3. After the collapse of the motor, a new one was purchased under an agreement between the parties hereto that the defendants would contribute toward such purchase an amount equal to what it would cost to repair the old one. It was also agreed between the parties that it would cost $2,442 to repair the old motor.”
The court rendered judgment against defendants for that amount together with interest.
Appellants contend (1) the written lease placed the duty of repairing or replacing the motor on the lessor; (2) since lessor under the written lease was duty bound to repair or replace the motor, any later oral agreement by lessees for its replacement was without consideration; and (3) Abe Martin, superintendent of the Lawrence Milling Company, had no authority from the lessees to-enter into a later oral agreement.
It first should be observed the contract contains no provision for the replacement of old machinery with new machinery. The contract pertains to obligations of the parties relative to repairs on existing machinery. In other words we find no contractual duties imposed on the lessor to replace an old motor, capable of being repaired, with a new motor.
Appellants, of course, do not complain concerning that portion of finding No. 1 which states the overheating of the main bearing of the motor was not their fault. Nor do they complain of finding No. 2. They agree with it. Appellants do not and, in our view of the record, cannot successfully contend there was no agreement which resulted in the installation of a new motor. There was direct and positive evidence to support finding No. 3. It is true there was also contrary evidence but on review we are not concerned with the latter but only with evidence which supports or tends to sup port findings made. (In re Estate of Walker, 160 Kan. 461, 163 P. 2d 359.)
Appellants’ first contention with respect to finding No. 3 is the subsequent oral agreement was without consideration. If the oral agreement to install a new motor was supported by an independent consideration it is immaterial whose duty it was, under the original lease contract, to repair old motors. What we need to determine is whether there was such consideration.
Did the oral contract lack consideration? The lease was executed July 11, 1946, for a term of three years. The motor broke down in November, 1947. Over one half of the lease term remained. Under the terms of the lease contract it was to the mutual benefit and advantage of all parties to keep the mill in operation without interruptions and delays. This was an old motor. Manifestly a new motor would be more likely to insure uninterrupted operation until the termination of the lease than an old repaired one. The time element of getting the mill back into operation at the earliest moment was highly important to appellants. This was made exceedingly clear by the evidence of Abe Martin, appellants’ superintendent of mill operations at Lawrence. The evidence disclosed it probably would require thirty days to repair the old motor while a new motor could be obtained and installed within four or five days. The cost of repairing the old motor was promptly ascertained and appellants were fully informed concerning such costs. On ample evidence the trial court found there was an agreement appellants would pay that amount on a new motor installed by appellee. Under these facts we have no hesitancy in concluding the subsequent oral agreement was not lacking in consideration. The inherent benefits of a new motor and the additional advantage to appellants resulting from the elimination of a month’s loss of operation constituted valuable considerations for the oral agreement.
Appellants next contend Abe Martin, their superintendent of mill operations in the Lawrence plant, had no authority to enter into contracts on their behalf. That a mere superintendent of milling operations ordinarily does not possess power to contract generally for his employer may be conceded. There was evidence, however, appellee was directed from appellants’ head office in Wichita to refer all matters pertaining to the operation of the mill to Mr. Martin and that such direction was followed. There was also some evidence appellants had paid for at least some repairs in the past although the court excluded additional testimony on that subject which was later offered in order to show the interpretation the parties had placed on the lease contract with respect to the duty of making repairs. Finding No. 3 does not indicate the court considered only the acts of Martin in determining such an agreement was made. There was other evidence to support the finding or conclusion of fact.
The trial court was not obliged to limit its consideration concerning the validity of the oral agreement solely to the question of Martin’s authority to contract. The court was justified in considering all pertinent facts and circumstances which disclosed or tended to show the agreement had actually been entered into. These included the fact appellants’ insurance company, which had issued a policy covering electrical breakdowns, was immediately notified, its adjuster appeared promptly, participated in the conference relative to the cost of repairs, the installation of a new motor, and, in substance, agreed that company would pay to the the extent of such repairs if the motor collapsed by reason of an electrical breakdown. There was evidence this was the cause of the breakdown. Appellants’ fire insurance company was likewise notified and its representative also made an investigation. In addition to the foregoing facts there was evidence appellee contacted L. E. Leatherock, general business manager of appellants’ mill, and Dean McQuillen, head miller of appellants’ mill, by telephone at the principal office in Wichita, concerning the motor. Insurance engineers and inspectors came to examine the motor. After the conference about buying a new motor instead of repairing the old one, at which Martin and an insurance representative were also present, Leatherock, in substance, advised appellee’s secretary and manager by telephone from Wichita that if appellee desired to bring an action against appellants in Douglas county he would come to Lawrence in order that summons might be served on him there; that appellants were not disclaiming liability but wanted the suit filed in order to get the insurance companies to decide which one of them was liable. This testimony neither Leatherock nor anyone else denied. In fact from the record presented here it appears Leatherock did not take the witness stand.
Some other details might be narrated which tended to show it was understood appellants would contribute the ascertained cost of repairing the old motor towards the cost of a new one but we do not deem it necessary to do so. If Martin lacked initial authority to contract the court was amply warranted in concluding the agreement was fully ratified and confirmed by appellants’ general manager and that appellants admitted liability for the amount involved. That an unauthorized agreement, if this was unauthorized, may be effectively ratified and confirmed requires no demonstration with citation of authorities.
Decisions cited by appellants in support of their contention that a mere superintendent of milling operations has no general authority to enter into contracts for his principal have been examined. That general doctrine is not inconsistent with the conclusion the trial court reached on all the direct and circumstantial evidence adduced on the trial of this case.
The judgment is affirmed. | [
-46,
120,
-36,
13,
90,
104,
34,
-102,
74,
61,
39,
87,
-89,
-69,
88,
13,
-26,
125,
-15,
47,
71,
-29,
6,
99,
-110,
-109,
-47,
-51,
-71,
76,
-11,
-33,
76,
36,
-62,
-99,
-26,
-128,
-59,
92,
78,
-121,
27,
-20,
-35,
66,
52,
26,
80,
73,
17,
-122,
115,
46,
-43,
71,
43,
40,
-23,
37,
113,
-7,
-70,
-115,
95,
18,
0,
4,
-100,
-57,
-8,
30,
-112,
61,
12,
-32,
123,
-76,
-60,
-44,
33,
-117,
41,
98,
98,
2,
1,
-17,
-36,
-72,
36,
-62,
-115,
-89,
-103,
120,
27,
65,
-65,
-97,
80,
20,
21,
126,
-2,
-107,
29,
109,
3,
-57,
-74,
-93,
13,
96,
-98,
-118,
-17,
-125,
60,
117,
-51,
-118,
92,
68,
19,
27,
-49,
-102
] |
The opinion of the court was delivered by
Price, J.:
This appeal arises out of the disposition of property rights in a divorce action.
The primary question concerns the power of the lower court to vacate or modify its former decree in an action for separate maintenance and to make a different disposition of the property of the parties in a subsequent divorce action. The appellant wife was plaintiff in both actions and here the parties will be referred to as in the court below.
The factual background of the controversy, sufficient for our purposes, is in substance as follows:
The parties were married in 1936 and separated in 1946. On August 30, 1946, plaintiff filed an action for separate maintenance in which she sought the care and custody of their two minor children, alimony, suit money, attorney fees, that a cafe owned by the parties and located in Kansas City, Mo., be set off to her as her separate property, and that defendant be required to render an accounting of the profits of such business. A summons, the answer date in which was September 20, 1946, was duly issued and served on defendant on the same date the action was filed. On September 17, 1946, defendant signed an entry of appearance and waiver of summons, in which he consented to an immediate trial. This was filed on September 18, 1946.
On September 19, 1946, the action came on regularly for hearing. The plaintiff appeared in person and by her counsel. The defendant did not appear either in person or by counsel. The court, after hearing the evidence, found that plaintiff was entitled to a decree of separate maintenance; that the parties had settled their property rights, and that plaintiff was entitled to the Johnson County residence of the parties, including the household furniture and equipment, an automobile, savings bonds, jewelry and other personal property owned by the parties, and the cafe located in Kansas City, Mo. Ry the decree defendant was given the right to conduct the cafe business and to receive from the income thereof $500 per month for his services as manager, with the further provision that out of such sum he was to pay $300 per month for the support of plaintiff and the two minor children, and that all profits over and above the operating expenses and said sum of $500 per month be paid to plaintiff. The decree awarded the care, custody and control of the minor children to plaintiff, and provided for payment of attorney fees by defendant.
In this connection it should be stated that the court’s decree, with reference to property rights, was based on a written stipulation entered into by the parties under date of September 10, 1946.
Following the rendition of this decree it appears that defendant made the $300 monthly payments provided therein, but did not account to plaintiff or pay her anything further from the profits of the cafe business which he continued to operate and manage.
On May 20, 1947, defendant joined with his wife in executing a warranty deed by which the residence property, which had been awarded to plaintiff by the decree, was conveyed. It appears that plaintiff retained the net proceeds of this sale.
On August 29, 1947, plaintiff filed the instant action for divorce, seeking care and custody of the minor children and a confirmation of the separate maintenance decree previously entered on September 19, 1946.
On April 30, 1948, the defendant filed a divorce action against plaintiff in Jackson County, Missouri. To this action plaintiff filed a general denial and cross-petition, praying a decree vesting the title to the cafe in her, on the basis of the award previously entered in the separate maintenance action in Kansas, and for an accounting of the profits of the business. Defendant then dismissed his action for divorce. No further proceedings on the cross-petition were had.
On October 14, 1948, defendant husband, by leave of court, filed an answer and cross-petition in the instant action in which he prayed for a divorce and charged that the decree of separate maintenance and the stipulation of September 10, 1946, were fraudulently procured and constituted a fraud upon the court. The substance of his allegations was that on September 3, 1946, he and plaintiff had entered into a written agreement concerning their property rights, the substance of such agreement being that plaintiff should have all of the property belonging to them, with the exception of the cafe business, and that he was to pay plaintiff $300 per month for the support of herself and their minor children, but that plaintiff fraudulently induced him to enter into the written stipulation of September 10, 1946, as a “protective measure” for their minor children on account of the threat of an action for alienation of affections which plaintiff advised him was to be filed immediately by the husband of another woman with whom defendant had been keeping company. It was further alleged this so-called second stipulation of September 10, 1946, was intended by both parties to be a “temporary” measure; that it would be cancelled and of no effect as soon as the threat of the alienation of affections suit had passed; that it was not to be submitted to any court as being the agreement of the parties so as to form a basis for any disposition of their property rights, and that the submission of it to the court in the separate maintenance action without notice to defendant was a fraud on the court and defendant.
Defendant further alleged that he had no knowledge of plaintiff’s having filed this stipulation with the court and procuring the separate maintenance decree until on or about August 28, 1947, and his prayer was for a decree of divorce from plaintiff, that the decree in the separate maintenance action be vacated and set aside by reason of the fraud on the part of plaintiff, or that in the alternative the decree be reformed and modified so as to set off the cafe to him. Copies of both stipulations were attached to his answer and cross-petition as exhibits.
On March 28, 1950, plaintiff, by leave of court, filed her reply in which she denied defendant’s charges of fraud in connection with the written stipulation of September 10, 1946, and in securing the decree in the separate maintenance action. She further alleged that defendant’s attempt to set aside such former decree was barred by the statute of limitations; that he was guilty of laches, and was estopped to attack its validity.
The cause came on for hearing on March 30, 1950, and each of the parties introduced considerable evidence with reference to the circumstances surrounding the execution of the stipulation of September 10, 1946, and subsequent conduct of the parties, all of which is immaterial for our purposes in this appeal.
The court granted a decree of divorce to plaintiff, awarded her the custody of the two minor children, but vacated and set aside the decree in the separate maintenance action rendered September 19, 1946, on the ground it was void because of the fraud of both parties. ■ It further denied plaintiff any alimony, awarded defendant as his sole and separate property the cafe heretofore referred to, made disposition of certain life insurance policies, not here important, and ordered defendant to pay $300 per month for the support and maintenance of the minor children, together with attorney fees for plaintiff’s counsel.
Plaintiff’s motion for a new trial being overruled, she has appealed, and, while she alleges six specifications of error, her real complaint is that the lower court erred (1) in refusing to confirm and in vacating and setting aside the former decree entered in the separate maintenance action, (2) in awarding to defendant as his sole and separate property the cafe located in Kansas City, Mo., and (3) in denying plaintiff permanent alimony.
It will be seen that the material difference between the two stipulations is that under the first one defendant was to retain the cafe and all other property was to be set off to plaintiff, whereas under the second plaintiff was to receive all property of the parties, including the cafe, and as we read the record the ownership of this cafe appears to be the principal dispute between the parties.
In our consideration of this case the first question concerns the power and authority of the lower court to vacate and set aside the judgment in the separate maintenance action entered September 19, 1946. It will be recalled that defendant took no action to have that done until October 14, 1948, at which time he filed his answer and cross-petition in the divorce action, alleging fraud on the part of plaintiff in obtaining the decree, and plaintiff argues that under G. S. 1935, 60-3007 and 3008, he is barred. The applicable portions of those provisions are that the district court shall have power to vacate or modify its own judgments or orders at or after the term at which such judgment or order was made on account of fraud practiced by the successful party in obtaining the judgment or order, and that such proceeding to vacate or modify must be commenced within two years after the judgment was rendered or the order made. It is further argued that under G. S. 1935, 60-3011, the proceeding to vacate or modify must be by petition, followed by the issuance and service of a summons as in the commencement of an ordinary action.
On the other hand, defendant contends that his is an action for relief on the ground of fraud under G. S. 1935, 60-306 [Third], that the cause of action did not accrue until his discovery of the fraud, which he alleges to be on or about August 28, 1947, and his cross-petition having been filed on October 14, 1948, he is not barred.
Counsel for both sides have cited a number of decisions dealing with fraud, both intrinsic and extrinsic, and proceedings to vacate and modify judgments as well as independent actions brought on account of alleged fraud, among them being Harvey v. Dolan, 103 Kan. 717, 176 Pac. 134; Huh v. Gafford Lumber & Grain Co., 120 Kan. 209, 243 Pac. 306; Putnam v. Putnam, 126 Kan. 479, 268 Pac. 797; Hardesty v. Hardesty, 150 Kan. 271, 92 P. 2d 49; Stafford v. Stafford, 163 Kan. 162, 181 P. 2d 491; and Prideaux v. Prideaux, 169 Kan. 644, 220 P. 2d 538; but in our opinion a detailed analysis of them would serve no useful purpose in this case. Boiled down to its very essence, and, without going into the question whether defendant has brought his action in the proper form and manner, the fact remains that by his cross-petition he sought to vacate the judgment and decree rendered in the separate maintenance action on the ground of fraud practiced by plaintiff in obtaining the judgment, and in our opinion thus brings himself squarely within the provisions of sections 60-3007 and 3008, supra. His proceeding, even if otherwise properly brought, was not commenced until more than two years after the rendition of that judgment and therefore was not brought within the time provided by section 3008, supra. It therefore follows the lower court had no power or authority to vacate or modify that judgment. In Hinshaw v. Hinshaw, 166 Kan. 481, 203 P. 2d 201, it was held:
“Except in the case of a void judgment (G. S. 1935, 60-3009) or one falling within the provisions of G. S. 1935, 60-3007, the district court is powerless to modify or vacate a judgment after the expiration of the term in which it was rendered.” (Syl. 1.)
Our disposition of this case renders it unnecessary to discuss the evidence pertaining to the alleged fraud practiced by plaintiff, the dealings and relationship of the parties during this protracted litigation over their marital difficulties, and neither is it necessary to comment upon the findings of the lower court relative to such alleged fraud.
The court had a continuing jurisdiction over the custody and support of the minor children. In the divorce action the court also had power to make any proper disposition of property not specifically covered by and included in its former decree in the separate maintenance action, but for the reasons stated it did not have the power or authority to vacate or modify the terms of that decree. However, since there can be no doubt but that the court’s orders as to property rights in the divorce decree were made on the theory that it possessed the power to vacate and modify the previous decree, out of fairness to the trial court and the litigants we think this case should be remanded, so as to give the court a further opportunity to adjudicate such property rights not specifically covered by the separate maintenance decree of September 19, 1946, as may exist between the parties.
It therefore follows that the judgment of the lower court is reversed with directions to adjudicate the property rights of the parties in harmony with this opinion. | [
-48,
-8,
-99,
76,
10,
96,
10,
-40,
97,
-95,
-89,
83,
-23,
-62,
16,
105,
114,
9,
80,
105,
-63,
-93,
87,
-94,
-10,
-13,
-40,
92,
-71,
93,
-12,
87,
76,
32,
10,
-41,
102,
-62,
-59,
20,
-50,
0,
-117,
97,
89,
-62,
52,
123,
82,
11,
17,
-81,
-13,
44,
25,
-58,
104,
44,
-37,
57,
-48,
-8,
-118,
13,
127,
6,
17,
38,
-108,
-27,
88,
10,
-104,
57,
0,
-24,
115,
-74,
6,
116,
71,
-101,
9,
98,
98,
3,
33,
-17,
-8,
-120,
46,
-79,
-113,
-25,
-98,
88,
1,
33,
-66,
-100,
125,
4,
11,
126,
-4,
29,
31,
108,
11,
-53,
-106,
-111,
13,
61,
30,
8,
-17,
-13,
48,
113,
-53,
-86,
93,
86,
123,
-101,
-113,
-100
] |
The opinion of the court was delivered by
Smith, J.:
This was an action to quiet plaintiff’s title to real estate. The defendants were two brothers of plaintiff. Judgment was for plaintiff. Defendant has appealed.
Plaintiff in her petition stated that she was the owner and in actual possession of a described 240 acres of land; and that none of defendants were entitled to any interest in it and she was entitled to have her title quieted; that she and her predecessors in title had been in open, notorious and peaceable possession of it for more than 15 years; that defendants claimed some right to it, the nature of which she could not state, and whatever claim they had was without right. Plaintiff prayed for a judgment quieting her title.
Orrel Goodell, one of the defendants, filed an answer and cross petition. In his answer he pleaded first a general denial. He next alleged Ella Goodell was the mother of Theresa, the plaintiff, Arthur and Orrel defendants and Fred, who was not a party; that she had been the owner in fee simple of the land in question and had conveyed it to her daughter and three sons in equal shares and as tenants in common by her warranty deed under date of May 26, 1922, and the deed was filed for record on December 16, 1946, and at the making of that deed Ella orally reserved the rents and income from the property for her lifetime; that as co-tenants the parties stood in fiduciary relation of mutual trust and confidence in respect to the common estate owned by them; that any estate which plaintiff might claim from any other source than the deed of 1922 inured to the benefit of her co-tenants. The answer then alleged that Theresa became the owner of an undivided one-fourth interest in the real estate by the above deed and on July 19, 1946, conveyed 80 acres of it to her brother Fred by a warranty deed; that Fred became the owner of an undivided one-fourth of all the real estate involved in the deed of 1922, and also became the owner of an additional one-fourth of the 80 acres conveyed by Theresa by her deed of July 19, 1946; that Fred and his wife conveyed to Theresa an undivided one-half of the 80 acres by their deed of December 17, 1947. The answer then alleged that as to the 80 acres of the land involved Theresa owned an undivided one-half, Arthur an undivided one-fourth and Orrel an undivided one-fourth and as to the quarter section Theresa, Arthur, Orrel and Fred each owned an undivided one-fourth. The answer then pleaded that Fred was a necessary party and asked that he be made a party defendant; that Theresa had acquiesced in the benefits of the real estate conveyed by their mother by her deed of 1922; had ratified her mother’s deed by her deed of July 19, 1946, and having so accepted the benefits she was estopped from denying the title of her brothers; that Fred Rad acquiesced in the benefits of the deed of his mother of 1922 and having so ratified it he was estopped from denying the right and title of his brother. The prayer of the answer was that the title of all four be quieted in accordance with their interests as shown in the answer.
In his cross petition Orrel pleaded the ownership of the land just as he had pleaded it in his answer. He pleaded further that Ella in making her conveyance of 1922 orally reserved the rents and income during her lifetime; and that Fred had been in possession of the real estate since his mother’s death. The prayer of the cross petition was for partition of the real estate and that Fred be required to make an accounting for the rents and income of the property since the death of his mother.
For a reply to defendant’s answer and an answer to his cross petition Theresa first alleged a general denial. She then alleged that Ella gave her a warranty deed to the real estate in question on January 22, 1932, and the deed was duly filed for record on June 23, 1932; that she immediately entered into possession and had been in continuous, exclusive, adverse and undisputed possession ever since. She specifically denied that the real estate was on May 26, 1922, conveyed by Ella to Arthur, Theresa, Fred and Orrel, and alleged that the deed of 1922 was never delivered by Ella to any of the grantees and that possession of it was obtained by Orrel by fraudulent methods unknown to plaintiff long after Ella’s death and long after the real estate described had been lawfully conveyed to plaintiff. She further denied that any of the defendants had any interest in the property; denied that any oral reservation of the rents and income from the real estate was ever made by Ella. She further alleged that if Orrel ever had any claim to the real estate that right' had been barred by the statute of limitations. She specifically denied that Orrel was entitled to an accounting. She prayed that Orrel take nothing and for judgment quieting her title and that partition be denied. These pleadings made an issue of whether the deed of 1922 had ever been delivered to any grantee or anyone for the grantees during the grantor’s lifetime.
The cause was tried by the court on May 6, 1949, and prior to its commencement Orrel requested the court to make findings of fact and conclusions of law with reference to the deed of May 26, 1922, and on the issue of the nondelivery of the deed urged the application of the presumption of its delivery arising from the possession by Orrel.
The journal entry was in part as follows:
“The Court further finds that the plaintiff, Theresa B. Goodell is the absolute owner in fee simple, entitled to and in the actual possession of the following described real estate situated in Anderson county, Kansas, to-wit:
Northeast Quarter of Section 5, Township 23, Range 19, East of the 6th P. M., except railroad right-of-way and the East Half of the Northwest Quarter of Section 5, Township 23, Range 19;
that neither of the defendants, nor any of them have any right, title, interest, lien or estate in, to, or upon said described real estate, and that plaintiff is entitled to have her title in and to said above described real estate quieted as against any pretended interest, right, title, lien, claim or estate asserted by said defendants, or either of them in and to said above described real property.
“The court further finds that, ‘regarding the defendant, Orrel F. Goodell’s ‘Request for Application of a Presumption of Law,’ filed May 6, 1949, the Court assumes that the presumption of law contended for is in full force and effect and recognizes the presumption. However, the Court holds that in this case the presumption falls before and must yield to the facts in the case. It is true that the defendant, Orrel F. Goodell, had manual possession of a sealed envelope (Exhibit 4), containing the deed (Exhibit 3), mentioned in such request, but not in the sense that there was a delivery thereof to him. Ella M. Goodell, the grantor, never parted with the legal possession and control of the deed. She had the deed with her at Smith Center, Kansas, deposited with other papers in her daughter, Theresa B: Goodell’s safety deposit box. She and her daughter came to Colony, Kansas, about 1927, where there was no convenient place for her to keep the deed. The defendant, Orrel F. Goodell, her son, had a safety deposit box in a bank there and the deed, together with other papers were handed to him in Colony, for purposes of safety only. He was a mere depository and was trusted as such with the deed until such time as Mrs. Goodell might want it returned to her. Her daughter Theresa acted for her in taking the deed to Orrel and Orrel’s refusal to return the deed was unwarranted.
CONCLUSION OF FACT
“The Court concludes the following facts:
“I.
“Theresa B. Goodell in the transactions with Orrel F. Goodell regarding Exhibit 3, acted as her mother’s agent.
“II.
“That the refusal of the defendant, Orrel F. Goodell, to return Exhibit 3 to Ella F. Goodell was arbitrary and unwarranted.
“III.
“That Ella M. Goodell executed the deed in evidence as Exhibit 3, but never parted or intended to part with the possession thereof in the sense that she delivered it to anyone.
“IV.
“That the filing of Exhibit 3 for record by Orrel F. Goodell was presumptuous on his part and without authority from the grantor therein or anyone acting for her.
“V.
“That the defendant, Orrel F. Goodell, knew of the existence of the deed from Ella M. Goodell to her Theresa, in evidence as Exhibit 1, as early as sometime in June, 1932.
“VI.
“That the execution of Exhibit 1 was the free and voluntary act of Ella M. Goodell and that she delivered said deed in the Plaintiff, Theresa B. Goodell.
“VII.
“That Theresa B. Goodell did not stand in a fiduciary relation to her brothers with regard to the transactions relating to the deeds in evidence as Exhibits 1 and 3.
“VIII.
“That tlie defendant, Orrel F. Goodell, has no right, title, or present interest in the real estate conveyed to Theresa B. Goodell by Exhibit 1.”
The court made conclusions of law as follows:
“conclusions of law
“I.
“Theresa B. Goodell is the owner in fee simple of the real estate described in Exhibit I.
“II.
“Orrel F. Goodell has no present interest in the real estate described in Exhibit I.
“III.
“There having been no delivery of the deed, in evidence as Exhibit 3, none of the grantees therein have any interest in the real estate described therein by reason of said deed.”
Judgment was entered accordingly.
Orrel filed motions for a new trial and to set aside findings of fact and conclusions of law. These motions were overruled. Hence this appeal.
Orrel states the points of law involved to be
“1. Did the Court err in concluding that the presumption of law relied upon by appellant was overcome by evidence?
“2. Did the Court err in overruling the general demurrer to plaintiff’s evidence?
“3. Did the Court err in rendering judgment quieting title in the plaintiff and denying partition to the appellant?
“4. Did the Court err in overruling the appellant’s post-trial motions?”
The presumption of law relied on by Orrel is that on the question of nondelivery of the deed there was a presumption of delivery arising from its possession by him. There is no question but that sometime after his mother’s death Orrel did have the deed in his possession and twenty-four years after its execution had it recorded. The trial court found, however, that his possession of it was only manual and that there had been no delivery at any time of the deed to him other than for mere custodial purposes. Orrel argues here that there was no evidence whatever to sustain such a finding.
This argument sends us to an examination of the evidence. In the first place, we note the land in question had been conveyed to Ella by her husband before his death. Had there been no deeds at all at the death of Ella the four children, Theresa, Arthur, Fred and Orrel, her only heirs, would have inherited the land in question, each an undivided one-fourth. The family was reared on it near Colony, Kansas. It was the old home place.
Theresa testified that her mother gave her the deed of 1932 conveying the land to her and she had it recorded. She then testified that in 1922 she was teaching school at Smith Center and her mother, a widow, was living with her, her mother executed a deed conveying the land in question to the four children, put it in an envelope and had her, that is, Theresa, write on the outside of the envelope that it was not to be opened until after her death; that she placed it in a strong box at Smith Center, where it remained until 1932 or 1933; that her mother lived with her and was helpless after 1926, and they both moved to Colony in 1926; that after moving to Colony she had a talk with Orrel about needing a strong box for her and her mother’s papers; that Orrel offered some space in his strong box and the envelope with the 1922 deed in it was placed in his box at the bank. She further testified that in 1932 she asked Orrel for her papers and her mother’s papers and he refused to give them to her; that when the deed of 1932 was given her she had it recorded; Fred rented it from her and paid the rent to her and she paid the taxes.
Fred testified that since Ella gave Theresa the deed in 1932 he had rented the farm from her and paid her the rent and his occupancy of the farm had been continuous from 1932 until the time of the trial.
Arthur testified that in 1932, when he was visiting his mother, she asked him to bring a notary to the place because she wanted to deed the place to Theresa; that he did not comply on account of shortness of time but told his mother to have Theresa take care of it. On redirect examination he testified that Theresa took care of her mother, who was helpless, until her death in 1941.
At this point Theresa rested her case and Orrel demurred to the evidence on the ground that it was insufficient to show a cause of action in favor of the plaintiff and against the defendant. This demurrer was overruled. This action by the trial court is one of the errors of which Orrel complains.
Because Orrel’s testimony sheds some light on the whole picture, however, it will be noted now before we consider the alleged errors. He testified first about some royalty from the sale of gas produced on the farm in 1922, which was paid to his mother. This is of no consequence here. He then testified that in 1926 his sister gave him the deed of 1922; that it was sealed in an envelope at the time and the handwriting on the envelope was his sisters. The envelope was introduced. He then testified that Theresa said it was the deed Ella had given the children; that she had no place to keep it and asked him to keep it in his strong box; that he put it in his box at the bank; the bank failed in 1931; he was not able to get the deed back until 1934 and continued to keep it in his strong box until 1941, when his mother died; that after his mother s death he opened the envelope; took the deed out and had it recorded. He testified further that in 1934 Theresa asked him for the envelope in which the deed was and “I told her if she had another deed made she could not have that one.” He denied that she had ever told him she had a deed to the place; that he first learned there was a deed from his mother to Theresa after he had the deed of 1922 recorded in 1946.
The issue before the trial court was whether the deed of 1922 conveying the land in question to all four children was delivered to either of the children or to some one else for them during the grantor’s lifetime. (See Bradbury v. Wise, 167 Kan. 737, 208 P. 2d 209.) The trial court found there had been no such delivery. If there was substantial evidence to sustain such a finding it will not be disturbed on appeal. (See Pearcy v. Willams, 163 Kan. 439, 183 P. 2d 243.) In such a case the intention of the grantor is the deciding factor and we will consider all the surrounding facts and circumstances on that issue. It seems when we do this, laying aside the testimony of Theresa, the testimony of Orrel himself is sufficient to sustain the finding of the trial court that the delivery to him of the envelope containing the deed was for nothing more than custodial purposes. He seems to have so treated it until after his mother’s death. All the other circumstances — the fact that Ella was helpless, that Theresa must of necessity transact a great deal of her business for her, that she took care of her for years before she died, the mother’s conversation with Arthur about deeding the land to Theresa, and Fred’s paying rent to Theresa — all sustain the court’s findings.
The judgment of the trial court is affirmed. | [
-15,
126,
-3,
-84,
10,
-32,
42,
-117,
99,
-62,
-89,
83,
43,
-37,
0,
45,
-30,
61,
81,
105,
-57,
-78,
23,
-93,
82,
-77,
-13,
-43,
-68,
-52,
-10,
-105,
76,
32,
74,
-43,
102,
-128,
-57,
16,
-114,
-127,
9,
-27,
-39,
98,
52,
59,
20,
13,
21,
-114,
-13,
-83,
57,
80,
41,
47,
-21,
57,
80,
-72,
-117,
-124,
-33,
19,
-79,
37,
-88,
-125,
-56,
10,
-112,
49,
-128,
-24,
115,
-74,
22,
116,
15,
-101,
8,
38,
102,
16,
-59,
-17,
-24,
-104,
14,
122,
-99,
39,
18,
88,
-62,
96,
-66,
-99,
124,
64,
-93,
126,
-18,
77,
92,
104,
13,
-53,
-42,
-79,
5,
120,
-112,
3,
-53,
39,
33,
113,
-53,
34,
92,
103,
125,
-69,
-114,
-48
] |
The opinion of the court was delivered by
Parker, J.:
The plaintiff instituted this action against the defendants to recover money he had paid a third party in settlement of damages sustained by the latter as a result of defendants’ negligence while in his employ. The appeal is from a judgment sustaining a demurrer to an amended petition, based on grounds such pleading showed on its face the plaintiff was not the real party in interest and failed to state facts sufficient to constitute a cause of action in his favor and against defendants.
The pleading in question, which does not appear from the record before us to have been motioned and is therefore entitled to a liberal construction, contains everything required to permit proper-disposition of all questions raised by the parties and should be quoted at length. Omitting formal averments and the prayer it reads:
“3. That at all times hereinafter mentioned Cleo Revell was a contractor in the business of transporting equipment for those who desired and contracted for his services; that at all times hereinafter mentioned Arthur D. Branson was an agent and employee of said Cleo Revell assisting Cleo Revell in carrying out his business of the transportation of equipment.
“4. That on or about the 11th day of July, 1948, the plaintiff employed defendants to assist in moving a rotary rig belonging to Braden-Greene Drilling Company, located at Well No. C-3 on the Braden lease, Southeast of Hutchinson, Reno County, Kansas, that plaintiff contracted to move for said Braden-Greene Drilling Company; that in performing this job defendant, Arthur D. Branson, was using a truck on which a gin pole was mounted; a winch line was run from a winch on the truck through the snatch block of the gin pole, and attached to the rotary rig; that while in the process of hoisting the rotary rig on to plaintiff’s truck, by means of the winch and gin pole the operator of defendant’s truck negligently permitted the end chain on the end of the winch line to pass through the snatch block on the gin pole, which snatch block was too small to permit the entry of the end chain, thereby causing the end chain to break because of undue strain and permitted the rig to fall, damaging said rig thereby.
“5. That the injury sustained by plaintiff was due to the negligence of defendant which was the sole and proximate cause of plaintiff’s injury in the following particulars, to-wit:
“(a) Failure to maintain a proper lookout.
“(b) Failure to properly operate the winch on defendant’s truck.
“6. That plaintiff was under a duty and obligation to pay Braden-Greene Drilling Company the sum of Two .Thousand Nineteen Dollars and Eleven Cents ($2,019.11) for the damage done to said rig caused by defendant’s negligence and that plaintiff has paid said amount in full; that plaintiff is subrogated to the rights of Braden-Greene Drilling Company against defendants for the amount of said damage, namely Two Thousand Nineteen Dollars and Eleven Cents ($2,019.11) which plaintiff was caused to pay due to the negligence of defendants and that all times hereinabove mentioned plaintiff was free of negligence in the premises.”
A careful examination of the quoted allegations of the petition, especially those to be found in paragraph 6 thereof, makes it obvious the instant action is predicated upon the theory that where an employer or master, not at fault, has become obligated to respond in and does pay damages to a third person for the negligence of his employee or servant, he will be subrogated to the rights of the injured party and may maintain an action to recover from the employee or servant, the one primarily liable, the amount so paid. Consideration of the demurrer and the grounds on which the judgment sustaining it were based makes it equally clear it is the position' of appellees and the view of the trial court that appellant was not the real party in interest and hence could not maintain the action because the facts and circumstances set forth in the amended petition did not give rise to a cause of action. Thus it appears the paramount questions for decision are: (1) Does the petition contain averments disclosing the essential facts on which appellant’s theory depends and if so (2) whether those facts are sufficient to constitute a cause of action in favor of appellant and against appellees.
We have little difficulty in concluding the first question to which we have just referred must be answered in the affirmative. Whatever may be said for appellees’ contentions respecting certain allegations of the petition, to which we shall subsequently refer, it is certain those allegations must be construed as charging that while engaged as employees in the performance of work for appellant, and without any negligence on his part, the appellees, negligence resulted in injury to the oil rig appellant was moving under contract, thus placing him under legal obligation to pay the owner of such rig for the damages it had sustained and that appellant did pay those damages.
Decision of the second question cannot be reached in as summary a manner.
The rule, so well established as to hardly require citation of authorities, is that an agent, a servant, or an employee, is liable to and may be sued by his principal, or his master, or his employer, for damages which the latter, in the absence of fault on his part, has been compelled to pay third persons because of the negligence of such agent, servant, or employee. See, e.g., Bradley v. Rosenthal, 154 Cal. 420, 97 Pac. 875; Ga. So. & Fla. Ry. Co. v. Jossey, 105 Ga. 271, 31 S. E. 179; Denver-Chicago Trucking Co. v. Lindeman, 73 Fed. Supp. 925; Standard Surety & Casualty Co. v. Metropolitan Cas. Co., (Ohio App.) 67 N. E. 2d 634; Frank Martz Coach Co. Inc. v. Hudson Bus &c., Co., 23 N. J. Misc. 342, 44 A. 2d 488. For legal treatises, and other decisions cited therein, supporting the rule see 42 C. J. S., Indemnity, 596, § 21; 27 Am. Jur. 467, §§ 18, 19; 110 A. L. R. anno 834. Numerous other decisions will be found in American Digest System, Indemnity, § 13 (1) (i).
In the main the foregoing decisions and authorities deal with the question of liability of agents, servants, or employees, to principals, masters, or employers, rather than with the right of the latter to maintain actions against the former on the theory that under related conditions and circumstances they have become subrogated to the rights of the injured persons therein involved. Even so it should be kept in mind that in holding the employee is liable they also hold the employer may maintain an action against him under the related conditions and circumstances and to that extent must be considered as recognizing that right exists under the equitable doctrine of subrogation to which we now direct our attention.
There is no need in this opinion to attempt to write a treatise on the doctrine of subrogation. Its essential character is well known. It has been often stated that it is a creature of equity invented to prevent a failure of justice and is broad enough to include every instance in which one party is required to pay a debt for which another is primarily answerable, and which, in equity and good conscience ought to be discharged by the latter (Safety Deposit Co. v. Thomas, 59 Kan. 470, 53 Pac. 472; Blitz v. Metger, 119 Kan. 760, 767, 241 Pac. 259; Gerseta Corporation v. Equitable Trust Co., 241 N. Y. 418, 150 N. E. 501; 43 A. L. R. 1320; Colonial Fire Underwriters Br. v. Utica Mut. Ins. Co., 69 N. Y. S. 2d 623; In Re Van Hoesens Will, 81 N. Y. S. 2d 392; In Re Stafford’s Will, 98 N. Y. S. 2d 714; In Re Jamison’s Estate (No.) 202 SW 2d 879; Kenney v. Kenney, (Cal) 97 ACA 64, 217 P. 2d 151; 50 Am. Jur., Subrogation, 683, § 6.) It has also been said it is of two kinds “legal” and “conventional” and that the right of legal subrogation as distinguished from conventional subrogation arises by operation of law and does not depend upon contract, assignment or agreement. (City of New York Ins. Co. v. Tice, 159 Kan. 176, 181, 152 P. 2d 836; 60 C. J. 694, 695, 700, §§ 1, 2, 7; 50 Am. Jur. 679, 682, 686, §§ 3, 5, 8.)
In the beginning the doctrine of subrogation was somewhat strictly and narrowly applied and was limited to transactions between principals and sureties. As the years went by it was liberalized and expanded to the extent it can now be said that it is a favorite of the law and applied to almost every kind of a situation where it will subserve the ends of justice and equity. (50 Am. Jur. 693, § 15; 60 C. J., Subrogation, 706 § 17; Smith v. Clavey Ravinia Nurseries, 329 Ill. App. 548, 69 N. E. 2d 921; 3105 Grand Corp. v. City of New York, 288 N. Y. 178, 42 N. E. 2d 475.) An excellent discussion respecting the flexibility, expansion, and scope of the doctrine appears in 50 Am. Jur, Subrogation, 685, 686, § 7, where the following statement appears:
“The doctrine of subrogation is not a fixed and inflexible rule of law or of equity. It is not static, but is sufficiently elastic to take within its remedy cases of first instance which fairly fall within it. Equity first applied the doctrine strictly and sparingly. It was later liberalized, and its development has been the natural consequence of a call for the application of justice and equity to particular situations. Since the doctrine was first ingrafted on equity jurisprudence, it has been steadily expanding and growing in importance and extent, and is no longer, as formerly, limited to sureties and quasi sureties, but is now broad and expansive and has a very liberal application. As now applied, it is broad enough to include every instance in which one person, not acting as a mere volunteer or intruder, pays a debt for which another is primarily liable, and which in equity and good conscience should have been discharged by the latter. Its use to enforce restitution in order to prevent unjust enrichment has elsewhere been pointed out.
“The doctrine of subrogation embraces all cases where, without it, complete justice cannot be done. Bottomed on this premise, there is, it has been said, no limit to the circumstances that may arise in which the doctrine may be applied. . . .”
In line with the statements made in the preceding quotation all the authorities now recognize that the doctrine of subrogation may be invoked in favor of persons who are legally obligated to make good a loss caused by the negligence or tortious acts of another. They also hold that an employer, who has become obligated to respond in damages for an injury caused solely by his employee’s negligence, comes within the rule, and is subrogated to the injured person’s right of action against the employee. 50 Am. Jur. 706, 707, §§ 36, 38; 60 C. J. 728, § 37; Restatement of Law, Restitution, 418, §96.
Application of the rule is well illustrated in Maryland Casualty Co. v. Aetna Casualty & Surety Co., 191 Va. 225, 60 S. E. 2d 876 and in Losito v. Kruse, Jr., 136 Ohio St. 183, 24 N. E. 2d 705, 126 A. L. R. 1194. Each of those cases holds that where, under the doctrine of respondeat superior, a master becomes liable for personal injuries caused solely by the negligent act of his servant and is obligated to respond in. damages by reason of such liability, he will be subrogated to the rights of the injured party and may recover from the servant,' the one primarily liable. See, also, Frank Martz Coach Co. Inc. v. Hudson Bus &c., Co., supra.
Our search of the authorities reveals one decision, Smith v. Foran, 43 Conn. 244, 21 Am. Rep. 647, which, from the standpoint of facts and issues, can be said to be on all fours with the case at bar. In our opinion, it must be regarded as decisive of the issues here involved and in and of itself, even though the decisions heretofore cited did not compel a similar view, requires the conclusion the trial court erred in sustaining the demurrer to the petition.
The facts in Smith v. Foran, supra, the issues involved, and the reasons on which the court based its judgment, are accurately reflected in the syllabus of the court which reads:
“A servant of the plaintiffs, who were common carriers, by his carelessness injured property which they were transporting and which was in his charge. The plaintiffs without suit paid the owner a certain sum in settlement, which was found to be the actual damage to him. Held.- 1. That the servant was liable to the plaintiffs for the actual'damage sustained by them. 2. That it was not necessary that the liability of the plaintiffs and the amount for which they were liable should be first established by a suit against them. 3. That if the plaintiffs had unnecessarily paid the owner more than the actual damage to him, they could have recovered of the servant only such actual damage, and if they had settled for less, they could have recovered only for the damage actually paid.” (Syl.)
Another decision, dissimilar from a factual standpoint but nevertheless highly persuasive because of the reasoning of the opinion as to why the petition therein involved, containing allegations similar in import to those of the instant pleading, stated a cause of action based on subrogation, is reported as The Jersey City, 43 Fed. 166.
In an attempt to forestáll the conclusion just announced the appellees advance a number of ingenious contentions which should be mentioned and are entitled to serious consideration.
It is first suggested that our reports reveal no case where it has been held an employer has a cause of action and is entitled to main tain it against his employee under the conditions and circumstances here involved. Conceding this to be true, the short answer to this contention is that the mere fact the doctrine of subrogation has not been previously invoked in a similar situation is not a prima facie bar to its applicability.
Next appellees direct attention to G. S. 1949, 60-401, providing, “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 27[60-403], but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract.”, and insist that under its terms, and our decisions construing them, a right of action against a party for damages to the property of another is not assignable and confers on the assignee no right of action maintainable in his own name against a wrongdoer.
To concede, without discussing the point, that our decisions recognize the section of the statute just quoted is entitled to be given the force and effect placed upon it by the appellees is of no avail to them. The answer to this contention is to be found in the authorities heretofore cited. Shortly stated it is that legal subrogation does not depend upon contract or assignment but follows as the legal consequence of the acts and relationship of the parties. Appellent’s cause of action as well as his right to maintain the action exists by operation of law irrespective of and without regard to the existence of any assignment or agreement.
In connection with what has just been stated it is interesting to note that this court has recognized and held that notwithstanding the statute on which appellees rely the doctrine of “conventional” subrogation is applicable to subrogation contracts. In City of New York Ins. Co. v. Tice, supra, we held:
“The rule that rights of action in tort are not assignable is not applicable to an action by an insurer to recover from the tort-feasor the amount which it has been required to pay to a property owner under a subrogation clause in a policy indemnifying such owner against property damage by collision or accident.” (Syl. f 1).
Rased on reasoning analogous to that found in the opinion of that decision we see no sound reason why the doctrine of “legal” subrogation should not be invoked and applied in cases where an employer who is secondarily liable has paid off the obligation for which his employee is primarily responsible.
Finally it is argued that appellant (1) was a mere volunteer or stranger and therefore not entitled to invoke the doctrine of subrogation and (2) that in any event before predicating liability on such a theory he was obliged to wait until his liability had been established by final judgment. Each of these contentions is answered by the decisions to which we have previously referred. However, it should perhaps be here pointed out with more specificity that appellees’ position on the first point cannot be upheld because a “stranger” or “volunteer”, as those terms are used with reference to the subject of subrogation, is one who cannot become liable for the obligation in question and whose property is not charged with payment thereof and cannot be sold therefor, in any event resulting from the existing state of affairs. (See Reed v. Ramey, 82 Ohio App. 171, 80 N. E. 2d 250; 50 Am. Jur., Subrogation, 690, 695 to 699, incl., §§ 12, 20 to 23, inch, 60 C. J. 716, 728, §§27, 37.) Indeed our own decisions (See Old Colony Ins. Co. v. Kansas Public Ser. Co., 154 Kan. 643, 121 P. 2d 193) recognize that a person secondarily liable who makes a payment, for which subrogation is claimed, for the protection of his own interest or in discharge of an existing liability is not to be regarded as a mere volunteer. Aside .from what has been heretofore stated all that need be said with respect to their position on the second point is that the voluntary payment by one whose liability is secondary for an injury to a third person does not negative his right to idemnity from the wrongdoer primarily liable but merely varies the degree of proof required to establish the latter’s liability (See Colonial Motor C. Corp. v. New York Cent. R. Co., 228 N. Y. S. 508; Popkin Bros., Inc. v. Volk’s Tire Co., 20 N. J. Misc. 1, 23 A. 2d 162; 42 C. J. S. Indemnity, 603, § 25).
Failing to find anything in appellees’ contentions warranting a conclusion different than the one heretofore announced we hold the petition states a cause of action and that the demurer should have been overruled.
The judgment is reversed. | [
-48,
106,
-78,
13,
24,
102,
42,
26,
81,
-95,
101,
87,
-19,
-49,
12,
127,
-2,
61,
84,
106,
-9,
-77,
3,
-30,
-46,
-77,
-15,
-59,
-79,
74,
100,
-42,
76,
16,
74,
-43,
102,
10,
69,
92,
-114,
4,
-103,
-20,
-39,
8,
-80,
106,
38,
75,
1,
-116,
115,
41,
28,
-57,
41,
46,
107,
61,
-13,
48,
-86,
13,
95,
16,
33,
6,
-100,
103,
-8,
26,
-40,
-71,
32,
-24,
114,
-74,
-128,
-12,
99,
-117,
8,
34,
99,
35,
29,
111,
-20,
-104,
62,
-65,
-99,
-89,
-72,
8,
59,
41,
-74,
-99,
122,
20,
21,
126,
-4,
29,
93,
108,
3,
-53,
-14,
-79,
15,
48,
-100,
43,
-17,
-105,
20,
100,
-59,
-30,
93,
71,
112,
23,
-121,
-78
] |
The opinion of the court was delivered by
Wertz, J.;
Plaintiff brought this action to recover for personal injuries and property damage suffered when plaintiff’s truck, which was following defendant’s truck, collided with it when defendant stopped suddenly in the traffic lane without giving any signal or warning to plaintiff. Defendant’s demurrer to plaintiff’s petition was overruled, and the order overruling said demurrer was upheld on appeal to this court (Hill v. Hill, 168 Kan. 639, 215 P. 2d 159). Inasmuch as the pertinent allegations of plaintiff’s petition are therein set forth, they will not be reiterated here.
Subsequent thereto, defendant filed his answer admitting that the parties were driving east on the highway as alleged and that a car driven by one Olson stopped at the north side of the intersection in question and that the collision occurred between the trucks of plaintiff and defendant at the time alleged. For further answer defendant stated that the injuries, if any, sustained by plaintiff were the sole and proximate result of plaintiff’s negligence in that plaintiff failed to maintain a proper lookout, failed to have his truck under control so as to direct the movement thereof to the extent necessary to avoid striking defendant’s truck, and in following defendant’s truck at a distance of approximately eight to one hundred feet in violation of G. S. 1949, 8-543, which provides that the driver of a motor truck, when traveling upon a roadway outside of a business or residential district, shall not follow within one hundred fifty feet of another motor truck, and prayed that plaintiff take nothing and that defendant recover his costs.
The case was tried by a jury which returned an itemized general verdict for plaintiff in the full amount sued for, being $2,250 for personal injuries, $900 damage to the truck, and $12 medical expense, and at the same time returned its answers to the following special questions submitted by the court:
Q. No. 1. At what speed was the plaintiff proceeding: (a) As he passed the west line of the intersection? A: 30 miles per hour. (b) When he first saw defendant’s truck stopped or being stopped east of the intersection? A: 30 miles per hour. Q. No. 2: Was the defendant guilty of any negligence which was the direct and proximate cause of said collision? A: Yes. Q. No. 3: If you answer question No. 2 in the affirmative, then state what act or acts of negligence you find the defendant guilty of. A: 1. Stopping in middle of road. 2. Failing to give hand signal. 3. Stopping suddenly. Q. No. 4: Was the plaintiff guilty of any negligence which was the proximate cause of or contributed to the collision? A: No. Q. No. 6: How long before plaintiff entered the intersection had the Olson car stopped at the intersection? A: 5 minutes. Q. No. 7: How far behind defendant’s truck was plaintiff’s truck traveling at the time defendant started to slow down and stop his truck? A: 150 feet. Q. No. 8: Considering the distance between the two trucks and their speed, was plaintiff exercising reasonable care in looking at the Olson car as plaintiff crossed the intersection? A: Yes. Q. No. 10: At the time defendant started slowing down, was the plaintiff following defendant’s truck more closely than was reasonable, prudent and safe under all the circumstances? A: No.
Defendant’s motion to set aside answers to special questions 4 and 8 and his motion for a new trial were subsequently overruled and judgment was by the court entered on the general verdict of the jury.
Plaintiff having been killed in a harvesting accident since the judgment was rendered, his administrator was made appellee in this appeal by defendant from the judgment of the lower court. Appellant (defendant below) charges error of the lower court in overruling his demurrer to plaintiff’s evidence, in overruling his motions to set aside certain of the jury’s answers to special questions and for a new trial; and charges that the jury was not properly instructed in regard to the elements and measure of damages and, as a consequence, the verdict rendered was excessive in amount.
The first question presented by appellant is whether under the evidence plaintiff was guilty of contributory negligence as a matter of law. Appellant relies upon the rule frequently stated by this court that it is the duty of the driver of a vehicle to correlate his speed with his ability to see and stop and to keep his car under control so as to be able to stop within a clear distance ahead of him.
Appellee contends that under the facts and circumstances shown by the evidence, treating it in its most favorable aspects and giving plaintiff the benefit of inferences favorable to him, the question of whether he was guilty of contributory negligence was one for the jury.
Plaintiff testified that on the day in question, he was following appellant, traveling east on the county road at a speed of about thirty miles an hour, and was about one hundred fifty feet behind appellant; that as he came to the intersection of said road with the north and south township road, he saw the Olson car headed south just north of the intersection; that he watched appellant’s truck when it entered the intersection; that he turned to look at the Olson car sitting just north of the intersection headed south, and that the windshield of the Olson car was all frosted and plaintiff was watching to see that it did not come into the intersection and when he determined that it was safe to enter the intersection, he looked to the east and saw appellant’s truck twenty to thirty feet in front of him, making it impossible for plaintiff to stop his car in time to avoid the collision; that appellant’s truck had been suddenly stopped in the center of the road.
Appellant, called as a witness by plaintiff, testified that he was traveling between twenty-five and thirty miles an hour at the intersection; that plaintiff was following him; that he saw the Olson car sitting just north of the intersection; that he stopped his truck “as quick as he could”; that he gave no signal he was going to do so and that he was practically in the center of the road; as he went through the intersection he glanced back, recognized Olson, put on his brakes and clutch; didn’t believe he slid his wheels on the road, but didn’t remember.
It is apparent from the record that appellant voluntarily and not being confronted with an emergency, applied his brakes and suddenly stopped his truck in the center of the main traveled portion of the highway without giving any warning signal, and knowing that plaintiff’s truck was following directly behind him. Appellant’s contention is that as plaintiff entered the intersection following appellant’s east-bound truck, he was observing the Olson car, which was standing just north of the intersection facing south, and that such conduct on the part of plaintiff constituted contributory negligence as a matter of law. It would serve no useful purpose for us to re-discuss this point here as it was covered in our previous opinion in this case (Hill v. Hill, supra), wherein we stated:
“. . . It is appellant’s contention that paragraph 5 of the petition alleging that as plaintiff crossed the intersection following defendant’s eastbound truck he was observing another car which was waiting to cross the intersection on a north-south road, constitutes contributory negligence as a matter of law. Appellant attempts to invoke the rule that a driver of a motor vehicle must so operate his vehicle that he can safely stop within the distance that he can clearly see any other vehicular traffic in the roadway ahead of him. That is a well established rule, but it does not apply to a situation where a sudden emergency arises, as by the sudden application of brakes and sudden stop without warning of another vehicle just ahead. (Towell v. Staley, 161 Kan. 127, 166 P. 2d 699; Drennan v. Penn Casualty Co., 162 Kan. 286, 176 P. 2d 522; and Henderson v. National Mutual Cas. Co., 164 Kan. 109, 187 P. 2d 508.)”
It is a well established rule in this state that in determining whether a plaintiff is guilty of contributory negligence when tested by demurrer, the question must be submitted to the jury if the facts are such that reasonable minds might reach different conclusions thereon. (Harral v. Kent Corporation, 168 Kan. 322, 212 P. 2d 356; Jones v. McCullough, 148 Kan. 561, 83 P. 2d 669; Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721; Towell v. Staley, 161 Kan. 127, 166 P. 2d 699 and cases therein cited.)
Considering the evidence of the plaintiff in its most favorable light, we cannot say that he was guilty of contributory negligence as a matter of law which would bar his recovery.
In his next specification of error, appellant charges the trial court erred in approving the jury’s answers to special questions. The complaint against the special findings relates only to Nos. 4 and 8. The contention advanced by appellant with respect to these two special questions and answers is based upon the erroneous assumption that the evidence conclusively established that plaintiff was guilty of contributory negligence as a matter of law in momentarily looking at the Olson car to the north of the intersection and not keeping a lookout ahead for appellant’s truck. We have covered this argument and held that the question of plaintiff’s contributory negligence was for the jury. It will be noted that the jury by its answers to questions 2 and 3, as well as the general verdict, found appellant guilty of negligence which was the proximate cause of the collision and found that negligence consisted of appellant suddenly stopping in the middle of the road without giving a hand signal. Answers to these questions were not objected to by appellant, nor has it been contended in this case that appellant was free from negligence. The answer to question 4 exonerated plaintiff of any contributory negligence and the answer to question 8 exonerated plaintiff from any negligence by reason of his looking to the north at the Olson car to determine whether he could proceed safely just prior to entering and at the time of crossing the intersection.
After a careful consideration of the record, we are of the opinion that answers to the questions complained of are supported by sufficient evidence and, when construed together and viewed in the light of the situation disclosed by the entire record, they are in harmony with the general verdict.
It is next urged that the verdict was excessive in amount. It would serve no useful purpose to set forth at length the nature and extent of plaintiff’s injuries. The substance of his testimony and that of his doctor was that when the collision occurred he blacked out; his chest, head and shoulders were injured; the force of the impact was so great that his chest broke the steering wheel and his head struck the mirror in the cab of the truck; that he suffered pain; that he had bruises and discoloration of tire tissues of his chest; the doctor testifying that the type of plaintiff’s pain can last indefinitely or for several years; that his total doctor bill was $12. An automobile dealer testified as to the $900 damage to plaintiff’s truck, and that testimony is not disputed. Again, the question of the amount of plaintiff’s recovery was for the jury to determine, and we are not prepared to say the amount of the verdict was so excessive as to shock the conscience of this court and therefore require either a remittitur or granting of a new trial.
Appellant next contends that the trial court erred in failing to instruct the jury as to the proper elements and measure of damages and that by reason thereof, the jury was confused and uncertain as to whether it could return a verdict for an amount less than the entire amount asked by plaintiff. The trial court gave general written instructions including one on the measure of damages, which on examination appear to have fairly presented the case' to the jury, and we fail to find any error. Under our statute, G. S. 1949, 60-2909, Fifth, if appellant desired more specific instructions, it was his duty to make a request therefor. This court has repeatedly held that the failure of the trial court to instruct specifically on a given proposition cannot properly be assigned as error when no request for such instruction was made. (Baker v. Western Cas. & Surety Co., 164 Kan. 376, 190 P. 2d 850, and cases cited on page 382.) Moreover, the record is devoid of any objection on the part of appellant to the instruction given by the court. In support of his argument on his motion for new trial, appellant submitted to the trial court affidavits from two separate jurors. These affidavits were considered by the trial court in overruling appellant’s motion for new trial, and from our examination of the affidavits, we find no error in the lower court’s ruling.
The judgment is affirmed. | [
-48,
122,
-16,
-114,
11,
96,
34,
10,
117,
-75,
-91,
19,
-83,
-53,
-123,
49,
-2,
-71,
113,
43,
119,
-93,
23,
-110,
-110,
-77,
43,
14,
-118,
-53,
110,
-10,
77,
48,
10,
21,
38,
74,
-59,
92,
-50,
6,
-119,
104,
-39,
2,
-80,
56,
6,
11,
49,
-113,
-61,
46,
24,
-63,
41,
44,
43,
-74,
-63,
113,
-51,
13,
95,
6,
-95,
36,
-100,
65,
88,
26,
-112,
-71,
40,
-72,
50,
-90,
-127,
-12,
105,
-103,
12,
-90,
103,
33,
21,
-19,
-4,
-104,
46,
-6,
15,
-121,
18,
24,
-103,
33,
-73,
61,
127,
86,
12,
122,
-4,
85,
27,
104,
7,
-53,
-106,
-111,
-49,
114,
22,
-45,
-17,
3,
51,
97,
-113,
-14,
94,
69,
122,
-101,
79,
-74
] |
The opinion of the court was delivered by
Thiele, J.:
This was an action for specific performance of a contract for the purchase of real estate. The defendant’s demurrer to plaintiff’s amended petition was sustained and he appeals.
For present purposes it may be said that in his amended petition plaintiff alleged that on October 28, 1947, defendant was the owner of a certain eighty acres in Saline county and entered into a written agreement with plaintiff to sell the land to plaintiff for a stated consideration, payable whenever a merchantable title was delivered to plaintiff, defendant to have the abstract of title brought up to date and delivered to plaintiff “in order that same may be passed upon by his attorney,” a copy of the contract being attached to the amended petition as an exhibit; that defendant caused the abstract of title to be brought to date and delivered to plaintiff, who placed it in the hands of an attorney who diligently examined it and the abstract of title was then delivered to defendant, with the attorney’s written opinions and requirements, copies being attached to and made part of the amended petition. The first of these opinions dated December 8, 1947, stated that the attorney had examined the abstract of title and was of the opinion that on November 4, 1947, Wm. S. Baird was the owner of the involved real estate, free and clear of all liens and incumbrances except (1) A contract between Green and Garman relating to an oil and gas lease, an assignment of leases and a release thereof which the examiner deemed insufficient; (2) an oil and gas lease from Coffman to Brotton and assigned to The Brotton, Dalton Oil Company; and (3) an oil and gas lease from Baird to Westgate-Greenland Oil Co. These several items are more fully referred to later herein. The second opinion dated January 10, 1947, stated the attorney had again examined the abstract of title and was of the opinion that on December 22, 1947, the date of the abstractor’s certificate, the abstract of title showed Wm. S. Baird to be the owner of the real estate free and clear of all liens and incumbrances except: (the same matters noted at 1 and 2 of the first opinion).
It was further alleged in the amended petition that the title to the real estate, as disclosed by the written opinions of plaintiff’s attorney, which were reasonable, was found to be defective, nonmerchant able, unmarketable and doubtful, a condition unknown to plaintiff but known to the defendant at the time the contract of sale was executed. It was then alleged that the defects, clouds, flaws and incumbrances existing on and against the title were as follows, and thirteen alleged defects referring to specific entries in the abstract and including those mentioned in 1, 2 and 3, of the attorney’s first opinion, are then set forth, and the abstract of title referred to was made a part of the petition by reference. (We here interpolate that the petition as originally filed listed as specific defects only the three matters mentioned in the attorney’s first opinion, but did also allege the title was incumbered with additional flaws and defects. In response to a motion to make definite and certain the additional claimed flaws and defects were set forth. On motion of the defendant all of the objections not included in the attorney’s opinion were stricken from the amended petition.) It was further alleged in the amended petition and at length that the objections and requirements made by plaintiff to the title were good and reasonable but that defendant made no effort to make corrections but on the contrary and without just cause refused to meet any of the requirements, and contended that the defects complained of did not in any manner constitute clouds on the title; that plaintiff advised defendant he desired to fully consummate the contract; that defendant failed to perform the conditions of the contract and deliver a merchantable title to the real estate; that plaintiff duly performed all agreements on his part and was willing, ready and able to perform and had tendered the balance of the purchase price on receiving a merchantable title from the defendant. Copies of letters passing between the parties are attached to and made part of the amended petition. Allegations as to subsequent rise in price of the land and as to plaintiff’s damage need not be noted. The prayer was for specific performance, incidental relief and for damages.
Defendant’s demurrer on the ground the amended petition failed to state facts which constituted a cause of action was sustained, and the plaintiff perfected his appeal to- this court.
Appellant has prepared and filed a lengthy brief, directing our attention to some rules of law and practice concerning which there is no dispute, and to matters which in view of our conclusions on other questions need not be discussed, and in support has cited many of our decisions, as well as those of other jurisdictions, and textbook authority. Limits of time and space prevent reference to each of them.
Appellant first directs our attention to the settled rule that a demurrer admits facts properly and well pleaded and that every material fact and every inference therefrom must be liberally construed in favor of the pleader. That may be conceded and we examine the amended petition in the light thereof.
A mere reading of the petition and the contract of purchase made a part thereof shows that the abstract of title was to disclose a merchantable title in the vendor, and no more.
In many of our decisions may be found a discussion of what constitutes a marketable, or as is sometimes called a merchantable, title. In Newell v. McMillan, 139 Kan. 94, 100, 30 P. 2d 126, it was said:
“The rule is a just and familiar one that a marketable title is one which is free from reasonable doubt; and under this rule a title is doubtful and therefore unmarketable if it exposes the party holding it to the hazard of litigation. (McNutt v. Nellans, 82 Kan. 424, 108 Pac. 834; Williams v. Bricker, 83 Kan. 53, 109 Pac. 998, 30 L. R. A., n. s., 343; Howe v. Coates, 97 Minn. 385, 4 L. R. A., n. s., 1170.)
“On the other hand, mere quibbles and pecadilloes which the ingenuity of counsel can raise against a title do not render it unmarketable. To what hazard of litigation did these titles expose their holder? None is suggested, and it is difficult to imagine any. In Maupin on Marketable Title to Real Estate (p. 708), frequently quoted by this court (as in Spaeth v. Kouns, 95 Kan. 320, 326, 148 Pac. 651), it is said:
“ ‘The defect of title of which the purchaser complains must be of a substantial character; one from which he may suffer injury. Mere immaterial defects which do not diminish in quantity, quality, or value the property contracted for, constitute no ground upon which he may reject the title. Facts must be known at the time which fairly raise a reasonable doubt as to the title; a mere possibility or conjecture that such a state of facts may be developed at some future time is not sufficient.’ ”
The rule stated in the above case was quoted approvingly in Burton v. Mellor, 159 Kan. 262, 265, 154 P. 2d 108, and in Scott v. Kirkham, 165 Kan. 140, 146, 193 P. 2d 185, and in cases cited therein. Although the rule has been stated in varying language in other cases (see West’s Kansas Digest, Vendor & Purchaser, § 130; Hatcher’s Kansas Digest, Vendor and Purchaser, § 43) the definition above suffices here.
Before examining the petition and the abstract of title made part thereof to determine the legal sufficiency of objections made that it did not disclose marketable title in the appellee, we note two contentions made by the appellant. The first is as to the effect to be given to the opinion of the examining attorney, it be ing argued inferentially that the title having been examined by a competent attorney, appellant had a right to rely on his opinion. In support our attention is directed to Read v. Loftus, 82 Kan. 485, 108 Pac. 850, 31 L. R. A., n. s., 457, and Canaday v. Miller, 102 Kan. 577, 171 Pac. 651, and also to 55 Am. Jur. 642, where it is said there is authority that in determining marketability of the vendor’s title, it is proper for the court to consider the fact that an opinion has been rendered in good faith by a competent attorney. The Kansas cases relied on both arose where the title to be delivered was one to the satisfaction of the vendee, a very different thing than one merely marketable, as those cases disclose. Although we think it proper for the court to take into consideration the fact a competent attorney has rendered an opinion the title is not marketable, that is not the end of the matter. Whether the title was in fact marketable presented a question of law for the trial court in the first instance, and for this court on appeal. The second contention made is presented by the question: When certain objections to the title are made, are others waived? As has been stated, when the abstract of title was originally examined, three claimed defects were noted. After the abstract of title had been recertified and at a subsequent examination only two defects were noted. On that basis and as shown by letters attached to and made part of the petition, the appellant demanded that the appellee institute an action to quiet the title. The appellee refused and thereafter the plaintiff’s attorney advised appellee that there was an outstanding oil and gas lease on the real estate and a quiet title action was necessary to remove the defect, and unless appellee took action to correct the defect appellant would commence an action for specific performance and damages. The appellee immediately wrote the appellant at length stating the abstract showed marketable title and that appellant had failed to perform and that appellee would treat the contract as rescinded by appellant and of no further force. In support of his contention that by his attorney’s statement of defects in the title the appellant had not waived his rights to raise other and further objection, our attention is directed to Linscott v. Moseman, 84 Kan. 541, 114 Pac. 1088, and Eisenhour v. Cities Service Oil Co., 149 Kan. 853, 89 P. 2d 912. Without reviewing those cases, where it was held there was no waiver, we think they are so clearly distinguishable as not to be decisive here. In the case at bar the appellant placed his objection on a specific defect and demanded that the title be quieted. In equity and good conscience he should not be permitted to contend the title was not marketable by reason of numerous other claimed defects, none of which was embodied either in his attorney’s opinions on the title or in his demand that a quiet title suit be filed. As bearing on the question see Paul Co. v. Shaw, 86 Kan. 136, 139, 119 Pac. 546, and Gage v. Leslie, 123 Kan. 72, 75, 254 Pac. 362, and cases cited therein. In our opinion the trial court committed no error in striking from the amended petition, allegations concerning claimed defects not included in the opinions and letters of the appellant’s examining attorney.
Insofar as the question of marketability of the title disclosed by the abstract of title is concerned, there are left for consideration the three claimed defects set forth in the examining attorney’s first opinion, or the two of them as set forth in his second opinion, the general content of which has been referred to earlier herein and these will be discussed in the order there set forth.
The abstract of title discloses that on March 4, 1929, the real estate was owned by Arthur C. Coffman and that it was not then incumbered by any oil and gas lease of record. On that date there was filed for record and recorded an instrument of even date, entitled “Notice to Public” signed and acknowledged by George L. Green and D. 0. Garman, purporting to give notice to the owners of the involved real estate and the owners of other real estate not here involved, that Green and Garman had entered into agreements with the owners whereby oil and gas leases in their favor, had been deposited in the Farmers National Bank of Salina, upon condition that if the lessees should commence a well for oil and gas on certain lands the bank was authorized to deliver the leases, or if certain rentals were paid on or before July 1, 1929, the leases should be delivered, but if there was failure to perform the bank was directed to return the oil and gas lease to the lessor and thereupon the lease and the escrow agreement should become null and void and all rights, obligations and liabilities should cease, determine and be forever at an end as to all parties. On April 8, 1929, there was filed for record and recorded in Book Mise. 1, page 277, an assignment by Green to Garman of all of his interest in the leases in escrow. On May 5, 1930, there was filed for record on the margin of Book Mise. 1, page 277, a writing signed by Garman, dated April 24, 1930, directed to the register of deeds of Saline county, stating: “You are hereby requested to release this instrument from record. The rentals due July 1, 1929, according to escrow agreement were not paid neither has a well been drilled on any part of this acreage.” The record also discloses that the foregoing was written on the original assignment of acreage. Under date of May 3, 1946, Arthur C. Coffman made an affidavit, recorded June 4, 1946, setting out the making of oil and gas leases to Green and Garman and the deposit of the same in escrow in the Farmers National Bank of Salina and that to the best of his knowledge and belief the leases were never delivered and the conditions to be performed by the lessees were never performed; that the primary terms of the leases were not in excess of ten years, which has long expired and there has never been any development thereunder. It may be noted that Coffman conveyed the real estate in November of 1938. It was the opinion of the examining attorney that the release executed by Garman was ineffective and that the lease on the involved real estate should be obtained and identified as the only lease. In his opinions the examiner made no demand for a release but did demand that the title be quieted.
The gist of appellant’s argument that the above “Notice to Public” constituted a cloud on the title and rendered it unmarketable is that the lease referred to is unaccounted for, or surrendered and released; that its terms are not known and a purchaser would possibly encounter the hazard of litigation; that Garman’s release and Coffman’s affidavit were never “acknowledged” and were not admissible to record, but if so, they were insufficient to remove the cloud. In support our attention is directed to Linscott v. Moseman, supra. Reference to that case shows the controversy arose in 1908. The abstract of title disclosed a recorded oil and gas lease dated in June, 1904, for a primary term of ten years. It provided for drilling a well or for delay rentals, and on default was to become null and void. It was held this unreleased oil and gas lease rendered the title unmarketable and that the defect could not be removed by an affidavit made by one whose connection with the title was not shown, setting forth the lease was void because of noncompliance with its terms. That case is not decisive here. There a recorded lease was involved— here there is an unrecorded lease made sometime prior to March 4, 1929, subject to delivery upon compliance with the terms of the escrow agreement. If delivered but unrecorded it would only be good as between the parties to it (G. S. 1935, 67-223). However, by reason of recorded conveyances Garman became the owner of whatever rights the lessees had. He executed a document directing a release and stating that the conditions of the escrow agreement for delivery of the lease had never been performed, and this document was recorded on May 5,1930. The objection to the release is that it was not “acknowledged.” Under G. S. 1935, 67-237, it is provided that when any instrument of writing shall have been on record in the office of the register of deeds in the proper county for the period of ten years and there is a defect in the instrument because it is not acknowledged, such instrument shall, after the expiration of ten years from the filing of the same for record, impart notice of the same to subsequent purchasers. In Brinkman v. Empire Gas & Fuel Co., 127 Kan. 551, 274 Pac. 277, this court considered an unacknowledged release in many respects quite like the one in controversy, and the effect of its having been of record for over ten years, holding that it was not a nullity, was admissible in evidence, and that if it had never been recorded it was good between the parties to it. We need not dwell on other reasons set forth by the appellee as to why the “Notice to Public” did not render the title unmarketable. In our opinion whatever cloud on the title the filing of that notice created was effectually removed by the assignment and release subsequently executed and recorded.
The second objection in the opinion of the examining attorney is predicated on the following: Under date of April 27, 1934, Arthur C. Coffman and his wife executed an oil and gas lease to C. M. Brotton which was recorded December 21, 1934. The lease was for a primary term of five years and as long thereafter as oil and gas were produced. Provisions as to drilling a well or paying delay rentals need not be noticed. Under date of January 30, 1935, Brotton assigned this lease to The Brotton, Dalton Oil Company, the assignment being duly recorded. No release of the oil and gas lease appears of record. Appellant’s attorney demanded a release. In his brief appellant directs attention to the above instruments, and says this lease is an incumbrance and renders the title unmarketable, but aside from some citations that such a lease is an incumbrance he makes no argument separate and apart from his contentions with respect to other claimed defects. It may be conceded without elaboration that the lease was a conveyance of such an interest in the real property described that the recording of it imparted notice to all subsequent purchasers in accord with G. S. 1935, 67-222 (see Derby Oil Co. v. Bell, 134 Kan. 489, 7 P. 2d 39), and that when recorded, it constituted an incumbrance to the extent of its terms. At the time the instant lease was given Laws 1915, ch. 228, section 2 (now appearing as G. S. 1935, 55-205) was, and still is, in effect. In substance it provided that when an oil and gas lease is given on lands in Kansas, the recording thereof in the office of the register of deeds in which the land is located shall impart notice to the public of the validity and continuance of the lease for the definite term therein expressed but no longer, provided if the lease contain the statement of any contingency upon the happening of which the term of the lease may be extended such as “and as much longer as oil and gas or either are produced in paying quantities” the owner of the lease may at any time before the expiration of the definite term, file with the register of deeds an affidavit setting forth among other things, the facts showing the contingency has happened, and when such affidavit is filed it imparts due notice to the public of the existence and continuing validity of the lease, until the same shall be forfeited, cancelled, set aside or surrendered according to law. The exact question presented under the factual situation now before us has not been the subject of any previous opinion of this court. In Cement Co. v. Brick & Tile Co., 100 Kan. 547, 164 Pac. 1087, plaintiff as owner of land brought an action against the assignee of a lessee under an oil and gas lease to recover rents for nine years. A demurrer to plaintiff’s evidence was sustained and it appealed. This court affirmed. The only evidence was plaintiff’s deed, the oil and gas lease, and assignments of it. The lease was dated November 26, 1902, and was for three years, and if oil or gas be found to continue so long as either could be produced in paying quantities. The ruling on the demurrer was based upon the proposition that the lease had expired before plaintiff purchased the land, unless it had been extended by discovery of oil or gas, and that no such discovery had been shown. We need not comment upon recitals in plaintiff’s deed, as extending the term of the lease, but do note the statement that it was incumbent upon the plaintiff to show affirmatively that oil or gas had been discovered rather than upon the defendant to show the negative. Referring to G. S. 1915, section 4992 (now appearing as G. S. 1935, 55-201) dealing with the duty of the lessee to have a forfeited lease released, this court said it related to leases which have “become forfeited” and that it was not intended to apply to a lease which had expired, but which might have been extended by certain conditions if they had arisen, seemed apparent from the succeeding section (now G. S. 1935, 55-205) “which provides that the record of an oil and gas lease shall impart notice of its continuance only for the definite period therein expressed, unless an affidavit is filed with the register of deeds showing the happening of the contingency effecting an extension” and that failure to comply with the statute requiring a release, while subjecting the lessee to a penalty, would not extend the duration of the lease. While we shall not go so far as to say there might not be occasions where equitable principles would preclude such a result, the case at bar presents none, and we hold that the failure of the lessee to file an affidavit showing the happening of any contingency that would extend the express term of five years from the date of the lease, April 27, 1934, disclosed a situation where that lease had expired by its own terms on April 27, 1939, and thereafter it was of no force or effect, and constituted no incumbrance on the title of the owner of the real estate.
The third objection in the first opinion of the examining attorney was directed to an oil and gas lease by Baird to Westgate-Greenland Oil Company. After the abstract of title had thereafter been brought to date, it showed a release of that lease. In his second opinion, the examining attorney made no mention of the lease or release thereof. However in the amended petition reference is made to the release as being insufficient because it is alleged the corporate seal of the company did not appear on the release. A counter-abstract containing a copy of the entire abstract of title, and to which no objection as to its accuracy has been made, shows that the corporate seal was affixed. It is obvious no claim of unmarketability can be based on the above.
That part of the appellant’s brief devoted to the claimed defects, allegations concerning which were stricken, needs no attention.
Appellant directs our attention to paragraph 3 of the syllabus in Linscott v. Moseman, supra, to the effect that equities in favor of a vendor must be very strong before a court will compel a vendee to accept and pay for an unmarketable title under a contract for a perfect title, and argues that he should not be compelled to accept the present title. A short answer is his contract was not for a perfect, but only a marketable title, he refused to accept the title tendered, and thereupon his vendor elected to treat the contract at an end. His present action is one to compel the vendor to furnish him with a different title than he contracted to receive, the vendor is not seeking to compel him to accept anything at all.
The amended petition and the exhibits attached to it disclose that appellant’s claims as to the title being unmarketable are un founded; that the appellee was not at fault in treating the contract of purchase as rescinded by reason of appellant’s refusal to accept the title; that appellant was not entitled to the relief sought by him, and that the trial court did not err in its ruling striking certain allegations from the amended petition, nor in its ruling sustaining appellee’s demurrer to the amended petition.
The judgment of the trial court is affirmed. | [
-16,
-24,
-16,
-115,
26,
96,
56,
-102,
121,
-75,
-25,
83,
-23,
-38,
12,
121,
-58,
29,
116,
106,
-25,
-77,
2,
64,
-45,
-77,
-45,
-43,
49,
126,
-76,
-41,
76,
32,
-62,
-43,
-26,
-54,
-59,
28,
78,
-123,
-104,
-27,
-37,
0,
48,
27,
0,
11,
97,
-114,
-29,
45,
29,
67,
105,
62,
-37,
61,
-47,
-8,
-117,
-105,
-5,
7,
19,
6,
-104,
7,
-56,
10,
-112,
49,
24,
-24,
94,
-90,
-106,
-12,
15,
27,
8,
38,
107,
50,
69,
-17,
-24,
-104,
15,
127,
-115,
-90,
-74,
24,
10,
97,
-74,
28,
116,
18,
7,
118,
-31,
-99,
27,
-84,
35,
-85,
-42,
-79,
15,
-4,
-120,
27,
-58,
7,
36,
112,
-49,
-74,
93,
71,
59,
-109,
-113,
-80
] |
The opinion of the court was delivered by
Parker, J.:
This was an action to cancel an oil and gas lease and quiet title to real estate for failure of the defendant lessees to produce oil from the premises covered by the lease beyond the expiration of the definite or primary terms of that instrument. The plaintiffs recovered and the defendants appeal. Plaintiffs cross-appeal from the trial court’s order granting defendants a period of sixty days in which to remove their personal property, including casing in the hole, from the leased premises.
Before any consideration whatsoever can be given to the merits of this appeal we are constrained to dispose of a claim, advanced and strenuously urged by appellees, to the effect that because of appellants’ failure to include any specification of errors in their abstract as required by the rule of this court the appeal presents no question for review and should be dismissed.
This challenge of appellants’ right to be heard is based upon that portion of Rule No. 5 (see 166 Kan. XI; G. S. 1935, 60-3826 “Rules of the Supreme Court” No. 5) long in force and effect, which reads:
“The appellant’s abstract shall include a specification of the errors complained of, separately set forth and numbered. . . .”
Resort to the record reveals appellants have made no attempt to comply with the rule in either their abstract or brief. In fact they make no contention to the contrary but attempt to avoid its application, by filing a motion on the very day the cause was argued, which was resisted by appellees, requesting permission to supplement their abstract by inclusion instanter of a number of rulings complained of and set forth in the notice given by them in connection with the perfection of their appeal. While the court permitted the filing of this motion and allowed the parties to argue the cause it took no action with respect to the request therein made and reserved its ruling thereon. Having given that matter consideration it can now be said we have decided the motion came too late, is not to be regarded as a compliance with the requirements of Rule No. 5, and should be denied.
It is true that in the past we have been lenient with appellants who saw fit to disregard the clear and unequivocal requirements of Rule 5. However, our opinions make it crystal clear our action in that respect has not been due to any thought the rule is arbitrary or of slight importance or that the reasons for its existence are not sound and substantial. Statements of such character, and others pointing out that noncompliance with its provisions justify the summary dismissal of appeals, are to be found in many of our decisions. For a few of the more recent ones see Cooley v. Hebrew, 165 Kan. 500, 502, 195 P. 2d 602; Topping v. Tuckel, 159 Kan. 387, 155 P. 2d 427; Federal Farm Mortgage Corp. v. Bolinger, 152 Kan. 700, 108 P. 2d 492.
In at least two of our later cases (See Lambeth v. Bogart, 155 Kan. 413, 125 P. 2d 377; Hall v. Eells, 157 Kan. 551, 142 P. 2d 703), appeals were dismissed for failure to comply with its- requirements.
Indeed, on those occasions when its nonobservance has been overlooked, we think it can be said without fear of contradiction that we have indulged in what the late Justice Hoch termed “acts of grace” in the hope that litigants would take heed and observe,- not disregard, this rule, designed to promote definiteness, fairness and orderly procedure on appellate review. Much to our regret, despite criticisms for failure to observe it and studied warnings as to the probability of its application in the future (See Biby v. City of Wichita, 151 Kan. 981, 101 P. 2d 919; Carrington v. British American Oil Producing Co., 157 Kan. 101, 104, 138 P. 2d 463; Federal Farm Mortgage Corp. v. Bolinger, supra; Shannep v. Strong, 160 Kan. 206, 211, 160 P. 2d 683; Hamilton v. Binger, 162 Kan. 415, 419, 176 P. 2d 553), our leniency of the past has not accomplished what we had hoped for. Instead of reducing violations to a minimum it has increased them with the result that far too frequently we are forced into the intolerable situation of giving more consideration to appellants who disregard the rule than we can to appellants who observe it and are limited to the legal questions raised by their specifications of error. On that account, and since the need for Rule 5 far exceeds any possible reasons for its renunciation, we have concluded the time has come when its requirements should be rigidly enforced. It therefore follows that appellees’ challenge of appellants’ right to be heard in the instant appeal must be sustained.
The conclusion just announced dispenses with all necessity for a discussion of the numerous contentions advanced by appellants in support of grounds relied on by them for a reversal of the trial court’s judgment. We anticipate the possible suggestion that in view of past exceptions our newly announced policy of strict adherence will work a hardship upon these appellants. The obvious answer is that the publicized rules of this court are made to be complied with and that those who take chances and elect to disregard them cannot be heard to complain when they are enforced. Even so, we may, however, say that because of the prevailing conditions and circumstances we have not entirely overlooked the possibilities of hardship resulting from the announcement of our decision at this time in this particular case. An examination of the record reveals that the vital and all decisive issue therein involved was cessation of production and abandonment of an oil and gas lease under such circumstances as to result in the extinguishment of appellants’ rights under its terms. It further discloses the trial court’s decision against appellants on the factual question of abandonment was supported by ample evidence and that they would have little, if any, grounds for the reversal of its judgment on appeal.
One other point requires decision. By their cross-appeal appellees seek to reverse an order of the trial court permitting appellants to remove their casing from the well located on the leased premises within sixty days, contending that such order was contrary to the equity of the landowner. Under the facts of this case the claim has little merit. By express terms of the lease between the parties the appellants had the right to remove all their property from the leased premises at any time, including the right to draw and remove casing. In such a situation the trial court, even in the exercise of equity, had no right to write a new contract for the parties. Hence its order with respect to removal of the casing was not erroneous.
The appeal is dismissed. | [
-16,
-6,
-43,
29,
-119,
96,
56,
-102,
65,
-87,
103,
83,
-115,
-37,
-116,
123,
-53,
123,
116,
123,
87,
-77,
15,
80,
-42,
-77,
-47,
-43,
48,
94,
118,
87,
72,
37,
-54,
-43,
70,
74,
65,
92,
-114,
7,
-104,
108,
-55,
0,
48,
43,
48,
11,
17,
-113,
-29,
44,
25,
-57,
-88,
44,
-85,
61,
-15,
-8,
-69,
13,
95,
0,
33,
5,
-36,
-59,
-8,
58,
-112,
24,
9,
-24,
115,
38,
-124,
116,
47,
-101,
8,
102,
98,
33,
89,
111,
-20,
-88,
47,
-38,
-99,
-90,
-14,
24,
-117,
33,
-106,
-99,
52,
20,
37,
126,
-26,
-123,
95,
-19,
23,
-62,
-46,
-79,
15,
123,
-112,
9,
-21,
-109,
-74,
112,
-51,
-24,
92,
71,
48,
-97,
-50,
-112
] |
The opinion of the court was delivered by
Smith, J.:
This was an action wherein defendant was convicted on seven counts for violation of G. S. 1985, 21-2146, commonly known as the prohibitory liquor statute. He has appealed.
The information originally contained nine counts. At the conclusion of the state’s evidence the state was ordered to elect as to the four possession counts and elected to dismiss two of them, whereupon he was convicted on seven counts.
Defendant has charged various specification of error and they shall be dealt with ud señatv/m.
First, the defendant argues that the court erred in refusing to sustain his motion to quash the information on the ground that the offenses purportedly charged in each count were not set forth in plain and concise language and did not state a criminal offense with sufficient particularity to enable defendant to prepare his defense. This argument sends us to an examination of the information.
Count 1 charged that the defendant on the 21st day of October, 1947, sold intoxicating liquor contrary to the provisions of G. S. 1935, 21-2101; and that he had theretofore on the 10th day of May, 1943, pleaded guilty to having liquor in his possession and had been sentenced. The latter was intended for the purpose of charging defendant as a persistent violator.
Count 3 was in the same language except that at the end of the count it contained a statement that the offense was committed at a time different than in counts 1, 5 and 7.
Count 5 was in the same language as was also count 7. We have then an information that charged defendant with having made four sales of intoxicating liquor on the same day but each at a different time that day.
Count 2 charged that defendant on the same day, that is, October 21, 1947, had liquor in his possession. Then contained a reference to the former conviction. It also contained a statement that the offense was committed at a time different than in counts 4, 6 and 8.
Counts 4, 6 and 8 contained the same general language, so we have in this information four counts of possession of liquor.
Count 9 charged the committing of the offense of maintaining a liquor nuisance on described real estate on the same day that the sales and possession were charged. It is argued that on account of the similarity in language of these counts the name of the person to whom the liquor was sold should have been alleged so that the defendant could have properly prepared his defense. This argument is not good. In the first place, the offense was charged in the substantial language of the statute. This has been held to be sufficient. (See State v. Oliver, 129 Kan. 719, 284 Pac. 357.) Furthermore, G. S. 1935, 21-2121, provides, that it shall not be necessary to state the name of the person to whom the liquor was sold or the kind of intoxicating liquor that was sold.' Furthermore, in this case it is difficult to see that the defendant was prejudiced by the manner in which the offense was described in the information in view of the fact that his defense was an alibi, that it, that he was out of the state all the day he was alleged to have made these sales. Counsel for the defendant state that when they examined this information they found it impossible to prepare a defense to such indefinite charges. They did prepare the defense though. They offered evidence which, had the jury believed, would have proved that the defendant was not in the state on the day in question.
The next argument of defendant is that the court erred in permitting the state to have a considerable quantity of liquor in the courtroom while the jury wás being examined. The record discloses that defendant made a motion for the liquor to be removed from the presence of the jury. After some argument the liquor was removed from the courtroom. Counsel argue that defendant was prejudiced because this removal took place in the presence of the jurors. The record discloses that the liquor was carried out during a time while the jury was excused. • At any rate, it does not appear that the defendant was prejudiced by what happened.
Defendant next argues that the trial court erred in overruling his motion for a mistrial after a special investigator had been permitted to taste liquor that was contained in 'a bottle which was offered to him to identify while he was on the witness stand. The main burden of this argument seems to be that the witness in answer to a question of the county attorney said:
“It tastes like good whisky to me.”
We see no ground for a mistrial in this answer nor do we see where the defendant was prejudiced thereby. A witness may be permitted to smell or taste substance that is offered as intoxicating liquor. (See 20 Am. Jur. 681, sec. 810.)
Defendant next argues that the court erred in permitting certain cross-examination of the witness who was called to testify as to the reputation of defendant for truth and veracity. This argument seems to rest on the fact that after the witness had testified that the reputation of the defendant for truth and veracity was good, the county attorney said:
“But it doesn’t make any difference to you this man has done time in the the federal pen? That doesn’t make any difference to you in arriving at your opinion?”
We find that counsel objected to this answer because it was a repetition and the court sustained the objection. What more the court should have done to avoid error in this respect does not readily appear.
Defendant next argues that the court erred in permitting the sheriff to testify that he went to a place operated by the Stephens’ family on the 30th day of October, 1947. It does not appear that the defendant was there at the time and we are unable to see how the defendant was prejudiced by permitting this testimony to go to the jury.
The defendant next argues that the trial court erred in permitting misconduct by the county attorney in his closing argument to the jury. The county attorney does not appear to have gone beyond the bounds of proper argument. In the course of his argument he has made the following statement:
“You heard them testify, he was so brazen he asked them no questions, he had been operating since 1943. All the boy were in the Army and Steve was out there selling whiskey to airplane plant workers, and so forth.”
Counsel for the defense objected to the latter part of the foregoing statement on the ground that it was inflammatory and there was no evidence to sustain it. The court sustained the objection and upon further language by counsel the court advised the jury that the statement would be stricken from the consideration of the jury. Under the circumstances, it does not appear that the defendant was prejudiced by the argument of the county attorney.
Defendant next argues that he was unduly limited in his cross-examination of a witness for the state. This was where a witness testified that he signed his name on a bottle of liquor that was offered in evidence. Counsel for the defendant asked that he write his name on a piece of paper that was offered. The court sustained the objection of this. Just why the court sustained that objection does not readily appear. If it was important for the state to prove by the witness that he did write the name of the imbiber, the defendant certainly had the right to lay the foundation to impeach the witness by comparing his written signature with the signature that was on the bottle.
The defendant next argues that on his cross-examination the county attorney was permitted to refer to an exhibit which was withheld from the counsel for the defendant and of which counsel did not learn the identity. It appears clear from the record that this was a statement furnished the attorney general by the Federal Bureau of Investigation of the criminal record of the defendant. While this examination was going on counsel for the defendant asked permission to see the document and objected to' its being used without his being permitted to see it and examine it and was overruled in each case. This was error. Counsel for the defendant should have been permitted to examine the document before it was shown to the defendant and any questions asked.
Defendant next argues that the court erred in certain instructions. We have examined these instructions and find no error therein.
The next argument of defendant is that the court erred in certain oral instructions to the jury after the jury had retired and considered the issues for some time. What transpired was that the jury was brought in and the foreman said:
“The information we want to obtain is to Count 9. There seems to be some confusion about the continuous clause in that.”
Thereupon colloquy ensued between the court and the jury and the court asked whether or not the jury had read a certain instruction and explained the meaning of the certain instruction. The foreman then said:
“Does that continuous mean day to day operation for that period of time?”
The court answered:
“It could mean that or any one of the days between or the days charged, or it could mean every day.”
Such conduct is tantamount to the trial judge constituting himself a member of the jury and taking part in the deliberations. The written instructions should be read to the jury prior to the argument of the counsel. (See G. S. 1935, 62-1438; State v. Potter, 15 Kan. 302; State v. Stoffel, 48 Kan. 364, 29 Pac. 685; and State v. Howland, 157 Kan. 11, 138 P. 2d, 424.)
We find that from the foregoing and the error in restricting the cross-examination of the state’s witness the judgment of the trial court should be reversed.
The judgment of the trial court is reversed, with directions to grant defendant a new trial.
Arn, J., not participating. | [
-16,
-2,
-4,
-100,
26,
96,
42,
-68,
-47,
-63,
-10,
115,
-19,
66,
5,
99,
-71,
127,
85,
105,
-27,
-77,
23,
-127,
62,
-77,
-54,
-43,
55,
79,
-20,
-10,
12,
-92,
66,
-11,
-26,
-38,
-45,
92,
-54,
5,
-71,
-55,
105,
88,
52,
59,
7,
15,
49,
31,
-29,
46,
24,
-53,
41,
40,
75,
61,
-64,
-71,
-104,
-99,
79,
22,
-77,
119,
-100,
-124,
-24,
42,
-100,
49,
-128,
-8,
115,
-76,
-126,
52,
95,
-104,
44,
98,
98,
33,
125,
-57,
104,
-104,
47,
-66,
-100,
-90,
-39,
24,
65,
-124,
-66,
-99,
124,
16,
15,
-6,
99,
85,
17,
108,
-121,
-113,
-14,
-79,
-49,
56,
-126,
19,
-61,
35,
0,
113,
-51,
-82,
92,
117,
113,
27,
-122,
-44
] |
The opinion of the court was delivered by
Parker, J.:
This was an action for damages resulting from a collision between a truck and an automobile on a highway in which a jury found that neither "the plaintiff nor the defendant was entitled to recover. The appeal is from an order setting aside the verdict and sustaining the plaintiff’s motion for a new trial.
Except for acts of negligence relied on by the parties there is little conflict in the pleadings and in the evidence. For explanatory purposes it can be said the collision occurred the morning of October 24, 1946, while both motor vehicles were proceeding in an easterly direction on a straight portion of U. S. Highway 40, northwest of Topeka, at a time when plaintiff’s truck, operated by one Robert J. Smith, was endeavoring to pass an automobile driven by the defendant who was attempting to make a left hand turn and leave the highway. Both vehicles were severely damaged.
Following the accident plaintiff brought this action claiming that the damages sustained to his truck were the result of defendant’s negligent operation of his automobile. Defendant filed an answer denying any negligence on his part and a counterclaim in which he charged that he had sustained injuries to his person and to his automobile which were caused by, and directly resulted from, the negligent manner in which plaintiff’s truck was being driven by Smith as his agent.
After a trial, at which the evidence pertaining to negligence of the parties was highly in conflict and the jury failed to find either of them liable, the plaintiff filed a motion for new trial in which he complained of erroneous rulings and instructions by the trial court and the verdict of the jury because it was in whole or in part contrary to the evidence. On consideration of this motion the trial court found that it should be sustained and without stating any specific reason for its action set aside the verdict and granted a new trial. Defendant immediately appealed from such ruling.
Thus it appears the sole and only question presented for appellate review is whether, under the conditions and circumstances heretofore related, the trial court’s action was erroneous.
At the outset appellant, based upon the premise the new trial was granted solely upon the ground the verdict was in whole or in part contrary to the evidence, contends that appellee’s uncontradicted testimony disclosed facts from which the jury was warranted in finding negligence in the operation of his truck and that therefore the trial court was required to approve such verdict. We are far from certain, assuming appellant’s contention with respect to the state of the evidence and the specific ground for the sustaining of the motion for new trial to be true, that under our decisions the trial court’s action was unwarranted. But we are not called upon to pass upon that question and hence do not here decide it.
Before referring to the particular rule regarded as decisive of this appeal it may be well to state a few general principles responsible for its pronouncement. This court has always held that an order of a trial court allowing or denying a motion for a new trial will not be reversed unless abuse of discretion is apparent. See Clark v. Southwestern Greyhound Lines, 146 Kan. 115, 69 P. 2d 20; Fritchen v. Jacobs, 138 Kan. 322, 26 P. 2d 448. Many other decisions to the same effect appear in our reports but to list them would merely burden this opinion. They can be found by referring to West’s Kansas Digest, Appeal and Error, §§ 977-979, incl., and Hatcher’s Kansas Digest, Appeal and Error, § 458.
It likewise holds that a much stronger showing with respect to abuse of discretion is required when a new trial has been granted than when it has been refused. (Murphy v. Hindman, 37 Kan. 267, 15 Pac. 182.) In City of Sedan v. Church, 29 Kan. 190, we said:
“Trial courts are invested with a very large and extended discretion in the granting of new trials; and new trials ought to be granted whenever in the opinion of the trial court the party asking for the new trial has not in all probability had a reasonably fair trial, and has not in all probability obtained or received substantial justice, although it might be difficult for the trial court or the parties to state the grounds for such new trial upon paper so plainly that the supreme court could understand them as well as the trial court and the parties themselves understood them. . . . The supreme court will very seldom, and very reluctantly, reverse a decision or order of the trial court which grants a new trial. A much stronger case for reversal must be made when the new trial is granted than where it is refused. . . .” (pp. 191, 192.)
A similar statement is to be found at page 362 of the opinion of Ireton v. Ireton, 62 Kan. 358, 63 Pac. 429.
See, also, Simon v. Simon, 69 Kan. 746, 77 Pac. 571, where the following statement appears:
“. . . We are not at liberty to presume that the trial court committed error in granting a new trial. It may rightfully exercise a large discretion in the matter of granting or refusing a new trial, and this court will not review its ruling thereon unless satisfied that it was wholly unwarranted and an abuse of its discretion (Investment Co. v. Hillyer, 50 Kan. 446, 31 Pac. 1064; Ireton v. Ireton, 62 id. 358, 63 Pac. 429); particularly in a case where it is claimed that the court committed error in granting a new trial.”
The foregoing quotations appear in a more recent decision, Blake v. National Mutual Casualty Co., 155 Kan. 201, 124 P. 2d 478, where the rule therein announced is approved and adhered to.
With respect to what is required in order to warrant the reversal of a ruling granting a motion for new trial we have repeatedly held that action of such nature is so much in the discretion of the trial court that an appellant must clearly establish error with respect to some pure, simple, and unmixed question of law. (Sanders v. Wakefield, 41 Kan. 11, 20 Pac. 518; McCauley v. A. T. & S. F. Rld. Co., 70 Kan. 895, 79 Pac. 671; Railway Co. v. Fields, 73 Kan. 375, 85 Pac. 412; Cronk v. Frazier, 86 Kan. 879, 122 Pac. 893; Rowell v. Gas Co., 81 Kan. 392, 396, 105 Pac. 691.)
We now come to the all decisive rule heretofore mentioned and to which we adhere. Long ago in Atkinson v. Darling, 107 Kan. 229, 191 Pac. 486, we held:
“Ordinarily no reversible error can be based upon the granting of a new trial unless the trial court indicates the exclusive and specific ground upon which the new trial is granted, and unless that ground happens to be one which the supreme court is in as good a position to consider and determine as the trial court.” (Syl. ¶ 2.)
Later, in Ferguson v. Kansas City Public Service Co., 159 Kan. 520, 156 P. 2d 869, where the same rule was under consideration and process of elaboration, we held:
“When a trial court grants a new trial generally, upon the ground that it is not satisfied with the verdict, or for any of several reasons not specifically stated, this court does not interfere with the ruling, but where the court grants a new trial upon a specific legal ground which this court is in as good a position to examine as was the trial court, this court may examine the ground upon which the new trial was granted and determine whether it was legally sufficient.” (Syl. ¶ 7.)
Still later in Cole v. Lloyd, 161 Kan. 150, 152, 166 P. 2d 577, the same principle was reaffirmed and approved.
As has been previously stated no reasons were given for sustaining the involved motion for a new trial. We might add that if they were requested the record does not show it. It will not do, as appellant suggests, to limit those reasons to grounds stated in the motion. The books are full of cases recognizing that trial courts have authority to grant new trials on their own motion. Hence when a new trial is granted generally it cannot be assumed a court in granting it restricted its consideration of the motion and its decision with respect thereto to grounds of the motion alone. The presumption is that in the instant case the trial court performed its duty, exercised its independent judgment and determined whether the verdict should be approved. Under all our decisions (Raines v. Bendure, 166 Kan. 41, 199 P. 2d 456; Meyers v. Wright, 167 Kan. 728, 208 P. 2d 589), if dissatisfied with such verdict it not only had authority but it was its duty to set it aside and grant a new trial. For all we know the verdict may have been set aside and the motion sustained for any of several reasons. In any event we are in no position to decide what they were and the appellant has failed to clearly establish any error in the trial court’s ruling with respect thereto.
The judgment is affirmed. | [
-48,
106,
-16,
-115,
11,
98,
32,
26,
113,
-79,
-89,
83,
-83,
-61,
4,
121,
-2,
29,
80,
106,
-11,
-93,
23,
-70,
-46,
-77,
-5,
-58,
-73,
-56,
101,
-9,
76,
96,
-54,
85,
102,
72,
-59,
92,
-50,
-106,
-71,
-23,
-39,
-86,
-80,
58,
98,
13,
-111,
-97,
66,
42,
26,
-57,
105,
44,
-21,
-20,
-47,
-16,
-52,
5,
95,
4,
-77,
4,
-100,
33,
88,
58,
-48,
-71,
56,
-4,
114,
-90,
-125,
-12,
97,
-119,
8,
-26,
99,
33,
21,
-51,
-20,
-104,
46,
122,
13,
-90,
26,
88,
9,
33,
-74,
29,
117,
114,
12,
110,
-4,
5,
93,
104,
7,
-53,
-78,
-79,
-57,
51,
-98,
8,
-21,
-121,
18,
96,
-56,
-22,
77,
69,
83,
-101,
-121,
-112
] |
The opinion of the court was delivered by
Wedell, J.:
This action was instituted pursuant to what is commonly known as the defective highway statute, G. S. 1935, 68-419. Plaintiff prevailed and the state highway commission has appealed.
Appellant assigns ten specifications of error. An examination of the record convinces us most of them are without substantial merit. Nothing would be added to our body of the law on the subject involved by a detailed treatment of all the alleged errors. Following a brief statement pertaining to appellee’s journey we shall go directly to the vital issue in the case. It pertains to the nature of the defect alleged in the petition, what the jury found it to be and whether the injury was caused by a defect within the purview of the statute.
Appellee was a boy about eighteen years of age. He and his brother, Virgil Dean Shafer, were making a trip together on the latter’s motorcycle from Lacón, 111., to Tucson, Ariz., making stops on the route to visit relatives. Virgil Dean was seeking employment in a warmer climate. The vehicle was equipped with a buddy seat to carry a passenger in addition to the driver. The seat was standard equipment such as made by the manufacturers of motorcycles. It was approximately two feet to thirty inches in length and was shaped so the driver could sit on the front part and the passenger could sit behind him comfortably. The handles reached to the back where the passenger could hold on to them. The motorcycle also had a separate foot rest for the passenger in addition to the floor boards for the driver’s feet. Regular saddle bags were attached to the vehicle. In the back part of it behind the passenger a carrier was fastened. A little platform, the size of a suitcase, was bolted to the carrier, in which the boys had strapped a suitcase containing clothing. Appellee thought the suitcase weighed approximately fifty to sixty pounds. He thought it might have weighed seventy pounds.
The driver was killed and the passenger, appellee, sustained serious injuries.
The pertinent portion of the petition alleged:
“That at a point approximately two and one-half (2Yz) miles West of the City of Cimarron, in Gray County, Kansas, said U. S. Highway 50 South slopes downward in a Westerly direction from the brow of a low rise or grade for a distance of approximately three hundred (300) yards to a point where said Highway is crossed by a culvert or bridge which is a part of said Highway system; that said Highway rises on a slight up-grade to the West of said culvert or bridge. That at the point in question, said Highway is surfaced with an oil coating or mat, commonly called ‘black-top.’ That on the 16th day of June, 1947, and for more than a week prior thereto, a defect existed in said Highway immediately adjacent to the West side of said culvert or bridge; that said defect consisted of a hole in said Highway which was four (4) to eight (8) inches in depth, was approximately fourteen (14) feet long extending from the North side of the oil mat of said Highway past the center line thereof and over into the South part thereof, was approximately six (6) to eight (8) feet wide from East to West, and that the East side of said hole was immediately adjacent to the West edge or side of said bridge or culvert; that the sides of said hole were almost perpendicular. That at the time mentioned herein there were no flags, flares or other warning devices placed about said defect by Defendants which would in any way warn travelers upon said Highway of the danger surrounding said defect.
“4. That at approximately 12:30 p. m. on said 16th day of June, 1947, the Plaintiff and his brother, Virgil Dean Shafer, were riding a motorcycle in a Westerly direction on said U. S. Highway 50 South, West of Cimarron, Gray County, Kansas. That said Virgil Dean Shafer was the owner, driver and operator of said motorcycle, and that Plaintiff was riding behind him on it. That said Highway between said City of Cimarron and the afore-mentioned defect was relatively smooth, and that said Virgil Dean Shafer was driving said motorcycle in a careful and prudent manner at a reasonable rate of speed, to wit: fifty to fifty-five (50-55) miles per hour. That without any warning said motorcycle struck the afore-mentioned hole and defect in said Highway, adjacent to said culvert or bridge, and said motorcycle was thrown violently into the air and out of the control of its driver; that said Virgil Dean Shafer struggled to maintain control thereof but that finally said motorcycle went into the ditch along the North side of said Highway and overturned. That Plaintiff was thrown from said motorcycle and struck the ground in said ditch with great force and violence and sustained the injuries hereinafter complained of.
“5. That said defect in said Highway was the sole, immediate, and proximate cause of said motorcycle going out of control, and of the resultant injuries to Plaintiff. That there were no warning devices about said defect, and that the same was not easily discernible to travelers upon the Highway.”
The jury answered certain questions as follows:
“1. Q. Do you find that a defect as defined in the Court’s instructions existed on the highway at the time and place of plaintiff’s accident? A. Yes.
' “2. Q. If you answer question No. 1 in the affirmative describe fully and in detail such defect or defective condition. A. Depression in roadway 18 feet East by West — 20 feet North and South, with chuck hole approximately 3% or 4 inches deep by 30 inches across.
“3. Q. If you answer question No. 1 in the affirmative do you find that the Director of Highways, State Highway Engineer, or any member of such State Highway Commission, or any foreman, patrolman, or other employee in charge of the construction, maintenance or upkeep of such highway had five days’ actual notice of such defect? A. Yes.
“4. Q. If you answer the foregoing question in the affirmative then state the name of the person or persons who had such actual five days’ notice? A. Barkley, Reynolds, Moore.
“5. Q. Do you find that plaintiff and his brother, Virgil Dean Shafer, were engaged in a joint enterprise or joint venture as defined in the court’s instructions at the time and place of the accident herein? A. No.
“6. Q. If you answer question number 5 in the affirmative do you find plaintiff’s brother guilty of any act or acts of negligence? A. -.
“7. Q. If you answer question number 6 in the affirmative, state the acts which you find constituted negligence on the part of Virgil Dean Shafer. A. -.
“8. Q. What do you find to be the proximate and direct cause of the accident? A. Defect in surface of the roadway.
“9. Q. What do you find to be the speed of the motorcycle upon which plaintiff was riding immediately prior to the accident? A. 60 miles per hour.
“10. Q. If you answer both questions Nos. 1 and 6 in the affirmative then state if there remained a sufficient portion of the traveled roadway over which plaintiff’s brother with reasonable care could have safely operated said motorcycle? A. -.
“11. Q. Was the plaintiff guilty of negligence at the time and place of the accident? A. No.
“12. Q. If you answer question No. 11 in the affirmative state specifically such act or acts of negligence. A. -.”
Answer No. 2 embraces two separate and distinct things. One is the depression in the roadway. The other is a chuckhole. It will be observed the finding did not state how deep the depression was or where the chuckhole was located in the roadway. There was evidence of broken areas in the pavement along the north side of the highway both east and west of the culvert which were thirty inches in diameter; that in such areas the surface was broken up, crumbled, loose but in place and also that it was not in place; that within such broken area it was rough in the bottom and the sides were jagged.
A similar condition existed on the extreme south side of the road. Some of the witnesses referred to both the north and south places as broken and crumbled areas and others referred to them as holes. Some of the witnesses referred to the area thirty inches across interchangeably as a .hole and as a broken place. There was evidence by some of appellee’s witnesses there was a hole on the north side of the road which extended across the center of the road and was four to six inches deep, and even deeper and that the sides of the hole were abrupt; the hole was the color of the blacktop and difficult to see.
The jury, however, found the chuckhole was three and one-half or four inches deep and thirty inches across and we are bound by that finding. A search of the record discloses no evidence the driver of the motorcycle struck the chuckhole. We, therefore, need not determine whether such a chuckhole in a blacktop road constitutes a defect within the purview of G. S. 1935, 68-419.
Did the depression constitute a defect? J. Francis Barclay, an assistant division engineer and appellant’s witness, testified concerning the depression, in substance, as follows: There was a sunken area at the east side of the culvert where the fill had settled under the mat which extended across the road from one edge of the mat to the other; he estimated it was three to three and one-half inches deep and about ten feet long east and west; this entire sunken area was pretty well cracked but it was in place except in the area which was thirty inches wide on the north side east and west of the culvert where the blacktop was broken up and was lying in place but was loose.
Pearl Moore, a road maintenance- man for appellant, but called as a witness for appellee, testified concerning the depression, in substance, as follows: There was a low place east of the culvert along the north side of the mat; it was about ten feet long east and west and five feet north and south; it was approximately two and one-half to three inches deep in the deepest place; there was another hole on the south half of the road, the same kind of a place, a depressed place, with a hole in the center.
Another witness, Captain Tom Glasscock of the state highway patrol, subpoenaed by appellee, testified, in substance: He investigated the accident at 1:45 p. m. on the day it occurred; his field notes contained the data obtained in his investigation; the rough places were on the culvert and not east or west thereof; while his report indicated holes in the blacktop it was so marked by reason of the printed form provided by appellant; there actually were no holes; the blacktop was broken up in pieces; it was rough but the pieces were in place. That part of Captain Glasscock’s report contained in the abstract reads:
“Motorcycle with driver and passenger going west on 50-South. They hit a low place in roadway and evidently lost control of vehicle. The cycle skidded and rolled 375 feet from low place in roadway to where it came to rest in ditch on north side of roadway. The cycle fell on driver and the passenger was thrown clear. Defective strip in roadway was 18 feet long where road bed was sunken about 3% to 4 inches. Blacktop was broken and crumbled in tracks. There was a smooth strip 4 feet wide in center. Roadway 20 feet wide.”
Appellee knew little about how the accident occurred. There was no other eye-witness to the accident. According to appellee’s testimony the blacktop road west of Cimarron appeared to be in good condition. He and his brother ordinarily traveled approximately fifty to fifty-five miles per hour and that was about their speed at the time of the accident. They had no previous accident or near-accident on their trip. He did not remember whether he was looking at the road or at the surroundings at the time of the accident. He did not remember seeing any hole. The first thing he noticed was that the motorcycle was wobbling back and forth. The next thing he remembered was that he was lying on the ground and somebody was holding a blanket over him.
There was evidence: If a motorcycle was heavily loaded it would tend to hold to the road better but that if the motorcycle started into a wobble with a heavy load it would be more difficult to eliminate the wobble; a motorcycle wobble is similar to the shimmying of a car; a speed wobble results from more speed than the rider can handle.
Appellee reminds us the jury did not find the speed caused the wobble; that it found appellee was not guilty of negligence (finding No. 11) and found the proximate and direct cause of the accident was the defect in the surface of the roadway. This is true. (Finding No. 8.) We are, therefore, confronted with the question originally stated, namely, whether the depression in the road constituted a defect within the purview of the statute?
There is no legal foot-rule by which to measure conditions generally and determine with exact precision whether a condition constitutes a defect. Some conditions may be so patently dangerous as to clearly constitute a defect while others may be so trifling as to be clearly outside the purview of the statute. (Collins v. State Highway Comm., 134 Kan. 278, 283, 5 P. 2d 1106; Douglas v. State Highway Comm., 142 Kan. 222, 226, 46 P. 2d 890.) It is, therefore, the policy of courts to handle each case separately and to either include it in or exclude it from the operation of the statute. (Gorges v. State Highway Comm., 135 Kan. 371, 373, 10 P. 2d 834.) Where the circumstances are such that an alleged defect cannot be excluded from the operation of the statute as a matter of law it presents a case for a jury. (Watson v. Parker Township, 113 Kan. 130, 213 Pac. 1051; Collins v. State Highway Comm., supra; Cheney v. State Highway Comm., 142 Kan. 149, 153, 45 P. 2d 864.)
The peculiar facts of earlier cases were carefully reviewed in the Douglas case, supra, and in Espey v. State Highway Comm., 143 Kan. 873, 57 P. 2d 424. The facts of those cases need not be restated at length here. It is not contended any of the later cases involved facts which would be particularly helpful in the instant case.
Appellee thinks the question whether the evidence in the instant case discloses a defect was for the jury and leans heavily on Williams v. State Highway Comm., 134 Kan. 810, 8 P. 2d 946; Collins v. State Highway Comm., 138 Kan. 629, 27 P. 2d 216; and the Cheney case, supra. He stresses the statement in the Williams case, to wit:
“A condition of a highway which renders it dangerous for the public traveling over it is certainly a defect.” (p. 813.)
The Williams case involved a sand and gravel road. In that case there were two holes, near the top of a hill, one four inches, the other five inches in depth. There was evidence the driver descending the hill could not see the holes until he was practically upon them.
The Cheney case involved a bituminous mat which was corrugated and washboardy. The accident happened at night. The places were one to four inches deep and extended fifteen to twenty-five feet north and south. The corrugations were one to three feet apart. They were on the north slope of a small hill. It was impossible for one coming from the south, to see them for more than fifty feet after reaching the top of the hill. The jury found the driver exercised due care.
In Collins v. State Highway Comm., 138 Kan. 629, 27 P. 2d 216 (a second Collins case), the condition which caused plaintiff’s automobile to upset was a “chuck hole” about two feet long, eighteen inches or two feet wide and six to eight inches deep in a gravel road. The hole in the road was only about two feet from its median line.
In the instant case a view of the depression was not obstructed. Appellee argues the visibility of a defect is not a proper element of test. He insists the condition is, or is not, a defect and its visibility goes only to the question of contributory negligence. The pertinent portion of the statute reads:
“Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge or culvert on, or defect in a state highway, not within an incorporated city, may recover such damages from the state of Kansas. u. . (G. S. 1935, 68-419.)
This court has held the want of reasonable opportunity to observe a road condition is a proper factor to be considered. (Douglas v. State Highway Comm., supra; Espey v. State Highway Comm., supra.)
Appellee stresses the fact this was a surfaced road and emphasizes a statement in the Douglas case, supra, in which a gravel and chat road was involved. The statement is:
“Chuckholes and corrugations, as described in the above testimony, if existing in a cement or brick road where greater speed in traveling ordinarily prevails, would doubtless be regarded as dangerous to the traveling public, while they might not be so regarded if existing in an ordinary dirt road.” (p. 226.)
Appellant replies the instant road was not a cement or brick road but a blacktop road only one step removed from, a chat or gravel road and that it is commonly known such a road is frequently uneven and wavy.
Appellant relies primarily on the Gorges and Douglas cases, supra; Snyder v. State Highway Comm., 139 Kan. 150, 30 P. 2d 102, and cases previously cited in which the lack of visibility of a defect was emphasized. It also stresses the dissenting opinion in Collins v. State Highway Comm., 138 Kan. 629, 632, 27 P. 2d 216. The facts in most of these cases were likewise reviewed in the Douglas and Espey cases, supra, and need not be restated here. In the Gorges case it was held an accumulation of ice on the highway was not a defect within the purview of the statute. The statement in the opinion relied on by appellant is:
“It is the duty of the state highway commission to keep the highway in a reasonably safe condition for public travel, and liability arises where, after notice, it permits defects to exist in the public highway. It is not, however, an insurer. The user of the highway is bound in all events to use due care, and to take notice of any defect that comes within his knowledge or vision.” (p. 372.)
The principal point relied on in the Douglas case by appellant is the distinction there made with respect to the required upkeep of cement or brick roads on which the speed is ordinarily greater than on other types of roads.
In the Snyder case, supra, there existed a depression in the roadway. The jury found the defect to be:
“Settling of filled ground four feet by eighteen feet, and breaking and settling of slab causing a depression of one (1) inch or more.” (p. 152.)
This court held that was not a defect within the purview of the statute.
The parties do not contend we have any decision factually in point. Our research has disclosed none. It is common knowledge numerous depressions and wavy places exist in blacktop roads. The traveling public is aware of this fact. Where depressions such as the instant one exist and are open to the traveler’s view we think we would not be justified in holding they are within the purview of the statute.
The judgment is reversed with directions to enter judgment for appellant.
Smith, Wedell and Arn, JJ., dissent. | [
-16,
-22,
-15,
47,
11,
96,
8,
26,
85,
-111,
39,
83,
-81,
-53,
-124,
115,
127,
63,
81,
42,
-15,
-77,
71,
-78,
-110,
-77,
-5,
84,
-13,
73,
44,
-14,
76,
96,
-54,
93,
102,
74,
-59,
88,
-50,
6,
-103,
-32,
89,
-110,
-80,
110,
22,
79,
-15,
-113,
-61,
42,
30,
-61,
-88,
44,
-21,
-83,
-39,
-16,
-49,
21,
-98,
18,
-127,
-122,
-98,
5,
72,
57,
-36,
17,
56,
-8,
115,
-90,
-112,
-12,
101,
-101,
-116,
-26,
103,
33,
29,
-59,
-3,
-104,
14,
-6,
45,
-93,
-114,
25,
9,
5,
-97,
29,
114,
22,
13,
122,
-6,
76,
95,
-28,
-121,
-50,
-76,
-127,
-19,
32,
-52,
-119,
-29,
-123,
51,
117,
-50,
-14,
92,
101,
56,
-109,
7,
-70
] |
The opinion of the court was delivered by
Parker, J.:
This is an appeal from an order appointing an administrator de bonis non cum testamento' annexo.
W. 0. James, a wealthy resident of Butler county, died on the 28th day of March, 1947, without a wife or children, leaving a last will and testament wherein he named G. L. Ramsey as his executor and by the terms of which he devised and bequeathed the major portion, if not all, of his property to persons other than his heirs at law.
Thereafter, G. L. Ramsey was appointed and qualified as executor of the estate of such decedent by the probate court of Butler county and acted in that capacity until his death which occurred August 25,1948. On that date the estate was still in process of administration. However, it is undisputed the major portion of its assets had been distributed by delivery to legatees of the property to which they were entitled under the terms of the will.
Shortly after Mr. Ramsey’s death some of Mr. James’ next of kin petitioned the probate court for appointment of C. C. Fetty as administrator d. b. n., c. t. a. to complete the administration of their deceased relative’s estate. At or about the same time one of his next of kin, some of his devisees and legatees, and Alice M. Ramsey, widow of the deceased executor, filed a petition in the same court asking that such widow be appointed administrator d. b. n., c. t. a. While it is not regarded as important it should perhaps be stated at this point that for purposes of appellate review, due to maneuvering in both probate and district courts, the persons now insisting upon the appointment of Mr. Fetty are all the known heirs at law and next of kin of Mr. James and two of the legatees named in his will while the five individuals seeking the appointment of Mrs. Ramsey are four of the principal legatees and Mrs. Ramsey herself.
After giving consideration to each of the petitions to which we have heretofore referred the probate court appointed Mr. Fetty as administrator. Thereupon, the persons asking for Mrs. Ramsey’s appointment appealed. Upon trial of the appeal in district court that tribunal heard the case de novo and, although it found each suggested fiduciary was qualified and competent, appointed C. C. Fetty as administrator de bonis non cvm testamento annexo of the estate of W. 0. James, deased. The unsuccessful petitioners then perfected this appeal.
At the outset we aré met with a contention which must be disposed of before the merits of this case are entitled to consideration. Appellees insist the appellants have no right to maintain their appeal and therefore that it should be dismissed. In support of their position they point out that Mrs. Ramsey was neither heir nor legatee of W. 0. James and the other four appellants had received their legacies in full. From this they conclude appellants are not aggrieved persons under the probate code (G. S. 1947 Supp. 59-2404). To uphold this contention would require too strict a construction of its terms. In the first place G. S. 1947 Supp. 59-2401 expressly provides that an appeal may be taken from an order refusing to appoint a fiduciary. In the next it cannot be said appellants were not ag grieved within the meaning of that term as used in the section first cited. Mrs. Ramsey claimed the right to be appointed and the other four appellants the right to choose the fiduciary. Under such circumstances even though it might be eventually held their claims were ill-grounded all of the appellants were interested parties and had the right of appeal.
Due to the fact that counsel for the respective parties with commendable candor, both in their briefs and arguments, frankly confess that except for the one just decided the only question involved in this case is whether the district court committed error in appointing C. C. Fetty as administrator the foregoing brief factual statement, gleaned from a record replete with proceedings had in both the probate and district courts, is all that is required for a proper understanding and decision of the issue presented for appellate review.
From the facts and the issue as stated it becomes immediately apparent the all important point we have to decide depends upon our answer to the following question: Under the law of this state as it now exists who, if anyone, has the right to dictate the appointment of an administrator de bonis non cum testamento annexo in probate court or on appeal in district court? So far as we have been able to determine this is the first time, since the enactment of Kansas probate code in 1939, an answer to this question has been sought. We have, it is true, passed upon the right of an individual to be named executor under a last will and testament (In re Estate of Grattan, 155 Kan. 839, 130 P. 2d 580) and his right to be appointed as administrator of an intestate estate (In re Estate of Paronto, 163 Kan. 85, 180 P. 2d 302; In re Estate of West, 165 Kan. 483, 195 P. 2d 616), but the question with which we are now confronted is one of first impression and there is nothing in the decisions just cited which can be construed as decisive of its answer.
G. S. 1947 Supp. 59-708, expressly authorizes the appointment of an administrator d. b. n., or d. b. n., c. t. a. It reads:
“If the authority of the sole or surviving executor or administrator terminates before the estate is fully administered, a new administrator shall be appointed to administer the estate not already administered. Such successor shall have the same power and duties as his predecessor.”
We note this section is wholly silent as to who should be appointed to administer a testate decedent’s estate where the executor named by him in his last will and testament has been appointed but dies prior to the date its affairs have been fully administered and add that we find nothing elsewhere in the statute which makes provisions for such a contingency.
Appellees suggest the legislature intended and we should hold that G. S. 1947 Supp. 59-705, providing for administration of the estate of persons dying intestate, should be regarded as applicable in such an event. We do not agree. This section of the statute specifies the particular situation to which it has application and if the legislature had intended others, including one of the type here involved, it is our view it would have said so in plain and unequivocal language.
Appellants vigorously contend that in the absence of express statute to the contrary the rule is that those having the greater or more beneficial interest under the terms of a will must be accorded the right to appoint an administrator d. b. n., c. t. a. We observe from the authorities cited by them and others which our research has disclosed (see 34 C. J. S. 1275, 1276, 1286, 1287, 1288, §§ 1019, 1031, [1] [2] [4]; 21 Am. Jur. 815, § 788; 164 A. L. R., anno, 844 to 867 incl.), the decisions dealing with the right of appointment are far from harmonious. A close analysis of the cases listed under the general statements to be found in the foregoing authorities will reveal that some of them are based on express statutory language, some adhere to the rule of greater interest, others to the principle the residuary legatee usually is preferred before all other persons even though he is not specifically named in the will and still others that the question of greater interest rests in the sound discretion of the trial court. But we need not labor such decisions. Conceding that some authorities support appellants’ position the rule of greater interest dictates the appointment of an administrator d. b. n., c. t. a. we refuse to follow them or adopt such a doctrine.
In our opinion a sounder rule is, and we now hold, that in the absence of an express statutory directive compelling different action on the part of the tribunal vested with statutory power to make it, the appointment of an administrator d. b. n., c. t. a., rests in the sound judicial discretion of the probate court in the first instance and on appeal in the district court. It follows that neither legatees, having the greater or more beneficial interest, nor heirs at law of a testate decedent, have the right to dictate the appointment of such a fiduciary in this jurisdiction.
From our careful examination of the record we are convinced it cannot be said the appellants have established abuse of discretion on the part of the trial court in appointing C. C. Fetty as administrator, d. b. n., c. t. a., of the estate of W. 0. James, deceased. Therefore, under the established rule that a discretionary judgment by a trial court will not be disturbed in the absence of a clear showing of abuse of discretion, its action in that respect must be approved.
This notwithstanding appellants claim the trial court erred in holding that since they had received their legacies they had no further interest in the estate. Whether this conclusion was warranted or not under the existing factual situation it is not decisive. Elsewhere in its judgment the court found that Fetty was a competent person, exercised its discretion, and definitely indicated its preference by appointing him. This is all that was required to sustain its action. Besides the assertion by a trial court of a wrong reason for a correct result does not render a judgment reversible. See, e. g., City of Wichita v. Boles, 156 Kan. 619, 135 P. 2d 542 and page 488 of the opinion in In re Estate of West, supra.
The judgment is affirmed. | [
-80,
-28,
-35,
29,
58,
-30,
10,
-72,
98,
-15,
55,
83,
-17,
-62,
21,
111,
-13,
109,
-111,
123,
-29,
-13,
18,
-64,
-38,
-13,
-89,
-34,
51,
-36,
-9,
95,
77,
48,
10,
85,
-58,
70,
-49,
84,
-116,
41,
24,
-91,
-39,
81,
48,
121,
18,
77,
81,
-97,
-9,
46,
57,
98,
104,
44,
-39,
-88,
88,
-80,
-81,
-124,
123,
22,
16,
5,
-104,
-93,
-8,
46,
24,
49,
-128,
-24,
81,
-90,
6,
116,
11,
41,
40,
102,
-62,
1,
-23,
-19,
-88,
-8,
14,
122,
-99,
-90,
-102,
25,
-120,
97,
-76,
-99,
113,
80,
3,
-4,
-26,
5,
94,
44,
-119,
-113,
-42,
-95,
25,
-72,
-104,
10,
-21,
-57,
114,
113,
-39,
-22,
73,
98,
49,
27,
-122,
-16
] |
The opinion of the court was delivered by
Price, J.:
This is an action on an 'oral agreement pertaining to the sale and assignment of patent rights. The petition, as amended, sets forth three causes of action — (1) For specific performance; (2) for damages in the nature of quantum meruit recovery in case specific performance be denied; and (3) for damages by reason of unjust enrichment in the event specific performance be denied.
Defendant’s demurrer to each of the three causes of action set out in the petition, as amended, was overruled and it is from that order this appeal was taken.
The petition, which was filed November 20, 1948, recites the following story:
Plaintiffs’ residence and principal place of business is Beloit, where they conduct a business under the firm name of Sunflower Manufacturing Company. In 1941 the United States patent office issued to defendant a patent for a “diamond packer,” the same being a farming device and appliance invented by defendant, consisting of a metal wheel with an arrangement of spiked wedges or knobs on its circumference and used in packing ground in the preparation of land for farming purposes. Defendant, by virtue of his patent, owned a monopoly on the manufacture, sale and distribution of this device, and on or about July 6, 1948, in the cities of Downs and Osborne, Kan., plaintiffs and defendant orally agreed that plaintiffs should thenceforth have the exclusive right in the United States, during the life of such patent, to manufacture, sell and distribute all machines and implements wherein and whereby such new and novel principles so patented should or could be used. Plaintiffs promised and agreed to pay defendant one dollar royalty up to the number of 3,000 which they would manufacture and sell, and the sum of eighty-five cents per wheel on all those manufactured and sold above 3,000, said royalty payments to be paid defendant by the 10th of each succeeding month; and plaintiffs further agreed that they would manufacture and sell at least 600 of such wheels during the remainder of 1948, at least 3,000 during 1949, and that thereafter they would proceed with the manufacture and sale with due diligence to the end that the demand for such implements would be met with all reasonable dispatch. It was further agreed that in the event plaintiffs should fail to pay the royalty payments when due, or should fail to manufacture and sell the number of wheels as agreed during the years 1948 and 1949, or in case they should thereafter fail to use due diligence in the manufacture and sale of the implements to satisfy the demand, all rights acquired by them in such invention under the contract should revert to defendant and they would have no further right, title or interest in the same. Plaintiffs further agreed to use their best efforts in advertising the implements so as to create a demand, and they further agreed to keep records of all sales which would be open to inspection by defendant at all times.
The defendant agreed and promised to plaintiffs that he would cause the oral agreement to be reduced to writing, execute the same and present it to plaintiffs for execution so that the latter would have written evidence of their right to manufacture and sell the implements in order to enable them to procure adequate financing for the carrying on of such venture; that plaintiffs’ lack of adequate financing at the time of making the oral agreement was well known to defendant, and that the further purpose of the parties in agreeing to execute the contract in writing was to put plaintiffs in possession of evidence such as would assure prospective dealers and agents of their right and ability to furnish such implements as would be necessary to supply the demand.
That on July 6, 1948, plaintiffs and defendant went to the office of defendant’s attorney in Osborne for the purpose of drawing up the written contract and were informed by the attorney that he would require several days to familiarize himself with the subject matter and the law applicable and that he would then reduce the agreement to writing, to which both the plaintiffs and defendants assented. That defendant then asked plaintiffs to proceed with the manufacture and sale of the implements, as orally agreed between them, and promised that he would procure the written contract as soon as possible. That pursuant to such assurance plaintiffs, at the request of defendant, took from the premises of defendant in Osborne county to plaintiffs’ place of business in Beloit the small number of wheels and parts which defendant had previously caused to be manufactured, and immediately thereafter, at defendant’s request, took over such wheels, parts and machinery as had been previously manufactured at the request of plaintiffs by a manufacturing concern in Salina; that oh July 20, 1948, plaintiffs paid defendant for the wheels and parts thus furnished by him the sum of $102.08, which was accepted by him in satisfaction of the royalty payments upon the wheels so furnished, and that plaintiffs likewise assumed and paid to the Salina manufacturing concern all obligations of the defendant.
The petition further alleges that immediately subsequent to the making of the oral contract sued on plaintiffs proceeded in good faith and with due diligence to manufacture, advertise and sell the implements; accumulated a stock pile of iron and steel necessary to their manufacture; that in order to establish a long range advertising and selling program, attended eight of the principal agricultural fairs held in Kansas where they advertised and demonstrated the implements at an expense of $800; that they made numerous visits to various dealers in Kansas, Nebraska, Oklahoma, Colorado and South Dakota, established fifteen dealerships, and in sq doing have expended more than $5,000 in traveling more than twelve thousand miles in the prosecution of such work, the expense of which amounted to $1,200; and that since making the oral contract they have devoted their business building in Beloit as headquarters for the advertising, sale, distribution, storage and as an assembly plant for the implements, and that the building was of the reasonable rental value of $150 per month.
That plaintiffs purchased materials to be used in the manufacture of the implements in the sum of $10,352.10, have paid out other necessary expenses for advertising in the sum of at least $5,000 and that they have on hand implements and material for manufacturing them of the value of $8,445, which would be practically valueless unless sold as completed implements. That a considerable number of such services, including the advertising, demonstration to dealers and at agricultural fairs, travel expenses and the furnishing of a business building, were all unnecessary for the manufacture' and sale of the minimum number of wheels required to be sold under the oral contract, but that such services were rendered and expenses incurred in furtherance of a long-range selling campaign in order to create a market in excess of the minimum requirements of the contract, and that the minimum requirements thereof could have been supplied by plaintiffs with substantially no expense except for the cost of the materials and cost of manufacture; that plaintiffs have completed arrangements for the manufacture, distribution and sale of the implements in large quantities; that the nation-wide sale and distribution of them is limited only by the supply of iron and steel obtainable for their manufacture; that they have made arrangements and contracts by which they can procure sufficient materials to manufacture at least 1,200 completed machines per year which would require the use of 12,000 of such wheels; that each machine will yield a net profit to plaintiffs of $50 or a total of $60,000, the same being a conservative computation of such profits.
That since the 6th day of July, 1948, plaintiffs have made numerous requests of defendant to supply the written evidence of their oral contract; that at the time of each request defendant has stated to plaintiffs that he had not obtained a certified copy of his patent to file with the clerk of the district court of Osborne county, but that upon each of these occasions defendant has nevertheless requested and demanded of plaintiffs that they go ahead and manufacture and sell the implements in accordance with the provisions of their oral contract, and that plaintiffs have complied with all such requests.
That up until November 1, 1948, plaintiffs manufactured and sold 386 wheels in addition to those manufactured from material originally turned over to them by defendant, and that they now have on hand sufficient completed implements for which they have a ready sale and which will more than cover the minimum requirements of the oral contract for the year 1948; that they are constantly receiving inquiries and orders for implements; have received numerous requests for contracts for dealerships and sales in quantity; that they have interviewed a number of manufacturers of agricultural implements who offer to manufacture them at reasonable prices, but that such dealers, prospective purchasers and manufacturers require that plaintiffs exhibit to them written evidence of their right to manufacture and sell such implements prior to entering into any valid contract to manufacture or act as dealers; that plaintiffs have been unable to procure credit and adequate financing to the proper prosecution of the business without presenting written evidence of their right to proceed, and that without a written contract they will be unable to manufacture and sell implements substantially in excess of the minimum requirements of the oral contract.
That plaintiffs have done and performed everything required of them under the oral contract, but that defendant has wholly failed and refused and still fails and refuses to execute and deliver to them for their execution and retention a written contract embodying the terms and provisions of the oral contract entered into; that they are informed and believe that defendant's attorney did prepare such written contract and delivered it to defendant but that the latter has retained the same and fails and refuses to execute it and furnish plaintiffs with a copy thereof.
That on October 26, 1948, one of the plaintiffs met defendant in Osborne at the office of the latter’s attorney and at that time defendant and his attorney told him that plaintiffs were not big enough to handle the deal; that defendant.wanted to get someone to handle the whole United States; that in lieu of the contract entered into defendant would give plaintiffs a job of hauling and distributing in a small territory, and in effect told him that he, defendant, desired to and would withdraw from any obligation under the contract.
The petition further alleges that during the three months preceding the filing of the action defendant has been attempting and threatening to contract with persons other than plaintiffs for the manufacture, sale and distribution of the implements, including the device patented; that defendant will, unless enjoined, sell to persons other than plaintiffs the exclusive right to manufacture, distribute and sell the implements and his rights under the patent; that such pürported sale would involve plaintiffs in lengthy and expensive litigation in order to obtain an accounting for the profits which would accrue to such other persons, all of which would result in great and irreparable damage and injury to plaintiffs and nullify all benefits which should be derived by them under the rights conferred by the oral contract; that they in good faith offer to comply with every obligation entered into by them under the oral contract; that noncompliance by defendant has caused and will continue to cause them irreparable damage and injury for which they would have no adequate remedy at law, and that defendant should be required to specifically perform his contract — that is to furnish plaintiffs with duly executed written evidence embodying the terms and provisions of the oral contract, to comply with the laws of Kansas for the registration of the patent, and to file an affidavit in connection therewith as required by law, to the end that plaintiffs may proceed to fulfill their obligations under the contract.
For their second cause of action plaintiffs incorporate all allegations of the first cause of action as above set forth, and further pray that in the event specific performance of the oral contract be refused then they recover damages for the nonfulfillment of such contract as follows: For time consumed, service given by, them and their employees and expenses incurred in the furtherance of such project, as set forth in the first cause of action, in the sum of $21,045 over and above the time given, services performed and expenses paid to meet the minimum requirements of the contract; that plaintiffs’ profits, definitely ascertainable for the years 1949 and 1950 in case defendant would in good faith comply with his obligations under the contract, amount to $75,000, and'this cause of action, in the event specific performance be denied, seeks damages in the total sum of $96,045.
For their third cause of action plaintiffs incorporate all of the allegations of the first and second causes of action and further allege that in the event specific performance be denied the benefits to be derived from the manufacture, distribution and sale of such implements, and .the sale of the patent rights, will inure to the sole benefit of defendant, thus conferring upon him through and by means of the efforts of plaintiffs all benefits and profits from the efforts and cash outlay of plaintiffs in creating such market. That defendant will thus reap all the benefits from the service given by plaintiffs, including advertising, demonstrations as well as organization and agreements with manufacturers and distributors, all of the value of $96,045, and will result in the unjust enrichment of defendant to that amount and extent.
The prayer of the petition is that defendant be required specifically to perform his obligations under the oral contract; that he be enjoined from selling or attempting to sell to persons other than plaintiffs any of the rights, title and interest derived by them under the contract; that in the event specific performance be refused then that plaintiffs recover judgment from defendant in the sum of $96,045 as damages and that they have such other and further relief as the court shall deem just and proper in the premises.
The defendant filed a motion to require plaintiffs to make their petition more definite and certain the in following particulars:
1. By setting out in the first cause of action whether the patent or certified copy thereof was recorded in Osborne county, as required by law, or whether it was filed in any office in said county, and if so by setting out what office and the date of filing.
2. By setting out in the first cause of action whether defendant notified plaintiffs or either of them or their attorney that he would not give them an exclusive right to use said patent and if so the date thereof.
3. By setting out what was done by way of advertising and to itemize the expenses claimed for that and all other purposes.
On January 14, 1949, the matter came on for hearing and in open court plaintiffs confessed the first two grounds of this motion whereupon defendant withdrew the third ground.
Thereafter plaintiffs amended the original petition by' alleging that a certified copy of the patent, the same being number 2,228,265, was filed in the office of the clerk of the district court of Osborne county on November 22, 1948, together with an affidavit, the latter being in substantial compliance with the requirements of law, and that it was on or about October 14, 1948, that defendant stated to plaintiff Hazen that he, the defendant, would not give to anyone the exclusive patent right covering said invention.
Following this amendment to the original petition the defendant demurred to each of the three causes of action for the reasons:
“1. That each separate cause of action does not state a cause of action against the defendant.
“2. Each said cause of action shows upon its face that the plaintiffs are barred from recovery by reason of the matters pleaded therein (a) the statutes of the state of Kansas pertaining to the sale or disposal of patent rights; and (b) the statute of frauds.”
This demurrer was by the court overruled in all respects, following which defendant perfected this appeal.
In support of his argument that the demurrer should have been sustained as to each of the three causes of action appellant contends (1) the contract itself is void by virtue of our statutes pertaining to the sale of patent rights; (2) the contract being oral and not being able to be performed within one year is void under the statute of frauds; and (3) if there is any legal obligation whatsoever on the part of defendant the plaintiff has an adequate remedy at law and therefore is not entitled to specific performance.
Sections 57-101 and 103, G. S. 1935, pertaining to patent rights are as follows:
“It shall be unlawful for any person to sell or barter or offer to sell or barter any patent right, or any right which such person shall allege to be a patent right, in any county within this state, without first filing with the clerk of the district court of such county copies of the letters patent duly authenticated, and at the same time swearing or affirming to an affidavit before such clerk that such letters patent are genuine, and have not been revoked or annulled, and that he has full authority to sell or barter the right so patented; which affidavit shall also set forth his name, age, occupation and residence; and if an agent, the name, occupation and residence of his principal. A copy of this affidavit shall be filed in the office of said clerk, and said clerk shall give a copy of said affidavit to the applicant, who shall exhibit the same to any person on demand.” (§ 57-101.)
“Any person who shall sell or barter or offer to sell or barter within this state, or shall take any obligation or promise in writing for a patent right, or for what he may call a patent right, without complying with the requirements of this act, or shall refuse to exhibit the certificate when demanded, shall be deemed guilty of a misdemeanor, and on conviction thereof before any court of competent jurisdiction shall be fined in any sum not exceeding one thousand dollars, or be imprisoned in the jail of the proper county not more than six months, at the discretion of the court or jury trying the same, and shall be liable to the party injured, in a civil action, for any damages sustained.” (§ 57-103.)
The appellant argues that the contract sued on is void between the parties and unenforceable on account of the fact the patent was not recorded as required by law at the time the alleged oral contract was entered into, and he relies on the early case of Mason v. McLeod, 57 Kan. 105, 45 Pac. 76, which held:
“As the purpose of the statute was to prevent and punish fraud, and noncompliance with its provisions declared to be a misdemeanor, contracts made by a vendor of patent-rights in violation of the statute are void as between the parties.” (Syl. IT 2.)
The trouble with appellant’s argument is that in that case it was the vendor of the patent right who was attempting to recover, whereas in the case before us it is the vendee and it is for the protection of a vendee that the statute was enacted. Syllabus ¶ 3 of the Mason case, supra, reads:
“The general rule that courts will not enforce contracts prohibited by statute, or allow the recovery of money or property paid or delivered in pursuance of them, does not apply to vendees of patent-rights for whose protection the statute was enacted.”
And in the opinion it was said:
“More than that, the general rule that courts will not enforce contracts prohibited by statute or allow the recovery of money or property paid or delivered in pursuance of them does not apply to McLeod. He cannot be held to be in pari delicto. The duties prescribed by the statute are imposed upon the vendor of patent-rights, and are provided for the protection of purchasers. The law was not violated by McLeod. It placed no burdens upon him, and, having committed no wrong, he is not precluded from asking and obtaining relief.”
This doctrine has been followed in each of our later cases on the subject, many of which are collected and discussed in Sage v. Oil Country Specialties Mfg. Co., 138 Kan. 501, 27 P. 2d 542. We think this point needs no further discussion for it is certain that the statute placed the burden on defendant rather than plaintiffs, for whose benefit it was enacted. We therefore hold that plaintiffs are not precluded from bringing the action merely because appellant had not complied with the statute at the time the oral agreement was made.
Appellant’s next argument, that the agreement not being in writing is void under the statute of frauds, is based on the premise that since it could not be performed within one year it is therefore void and unenforceable and that performance, as alleged by plaintiffs, does not remove the bar. He further argues that plaintiffs cannot avail themselves of the argument that the oral agreement was merely an agreement to enter into a written agreement, which could be done within a few days, for the reason that by the very terms of the written agreement sought by plaintiffs the same could not be fully performed within one year and cites the general rule laid down in 49 Am. Jur., Statute of Frauds, § 6, p. 368, to the effect that an oral agreement to reduce to writing a contract which is within the scope of the operation of the statute of frauds, or to sign an agreement which the statute of frauds requires to be in writing, is invalid and unenforceable. It is conceded that this is the general rule for otherwise it would be possible to get around the statute and enforce those very agreements which the statute was enacted to prohibit.
But just what was the oral agreement in this case? The appellant promised and agreed to sell to plaintiffs the exclusive rights in the United States, during the life of such patent, to manufacture, sell and distribute the machines and implements in question, in return for which plaintiffs were to pay appellant certain royalties. Appellant further agreed that he would cause the oral agreement to be reduced to writing and to furnish plaintiffs with such written evidence of their rights to manufacture, sell and distribute the implements in question. Naturally this included the obligation and duty on the part of appellant to comply with the patent statute by filing a copy of his letters patent and the affidavit with the proper official. In this connection we note that he did file the copy of letters patent, together with the required affidavit, on the very day he was served with summons in this case, November 22, 1948. Touching appellant’s point of inability of performance within one year, we fail to see how it can be said either the oral contract or the written contract could not be performed within that time — in fact we think that on its face the petition shows that the oral agreement could have been fully performed within a few days, and with reference to the written contract contemplated by the parties it would really and actually be performed the instant it was executed, that is, the sale of the patent right would be completed. It is true that by its terms plaintiffs would be obligated in the future years to make the royalty payments to appellant, but such fact would merely be an incident to a carrying out of its terms. We do not agree with appellant that the contract could not be performed within a year within the meaning of the statute.
There is still another reason why we think the statute of frauds has no application to the facts as pleaded here and that is on the ground of equitable estoppel. In the early case of Rose v. Hayden, 35 Kan. 106, 10 Pac. 554, this court said that the statute of frauds was enacted to prevent fraud, not to foster or encourage it, and that the statute should be enforced in its spirit and not merely as to its letter. This doctrine has been adhered to down through the. years and further citation of authority is unnecessary. In 49 Am. Jur., Statute of Frauds, § 578, p. 885, the general rule is stated:
“The purpose and intent of the statute of frauds is to prevent fraud, and not to aid in its perpetration, and courts, particularly the courts of equity, will, so far as possible, refuse to allow it to be used as a shield to protect fraud, or an instrument whereby to perpetrate a fraud, or other instrument of fraud, wrong, or oppression. On the contrary, the courts will endeavor in every proper way to prevent the use of the statute of frauds as an instrument of fraud or as a shield for a dishonest and unscrupulous person, and under modern theory of practice, what a court of equity would do, law courts, under proper allegations, will no doubt also do. The courts do not tolerate the use of the statute of frauds to enable one to take advantage of his own wrong. As has been said, that principle of law or legislative enactment would be an anomaly which, while attempting to prevent fraud, would become an instrumentality for the perpetration of fraud.”
Here the plaintiffs, in reliance on appellant’s promises and agreement, went ahead and spent a great amount of time, money and effort in furtherance of the project. They have fully performed all duties and obligations incumbent upon them by the terms of the agreement and no valid reason for permitting appellant to take advantage of and rely upon his own breach as a defense has been, advanced — in fact we fail to see any reason in equity and good conscience why appellant should be permitted to hide behind his own wrongdoing and rely upon it as a defense under the facts as pleaded. In our opinion appellant is equitably estopped from relying upon the statute of frauds as a defense.
Appellant’s third contention, that plaintiffs are not entitled to specific performance on account of having an adequate remedy at law, is based on the argument that the statute, § 57-103, swpra, limits the liability of defendant in any event to damages sustained and he relies on the doctrine of expréssio unius est exclusio alterius (the expression of one thing is the exclusion of another), his theory being that since the statute expressly provides for liability in a civil action for damages any and all other forms of relief are excluded. We will not labor the question but it is sufficient to say that such doctrine has no application to the facts of this case if for no other reason than it is not the statute itself which creates the cause of action. The cause of action is created by the breach and nonperformance by appellant of the contract pleaded. While we of course have no way of knowing, and for present purposes are not concerned .with what the proof may show, we cannot hold as an abstract proposition that plaintiffs are precluded from seeking specific performance, and neither are they precluded from pleading in the alternative as they did in the second and third causes of action.
Much more might be said concerning these matters but it would merely extend this already lengthy opinion. We have carefully noted and examined each and every argument and authority advanced by appellant but are convinced the trial court was correct in overruling the demurrer to each of the three causes of action, and the judgment is therefore affirmed. | [
-16,
-23,
-8,
-20,
10,
98,
40,
-102,
97,
-91,
-89,
87,
-87,
83,
21,
17,
127,
61,
80,
106,
-42,
-29,
71,
-118,
-42,
-69,
-39,
-35,
-71,
73,
-92,
80,
77,
52,
-62,
-41,
-29,
-46,
69,
86,
-50,
28,
13,
-19,
-7,
66,
50,
59,
114,
75,
81,
-114,
-13,
36,
29,
-53,
40,
38,
-21,
57,
-7,
-40,
-69,
13,
-67,
18,
48,
2,
-102,
85,
-40,
14,
-120,
57,
1,
-32,
58,
-76,
-122,
-12,
105,
-39,
8,
106,
98,
38,
57,
-49,
-8,
56,
38,
-37,
15,
-90,
19,
88,
98,
105,
-66,
-98,
114,
18,
-115,
118,
-5,
21,
30,
-83,
7,
-113,
-74,
-125,
47,
-14,
-100,
-125,
-21,
-126,
16,
97,
-57,
106,
92,
69,
122,
-105,
-121,
-100
] |
The opinion of the court was delivered by
Price, J.:
This is an appeal from an order of the lower court denying petitioner’s application for a writ of habeas corpus.
The facts, as disclosed by the record before us, are as follows:
Petitioner, a member of the colored race, was convicted of three counts of burglary in Washington county, Mississippi, on February 2, 1946, and was sentenced to confinement in the Mississippi state penitentiary for five years on each count, the sentences to run consecutively. He .was received at the penitentiary on February 9, 1946, and escaped therefrom, on June 20, 1946. While at large he was apprehended and convicted by the federal authorities for draft evasion and sentenced to confinement in the federal penitentiary at Leavenworth, Kan.
In the spring of 1949 the Mississippi authorities, knowing that petitioner was soon to be released from the federal penitentiary, commenced extradition proceedings to return him to Mississippi to complete his sentence. Upon demand from the governor of Mississippi the governor of Kansas issued a governor’s warrant for petitioner on May 17,1949, directed to the sheriff of any county in Kansas commanding such sheriff to apprehend petitioner and deliver him into custody of the duly commissioned agent of the state of Mississippi. As petitioner was released from the federal penitentiary he was taken into custody by respondent sheriff of Leavenworth county for delivery to such authorized agent of the state of Mississippi, whereupon he brought this action in habeas. corpus.
The cause was heard by the district court on May 19, 1949, at which hearing all parties were present and by counsel. The court heard testimony, including that of petitioner himself (and which will be referred to later), and denied the writ.
On appeal, petitioner’s assignments of error are:
“I
“The Court committed prejudicial error as to the rights of the Petitioner in overruling his motion for Continuance.
“II
“The Court erred in denying the Application for Writ of Habeas Corpus.”
With respect to the first contention it is sufficient to say that the record before us is utterly devoid of any showing of newly dis covered evidence or of anything to indicate that petitioner’s rights were in any way prejudiced by the lower court’s denial of his motion for a continuance.
In support of his second proposition petitioner argues:
(1) That the governor’s warrant under which he is being held is void, for the reason that the requisition from the governor of Mississippi and the records in support thereof, are not authenticated under the act of congress as provided by G. S. 60-2853;
(2) That his conviction and sentence in the state court of Mississippi were illegal and void in that he was denied counsel and the right to a trial by jury;
(3) That it is impossible for one of his race to receive a fair trial in Mississippi, and if he is returned there he will be put on a “chain gang.” and will, therefore, be subjected to cruel and unusual punishment, all in violation of his constitutional rights.
The Uniform Criminal Extradition Act (G. S. 1947 Supp. 62-727 to 757) provides its own procedure and nowhere in it do we find any requirement that the records in support of the requisition by the governor of the demanding state be authenticated under the act of congress. Section 729 of the act sets out what the demand must contain and concludes with:
“. . . and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand.”
We have carefully examined the photostatic copies of the court and prison records of the state of Mississippi, certified by the governor thereof to be authentic, and they constitute a proper legal basis for the issuance of the governor’s warrant by the governor of Kansas.
At the hearing in the lower court petitioner testified that he had not had a fair trial in Mississippi; that he was not represented by counsel; that he had not entered a plea of guilty, and that “there was no jury there to try him.”
In opposition to such contention we have before us the photostatic copies of the court records which state that petitioner entered his plea of guilty to each of the three charges preferred against him. Even though we were of the opinion that the alleged irregularities in the Mississippi court were properly before us in this proceeding, yet we have repeatedly held that the records of courts are not to be set aside upon the unsupported statements of a defeated litigant; that in a habeas corpus proceeding where one convicted of crime attacks a judgment under which he has been sentenced on the ground his constitutional rights have been violated, he has the burden of establishing the facts disclosing the violation of such rights by a preponderance of the evidence, and that the unsupported and uncorroborated statements of the petitioner in such a proceeding do not sustain the burden of proof or justify the granting of a writ. Long v. Hudspeth, 164 Kan. 720, 192 P. 2d 169; Sims v. Hudspeth, 166 Kan. 667, 203 P. 2d 129.
Petitioner’s last contention — the one chiefly stressed in his brief and oral argument — that one of his race cannot have a fair trial in the state of Mississippi, and that if he is returned there he will be placed in a “chain gang” — is utterly without foundation in the record before us and will not be discussed. We do not deem it our duty or within our province to speculate concerning such matters with respect to a sister state.
For a detailed discussion of the Uniform Criminal Extradition Act (G. S. 1947 Supp. 62-727 to 757) and its application see our recent decisions in Yaws v. Warden of New Mexico Penitentiary, 166 Kan. 685, 203 P. 2d 742, and Powell v. Turner, 167 Kan. 524, 207 P. 2d 492.
There is really nothing unusual about this case. Petitioner was sentenced by the Mississippi court to fifteen years confinement but escaped after serving a few months of his sentence. While at large he was convicted of a federal offense, .and now, upon his release from the federal penitentiary, the state of Mississippi seeks his extradition in order that he be compelled to serve the remainder of his sentence. On cross-examination at the hearing in the lower court he admitted his identity and that he was an escapee from the Mississippi authorities. Indeed, we are of the opinion that to this case may very appropriately be applied the statement contained in In Re Faler, 144 Kan. 348, 58 P. 2d 1119, where it was said:
“The requisition and accompanying papers being in due form, approved by the attorney general, and honored by the governor of this state, it is difficult to discern why the public authorities of Oklahoma should be hindered by habeas corpus proceedings and the delay of an appeal before the petitioners are returned to that state to answer the criminal charge there lodged against them.”
Petitioner has shown no grounds for the granting of a writ and the judgment of the lower court is therefore affirmed. | [
48,
-24,
-7,
-65,
10,
-31,
11,
58,
82,
-93,
100,
83,
-23,
86,
1,
123,
127,
13,
117,
121,
-50,
-105,
102,
-31,
-14,
-13,
-39,
-43,
51,
127,
-12,
-10,
72,
-16,
-58,
-47,
102,
-64,
-57,
92,
-50,
3,
-71,
-43,
81,
80,
56,
43,
60,
15,
-111,
-97,
-29,
46,
24,
-62,
-23,
40,
-53,
-87,
-56,
-103,
-113,
15,
-39,
4,
-111,
34,
-100,
-123,
112,
62,
-104,
16,
1,
-8,
113,
-90,
-126,
116,
109,
-85,
44,
110,
98,
19,
93,
-18,
-88,
-119,
30,
26,
-107,
-90,
-112,
16,
67,
97,
-106,
-99,
101,
20,
47,
126,
-9,
4,
93,
44,
14,
-114,
-76,
-79,
9,
61,
-122,
-39,
-29,
33,
-16,
112,
-49,
-30,
76,
71,
113,
-101,
-114,
-106
] |
The opinion of the court was delivered by
Arn, J.:
Plantiff below brought this action to recover from the defendants for the drilling of oil wells pursuant to oral contracts, and for lease rentals, labor and equipment, and operation of producing oil wells. The petition contains six causes of action, the first five of which ask payment for the drilling of oil wells and certain expenses in addition thereto. The sixth cause of action seeks recovery for half of the lease rentals allegedly paid by plaintiff on acreage jointly owned by plaintiff and defendants. The prayer was for a money judgment with equitable liens upon defendant Lane’s respective interest, and for an order restraining said defendant from encumbering or disposing of her interest.
The defendant, Ruth B. Lane, filed an answer separately directed at each of plaintiff’s causes of action and a cross petition in two causes of action. Defendant’s answer admits plaintiff drilled many of the wells in question, denied many of plaintiff’s allegations, and claimed she was not indebted to plaintiff in any amount. The cross petition interpleaded Alf M. Landon as a necessary defendant, and he was made a party to this action. The cross petition sought a money judgment against plaintiff, and also prayed that the respective interests of plaintiff, defendant and Landon be determined in and to the properties jointly owned by them and that such properties be sold and the proceeds distributed. Plaintiff’s reply and answer to defendant’s cross petition was a general denial. The trial court sustained a demurrer as to the defendant Julia Cotton, and Landon made no appearance in the court below and is not involved in this appeal.
The journal entry indicates that the trial, which was by jury, consumed four full days. The record before us refers to plaintiff’s exhibits numbered as high as 76. The jury verdict was for defendant and assessed her recovery at $750. Plaintiff’s motion for new trial was overruled and he appealed. The transcript of the evidence obtained by appellant omits all of plaintiff’s evidence offered in his case in chief. It appears also that oral testimony was taken in support of the motion for a new trial, and no transcript was obtained of those proceedings.
The alleged errors on the part of the trial court are specified by appellant as follows:
1. The court erred in. admitting on behalf of appellee, incompetent, irrelevant, immaterial and prejudicial evidence over the objection of the appellant.
2. The court erred in instructions given to the jury.
3. The court erred in the judgment made and entered in this case.
4. That the judgment entered in said case was procured by fraud on the part of appellee.
5. For misconduct on the part of the jury.
6. That the verdict of the jury and judgment of the court are not supported by the evidence in said trial.
7. The court erred in overruling appellant’s motion for new trial.
Before discussing these alleged errors it should be noted that nothing before us indicates there was a stipulation by the parties hereto or their counsel to the effect that any part of the evidence would be unnecessary for a proper examination and consideration of this appeal. In fact,, appellee contends and her counsel argues before this court that a transcript of all the evidence is vital to a determination of this controversy. That being so, we are compelled to follow the general principle announced in Barker v. Chicago, R. I. & P. Rly. Co., 158 Kan. 549, 148 P. 2d 493, as follows:
“Where parties seek appellate review of questions depending solely on the sufficiency of the evidence it is incumbent upon them, in the absence of a stipulation or agreement doing away with its necessity, to procure an official transcript of all the evidence, and when they fail to furnish such transcript, or procure one containing only portions of the testimony, which is challenged as inadequate for an effective review, the evidence will not be reviewed and their appeal will be dismissed.” [Syl.]
See, also, McGuire v. Davis, 95 Kan. 486, 491, 148 Pac. 755; Everett v. Everett, 110 Kan. 442, 204 Pac. 723; Buckwalter v. Henrion, 111 Kan. 781, 208 Pac. 645; Darst v. Swazee, 135 Kan. 458, 11 P. 2d 977; Sproul v. Russell, 135 Kan. 620, 11 P. 2d 978; Farmers State Bank v. Crawford, 140 Kan. 295, 37 P. 2d 14; Mercer v. Kirkwood, 147 Kan. 637, 77 P. 2d 929; Green v. Frank, 148 Kan. 194, 80 P. 2d 1082; Deerhead Township v. Fritz, 152 Kan. 110, 112, 102 P. 2d 1035; Schreiner v. Rothgarn, 154 Kan. 20, 114 P. 2d 834; Kininmonth v. Carson, 156 Kan. 808, 137 P. 2d 173. In Robinson v. Davis, 162 Kan. 44, 46, 174 P. 2d 111, it was held that a transcript of all the evidence adduced at the hearing on a motion for a new trial is necessary in order to show that all trial errors and irregularities were first presented to the trial court before being considered by this court on appeal. Appellant urges a dismissal of this appeal for the reason that no complete transcript of the evidence has been provided, certified and filed with the clerk of the district court as required by G. S. 1935, 60-3311. Since there may be some questions raised by appellant which can be considered upon the record before us, the appeal will not be dismissed as was done in Barker v. Chicago, R. I. & P. Rly. Co., supra, but we will indulge in a discussion of the appellant’s specifications of error quoted above.
The first and sixth specifications so obviously raise issues for which a full and complete transcript of the evidence is necessary for a proper review by this court that those matters cannot be considered without such a transcript. That a full record is necessary to determine whether certain evidence is competent, relevant or material, or to determine whether all the evidence supports the verdict, is too clear for argument. (Hegarty v. Refining Co., 110 Kan. 171, 204 Pac. 144; Readicker v. Denning, 86 Kan. 79, 119 Pac. 533.)
By his specification number two, appellant contends the trial court erred in instructions given to the jury. The court’s instructions are not included in the abstract. This alleged error was not made one of the grounds of appellant’s motion for a new trial, and the instructions cannot be considered here. (Coryell v. Edens, 158 Kan. 771, 772, 150 P. 2d 341; Barnhill v. Ow, 145 Kan. 696, [Syl. ¶ 4], 67 P. 2d 546.) Furthermore, there can be no merit to this contention by appellant because the journal entry of judgment approved by his counsel recites the following:
“Thereupon, all the evidence having been introduced, the Court submits to counsel the instructions in writing to be given to the jury and counsel for respective parties make no objections thereto nor suggest any modification thereof, and the said instructions are then given by the Court to the jury.”
Appellant specifies as a third error that the judgment made and entered by the trial court was erroneous. But the instant appeal was not from the judgment rendered; it was only from the order overruling the motion for new trial. Furthermore, this specification is too broad to have any specific reference to any error, and it presents no real question for review. (Hamilton v. Binger, 162 Kan. 415 [Syl. ¶ 5], 176 P. 2d 553, and cases cited p. 418.)
It is next contended by the fourth specification that the judgment was procured by fraud on the part of the appellee. Here again, the judgment was not appealed from. There was no finding of fraud made by the trial court. Furthermore, the judgment being procured by the corruption of the party obtaining it (the sixth ground for new trial G. S. 1935, 60-3001) is not one of appellant’s grounds for a new trial.
As the fifth specification of error, appellant charges misconduct on the part of the jury, and bases his argument in this respect upon affidavits of three jurors who purport to say they were confused because so many items were introduced in evidence. They say further that they considered a certain credit in favor of defendant-appellee to which appellant contends appellee was not entitled. These affidavits undertake to explain affiants’ reasons for agreeing to the verdict when it was rendered and when the jury was polled. For purposes' of impeaching the verdict, these affidavits are improper. (Henderson v. Deckert, 160 Kan. 386 [Syl. ¶ 4], 162 P. 2d 88, and cases cited p. 392.)
The last of appellant’s specifications complains of the overruling of the motion for new trial. Several of the grounds for this motion were separately stated as specifications of error and have already been discussed. The other grounds urged by appellant are: (1) abuse of discretion by the trial court; (2) accident and surprise which ordinary prudence could not have guarded against; and (3) newly discovered evidence.
Appellant requested permission of the trial court, at the close of the evidence, to file an amended petition to conform to the proof. His request was refused and this is the basis for the present charge that the trial court abused its discretion. That, of course, was a matter within the sound discretion of the trial court and there is no showing, or attempt to show, that such discretion was abused. (Byington v. Comm’rs of Saline Co., 37 Kan. 654 [Syl. ¶ 3], 16 Pac. 105; Board of Education v. Barton County Comm’rs, 144 Kan. 124, 58 P. 2d 40 and cases cited p. 127; Dassler’s Civil Code for Kansas, 2d Ed., p. 365.) And again, without a transcript of plaintiff’s evidence we could not, if constrained to attempt it, determine what portions of the amended petition conformed or did not conform to plaintiff’s proof.
. Appellant contends he was surprised when defendant below introduced her canceled .checks in evidence of payment of certain accounts., ’But nothing was done or said about it until the hearing on the motion for new trial when plaintiff introduced his own affidavit. Appellant (plaintiff) surely could have discovered his dilemma before he finished the trial which included a rather lengthy rebuttal. If then he was unprepared to meet such evidence, he had ample remedy as aptly suggested in Boot and Shoe Co. v. Martin, 45 Kan. 765, 26 Pac. 424, where this court said:
“If a plaintiff finds himself unprepared to meet the defendant’s evidence, he should ask at the trial for time to meet it. Generally this will be allowed upon such terms as may seem just; but if this is not allowed, he always has it in his power to dismiss his action without prejudice, which will leave him at liberty to sue again for the same cause of action. He cannot, as a general rule, be permitted to' take the chances upon the evidence to which he does not object, and, when the judgment is rendered against him, obtain a new trial, simply because he was surprised at the evidence presented.” (Syl. ¶ 3.)
See also Hanson v. Kendt, 94 Kan. 310, 146 Pac. 1190.
A plaintiff may dismiss his action without prejudice any time before final submission to the court or jury (G. S. 1935, 60-3105); and upon such a failure of the action, may refile it within one year thereafter (G. S. 1935, 60-311).
Appellant also contends he had newly discovered evidence material to his cause which could not be produced at the trial. But whether it was “new evidence,” or merely “cumulative,” or whether it would be “repetition” cannot possibly be determined without a full transcript of plaintiff’s evidence — and therefore is not a matter which this court can review.
An examination of the incomplete record before us reveals no error that would justify a reversal of this case. The judgment is affirmed. | [
-16,
104,
113,
-115,
-118,
-32,
42,
-118,
89,
-93,
-25,
23,
-19,
-37,
12,
41,
-6,
93,
85,
107,
87,
-78,
5,
-62,
-14,
-77,
113,
-57,
-80,
79,
-28,
-34,
76,
48,
-54,
-43,
98,
0,
69,
88,
-114,
13,
-103,
-28,
-39,
74,
48,
59,
98,
11,
49,
-114,
-29,
45,
25,
-57,
41,
44,
107,
61,
89,
-16,
-86,
13,
79,
50,
-79,
6,
-100,
65,
-22,
122,
-112,
-80,
1,
-24,
50,
-74,
-58,
116,
43,
-71,
13,
54,
102,
33,
-91,
-19,
-8,
-120,
15,
-2,
-115,
-90,
-14,
16,
107,
96,
-106,
-99,
124,
16,
39,
126,
-20,
-123,
92,
-20,
7,
-49,
-42,
-95,
15,
-30,
-100,
82,
-21,
3,
20,
101,
-51,
-26,
92,
71,
112,
-33,
15,
-110
] |
The opinion of the court was delivered by
Harvey, C. J.:
These appeals grew out of the same general facts, which may be summarized as follows: About 10:00 o’clock a. m. on January 4, 1948, Raymond C. Wright, who was driving his own automobile and who had as passengers riding with him his wife, Ida Lorane Wright, and his two grandsons, Ronald Lee Pizel and Donald Lee Pizel, four-year-old twins, drove across the Rock Island railway tracks near Kanorado and his car was struck by a train, with the result that Raymond C. Wright, Ida Lorane Wright and Ronald Lee Pizel were fatally injured and Donald Lee Pizel was seriously, though not fatally, injured.
On January 27,1948, W. A. Wright was duly appointed and qualified as administrator of the estate of Raymond C. Wright and Ida Lorane Wright. On June 24, 1948, Herbert L. Pizel and Marjorie Pizel, parents of Ronald Lee Pizel and Donald Lee Pizel, filed their petition in the probate court for damages for the wrongful death of Ronald Lee Pizel, in which, among other averments, were allegations tending to show that Raymond C. Wright was guilty of wanton conduct in driving upon the railroad tracks under the circumstances alleged. On the same day they filed a similar petition as next friends and on behalf of Donald Lee Pizel, seeking damages for his injuries. Upon a hearing in the probate court the claims were allowed in whole or in part and the administrator appealed to the district court.
In the district court the administrator filed a motion to disallow the respective claims upon the ground that G. S. 1935, 8-122b prohibits any recovery; that the petitions showed that the respective minors were guests of Raymond C. Wright and that he was not guilty of gross and wanton negligence. The claimants filed a reply to the motion in which they .alleged that G. S. 1935, 8-122b is unconstitutional and void, being in violation of section 18 of the bill of rights of the state of Kansas, and denied that the minors were guests of Raymond C. Wright at the time of the tragedy. In passing upon that motion the court held the statute (G. S. 1935, 8-122b) is not unconstitutional, but further held that the petitions for the demands contained allegations tending to show wantonness of the driver of the car at the time of the tragedy, upon which question there should be a trial by jury.
From this ruling the administrator has appealed, and this is our case No. 37,743. In this court it is conceded that the petition filed in the probate court contains allegations tending to show wanton conduct of Raymond C. Wright at the time he drove over the railroad crossing. But it is pointed out that in the hearing before the probate court testimony was received which tended to counteract those allegations. Counsel for the administrator ask us to consider that evidence as in effect modifying the allegations of the petition to disallow the respective claims upon the hearing of their motions to dismiss the respective claims. We are not justified in doing that. Upon appeal from the probate court the matter is to be tried de novo in the district court. Whether the evidence introduced in probate court will be offered in district court is unknown, and if produced the effect upon the allegations of the petition 'is for the triers of fact in the district court.
The result is that the appeal in our No. 37,743 must be affirmed.
The administrator filed an answer to each petition in which he denied the facts alleged in the petitions tending to show wantonness and alleged that the minor children were guests of the driver, who was not guilty of gross and wanton negligence in the operation of the car, and that claimants had no cause of action by reason of the guest statute. The claimants demurred to the answers on the ground, among others:
“That G. S. 1935, 8-122b, as construed by the Supreme Court of the State of Kansas, is not a valid law but is unconstitutional and void for the reason it violates Section 18 of the Bill of Rights of the Constitution of the State of Kansas, in that it denies one suffering injuries to his person right of recovery by due course of law.”
The demurrers were overruled and claimants have appealed from that ruling in the claim for injuries to Donald Lee Pizel. This constitutes the appeal in our case No. 37,744. The only question involved in the appeal is the constitutionality of G. S. 1935, 8-122b, as construed by this court in view of section 18 of the bill of rights of our constitution.
Section 18 of our bill of rights reads:
“All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
In 1931 our legislature enacted what is commonly known as our guest statute (Chap. 81, Laws 1931), which was embodied in our General Statutes of 1935 as section 8-122b. It reads as follows:
“That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle.”
The statute first came before this court in the case of Stout v. Gallemore, 138 Kan. 385, 26 P. 2d 573, where the court held:
“The effect of our statute (R. S. 1931 Supp. 8-122b) is to relieve the operator of an automobile from liability to his guest resulting from negligence, as the term negligence is distinguished from wantonness.”
Counsel for appellants here contend that in reaching this conclusion we rewrote the phrase “gross and wanton negligence” used in the statute so as to read “wanton conduct,” and in doing so did not correctly interpret the statute. In the opinion we took note of the fact that the phrase “gross and wanton negligence” was not well selected; that in the earlier history of the state our statutes and decisions recognized three classes of negligence — slight, ordinary and gross; that this classification lacked a firm basis, for damages resulting to one injured by the negligence of another were not increased or diminished by the classification into degrees of negligence which caused the injury; that the classification caused much trouble to courts and litigants in attempting to apply the definitions of the different degrees of negligence to the facts of a particular case, and that in harmony with the sounder reasoning and with the leading authorities elsewhere the classification of negligence into degrees was taken out of the law of this state (Railway Co. v. Walters, 78 Kan. 39, 96 Pac. 346), and that due care became and is the sole test, and the lack of due care is negligence. We pointed out also that wanton conduct differs from negligent conduct not in degree but in kind, and cited authorities, including our prior decisions, making that clear. Our purpose was to determine the meaning of the language used in the statute. The words “gross . . . negligence,” standing alone, would mean one thing — lack of due care, inadvertence — while “wanton” conduct would mean something entirely different, an intentional act performed with knowledge that it would likely cause injury or damage to someone and with utter disregard of the consequences. If the legislature by the use of the words “gross negligence” meant lack of due care, the statute made no change in our law, for before its enactment the host was liable to the guest for injuries resulting from lack of due care. By the use of the word “wanton” in the phrase “gross and wanton negligence,” the legislature intended to change the existing rule of liability of a host to his guest. Considering the statute as a whole, clearly that was the legislative purpose, and the effect to be given to the statute was only by interpreting it as we did.
We call particular attention to the Michigan guest statute (Chap. 19, Public Acts 1929), the pertinent portions of which read:
“That no person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action .is brought.” (pp. 278, 279.)
In Grabowski v. Seyler, 261 Mich. 473, 246 N. W. 189, dealing with a case which arose under the statute, the court used this language:
“The term ‘gross negligence’ prescribes no standard of conduct. There are no degrees of negligence in this State. . . .
“In this jurisdiction there is no such thing as gross negligence in the sense of great or much negligence. (Citations.) The term ‘gross negligence,’ as employed in this statute, does not mean something of less degree than_ wilful and wanton misconduct.”
Citing Oxenger v. Ward, 256 Mich. 499, 240 N. W. 55, where the court analyzed the meaning of the term “gross negligence,” citing many earlier Michigan cases.
Under a similarly worded guest statute the supreme court of South Dakota, in Melby v. Anderson, 64 S. D. 249, 266 N. W. 135, 137, followed this interpretation under the guest statute of that state, which was the same as that of Minnesota, and cited our case of Stout v. Gallemore, 138 Kan. 385, 26 P. 2d 573. A similar question arose in the case of Silver v. Silver, 108 Conn. 371, 143 A. 240, where the court was required to interpret the guest statute of that state, the first portion of which reads like ours, but the latter part reads as follows:
. . unless such accident shall have been intentional on the part of said owner or operator or caused by his heedlessness or his reckless disregard of the rights of others.”
The court said:
“It is the contention of the plaintiff that the statute effects no change in the liability of the owner or operator to- his guest, and that the former is still liable if the accident is caused by his ‘heedlessness’ which the plaintiff claims is the equivalent in meaning of carelessness or negligence. She further claims that, if the statute should be construed as exempting from liability for ordinary negligence, it would then be unconstitutional because it is an unjust discrimination between persons of the same class. The word ‘heedlessness’ signifies a failure to take heed and is a synonym of carelessness. Standing by itself it connotes a lack of care substantially identical with that indicated by the word negligence. The question for our consideration, however, is not the meaning of a single word in an abstract sense, but its meaning with due regard to its context and the meaning of the entire phrase or sentence in which it appears. We must assume that the Legislature was familiar with the decisions of this court permitting a recovery by a guest in an automobile for injuries resulting from the negligence of the owner or operator, and that when it undertook to legislate upon that subject it was with the purpose of making some change in the existing law. Stamford v. Stamford, 107 Conn. 596, 606, 141 A. 891, 895. Such purpose is pretty clearly indicated in the title of the Act and in the first clause of the first section which provides that no guest shall have a cause of action against the owner or operator of the car in case of accident. Then follows a statement of the exceptions to the general rule— . . .
“If the phrase ‘or caused by his heedlessness’ is to be taken as strictly disjunctive as by itself constituting an exception to the general rule of non-liability, and ‘heedlessness’ is held to be synonymous with ‘negligence,’ the entire statute is nugatory and effects no change whatever in the law as it existed before its enactment. We do not think that is a sensible construction of the statute. It would utterly fail to effectuate the obvious purpose of the legislature in some way to limit the liability of the' owner or operator of a motor vehicle to one who was riding in it as his guest. The language of the statute indicates an intention to limit such liability to two classes of cases, first, when the accident was caused by intentional misconduct, and second, when it was caused by heedless or reckless disregard of the rights of others, meaning thereby something more than the mere failure to’ exercise the care of a reasonably prudent man which is the familiar definition of negligence.”
Perhaps similar questions for interpretation of the wording of the guest statute arose in other states, but our time is not sufficient to enable us to examine all of the cases to see if such a question was presented. We are satisfied with our interpretation of the statute upon this point in Stout v. Gallemore, supra.
This construction given to the statute has been followed and approved by our court in the following cases: Sayre v. Malcom, 139 Kan. 378, 379, 31 P. 2d 8; Ewing v. Edwards, 140 Kan. 325, 36 P. 2d 1021; Aduddell v. Brighton, 141 Kan. 617, 619, 42 P. 2d 555; Anderson v. Anderson, 142 Kan. 463, 465, 50 P. 2d 995; Donelan v. Wright, 148 Kan. 287, 290, 81 P. 2d 50; Leabo v. Willett, 162 Kan. 236, 238, 175 P. 2d 109; Srajer v. Schwartzman, 164 Kan. 241, 247, 188 P. 2d 971.
Our case has been cited and approved upon this point in Perkins v. Roberts, 272 Mich. 545, 262 N. W. 305; Melby v. Anderson, 64 S. D. 249, 266 N. W. 135, 137; Gallegher v. Davis and Law, 37 Del. 380 (7 Harr. 380), 183 A. 620, 622, and in Stevers v. Walker, 233 Mo. App. 636, 125 S. W. 2d 920, in a case involving our guest statute.
See, 60 C. J. S., title Motor Vehicles (p. 991), § 399 (3), where the various guest statutes, including our statute, are discussed. See, also, 38 Am. Jur., title Negligence, § 48, dealing with willful and wanton acts, and authorities there cited.
Counsel for appellant contend that our guest statute, previously set out herein, is unconstitutional in that it violates section 18 of our bill of rights, previously set out herein. The same question was raised in Silver v. Silver, 108 Conn. 371, 376, 143 A. 240, where in the opinion the court said:
“The plaintiff contends that the statute, if thus construed, denies to guest in motor vehicles the equal protection of the laws and therefore violates constitutional guaranties.”
Section 12 of the declaration of rights of the Connecticut constitution reads:
“All courts shall be open, and every person, for an injury done him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”
The court did not specifically mention this provision of the constitution, nor did it specifically mention the fourteenth amendment to the federal constitution, but there is no reason to say that both of them were not considered. The court went ahead to say:
“Legislation under the police power of the States is not confined to public health, safety or morality, but may extend to matters in the interest of the public welfare or convenience. (Citations.) . . . The legislative depart ment is the judge, within reasonable limits, to determine what public convenience and public welfare require, and the wisdom of its legislation is not the concern of the courts. It is our duty to sustain an Act unless its invalidity is in our judgment beyond a reasonable doubt. (Citations.) That the State may under the police power regulate travel upon the public highways cannot be doubted. (Citations.) This includes the power to regulate the use of motor vehicles. (Citations.) ‘That the regulation of motor vehicles and motor vehicle traffic is a proper subject for legislative action under the police power is not questioned.’ (Citations.) Ever since motor vehicles have come into general use they have been classified separately from horse-drawn vehicles and the power of the legislature to impose upon their owners and operators duties not placed upon others has been generally upheld. (Citations.) The plaintiff’s contention is that the statute makes an unreasonable classification between the guest in an automobile and the guest in any other mode of conveyance or in any other place, thus depriving him of the equal protection of the law. Assuming, as we must, the power of the legislature to regulate the operation of motor vehicles, that includes the power to enact legislation affecting the reciprocal rights and duties of all who use them, owners, operators or occupants, when these rights and duties arise out of such operation. The duty which the owner or operator owes to his guest in the operation of the automobile being a legitimate subject-matter of legislation, the guest is not deprived of the equal protection of the law because that duty is made to vary from that owed to a house guest or a guest in some other mode of conveyance. The basis of the classification is the automobile, and the Act affects alike all those who may elect to be transported in it as guests of its owner or operator. This classification is within the wide range of discretion which the legislature has, since it has a fair and substantial relation to the object of the legislation, which is the conti’ol or regulation of automobile traffic upon our public highways. (Citations.) Primarily the question of classification is for the legislature and the courts will not interfere unless the classification is clearly unreasonable. . . .
“The statute imposes upon the owner or operator of a motor vehicle a different degree of care toward a guest than he is required at common law to exercise toward a passenger who pays for his transportation. Such a distinction between the duty imposed in the case of the gratuitous performance of services and the performance of them for hire is to be found running through many fields of the law. ... In some jurisdictions it is held that the owner or operator of a motor vehicle is liable to a guest only in the case of gross negligence, in analogy to the rule prevailing in the case of a gratuitous bailment of goods. (Citations.) There is inherent justice in the requirement that one who undertakes to perform a duty gratuitously should not be under the same measure of obligation as one who enters upon the same undertaking for pay, and the reason for a distinction between the measure of liability in the case of a gratuitous bailment and gratuitous transportation is not obvious. It seems to us that the legislature was acting well within the limits of the police power in making a distinction between the degree of care to be exercised by the owner or operator of a motor vehicle toward a guest and that to be exercised toward one who pays for his transportation. . .
The court held the statute valid as containing no constitutional infirmities.
The case was appealed to the supreme court (280 U. S. 117, 50 S. Ct. 57, 74 L. ed. 221), where, in an opinion by Mr. Justice Stone, the judgment of the state court was affirmed. The pertinent head notes read:
“The Constitution does not forbid the abolition of old rights recognized by the common law, to attain a permissible legislative object.
“A state statute providing that no person carried gratuitously as a guest in an automobile may recover from the owner or operator for injuries caused by its negligent operation, is not in conflict with the equal protection clause of the Fourteenth Amendment because of the distinction it makes between passengers so carried in automobiles and those in other classes of vehicles.
“A statutory classification may not be declared forbidden as arbitrary unless grounds for the distinction are plainly absent.
“Conspicuous abuses, such as the multiplicity of suits growing out of the gratuitous carriage of passengers in automobiles, may be regulated by the legislature without regulating other like, but less conspicuous, examples.”
In the opinion the court limited its review to the single question arising under the federal constitution and said:
“We need not, therefore, elaborate the rule that the Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object.”
In support of the statement the court cited four cases: Pizitz Co. v. Yeldell, 274 U. S. 112, 47 S. Ct. 509, 71 L. ed. 952, where the head note reads:
“A state law allowing punitive damages to be assessed in actions against employers for deaths caused by negligence of their employees — the object of the statute being to prevent negligent destruction of human life — does not violate the due process clause of the Fourteenth Amendment.”
In New York Central R. R. Co. v. White, 243 U. S. 188, 37 S. Ct. 247, 61 L. ed. 667, sustaining the validity of the New York workmen’s compensation law, where the pertinent head note reads:
“The common-law rules respecting the rights and liabilities of employer and employee in accident cases, viz., negligence, assumption of risk, contributory negligence, fellow-servant doctrine, as rules defining legal duty and guiding future conduct, may be altered by state legislation, and even set aside entirely • — at least if some reasonably just substitute be provided.
“Since the matter of compensation for disability or death incurred in the course of hazardous employment is of direct interest to the public as a matter affecting the common welfare, the liberty of employer and employee to agree upon such compensation as part of the terms of employment is subject to be restricted by the state police power.
“The denial by a State of trial by jury is not inconsistent with due process of law, within the meaning of the Fourteenth Amendment.”
On page 198 the court had occasion to say:
“No person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit.” (Citing Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77, and other cases.)
Also cited is Mountain Timber Co v. Washington, 243 U. S. 219, 37 S. Ct. 260, 61 L. ed. 685, sustaining upon similar grounds the workmen’s compensation act of the state of Washington.
And, also, Wilmington Mining Co. v. Fulton, 205 U. S. 60, 27 S. Ct. 412, 51 L. ed. 708, sustaining a similar mining statute of 1899. The pertinent syllabus reads:
“It is within the power of the State to change or modify, in accord with its conceptions of public policy, the principles of the common law in regard to the relation of master and servant; and, in cases within the proper scope of the police power, to impose upon the master liability for the willful act of his employe.”
In Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77, sustaining a statute of the state of Illinois which fixed maximum charges for the storage of grain in public warehouses within the state, the head note here pertinent reads:
“Under the powers inherent in every sovereignty, a government may regulate the conduct of its citizens toward each other, and, when necessary for the public good, the manner in which each shall use his own property.”
In the opinion (p. 134) the court used the following language:
“But a mere common-law regulation of trade or business may be changed by statute. A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances. . . .”
Prompted by the last quoted sentence we take note of the fact that in our session laws enacted at any session of our legislature, aside from appropriation measures, the “new” statutes are nothing more than a modification of previously existing rules of law. The instances are rare when this is not true. In fact, any statute, and most other rules of law, have the effect of drawing a line through some human rights or activities, and to say that the law applies on one side and not on the other. The design of each of them is to be of some benefit to the people. Sometimes a line so drawn so nearly fits the rights or needs of the people that it will be unchanged for many years. At other times, almost as soon as it is attempted to be applied, modifications of it in the public interest will suggest themselves, with the result that “new” statutes will be enacted by the legislature. These changes in our laws record the thought of the lawmakers as to the wants and needs of the people at the time of their enactment. This is true whether they apply to statutes previously enacted in the state or whether they apply to rules of common law. Indeed, our statute pertaining to the applicability of the common law in this state (G. S. 1935, 77-109) reads:
“The common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the General Statutes of this state”; and the statutes shall be liberally construed to promote their object.
So it cannot be said that the common law cannot be modified by statute when the law-making body deems such a modification to be necessary or proper. Indeed, we are accustomed to speak of such changes as a matter of course. While many examples of that could be given we mention only a late one. (See State Highway Comm. v. Stadler, 158 Kan. 289, 292, 148 P. 2d 296.)
Guest statutes similar to our own have been enacted in many states. Cases construing many of them are collected and commented upon in 111 A. L. R. 1011. We shall not attempt to comment on these numerous cases. A relatively late one, sustaining the guest statute of Illinois, is Clarke v. Storchak, 384 Ill. 564, 52 N. E. 2d 229; appeal dismissed 322 U. S. 713, 64 S. Ct. 1270, 88 L. ed. 1555. It discusses and answers all the questions raised by counsel for appellant here, and others. Counsel for appellant cite Stewart v. Houk et al., 127 Or. 589, 271 Pac. 998, where the court held void the first guest statute of Oregon (Chap. 342, Laws 1927), which denied the right of a guest to any relief without regard to the cause. But in 1929 the legislature of Oregon passed a new guest law which provided that the guest should not have a cause of action against the owner or operator for injury, death or loss in case of accident, "unless such accident shall have been intentional on the part of said owner or operator or caused by his gross negligence or intoxication or his reckless disregard of the rights of others.” This statute was held constitutional by the supreme court of Oregon in the case of Perozzi v. Ganiere, 149 Or. 330, 40 P. 2d 1009, which reviewed and followed many of the other cases.
Counsel for appellant also cite Ludwig v. Johnson, 243 Ky. 533, 49 S. W. 2d 347, holding invalid the guest statute of that state, and allowed no cause of action against the owner or operator for any injuries received, death or loss sustained in case of accident, “unless such accident shall have resulted from an intentional act on the part of said owner or operator.” The constitution of Kentucky contains a section substantially the same as section 18 of our Bill of Rights, and another section which reads:
“The general assembly shall have no power to limit the amount recovered for injuries resulting in death, or for injuries to person or property.”
And also a section which reads:
“Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same.”
The court (two justices dissenting) held the statute to be in violation of the constitution of Kentucky. The decision may be justified for the reasons stated, but although it is referred to in a number of other cases it has not been held controlling in any of them because their constitutions did not specifically prohibit the legislature from passing acts relieving one from liability for negligence. Our constitution contains no provision so limiting our legislature.
Counsel for appellant cite and rely heavily upon Hanson v. Krehbiel, 68 Kan. 670, 75 Pac. 1041. In that case the court held invalid Chap. 249, Laws 1901, which, under the circumstances, stated, permitted recovery in an action against any publication for libel to what plaintiff might show he has suffered in respect to his property, business, trade, profession or occupation, and no other damages whatsoever. The effect of the statute was construed to be that in a publication of matter which is libelous per se, which subjected one to disgrace, ridicule or contempt, there could be no recovery. The court held the statute in violation of section 18 of our Bill of Rights. We first note there is no suggestion in that case that the statute might be sustained under the police power of the state, nor were any facts stated justifying such a holding. The case has never been cited by this court upon that point.
In Coleman v. MacLennan, 78 Kan. 711, at page 722, 98 Pac. 281, after quoting section 18 of our bill of rights, this language was used:
“It is very clear that these words cannot, however, be given unlimited signification and force in all cases. Where the public welfare is concerned the individual must frequently endure injury to his reputation without remedy. In some states an overmastering duty obliges a person to speak, although his words bring another into disrepute. Such is the case of a witness testifying to relevant facts in court. . . .”
In Cooper v. Seaverns, 81 Kan. 267, 105 Pac. 509, the rule of the common law, that spoken words imputing unchastity to a female are not actionable without allegation and proof of special damages, is not in harmony with the law of this state and will not be followed.
And G. S. 1935, 21-2406, reads:
“In all indictments or prosecutions for libel, the jury, after having received the direction of the court, shall have the right to determine, at their discretion, the law and the fact.”
We are of the opinion that the slander and libel cases are not in point.
Counsel for appellant cite Jones v. Railway Co., 98 Kan. 133, 157 Pac. 399, which had to do with our statute (now G. S. 1935, 66-275), requiring railroads to carry passengers above the age of fifteen years upon all freight trains to which a caboose is attached, with the provision that on such trains the railroad companies shall only be liable for their gross negligence, which opinion was handed down in 1916, by showing this court recognized “gross negligence” after degrees of negligence had been abolished by judicial decree in the case of Railway Co. v. Walters, 78 Kan. 39, 96 Pac. 346, which was decided in 1908. We do not regard this as being of importance. The Jones case is really an authority to sustain the power of the legislature to limit the liability of a railroad company toward its passengers, which would exist without such a statute (see cases cited, p. 135, and G. S. 1935, 66-234), because of the particular mode of travel.
We need not write extensively upon the police power of the state. A good treatise upon that subject is found in 16 C. J. S. 537 to 578, also in 11 Am. Jur. 966 to 1092.
If, under the common law, plaintiff, a child four years of age in January, 1948, would have had any cause of action against his grandparents, in whose custody he had been placed by his parents, for damages resulting from their negligence — a fact which we do not determine since it was not presented to and ruled upon by the trial court nor argued here — the above authorities show he had no vested right in such cause of action as would prevent the legislature, acting under the police power of the state, from removing it, in 1931, by G. S. 1935, 8-122b.
We find no error in the ruling of the trial court from which the appeal was taken in our No. 37,744 and its judgment, therefore, is affirmed. "
Smith, J., dissenting from syllabus 3. | [
-16,
72,
-4,
-98,
25,
98,
26,
26,
83,
-9,
-89,
83,
-81,
-49,
5,
61,
123,
61,
81,
123,
-15,
-77,
86,
-96,
-110,
-77,
-5,
-51,
-73,
-55,
102,
-13,
76,
96,
10,
-107,
-26,
72,
69,
20,
-50,
4,
41,
-32,
25,
18,
54,
122,
22,
30,
-75,
-114,
-13,
42,
30,
-29,
-120,
44,
91,
-87,
-111,
56,
-54,
7,
-2,
18,
-127,
0,
-102,
-123,
80,
27,
-104,
52,
48,
-20,
51,
-78,
-122,
-4,
111,
-119,
12,
-90,
103,
32,
29,
-17,
-88,
-104,
6,
54,
13,
-89,
-66,
89,
32,
65,
-66,
-97,
117,
112,
47,
124,
-1,
6,
76,
56,
-124,
-53,
-74,
-127,
-25,
48,
-114,
2,
-21,
-123,
38,
113,
-40,
54,
93,
71,
49,
-69,
22,
-106
] |
The opinion of the court was delivered by
Price, J.:
The question we have here pertains to the right of a widow and minor children of a deceased owner of a damaged automobile to bring an action in their individual capacities to recover for the damage done to the automobile in a collision alleged to have been caused by the negligence of one of the defendants.
On the evening of November 26, 1946, in the outskirts of the city of Russell, one Fowler, a resident of Russell county, while driving his own automobile, crashed into a truck owned and operated by defendant Mohl, which at the time was being used to move a house down the highway. Fowler’s car was demolished and he sustained injuries from which he died a few days later. He died intestate, leaving his widow, Alice, and three minor children surviving him as his only heirs at law. No administration was had on his estate and no legal guardian was appointed for the person or estate of the minors.
In January, 1948, more than one year after his death, his widow, in her individual capacity, and the minors, by her as their mother, natural guardian and next friend, brought suit against defendant Mohl and his insurance carrier to recover damages for the destruction of decedent’s automobile, alleging certain acts of negligence on the part of Mohl, which for our purposes, however, are immaterial and will not be narrated.
Following the lower court’s order sustaining defendants’ motion to strike certain allegations of the petition, each of the defendants filed a separate demurrer on the ground, among others:
“5. That the plaintiffs have no legal capacity to sue
The demurrers were sustained on this ground — the lower court being of the opinion that while there was no question the cause of aption survived — yet it survived to the personal representative of the deceased and not to his heirs or distributees.
From that ruling and from the ruling on the motion to strike the widow and minor children have appealed, and the only question is— to whom did the cause of action survive — that is, who is entitled to bring this lawsuit?
Appellants’ attack upon the lower court’s ruling is based upon the proposition that:
1. The cause of action survived the death of the owner, citing G. S. 1945 Supp. 60-3201.
2. In any event the automobile passed to them as exempt property under the provisions of G. S. 1945 Supp. 59-403, and an administrator, if one had been appointed, would have had no right of ownership in it.
3. More than one year had elapsed since the death of decedent, hence no claims could be filed against his estate and there was no necessity for administration thereon.
4. Under the provisions of G. S. 1945 Supp. 59-2250, the district court had power and jurisdiction to determine descent (and therefore ownership of the automobile in question) in any proper proceeding; and
5. Therefore they are the real parties in interest and are entitled to bring the action.
By the provisions of G. S. 1945 Supp. 60-3201, there can be no question but that the cause of action survived the death of the decedent. This section in part provides:
“In addition to the causes of action which survive at common law, causes of action for .... an injury to . . . personal estate, . . . shall also survive ; and the action may be brought notwithstanding the death of the person entitled or liable to the same.”
See, also, the case of Wright v. Smith, 136 Kan. 205, 14 P. 2d 640, in which it was specifically held that a right of action for causing the destruction of an automobile survives the death of its owner and likewise survives the death of the person causing its destruction.
The petition alleged the automobile to be the only automobile owned by decedent at the time of his death, and appellants’ second point is based upon the provisions of G. S. 1945 Supp. 59-403, having to do with homestead and family allowance rights, the material portion of which reads:
“When a resident of the state dies, testate or intestate, the surviving spouse shall be allowed, for the benefit of such spouse and the decedent’s minor chil dren . . . from the personal property of which the decedent was possessed or to which he was entitled at the time of death, the following: . . . one automobile, . .
G. S. 1945 Supp. 59-2250, provides for the determination of descent in certain cases by a proceeding in the probate court and concludes with:
“Provided, Nothing in this act shall be construed to divest district courts of power to determine descent in any proper proceeding.”
As a practical matter it may be conceded that under the family allowance statute, supra, upon the death of decedent his widow and minor children acquired a right to the possesson and use of the automobile superior to the right of any general creditor of the estate, and in that sense of the word she thus became the “owner” of it for the use of herself and the minor children.
Also, it may be conceded there are instances in which the district court possesses original jurisdiction to determine descent, as was held in Bryson v. Phillips, 164 Kan. 529, 190 P. 2d 876.
But we are not primarily concerned with the question of ownership of the automobile or the question of jurisdiction of the district court to determine descent and ownership — the question is — who is entitled to bring the action?
G. S. 1935, 60-401, provides:
“Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 27 [60-403], but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract.”
This is a tort action, based on the alleged negligence of one of the defendant appellees. On the day of the accident the car was owned by Fowler. He thus had a cause of action against the alleged tortfeasor. His rights, however, were nonassignable under the statute because they did not arise out of contract. See, also, St. Paul Fire & Marine Ins. Co. v. Bender, 153 Kan. 752, 113 P. 2d 1062, and Old Colony Ins. Co. v. Kansas Public Ser. Co., 154 Kan. 643, 121 P. 2d 193, 138 A. L. R. 1166, which hold that a right of action for damages resulting from a tort is not assignable and such assignment confers on the assignee no right of action maintainable in his own name against the tort-feasor. In other words, prior to his death Fowler could not have assigned his rights against defendant appellees to another so as to enable such assignee to bring an action to recover for the damage to the automobile. How then, in the face of the statute, can it be said his death effected such an assignment as to enable his heirs to bring the action?
While we are primarily concerned with the survivor rather than the revivor provisions of the code, yet resort to the latter throws light on the question. Suppose Eowler himself had brought suit on this cause of action and then died, prior to final adjudication. In whose name could the action be revived? G. S. 1935, 60-3212, provides :
“Upon the death of the plaintiff in an action, it may be revived in the names of his representatives, to whom his right has passed. When his right has passed to his personal representatives, the revivor shall be in their names; where it has passed to his heirs or devisees, who could support the action if brought anew, the revivor may be in their names.”
It is clear that under the statute an action can be revived in the name of the heirs or devisees of a deceased plaintiff only when the right has passed to them and when they could maintain the action if brought anew. An examination of all the survivor and revivor provisions of the code makes it clear that in the absence of statutory sanction favoring the heirs, devisees or legatees, a light of action survives to, or is to be revived in the name of, the personal representative of the deceased. An illustration of such express statutory authority is to be found in G. S. 1935, 60-3204, which provides that where no personal representative has been appointed an action under the wrongful death statute may be brought by the widow, or where there is no widow by the next of kin of the deceased. We find no such statute covering the subject matter of the case at hand.
This is in accord with the general rule laid down in 18 C. J., Descent and Distribution, § 136, p. 880, where it is said:
“As a general rule the title to all choses in action belonging to an intestate at the time of his death vests, not in his heirs or distributees, but in his administrator, and actions to enforce or collect the same must be brought by him, rather than by the heirs or distributees.”
See, also, 33 C. J. S., Executors and Administrators, § 100, pp. 1054 and 1055, where the rule is thus stated:
“All debts, claims, rights, choses in action, and surviving rights of action of decedent, of every kind, reducible to money, vest in the executor or administrator, to be collected or sued on or transferred for the benefit of the estate, so that, in the absence of some default, fraud, or refusal to act on the part of the personal representative, an heir ordinarily cannot sue on rights of action belonging to the estate. . . . The representative also becomes invested with the general rights of action pertaining to personal property, including a right of action to recover personal property, or for injuries to such property;
In conclusion, we hold that while the cause of action in this case survived the death of the decedent — it survived to his personal representative — not to his heirs, and the latter cannot maintain the action. It therefore becomes unnecessary to discuss the other matters contained in the briefs with reference to the allegations of negligence and the ruling on the motion to strike portions of the petition.
The judgment of the lower court is affirmed. | [
-16,
108,
116,
-100,
27,
-30,
10,
90,
119,
-57,
37,
-45,
-21,
67,
17,
109,
126,
41,
81,
43,
-9,
-73,
87,
-78,
-37,
-125,
-87,
-52,
-78,
-55,
124,
-41,
76,
32,
10,
-43,
-26,
-54,
-59,
52,
78,
4,
-103,
-19,
89,
-46,
48,
123,
86,
15,
-47,
-113,
-29,
46,
57,
-29,
41,
40,
91,
-71,
-64,
-80,
-114,
-115,
-49,
3,
-79,
2,
-98,
-91,
120,
26,
24,
57,
-88,
-20,
114,
-90,
-126,
116,
105,
-119,
8,
114,
103,
3,
45,
-27,
-8,
-104,
6,
-93,
47,
-122,
46,
88,
1,
1,
-65,
-99,
121,
48,
15,
126,
-2,
77,
92,
40,
5,
-113,
-74,
-79,
-25,
40,
28,
2,
-21,
-117,
34,
113,
-55,
126,
85,
71,
95,
-111,
71,
-104
] |
The opinion of the court was delivered by
VALENTINE, J.:
This was an action brought by John Tucker, in the name of “ Margaret Birdzell, by John Tucker, her guardian,” against Caleb J. Birdzell, to obtain a divorce on the part of Margaret Birdzell, an insane woman, from her husband, Caleb J. Birdzell, and for alimony. The case was tried before the court, without a jury, and the court refused to grant the divorce for the reason that it deemed itself powerless to grant a divorce to an insane person, but granted the alimony for the gross amount of $5,000, and decreed that the same should be a lien upon the homestead of the plaintiff and the defendant. The court also decreed that the homestead should be sold to satisfy the judgment for alimony, and that a general execution might afterward be issued against the property generally of the defendant to satisfy any remainder that might still be due upon the judgment; and decreed that said allowance of $5,000 should be in full of all claims that might ever be made by the plaintiff upon the defendant or upon his estate. After this judgment was rendered, and after a motion for a new trial was made and overruled, the defendant, as plaintiff in error, brought the case to this court, and he now asks for a reversal of such judgment.
Several questions are presented to this court, but we think a decision of the first and principal question in the case will render it unnecessary to consider or decide any of the other questions raised. Such first and principal question is, whether an action for divorce and alimony, or for alimony alone, can be brought and maintained by the guardian of an insane woman. It seems to be almost admitted by counsel for the defendant in error, plaintiff below, that the action for divorce cannot be maintained; but such counsel still insists that an action for alimony can be maintained. It seems, however, clear to us that both actions must be placed in the same category. We shall consider the question with reference to divorce first.
Marriage is a personal status and relation assumed for the joint lives of the parties, and can never be created or brought into existence except with the free and voluntary consent of the parties assuming the same, and it can never be dissolved or destroyed while both parties are living, so as to affect an innocent party thereto, except for a grievous and essential wrong committed against such relation by the other party, and with the free and voluntary consent, and indeed with the active and affirmative volition, of the wronged and innocent party. In other words, the marriage status and relation of an insane person, who has given no cause for a divorce, cannot be dissolved or abrogated at all, for it cannot be dissolved or abrogated except with the voluntary consent of such insane person, and such insane person is incapable of giving any consent to such a dissolution or abrogation. How could a guardian conduct the mind of his insane ward through the ceremony that would make him or her a husband or wife, or how could he conduct such mind through a litigation that would undo the marriage relation? Marriage might be ever so beneficial to the ward, financially or otherwise, but as it depends upon the intelligent volition of the party to be married, the guardian could not effect it; or if it existed, he could not inaugurate and conduct a proceeding that would destroy it. There are no wrongs that may be committed by a husband or wife sufficient in and of themselves to work a dissolution of the marital ties. The injured party may be willing to condone the wrong,, or, for reasons satisfactory to himself or herself, may desire to continue the marriage relation, notwithstanding the wrong. In the present case, some of the wrongs charged against the defendant existed prior to the insanity of the plaintiff. Can the guardian say that she did not condone them ? Many per sons believe that marriage is a sacrament, and that to procure a divorce upon any of the ordinary grounds for which divorces are usually granted is a violation of all true religion and morality. Should such a person be divorced, though innocent himself or herself, without his or her consent? And could a guardian for such a person, if he or she should become insane, give the necessary and required consent? Besides, insanity is often temporary; and what if such insane person should become restored to sanity immediately after the divorce, and should disapprove the divorce and all the proceedings connected therewith? Whether a party who is entitled to a divorce shall commence proceedings to procure the same, or not, is a personal matter resting solely with the injured party, and it requires an intelligent election on the part of such party to commence the proceedings, and such an election cannot be had from an insane person. As sustaining the foregoing views, we refer to the following authorities: Worthy v. Worthy, 36 Ga. 45; Bradford v. Abend, 89 Ill. 78; 2 Bishop on Marriage and Divorce, § 306a; also, § 641 of the civil code provides, that “the petition (for a divorce) must be verified as true by the affidavit of the plaintiff.” An agent, or attorney, •or guardian, is not mentioned. (See Baker v. Knickerbocker, 25 Kas. 290.) Also, both parties are allowed to testify in ■divorce cases. (Laws of 1871, ch. 116, § 6; Comp. Laws of 1879, ch. 80, § 651a.)
We now come to the question of alimony. May the guardian of an insane wife commence and maintain an action against the husband for alimony? There is no statute in this state that in terms authorizes any such thing, and we think the implications of the statutes are all against it. Alimony may be allowed as an incident to a divorce, or it may be allowed in a separate action and without a divorce. What we have already said in this opinion with reference to divorce will dispose of the question as to whether the alimony may be granted as an incident thereto. We shall now proceed to consider the question whether it may be granted without a divorce. The statute providing for alimony without a divorce reads as follows :
“ Sec. 649. The wife may obtain alimony from the husband without a divorce, in an action brought for that purpose in the district court, for any of the causes for which a divorce may be granted. The husband may make the same defense to such action as he might to an action for a divorce, and may, for sufficient cause, obtain a divorce from the wife in such action.” (Civil Code, §649.)
It will be seen that alimony without a divorce may be obtained only for the same causes for which a divorce may be obtained. Now we have just held that an insane woman cannot obtain a divorce, for the reason that she cannot exercise her choice or election to do so; and that her guardian cannot do so for her. The statute also provides that “ the husband may make the same defense to such actiou as he might to an action for a divorce;” and we have just held that the husband may, where the wife is insane, defeat the action for divorce. The statute also provides that the husband “may, for sufficient cause, obtain a divorce from the wife in such action.” Now can a husband obtain a divorce from an insane wife? Can a guardian defend for her? She has a right to testify in a divorce case. Could her guardian supply this testimony ? A part of the grouuds for divorce and alimony in the present case existed before the plaintiff became insane. Can the guardian say that she did not condone the wrongs upon which these grounds rest? In this state there is no such thing as a divorce a mensa et thoro, or merely from bed and board. The plaintiff aud defendant are still husband and wife, absolutely and entirely. She will inherit from him, or he from her, at least one-half of the other’s estate, notwithstanding the judgment of the court below, and the husband is still liable for her support. And there are better remedies to enforce this support than the strange one resorted to in the present case. There are all the common-law remedies. And there are the still further remedies furnished by §§ 13, 43, 44, 45 and 46 of ch.-60 of the General Statutes. (Comp. Laws of 1879, ch. 60, §§ 13,43 to 46.) Besides, could the homestead be sold without “the joint consent of the husband and wife?” (Const., art. 15, § 9.) The husband has not consented, and when the wife is restored to sanity, as she may be, she may claim that she has never consented; and of course she has not consented.
After a careful consideration of this case, we have come to the conclusion that the guardian of an insane woman cannot maintain an action against her husband for alimony.
The judgment of the court below will be reversed, and the cause remanded for further proceedings, in accordance with this opinion.
Horton, C. J., concurring.
JOHNSTON, J., not sitting. | [
-15,
124,
-80,
63,
-118,
96,
-86,
-103,
112,
-87,
-93,
-41,
-5,
-37,
0,
41,
120,
43,
80,
107,
-41,
-78,
55,
32,
-13,
-13,
-111,
-35,
-79,
-57,
-27,
-41,
76,
42,
-126,
-43,
-26,
-118,
-63,
84,
-58,
-17,
-120,
109,
-39,
-62,
52,
123,
64,
15,
21,
-34,
-29,
45,
93,
78,
106,
40,
91,
61,
-47,
48,
-113,
-115,
95,
10,
-109,
38,
-104,
-89,
-56,
46,
-102,
21,
9,
-32,
115,
-74,
-106,
116,
75,
-69,
9,
114,
103,
1,
13,
-19,
-16,
-120,
70,
118,
-115,
-122,
-104,
80,
64,
68,
-66,
31,
125,
92,
15,
118,
-22,
30,
28,
108,
9,
-101,
-106,
-87,
-51,
122,
-38,
-127,
-21,
-93,
48,
113,
-113,
-96,
76,
64,
120,
-101,
-113,
-42
] |
The opinion of the court w£S delivered by
HoktoN, C. J.:
At the time prescribed by law for the levying of taxes for 1883, the board of county commissioners of Wyandotte county levied and assessed a tax of one mill on the dollar upon the taxable property of said county, from which the county revenue is directed to be raised, for the support of the poor of said county. The tax of one-eighth of a mill on the dollar, upon the taxable property of said county, was sufficient to raise the sum of five hundred dollars; therefore the tax of one mill on the dollar would raise an amount largely in excess of that sum. The plaintiff paid the one-eighth of a mill on the dollar of its taxable property, but refused to pay the remainder — seven-eighths of a mill on the dollar — amounting, upon its taxable property in question, to $143.51.
It is claimed by the plaintiff that as the alleged excessive levy of seven-eighths of a mill on the dollar was never authorized by any vote of the people at any general election, that such excessive levy was illegal, and its collection should have been enjoined. The question therefore is, whether the commissioners of a county have authority to levy a tax to raise an amount in excess of five hundred dollars, for the support of the poor, without a previous vote of the people, at a general election, authorizing a greater levy. The sections of the statute to which we are referred, are as follows:
“ Sec. 4. Every county shall relieve and support all poor and indigent persons lawfully settled therein, whenever they shall stand in need thereof; and the board of county commissioners may raise money for the support and employment of the poor, in the same way and manner as in the 29th section of this act is provided.”
“Sec. 29. To raise the sum necessary for the purchase of land, and the erection and furnishing of the buildings for such asylums, the board of county commissioners in the several counties shall have power to assess a tax upon property liable to taxation for raising a county revenue, not exceeding five hundred dollars, unless the amount of taxes to be assessed shall be submitted to a vote of the people at some general election, and a majority of all the votes cast at. a poll opened for that purpose shall be in favor of such assessment.”
“Sec. 35. The board of county commissioners in the several counties in this state may, if they deem it expedient, annually, at their session at which the county tax is ordered to be levied and assessed, levy and assess a tax for the support of the- poor of their respective counties, on objects from which the county revenue is or may be directed to be raised. The tax hereby authorized to be laid shall be collected by the same officers whose duty it may be to collect the state and county revenue, who shall pay the same into the county treasury.”
On the part of the plaintiff it is contended—
“That § 4 gives the county board the authority to raise money for the support and employment of the poor, and prescribes that the way and manner in which it shall be done is set out in § 29, and that said § 29, as referred to in § 4, carries with it the limitation upon the power of the county commissioners to levy a tax for that purpose; that § 35 makes it discretionary with the board what tax they shall levy, if they do not transcend the previous limitation put upon them; that it is not obligatory upon the board to levy a tax sufficient to raise five hundred dollars; or, even, if authorized by a previous vote to raise a larger sum, is it obligatory upon them, by said section, to levy a tax to raise such larger sum.”
On the part of the defendants it is claimed—
“ That § 4 is not antagonistic or contradictory to § 35; that both sections have operation to act without conflicting with each other; that the provision in said §4 authorizing 'the board of county commissioners to raise money for the support and employment of the poor in the same way and manner as in the 29th section of this act is provided/ gives the board power to adopt some plan or scheme to support by employment the poor, and to levy taxes therefor, but the sum to be levied for such purpose is limited to $500, unless a greater sum is authorized by a vote of the people at a general election.”
We are inclined to the opinion that the latter view, is the correct one to be adopted in the construction of these sections of the statute. As a rule, courts construe sections of the same statute so as to give every portion of the statute some force and effect. (Potter’s Dwarris on Statutes and Constitutions, pp. 144, 145; Points v. Jacobia, 12 Kas. 54; Bridge Co. v. Railroad Co., 12 id. 413.) Thus construing the sections of the statute, §§ 4 and 35 harmonize-with each other. In some counties of the state, poor-farms and county asylums are in operation. To give employment to the poor in such counties, it is often necessary for the board to purchase farming implements, horses, and other personal property. Likewise, for the same purpose, it might desire to purchase machinery, etc. Under § 4, it would have authority so to do, if the purchase of such articles did not exceed $500. If exceeding $500, a previous vote of the people at a general election authorizing a greater levy would be necessary. Section 35 has no concern regarding the employment of the poor, and simply provides for the raising of money for the support of the poor, whenever the board of county commissioners finds it expedient so to do.
Counsel for plaintiff contend that this construction destroys the limitation to a dangerous delegated power. Not so. The limitation against the excess of arbitrary and unlimited power, by the county commissioners in levying taxes for the support of the poor of their respective counties, is found in § 220, ch. 25, Comp. Laws of 1879. (Railroad Co. v. Wilhelm, just decided; Railroad Co. v. Woodcock, 18 Kas. 20; Comm’rs of Osborne Co. v. Blake, 25 id. 358; Bartlett v. Railroad Co., 32 id. 134.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
-44,
-22,
-76,
-3,
10,
-64,
34,
-110,
81,
-95,
-76,
83,
105,
26,
16,
61,
-77,
61,
-47,
96,
-60,
-89,
7,
99,
-78,
-13,
-71,
-49,
-77,
77,
-12,
-12,
77,
49,
-54,
-107,
103,
98,
-123,
-44,
-50,
15,
-86,
73,
-48,
64,
60,
43,
34,
75,
49,
-113,
-5,
40,
28,
67,
73,
44,
-39,
-69,
-111,
-78,
-38,
-99,
95,
6,
17,
38,
-104,
-61,
-24,
46,
-104,
21,
2,
-24,
123,
-90,
-122,
84,
77,
-7,
45,
-20,
102,
81,
45,
-17,
-32,
-119,
30,
-41,
-99,
-90,
-106,
25,
82,
15,
-74,
-33,
124,
80,
15,
118,
-26,
-107,
-35,
108,
7,
-114,
-98,
-79,
-83,
44,
16,
67,
-49,
-125,
48,
113,
-49,
-78,
94,
71,
50,
27,
-113,
-104
] |
The opinion of the court was delivered by
HORTON, C. J.:
Action by Emily J. Avery against Edwin Avery, for divorce, alimony, and the possession of a minor child. The facts in the case are substantially as follows: The marriage of the parties took place at St. Joseph, Missouri, on October 24,1877; Mrs. Avery was then thirty-six years old, and Mr. Avery, forty-two years; it was the first marriage of Mrs. Avery, and the second marriage of Mr. Avery — his first wife having died a year and six months prior thereto, leaving as the issues of such marriage two boys, respectively of the ages of seven and four, and one girl about one year old. While Mr. Avery and his first wife were living together near Sabetha, Nemaha county, Mrs. Avery — then Emily J. Williams — visited relatives in the vicinity. At that time the parties to this action became slightly acquainted with each other. After the death of the first wife, Mr. Avery opened a correspondence with Miss Emily J. Williams, at her home in Pennsylvania. The correspondence resulted in their marriage. On the day following the marriage, the parties went directly from St. Joseph to the farm of Mr. Avery, near Sabetha, where they resided together until February 14, 1883, and during this time their only child, Bessie L. Avery, was born. On February 14,1883, with the consent of the parties, Mrs. Avery went to visit her relatives at her former home in Pennsylvania — her husband giving her fifty dollars to go with. Soon after her departure, Mr. Avery advertised the sale of his personal property and sold the same, first selecting such articles as remained of the clothing and personal effects brought to their home by Mrs. Avery at the time of their marriage, and, putting the same in a box, took them to the residence of a relative of Mrs. Avery at Sabetha, and left them there for her. On April 3,1883, Mr. Avery wrote to a cousin of Mrs. Avery that he had broken up housekeeping, rented his farm for two years, that he would never keep house again, and that he was going to take his children to his mother’s in Rooks county. In June following, he wrote to his wife that he was going to get a divorce. At the time of his second marriage, Mr. Avery was the owner of a farm near Sabetha, of 160 acres, worth about $5,000. He continued to reside upon this farm with his wife and all his children, until Mrs. Avery went to Pennsylvania, in 1883. His second wife, Mrs. Emily J. Avery, at the time of her marriage, outside of a box of bed clothing and a trunk of wearing apparel, was destitute of other property. The court granted Mrs. Avery a divorce on the ground of extreme cruelty; gave her as alimony, the west 80 acres of her husband’s farm, and the custody of the minor child, Bessie.
It is contended that the judgment is not sustained by the evidence. We think otherwise. It is a misfortune of the parties that they were not better acquainted with each other before their marriage. Their courtship was solely by letters. Mr. Avery was rough and uncouth in his deportment and in his expressions. In 1875, Mrs. Avery — then Miss Williams— was a missionary to the Osage Indians, and afterward was the matron of the Home of the Friendless, at Leavenworth, in this state. Several of the witnesses spoke of her as “a perfect lady.” One witness, who had known her for several years at Sabetha and Leavenworth, testified “that she was a first-class woman and devoted Christian; that she was of an amiable and good disposition, and one of the best of women and mothers; that when at Leavenworth she was regarded as one of the best ladies there.” Another lady who visited them about six months, when their little girl was a year and a half old, testified “ that during the time she was there, Mrs. Avery always treated her husband kindly and considerately, and when abused by him would not answer back, but usually walked away and cried about it; that she always treated her husband’s children by his first wife as well as she did her own, and seemed to take as much interest in them; that she became acquainted with her in 1876, at Leavenworth, Kansas, and always found her a pleasant and agreeable person, and one easy to get along with.”
Considering all the circumstances brought out upon the trial, there was no excuse for the conduct and writings of Mr. Avery, unless he was non oompos mentis. Indeed, a part of the defense seems to have been based upon this theory, on account of an injury which he had received several years ago, from a stone falling upon his head. One of the physicians testified that “when excited, he seemed more like a crazy man tban a sane one.” Tbe trial court, however, from the findings, must have considered him of sound mind, and the question is: Did the conduct and letters of Mr. Avery establish extreme cruelty?
It is evident from the evidence, that when Mrs. Avery left to visit her relatives in Pennsylvania, Mr. Avery made up his mind not to live with her any longer. Prior to her departure he was very cross to her, hardly ever speaking pleasantly to her, and continuously saying and doing things that hurt her feelings. He was wont to say to her that “she had a hellish, or devilish tongue.” On several occasions he said to her, in the presence of others, “that Bessie” — their only child — “did not appear like his children, and that he did not believe she was his child.” After she went to Pennsylvania, he wrote her a series of letters filled with fault-finding and vilification. These letters were not merely unkind, but were of a character to render the life of his wife as miserable and wretched as his words or writings could possibly do. Before the commencement of this action, and a few days prior to February 14, 1884, he sent his wife, through the mail at Sabetha, a valentine representing an ugly and somewhat elderly female nursing an infant from a bottle, and upon the margin of the valentine he had one of the employés in the post office write, before it was mailed, “ I like children of my own.” He had the employé also write the address on the envelope. Upon the return of his wife to Kansas, he said to Mr. Eogers, living at Sabetha, that “ he would as soon meet the devil as to meet his wife; that she was fair to the eye, but rotten at heart.” He also accused her, upon her return, without any reason therefor, of having committed abortions upon herself.
It was said in Carpenter v. Carpenter, 30 Kas. 744:
“ It was formerly thought that to constitute extreme cruelty, such as would authorize the granting of a divorce, physical violence is necessary; but the modern and better-considered cases have repudiated this doctrine, as taking too low and sensual a view of the marriage relation, and it is now very generally held, that any unjustifiable conduct on the part of either the husband or the wife, which so grievously wounds the men tal feelings of the other, or so utterly destroys the peace-of mind of the other, as to seriously impair the bodily health or endanger the life of the other, or such as in any other manner endangers the life of the other, or such as utterly destroys the legitimate ends and objects of matrimony, constitutes ‘ extreme cruelty’under the statutes, although no physical or personal violence may be inflicted, or even threatened.”
Within the law as therein declared, Avery was guilty of extreme cruelty.
It is further contended that the court abused its discretion, when it gave to the wife one-half of the farm. Sec. 646 of the code provides:
“When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to all her lands, tenements and hereditaments not previously disposed .of, and restored to her maiden name, if she so desires, and shall be allowed such alimony out of her husband’s real and personal property as the court shall think reasonable, having due regard to the property which came to him by marriage, and the value of liis real and personal estate at the time of said divorce, which alimony may be allowed to her in real or personal property, or both.”
In view of all the circumstances of the case, although the alimony allowed was liberal, we are not prepared to say it was unreasonable or exorbitant; therefore, we cannot say that the trial court abused its discretion in this regard.
Finally, it is urged that as Bessie, the child of the parties, had been left by Mrs. Avery in Pennsylvania, upon her return to Kansas, and was on the day of the trial in that state, she was not within the jurisdiction of the trial court, and therefore that it was erroneous to grant her custody to her mother. While' the child was at her grandfather’s, in Pennsylvania, she was at least constructively under the control of Mrs. Avery. The decree committing the care and custody of this minor child to her mother, only determined the light of the parties inter sese, and therefore was not erroneous/ or without jurisdiction. This decree in no manner concludes other courts as to the best interests of the child. (In re Bort, 25 Kas. 308.)
The orders and judgment of the district court will be affirmed.
All the Justices concurring. | [
-80,
108,
-51,
76,
42,
-32,
74,
-104,
106,
-93,
-91,
83,
-23,
-45,
21,
121,
18,
13,
81,
107,
-122,
-73,
84,
-29,
-46,
-77,
-79,
-36,
-79,
93,
103,
-42,
76,
38,
10,
29,
102,
-54,
-61,
20,
-122,
-59,
-87,
-52,
89,
78,
54,
63,
82,
11,
85,
-66,
-13,
47,
29,
-61,
-24,
45,
-53,
-67,
88,
-16,
10,
22,
93,
26,
-109,
36,
-118,
5,
72,
46,
-104,
17,
1,
-8,
115,
-90,
-114,
116,
111,
-117,
9,
118,
103,
99,
-116,
-49,
-96,
8,
79,
118,
21,
-26,
6,
72,
10,
9,
-66,
-103,
124,
16,
-118,
-14,
-17,
15,
28,
100,
36,
-117,
-108,
-103,
-115,
56,
-98,
27,
-13,
-27,
-96,
113,
-61,
34,
93,
-122,
58,
-77,
-114,
-76
] |
Per Ouriam:
It is urged that the decision of this court was based on alleged errors, to which no reference was made either by oral argument or in the brief of counsel for plaintiff in error, and that the court should have taken no notice of such errors, even if they existed. The case came on for trial before the district court, without a jury. The court found the facts specifically, and stated its conclusions of law thereon. It was alleged in the petition in error that the trial court erred in its conclusions of law in the case, and also erred in giving judgment for the defendants, when it ought to have rendered a judgment for the plaintiff. In the brief filed by the plaintiff in the case, it was urged that upon tbe findings of fact, the conclusions of law were erroneous, and that judgment should have been rendered for the plaintiff instead of for the defendants. Therefore this court did not go outside of the record or the briefs in making the decision complained of.
It is next urged that the case ought never to have been disposed of upon its merits, because there was not filed with the petition in error a certified transcript of the record. • There are in the record the findings of fact of the trial court, and also its conclusions of law and the judgment rendered thereon, but the certificate is defective. It is too late, however, to now question the certificate, because the case was originally presented to us upon the record as if properly certified. The objections to the certification ought to have been made in the briefs first presented by the defendants.
Upon the question of the statute of limitation, we think the law properly declared in the decision. (Snyder v. Bell, 32 Kas. 230.)
The motion for rehearing will be overruled. | [
-16,
104,
-59,
-113,
10,
-32,
34,
-118,
65,
-87,
103,
83,
-83,
-53,
20,
109,
114,
41,
113,
98,
93,
-93,
6,
67,
-10,
-73,
-38,
-43,
49,
-17,
-10,
-4,
76,
-80,
-54,
-43,
102,
72,
-59,
82,
-50,
-113,
-103,
68,
-39,
36,
116,
51,
114,
15,
117,
-36,
-29,
46,
-98,
-61,
-23,
40,
-53,
61,
-64,
-16,
-98,
13,
79,
16,
-79,
-89,
-99,
-126,
-40,
56,
-116,
49,
3,
-8,
50,
-74,
2,
87,
73,
-71,
12,
102,
110,
33,
125,
107,
-72,
-104,
47,
30,
15,
-89,
-109,
64,
-55,
45,
-74,
-67,
101,
18,
38,
126,
-20,
-124,
31,
100,
3,
-113,
-108,
-71,
-97,
124,
-102,
-53,
-25,
-93,
20,
112,
-33,
-26,
88,
69,
19,
-101,
-98,
-97
] |
The opinion of the court was delivered by
Price, J.:
Each of these two actions, identical in title and all other material respects, was brought for the alleged breach of contract to deliver a motion picture film for exhibition. The question involved in each case is the same and they have been consolidated on appeal.
This is the third appearance of this consolidated appeal in this court and for a statement of the facts involved, as the same are disclosed by the petition and answer, reference is made to our former opinions in Sullivan v. Paramount Film Distributing Co., 164 Kan. 125, 187 P. 2d 360, and Sullivan v. Paramount Film Distributing Corp., 166 Kan. 57, 199 P. 2d 502.
Following our decision in the latter case, supra, the plaintiff filed a reply containing certain admissions and denials of matters set forth in the answer. Defendant then filed its motion for judgment on the pleadings. This motion was denied and it is from that ruling this appeal was taken.
At the outset we are confronted with the question whether an appeal lies from such an order. In his brief appellee does not strenuously press the point and neither did he do so at the time of oral argument. However, it has long been a rule of appellate procedure that it is the duty of this court to determine such jurisdictional question even though it is not raised by the parties to the proceedings. In re Estate of West, 167 Kan. 94, 204 P. 729.
Section 60-3302, G. S. 1935, dealing with the jurisdiction of this court, is 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, or of any other court of record, except a probate court. First — A final order. Second — An. order that . . . sustains or overrules a demurrer. Third — An order that involves the merits of an action, or some part thereof. . . .”
The next section (60-3303) defines a final order as:
“A final order which may be vacated, modified or reversed as provided in this article is an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment. . . .”
Is the order of the lower court denying the motion for judgment on the pleadings appealable? Appellant contends that its motion is tantamount to a demurrer and therefore an appeal lies from the order overruling it.
Where a motion for judgment on the pleadings is properly construed as a demurrer an order overruling it is appealable under the provisions of 60-3302, supm. However, in order for such a motion to be tantamount to a demurrer there can be no issue on material facts joined by the pleadings. Where an issue on material facts is joined by the pleadings it therefore follows that an order overruling the motion is not appealable. In Miller v. Sunflower Recreation Society, 151 Kan. 930, 101 P. 2d 891, it was said:
“An appeal may be taken from an order overruling a motion for judgment on the pleadings only where it can be said on the record that the motion concedes the facts well pleaded by the opposing party, and is thus equivalent to a demurrer.”
For further discussion of this rule see Gas Service Co. v. Consolidated Gas Utilities Corp., 150 Kan. 715, 96 P. 2d 608, and Pease v. Snyder, 166 Kan. 451, 201 P. 2d 661.
We do not consider it necessary to narrate the averments and allegations contained in the various pleadings. They have been examined, as have also the authorities cited by appellant in support of certain legal questions involving the merits of the litigation. Without intending to indicate any view as to the merits of the action or defense, we think that it cannot be said there are no issuable facts raised by the pleadings. Such being the case the motion cannot be considered as tantamount to a demurrer and the order overruling it is not appealable.
It therefore follows that the appeal in each of the two cases is dismissed. | [
-112,
-8,
-36,
30,
10,
96,
50,
-70,
97,
99,
103,
83,
45,
-46,
29,
123,
119,
105,
81,
107,
86,
-77,
23,
-112,
82,
-14,
-47,
-43,
59,
-19,
102,
62,
76,
32,
-22,
-107,
70,
-53,
-63,
86,
-82,
5,
-104,
-23,
-47,
68,
48,
51,
22,
15,
113,
-1,
-29,
45,
29,
-61,
-115,
40,
-7,
33,
-60,
24,
-85,
15,
127,
20,
-79,
36,
-98,
69,
-40,
94,
-112,
57,
0,
-24,
115,
-74,
-122,
116,
75,
91,
-120,
98,
97,
-111,
17,
111,
-72,
-8,
38,
28,
-113,
-90,
-77,
28,
41,
39,
-74,
-99,
53,
0,
15,
110,
-18,
21,
29,
-3,
10,
-117,
-106,
-93,
63,
116,
26,
-126,
-5,
-47,
0,
116,
-51,
-32,
92,
70,
19,
-77,
-114,
-106
] |
The opinion of the court was delivered by
Harvey, C. J.:
This was a suit in equity to determine the title of the respective parties to a described thirty-acre tract of land which they redeemed from a mortgage foreclosure. The facts shown by the record, which are not in controversy, may be stated as follows: Caleb Hultz, hereinafter referred to as plaintiff, lived on the land and Hugh Taylor, hereinafter referred to as defendant, was farming it. A mortgage on the land previously given by plaintiff and his wife had been foreclosed and the period of redemption was about to expire. Plaintiff and defendant desired to redeem it. Neither of them had much money. They had no written agreement between them. Defendant’s father, John Taylor, who had a good bank credit, agreed to help his son out. The matter was handled as follows: Plaintiff and his wife conveyed the land to John Taylor. He borrowed $2,450 from the bank and secured it by a mortgage on the thirty-acre tract and other land. Plaintiff and defendant were to pay off that mortgage with interest. The cost of redemption was $2,852.11. Plaintiff contributed $276.36 and defendant contributed $125.75. These sums, plus the money borrowed, were used to redeem the property. Plaintiff continued to live on the property. Defendant continued to farm the land. Neither paid rent to the other. In a few years the note to the bank, with interest, was paid by defendant, partly with the money furnished by plaintiff. John Taylor and wife conveyed the land to defendant. That was the status when plaintiff and his wife brought this action.
In the petition the above facts were alleged in more detail than here set out, and it was further alleged that at the time the arrangements were made to redeem the property plaintiff and defendant had an oral agreement to the effect that each should pay upon the mortgage given to the bank and when plaintiff paid one-half the cost of redemption, with interest at five percent, he should be the owner of the south fifteen acres of the thirty-acre tract and the defendant the owner of the north fifteen acres.
In his answer defendant admitted the facts above stated as not being in controversy, denied the oral agreement alleged by plaintiff, and claimed title to the thirty-acre tract. In the trial defendant testified that his oral agrément with plaintiff was that he was to buy the land for $3,000; that plaintiff was to help him pay off the mort gage and he was to pay back to plaintiff any money plaintiff had furnished him to pay off the mortgage.
On the trial the court found that plaintiff had paid to defendant $1,145.45 for principal and interest on the mortgage to the bank and taxes and had also paid an item of $19.55 for insurance on the buildings on the property, and it was stipulated by the parties that if the plaintiff should pay $646.80 to defendant he would have paid one-half of the cost of redemption of the land together with one-half of the taxes and all other items of expense.
The court found that plaintiff’s evidence was not sufficient to support the oral contract pleaded by plaintiff that he was to have the south fifteen acres when he paid to defendant one-half of the cost of redemption, taxes and other items. The court also found that defendant’s evidence did not support his claim that he was to buy the property for $3,000, and that the money plaintiff had given defendant to pay the mortgage at the bank was to be paid back to plaintiff and that he should have the title to the entire thirty acres. The court concluded it had jurisdiction to partition the thirty-acre tract between plaintiff and defendant, but would not adjudge partition unless within three days one or both of the parties requested an order of that kind. The order was not requested and the court taxed the costs to plaintiff.
From this order plaintiff appealed and this court wrote an opinion, which is found in 163 Kan. 180, 181 P. 2d 515, in which it was held that the trial court had not completed the case and remanded it for further proceedings.
When the case reached the trial court the court inquired of the parties if they had further evidence to offer and they answered in the negative. The court made no additional conclusions of fact or of law. The court rendered a decree in which it appointed appraisers to appraise the thirty-acre tract of land and report to' the court. It gave the parties opportunity to take the property at the appraised value, and if that was not done that the property be sold, and made an order for the distribution of the proceeds.
From this decree the defendant appealed and contended, among other things, that the judgment was outside of the issues framed by the pleadings, contending that the plaintiff in his petition sought only the south fifteen acres and conceded defendant had the north fifteen acres; that no issue had been raised by the pleadings as to the title to the north fifteen acres.
Plaintiff filed a cross-appeal, but in his briefs stated he was satisfied with the decree if it could legally be sustained. However, he joined the defendant in arguing that the appeal could not be sustained, and argued that the court should set aside the south fifteen acres to him. Both parties argued other details of the procedure. This court, in an opinion (166 Kan. 55, 199 P. 2d 529), adopted the view (we now think erroneously) that the controversy was over only the south fifteen acres, and again remanded the case for further proceedings.
When the case reached the trial court again, in discussing our last decision, the court observed that there is considerable difference betweeen the allegations as to what the agreement was and an allegation that a certain part of the land belonged to someone. The court expressed the view that the entire thirty-acre tract was involved and that it would be inequitable to limit the decision to the south fifteen acres, but regarded the court as being bound by its last decision on that point. The court made supplemental conclusions of fact as follows:
“I. The plaintiff, Hultz, did not have any agreement with the defendant, Hugh Taylor, by which he was to have or receive the South Fifteen Acres of the Tract in question after the redemption thereof. Neither did he have any agreement with Hugh Taylor that Taylor was to have or receive the North Fifteen acres of the Tract in question after the redemption thereof.
“II. The- plaintiff, Hultz, and the defendant Hugh Taylor, did not have an agreement that after the redemption of the Thirty Acre Tract from the foreclosure sale Taylor was to have or receive all of the Thirty Acre Tract when he paid to Hultz the amount which Hultz contributed toward the redemption and other items with interest thereon and about One Hundred Fifty Dollars additional.
“HI. The plaintiff, Hultz, and the defendant, Hugh Taylor, each contributed certain moneys toward the redemption of the Thirty Acre Tract from the foreclosure sale and also certain moneys for the payment of insurance, taxes, and other expenses.
“IV. The Thirty Acre Tract was redeemed as a whole and not in parcels of the North Half and South Half thereof.
“V. The deed from Luella Hultz and Caleb Hultz to John Taylor was for the purpose of securing a loan on the land and not for any other purpose and the subsequent deed from John Taylor and wife to Hugh Taylor did not vest the title in Hugh Taylor to any greater extent, so far as the plaintiffs were concerned, than the deed from the Hultzes to John Taylor. The whole transaction, so far as the deeds were concerned, was for the purpose of getting money with which to enable the plaintiffs and the defendant, Hugh Taylor, to redeem the land from the foreclosure sale.”
And made supplemental conclusions of law as follows:
“I. Agreeable with the opinion and mandate of the Supreme Court, announced in Hultz v. Taylor, 163 Kan. 180, this action is one in equity, and, as the trial court understands the opinion, the alleged failure of such court to render a judgment other than for costs and an option on the part of either party to obtain partition necessitated a reversal of what the trial court did in the premises.
“II. Where parties contribute certain moneys for the purchase of real estate or for the redemption thereof from a foreclosure sale and also share in the payment of certain expenses and charges incident to the real estate and neither is able to substantiate any agreement between them as to who should receive the benefit of the payments so made or in whom the title to the land so redeemed should vest, equity should award the title to the land to both parties so that they become tenants in common, or joint owners thereof.
“III. In view, however, of the finding and judgment of the Supreme Court as expressed in next to the last paragraph of its opinion in the case of Hultz v. Taylor, 166 Kan. 55, that the defendant Taylor is the owner of the North Fifteen Acres of the Thirty Acre Tract in question, and that the plaintiff, Hultz, has no interest therein because of the allegations in his petition, equity, under the Conclusion of Fact in this case, and the Mandate of the Supreme Court, will award the title to the South Fifteen Acres of the Thirty Acre Tract to the parties who contributed to the redemption of the whole Thirty Acre Tract.
“IV. Equity will, in this action, decree a division of the South Fifteen Acres of the Thirty Acre Tract among the parties who contributed to the redemption thereof, from the foreclosure sale, if either of the parties move for such a division within sixty days from the entry of the judgment herein.”
A formal decree was rendered for the partition of the south fifteen acres only. Plaintiff has appealed and defendant has filed a cross-appeal.
Upon this appeal counsel for both parties question the sufficiency of the supplemental conclusions of fact under the evidence. We have examined the evidence and find no reason to say that the supplemental conclusions of fact are not supported by the evidence. Indeed, each of them- appears to be so supported. As earlier pointed out in this opinion, the evidence can be classified into two classes, that which was not controverted and that which was controverted. The controverted evidence pertains to the oral agreements contended for by the respective parties. When the court found that the evidence was not sufficient to sustain plaintiff’s evidence as to the oral contract respecting the division of the property, and also found the evidence was insufficient to sustain the evidence of defendant as to the oral contract respecting the title to the property, there was left in the case only what we have classified as the uncontroverted evidence. We therefore approve the supplemental conclusions of fact. We also approve conclusion of law No. I, that this is a suit in equity and should be governed by equitable principles. We also approve conclusion of law No. II as stating the equitable rules of law applicable to this case. Counsel for defendant in this appeal questions the applicability of the rules of law stated in this conclusion of law to the facts of this case. We think they are applicable.
Conclusion of law No. Ill obviously was made contrary to the trial court’s judgment and upon the theory that the court had to make it in view of our decision in 166 Kan. 55, 199 P. 2d 529. We shall not debate whether the trial court was justified in taking that view, and if what we said in that opinion forced the trial court to take that view it was erroneous and is disapproved.
The result is that the supplemental conclusions of fact by the trial court are approved. We also approve conclusion of law No. I, that this is a suit in equity and should be governed by equitable principles, and we approve conclusion of law No. II as correctly stating the equitable rules applicable to this case. We set aside conclusions of law Nos. Ill and IV as not being in accord with the trial court’s judgment.
In lieu thereof the court should find the fractional share of the thirty-acre tract of land owned by Caleb Hultz and the fractional share owned by Hugh Taylor. Whether that is done by permitting and requiring Hultz to pay Taylor a sum which the court shall find will make each of the parties the owner of an undivided one-half of the land, or whether such respective shares are determined by the amount each has paid to redeem the land plus taxes and other items, if any, which should be taken into account, is for the trial court to determine under all the facts and circumstances in the case.
When these fractional shares are determined the parties shall be permitted to own the land as tenants in common, if they desire to do so, as no request has as yet been made by either party for the partition of the land. However, the case is one in which the court has authority (G. S. 1935, 60-2114) to allow partition if either of the parties requests the same. If partition is requested the procedure outlined by G. S. 1935, 60-2105 et seq., should be followed; that is, commissioners should be appointed to partition the land in kind, if that can be done without manifest injury, and if not, then to make a valuation and appraisement of the property. Subsequent procedure to be had as authorized by the statute.
The judgment appealed from is modified. | [
-16,
108,
-47,
77,
-102,
-32,
42,
-102,
105,
-94,
-89,
119,
-21,
-57,
0,
37,
-26,
57,
69,
107,
87,
-78,
55,
-127,
-47,
-77,
-47,
-51,
-79,
108,
-10,
87,
76,
52,
-62,
-43,
102,
-94,
-29,
84,
-114,
-122,
-101,
69,
-39,
66,
52,
27,
86,
78,
53,
-122,
-13,
37,
61,
98,
72,
46,
75,
57,
80,
-8,
-113,
-113,
-33,
3,
-111,
53,
-100,
99,
74,
14,
-112,
53,
0,
-24,
-5,
-74,
-122,
116,
25,
-101,
41,
38,
103,
16,
101,
-18,
-40,
-103,
46,
-34,
-115,
38,
-47,
88,
2,
68,
-65,
-99,
124,
16,
38,
118,
-18,
-116,
28,
108,
15,
-114,
-106,
-127,
-81,
-8,
-102,
67,
-29,
3,
-79,
117,
-49,
-94,
92,
103,
124,
-101,
14,
-70
] |
The opinion of the court was delivered by
HORTON, C. J.:
The first question presented is, whether the-action was barred by the statute of limitations at the time it was commenced. The fine and costs were adjudged against Macke on October 1, 1883, and the petition was filed to enforce the payment of the fine and costs against the property of the defendants on February 27, 1885, more than a year after the judgment rendered against Macke. It is said the district court held that the action was barred by the 4th subdivision of §18 of the code, which reads as follows:
“Within one year: an action for libel, slander, assault, battery, malicious prosecution, or false imprisonment; an action upon a statute for a penalty or forfeiture, except where the-statute imposing it prescribes a different limitation.”
On the part of the plaintiff, it is contended that the action comes within either the 2d or 6th subdivision of §18. They are :
2d. “Within three years:.an action upon contract, not in-writing, express or implied; an action upon a liability created by statute, other than a forfeiture or penalty.”
6th. “An action for relief, not hereinbefore provided for, can only be brought within five years after the cause of action shall have accrued.”
"We do not tbiuk tbe action is one for a penalty or forfeiture. It is in fact upon a liability created by statute, and therefore Avithin the terms of subdivision 2. The action is to enforce a lien for the fine and costs which have accrued to the .state. “The fine and costs are not imposed upon the oAvner of the premises, but are imposed upon the person who violates the law, and the owner of the premises is simply made a surety for their payment.” (Hardten v. The State, 32 Kas. 637.)
It is insisted, however, on the part of the defendants, that the petition is fatally defective upon its face because it does not show that Macke was actually committed to the jail of the county. It is doubtful whether this question is in the case. The petition recites that the district court found Macke guilty upon the verdict rendered by the jury, and sentenced him to pay a fine of $250, and all of the costs of the prosecution, taxed at $103.25, “and that he stand committed to the county jail of Lyon county until the fine and costs are paid in full.” The petition further recites that the judgment and sentence against Macke have “neither been paid, appealed from, modified, satisfied, nor reversed.” We may therefore presume that the sentence was carried into effect, and that the defendant Avas actually committed to the jail of Lyon county. If this were not the case, we are not satisfied Avith the interpretation given to the proviso of said § 18, by the counsel of defendants. We think said proviso is to be construed in harmony with the entire section, and that it was the purpose of the legislature in adding the proviso to the section to prevent thereby the person who violates the law from being relieved or discharged from commitment on account of the fine and costs being made a lien upon the real estate of the person knoAvingly suffering and permitting him to sell liquor thereon in violation of law.
It must be apparent upon a careful consideration that this view is the proper one, otherwise the lien for the fine and costs upon the real estate would be postponed until a future and indefinite date. The action to enforce the lien may be commenced any time after the judgment, but within the time prescribed in said subdivision 2. (Hardten v. The State, supra.)
The order and judgment of the district court will be reversed, and the cause remanded.
All the Justices concurring. | [
-12,
-6,
-40,
-82,
75,
-96,
42,
-112,
83,
-93,
-96,
51,
-19,
-62,
4,
121,
-5,
127,
81,
123,
73,
-77,
7,
33,
-74,
-77,
-47,
85,
-79,
-51,
-12,
86,
12,
51,
-30,
-11,
103,
-54,
41,
-36,
-114,
-121,
43,
-20,
-7,
64,
48,
59,
35,
14,
49,
-113,
-13,
43,
24,
-50,
-83,
61,
73,
-67,
-48,
49,
-106,
45,
127,
22,
-79,
38,
-100,
3,
-24,
46,
-104,
17,
0,
-24,
115,
-74,
-122,
84,
107,
-117,
33,
38,
98,
32,
77,
-25,
-8,
-104,
14,
59,
-97,
-89,
-108,
80,
11,
77,
-66,
-97,
116,
20,
40,
126,
-28,
20,
17,
108,
3,
-118,
-44,
-93,
-113,
117,
-122,
87,
-50,
51,
-16,
85,
-58,
-90,
94,
-25,
59,
-101,
-97,
-35
] |
The opinion of the court was delivered by
Johnston, J.:
This is an original proceeding in habeas cor pus, whereby the petitioner, W. H. Suppe, seeks to effect a release from the custody of the respondent, J. H. Wilhite, who is the sheriff of Lyon county. The question presented in the case is whether a judge of the district court in vacation, at chambers, can review and rescind the order and judgment of the district court vacating and setting aside an order of arrest.
The question arises in this wise: On December 6, 1884, Budolph Wurlitzer & Bro. brought a civil suit in the district court of Lyon county for the recovery of money against W. H. Suppe. At the same time the plaintiffs in that action filed an affidavit and bond to obtain the issuance of an order of arrest. The clerk of the court accordingly issued an order of arrest, upon which the defendant Suppe was taken in custody by the respondent. Suppe immediately gave notice that on December 8th he would move the court, which was then in session, to vacate the order of arrest and discharge him from imprisonment. A hearing was accordingly had upon this motion, and the court determined and adjudged that the order of arrest under which Suppe was held be set aside and vacated. Afterward, and on the 11th day of December, 1884, when the district court of Lyon county had adjourned sine die, the plaintiffs in the civil action prepared and presented to the district judge, at his chambers in Greenwood county, an additional affidavit, and the judge, upon their application in an ex parte hearing, ordered “that the order made by the court, in the matter of the arrest of the within-named defendant on December 8, 1884, whereby said defendant was discharged from arrest, is hereby suspended and set aside.” The sheriff, evidently thinking that this order of the judge had the effect to revive the process, arrested the petitioner upon the order of arrest theretofore vacated and set aside by the court. The petitioner complains of this second arrest, and contends that his imprisonment is illegal.
The district judge at chambers, as has been seen, assumed to review the action of the district court and to set aside its judgment vacating an order of arrest, and undertook to revive process that had been annulled by the court. This the judge had no power or authority to do. The district judge at chambers can only exercise such power as is expressly conferred by law. Power is given the judge at chambers to vacate orders of arrest, but no provision of statute has been cited or found that would authorize the district judge to review and correct the action of the district court, or restore process that has been discharged by the court. When the order of arrest was vacated it became fimctus offido, and it is questionable whether it was within the power of the district court to recall and change its order annulling the order of arrest after the term in which it was made, and to revive process that it had vacated; though as to that we do not decide, but certainly no such re- visory power exists in the judge at chambers. ( The People, ex rel. Roberts, v. Rowe, 81 N. Y. 43; In re Bradner, et al., 87 id. 171.)
As the order of arrest under which the petitioner is restrained has been vacated and is dead, it follows that his imprisonment is illegal, and he must therefore be discharged.
All the Justices concurring. | [
-16,
-20,
-19,
-100,
42,
-32,
46,
-72,
83,
-109,
-25,
115,
-87,
91,
4,
125,
99,
127,
117,
121,
-50,
-73,
6,
-119,
-77,
-14,
-47,
-41,
-77,
109,
-12,
86,
24,
48,
-70,
-43,
70,
104,
-61,
84,
-122,
33,
-55,
-32,
-45,
10,
48,
49,
50,
27,
117,
-1,
-29,
42,
26,
-45,
105,
61,
-39,
45,
-40,
-7,
-66,
5,
79,
6,
-79,
2,
-102,
-125,
88,
126,
-104,
49,
-125,
-8,
115,
-74,
-126,
116,
99,
-69,
40,
86,
102,
65,
52,
-17,
-68,
-24,
30,
-66,
-99,
-90,
-40,
93,
106,
5,
-74,
-103,
117,
80,
-122,
-10,
-18,
-115,
29,
12,
6,
-50,
-76,
-107,
31,
57,
-118,
18,
-30,
35,
16,
101,
-116,
-14,
92,
83,
19,
-37,
-50,
-80
] |
The opinion of the court was delivered by
Thiele, J.:
This was an action to reform articles of agreement, a warranty deed and an escrow agreement so as to correct the description of the real estate included therein, to quiet title to the real estate under the corrected description, or in the alternative for money damages. From a judgment in favor of the plaintiffs, a part of the defendants appeal.
For purposes of information the following statement is made. Lots 14, 15, 16 and 17, on First street, now Second street, in Whitney’s Addition to Wichita, are each 140 feet long north and south and 25 feet wide east and west. On the north end of these lots is a dwelling facing west and an unattached garage known as 302 North Meridian street, and it is this property which is involved. On the south end of these lots is a duplex facing south. Immediately preceding the chain of events giving rise to this action, the defendants Marple owned all of the lots and buildings.
In a preliminary way it may be said that attached to the petition are copies of the “Agreement of Purchase,” “Articles of Agreement” and “Warranty Deed” therein referred to. In some instances there is variation between pleading and copy. Our statement refers to the copy.
In their petition plaintiffs alleged Marples’ ownership of the above lots and that the duplex was located on the south 75 feet of the four lots and that the dwelling facing west was located on the north 65 feet of the lots; that Marples listed for sale with a real-estate broker the property known as 302 North Meridian, being the north 65 feet of the lots and on January 27, 1946, that plaintiffs, as prospective purchasers were, by an agent and associate of the broker, shown the dwelling, garage, clotheslines and posts and their location with reference to property lines and on the same day executed a preliminary agreement entitled “Agreement of Purchase” whereby they agreed to purchase from the Marples for a total consideration of $5,300 the “property known as 302 North Meridian, Wichita, Kansas,” the agreement being later executed by Marian Marple; that on February 22, 1946, plaintiffs and Marples executed in triplicate “Articles of Agreement” whereby plaintiffs agreed to purchase and Marples agreed to sell “the north 50 feet” of the above lots and at the same time Marples executed a warranty deed therefor, and on February 23,1946, a copy of the articles of agreement and the warranty deed were deposited with the defendant, The Fourth National Bank, as escrow agent under instructions for delivery of the deed which need not be noticed here; that at the time the various instruments were executed, the Marples stated, represented and believed that the dwelling, garage, clotheslines and poles referred to above were actually and wholly upon the lands described in the instruments and they intended to sell and convey to plaintiffs the north 65 feet, and that plaintiffs believed and understood that the dwelling, garage, clotheslines and poles were actually and wholly upon the lands as described in the instruments and that they would receive from the Marples title to all of the property known as 302 North Meridian, being the north' 65 feet; that in truth and in fact the north 50 feet did not contain all of the dwelling, clotheslines and posts and that by mutual'mistake and error on the part of the plaintiffs and Mar- pies and their agents, the articles of agreement, warranty deed and escrow instructions did not and do not describe the property known as 302 North Meridian, being the north 65 feet, or conform to the actual agreement and understanding of the parties; that on February 23, 1946, Marples delivered to the plaintiffs the possession of 302 North Meridian, being the north 65 feet, and plaintiffs have since been in possession and have made all payments and otherwise complied fully with the articles of agreement and escrow instructions ; that Marples, after February 24, 1946, and until about April 16, 1946, continued to have possession of the south 75 feet of the lots and on that day executed and delivered to Taft Stephan and Julia Stephan a warranty deed purporting to convey to the Stephans the south 90 feet of the above lots; that on that day the Stephans had actual and constructive notice of the rights of plaintiffs in that portion of the north 65 feet of the lots which was included in the description of the real estate conveyed to the Stephans; that the Stephans have never had possession of any part of the north 65 feet nor have they taken any action to assert any right thereto; that the Stephans claim some interest in and to the north 65 feet which clouds plaintiffs’ title, but whatever right they have is inferior to plaintiffs’ right; that the Marples at all times prior to their deed to the Stephans recognized plaintiffs’ right in and to the north 65 feet and orally admitted to plaintiffs that the south line of plaintiffs’ property was sixty-five feet south of the north line of the above lots; that on May 11, 1946, and subsequent to the delivery of the deed to the Stephans, the plaintiffs and Marples, by oral agreement caused the lots to be surveyed by the county surveyor and then learned for the first time that the north 50 feet did not cover and include the property which was intended to be conveyed and that part of the dwelling house and part of the clotheslines and posts were not covered by the description of the north 50 feet. Allegations that plaintiffs notified all defendants that they claimed to be the owners of the north 65 feet and that the deed and other documents should be amended, or that action would be brought need no notice here. The prayer was for reformation and for quieting title but that in the event the Stephans were found to be bona fide purchasers, plaintiffs should have judgment against the Marples for $2,500. In substance, the answer of Marples was a general denial of matters not admitted, the admissions covering ownership of the real property, the execution of the various instruments and the sale to the Stephans, and a specific denial that the real-estate broker or his employers ever indicated to plaintiffs a frontage in excess of 50 feet, or that they intended to sell more to the plaintiffs, or that they represented any boundary line, or that there was any mistake or error. They also alleged that plaintiffs’ attorney approved the title to the north 50 feet and as a result the escrow agreement was made; that plaintiffs have been guilty of negligence and laches under the averments of their petition and of the defendants’ answer and are estopped to ask for or to obtain relief in equity.
The answer of the defendants Stephans need not be noticed.
The trial resulted in a judgment in favor of the plaintiffs and against the defendants Marples for $1,500, but if they should cause to be executed and placed in escrow, a warranty deed conveying to plaintiffs 15 feet of ground immediately south of the north 50 feet of the lots within thirty days then the judgment should be satisfied, but if they should fail to do so that execution should issue in favor of plaintiffs and against Marples for $1,500 and costs. Marples’ motion for a new trial was denied, and as previously noted, they appealed to this court, specifying as errors the propositions later discussed.
The contentions presented by the appellants require a partial review of the evidence but, in view of the trial court’s judgment, in our summary of the evidence all conflicts are resolved in favor of the appellees.
Prior to the events giving rise to the action the Marples owned all of the lots described. A former owner built the house on the north end of the lots facing Meridian street and referred to herein as 302 North Meridian. In excavating for the basement the dirt was spread from the north of the lots to a point 65 feet south and in a straight east and west line, the southern edge being the “terrace” later mentioned. In this area trees were planted and clotheslines and posts were installed. Just where the duplex was built is not shown but the northernmost portion of it did not extend north to the terrace. On January 27, 1946, the Sniders, in company with a real-estate agent, were looking at houses with a view to purchase, but found none that suited. The agent suggested they return to the real-estate office to see if any new listings had come in and it was then learned that 302 North Meridian had been listed for sale and the parties visited it, where the agent showed the Sniders through the house and over the ground calling attention to the clotheslines and the elm tree in the rear and. that the terrace was the south boundary. Thereafter the parties returned to the real-estate office and the agreement of purchase describing the property as 302 North Meridian was executed by the Sniders and the real-estate broker and later by Mrs. Marple. Later an abstract of title covering the entire four lots "was submitted for examination. Some of the entries disclosed mortgages on the north 65 feet of the lots. A different abstract was furnished for later examination. It covered only the north 50 feet. The examining attorney did not know what property was being purchased. On February 23 formal articles of agreement for purchase were executed in which the property was described as the north 50 feet of the lots. This agreement acknowledged receipt of a down payment, made provision for payment of the balance, for the execution of a warranty deed from the Marples to the Sniders and for deposit in escrow of the deed and abstract of title to be delivered to the Sniders upon their performance. Shortly thereafter the Sniders went into possession and exercised their right of ownership as far south as the terrace line. Shortly after the Sniders moved in Mrs. Marple asked permission of the Sniders for one of their tenants in the duplex to use the clotheslines. At a later time Mr. Marple came over and stepped off the property, stated the terrace was the line and advised his tenant in the duplex and thereafter the tenant mowed the grass south of the terrace and the Sniders mowed it north thereof. At the time the Sniders moved in Marple was planting some shrubbery along his east line to the south of the terrace and asked Snider if there was any objection to his planting two or three remaining bushes north of the terrace line. About April 16,1946, Marples sold the duplex to the Stephans, who suggested a survey. After the survey was made the Sniders learned that the description in the documents heretofore mentioned did not cover the real estate south to the terrace line, or the 65-foot line as believed by them or as shown to them. The 50-foot line as established by the survey was approximately one inch south of the eves of the house at 302 North Meridian and did not include the shade tree nor a part of the clotheslines, which had been said to be on the real estate being sold. Without review it may bo said that Marples offered testimony in denial or dispute of much that has been related.
The appellants make some complaint that the trial court did not make separate conclusions of fact and of law. Although they make some contention that a request therefor had been made, they con cede there is no record of any such request. Just how we can say there was any prejudicial error is not made to appear and the complaint will not be noticed further.
Appellants make an extensive argument that a real-estate broker is a special agent and those dealing with him, if he exceeds his authority, do so at their peril. They contend there is no evidence to show that the real-estate agent, who showed the property to the appellees, had any authority from them to indicate where the south boundary line of 302 North Meridian was, and that if the agent indicated the terrace as being the line, such representation was beyond his power and authority. We do not find it necessary to discuss the proposition as presented. Assuming that appellants’ objections to appellees’ evidence on the particular point were proper and should have been sustained, there was no timely motion that such evidence be stricken. Under rule 53 of this court there is no presumption the evidence entered into the final disposition of the case. In addition we have also to consider other testimony. As is set forth in the summary of the evidence, it was shown that Marple indicated where the boundary line was on the occasion when he sought permission to plant some shrubbery to the north of it and also when the agreement about mowing grass was made. The testimony as to the agent’s representation and the testimony last referred to bore on the same point. Even though the extent of the agent’s authority was not shown and the testimony as to his statements and representations was incompetent, the other testimony was competent, and if believed, as it was, was .sufficient on the point.
Appellants further contend that their demurrer to the appellees’ evidence should have been sustained. They say it was mandatory that appellees establish beyond a reasonable doubt that there was mutuality of mistake, directing attention and quoting excerpts from Algeo v. Employers Indemnity Corporation, 119 Kan. 186, 237 Pac. 879; Waddle v. Bird, 122 Kan. 716, 719, 253 Pac. 576; Regier v. Amerada Petroleum Corp., 139 Kan. 177, 30 P. 2d 136; and New York Life Ins. Co. v. Dickensheets, 165 Kan. 159, 193 P. 2d 649; and state that no fraud was claimed and there was no evidence showing mutuality of mistake. Their argument on the sufficiency of the proof as against a demurrer is not further expanded except as hereafter noted. There is no doubt as to the rule contended for but that appellees’ proof failed to measure up to its requirements does not follow. Limited to appellees’ evidence, and subject to our following discussion as to mutuality of mistake, we think a prima facie showing was made that appellants intended to sell and appellees intended to buy all that part of the lots lying north of the terrace.
Apparently referring to the evidence as a whole, appellants argue that a mere mistake on the part of the appellees, in the absence of a showing of fraud, duress or undue influence on the part of appellants, is not sufficient ground to establish mutuality of mistake, our attention being directed to Green v. Insurance Co., 112 Kan. 50, 209 Pac. 670. The gist of appellants’ argument is that the written instruments clearly disclosed a frontage of fifty feet and all parties were aware of that; that appellees knew what fifty feet were and could have ascertained the exact boundary line, and that if there was any mistake, it was in their own opinion as to where the fifty-foot line was, and, inferentially that appellants knew where the fifty-foot line was and were not mistaken, and in support are cited authorities where it is said that the mistake must be as to a past or present fact and not a mere mistake of opinion, such as Hodgson v. Mutual Benefit H. & A. Ass’n, 153 Kan. 511, 521, 112 P. 2d 121, and McMillin v. Farmers & Bankers Life Ins. Co., 167 Kan. 502, 507, 206 P. 2d 1061. The above argument is premised on consideration of only a part of the evidence and on inferences drawn therefrom which are unfavorable to appellees. We are of the opinion that the evidence summarized above, and inferences therefrom fairly to be drawn by the trial court, warranted a conclusion that the Marples did not intend by the use of the description of the north 50 feet of the lots to sell the property at 302 North Meridian with so limited a tract of real estate that the south line was only about an inch from the south side of the dwelling, and this is made more evident by the evidence concerning the use of the clotheslines, the planting of shrubbery, the portions of lots to be mowed and other matters reviewed, that the appellants intended to sell and the appellees intended to buy that portion of the lots north of the terrace, and that the description used was mistakenly used by both. The only contrary conclusion would be that appellants, if they knew where the fifty-foot line was, were not honest. We are of the opinion the evidence warranted a finding by the trial court that the description of the real estate as used in the articles of agreement and warranty deed was the result of mutual mistake.
In reaching the above conclusion we have not overlooked two further contentions of appellants, one that the language in the warranty deed was clear and unambiguous, and the intent of the grantors was to be gathered from the four corners of that instrument (citing Bennett v. Humphreys, 159 Kan. 416, 419, 155 P. 2d 431) and that the articles of agreement were superseded and extinguished by the warranty deed (citing Hampe v. Higgins, 74 Kan. 296, 85 Pac. 1019). We need not discuss the two rules of law relied on for in our opinion neither is applicable. The very purpose of an action for reformation is to have an instrument altered to make it state the true agreements of the parties to it, and the fact the instrument sought to be reformed is couched in clear and unambiguous language does not preclude inquiry as to whether it expressed the agreement. The second rule contended for has application where a contract of sale of real estate is carried out and a deed is delivered and accepted. Under the facts before us it can have no application for the whole matter of contract and deed remains in an executory state. It is to be remembered that the purpose of this action was to reform the contract for prchase, the deed and the escrow agreement in order to make them conform to the actual agreement of the parties.
Although concededly the question was not raised in the trial court, and for that reason appellees object to its consideration here, appellants contend that the articles of agreement here involved constitute such a contract that payment of a registration fee was required, and, under G. S. 1935, 79-3107, such contract on which the registration fee had not been paid shall not be filed for record by any register of deeds and “shall not be received in evidence in any suit, action or proceeding, and no judgment, decree or order for the enforcement thereof shall be rendered, made or entered in or by any court of this state”; that there was no pleading that such tax had been paid, nor any proof thereof, that the contract should not have been considered, and therefore that the trial court’s judgment must be reversed. In support they cite Sparks v. Maguire, 161 Kan. 529, 169 P. 2d 826. In that case the action was to enforce the contract and while that decision is informative, it is not applicable here, for in the action before us no judgment, order or decree for the enforcement of the contract was sought or rendered. If otherwise available to the appellants, the contention needs no 'further discussion here.
It has not been made to appear that the trial court erred in its judgment and the judgment is affirmed. | [
-16,
124,
-16,
109,
8,
98,
40,
-102,
105,
-76,
39,
83,
109,
-52,
5,
125,
-58,
45,
80,
104,
-27,
-78,
18,
-117,
-42,
-77,
-45,
-51,
-71,
93,
-12,
86,
76,
52,
-62,
-107,
-126,
-126,
-35,
28,
-50,
-121,
10,
-16,
-39,
64,
52,
123,
0,
74,
81,
-113,
-77,
40,
21,
-45,
104,
60,
-53,
-68,
81,
-72,
-113,
-115,
-3,
7,
1,
36,
-34,
7,
120,
10,
-112,
53,
-120,
-24,
87,
54,
-106,
124,
69,
11,
40,
38,
99,
48,
97,
-17,
-8,
-100,
47,
115,
-115,
-90,
-74,
88,
2,
97,
-66,
-99,
117,
18,
5,
118,
-10,
-107,
31,
-23,
15,
-117,
-106,
-109,
13,
122,
-127,
11,
-1,
5,
48,
112,
-51,
-74,
93,
83,
27,
-101,
-98,
-40
] |
The opinion of the court was delivered by
Thiele, J.:
These appeals grow out of the efforts to enforce an agreement not to contest a will.
William James Kynaston, hereafter referred to as Kynaston, oClay county, was a single man who owned considerable real and personal property. His sister Maude Kynaston died in 1946, and sometime thereafter his sister Amy J. Reed and her husband William Reed moved into his home and remained there until he died on September 23, 1947. Kynaston was survived by five sisters, Bertha Adams, Agnes Mabel Reed, Viola Blanche Lafiin, Daisy Mary Lafiin and the above named Amy J. Reed. Kynaston left a will leaving all of his property to his sister Amy J. Reed and her husband William Reed, whom he appointed as executors. Shortly after the death of Kynaston the four first named sisters had conversations with Amy J. Reed and William Reed which it was contended constituted a contract not to contest the will, and which will be dealt with at more length later herein. The will was admitted to probate, the executors therein named were appointed as such by the probate court, and the estate was ultimately finally settled. Amy J. Reed died on January 30, 1948, and during the course of administration of the Kynaston estate. The order of final settlement, made September 3, 1948, assigned Kynaston’s real estate to the estate of Amy J. Reed and to William Reed, share and share alike. After Amy J. Reed’s death, upon proceedings had in the probate court, Agnes James was appointed as administratrix of her estate.
The present controversy grows out of the following: Very shortly after the Kynaston estate was finally settled his four surviving sisters filed a petition in the district court against the defendant William Reed to establish their claim against him. In their petition the plaintiffs set forth at length the family relationship and the affections of one for another, the death of the members of the family as above detailed and that Kynaston, at the time of his death, owned personal property and four farms which are described; that shortly after his death they learned that he had left a will wherein Amy J. Reed and William Reed were the sole beneficiaries, and that the plaintiffs discussed with Amy J. Reed and William Reed the unfairness of the division of the lands, most of which came through the Kynaston family and except for the will that William Reed would not have been entitled to any portion and that Amy J. Reed would have inherited only a one-fifth thereof; that the question of the competency of Kynaston to make a will and the fact he was influenced to make the will he did were discussed, and the plaintiffs were advised that the only way the will could be changed would be by contesting it, or by not contesting it and having an agreement with Amy J. Reed and William Reed, and it was agreed by all parties that if the plaintiffs would not contest the will of Kynaston and would allow it to be probated, and plaintiffs would continue to be friendly with Amy J. Reed and treat her as they had in the past, Amy J. Reed and William Reed, her husband, would sell the west farms, which need not be further identified here, and divide the money between the plaintiffs equally; that plaintiffs continued to be friendly with Amy J. Reed and looked after her during her last illness; that they did not contest the will of Kynaston; that they requested William Reed, the sole surviving beneficiary under the will of Kynaston and the only heir of Amy J. Reed to carry out the agreement and he failed and refused to do so, notwithstanding plaintiffs had performed all their part of the agreement. They prayed for full and complete performance of the agreement and that if a sale of the “west farms” could not be made “at this time” that their interests be decreed, and for such other relief as they might be entitled.
About the same time the above petition was filed in the district court, a verified petition setting forth plaintiffs’ claims against Amy J. Reed was filed in the probate court in the estate of Amy J. Reed, deceased. It is not set forth in the abstracts but we are told it is in substance the same as the petition in the district court. It was certified to the district court for hearing. At some date not disclosed the two actions were consolidated.
We note that the defendant Reed filed his motion to strike parts of the petition and the motion was denied, and that upon his appeal he assigns the ruling as error, but as it is not discussed in his brief we shall consider the claimed error as abandoned and not notice the motion. Reed’s answer admitted names and addresses of the plaintiffs, the death of Kynaston and of Amy J. Reed, and that a representative had been appointed for her estate, and denied generally. If any defense was filed to the petition filed in the probate court, it is not included in the abstracts.
At the trial, the defendants’ demurrer to plaintiffs’ evidence was overruled, defendants offered their evidence, and the court thereafter found all issues in favor of the plaintffs; that the contract was that if plaintiffs would refrain from contesting the will of Kynaston and would continue to regard Amy J. Reed as a sister that as soon as the Kynaston estate could be closed the lands known as the “west farms” would be sold and the money equally divided between the plaintiffs; that plaintiffs had fully performed their part and were entitled to have the contract specifically performed by the defendants. Provisions for enforcement need no notice here.
The defendants’ motion for a new trial was denied and they perfected their appeals to this court, where they assign as error the overruling of their demurrer to plaintiffs’ evidence, the rendering of judgment for the plaintiffs and the overruling of their motion for a new trial.
It is here noted that two different briefs were filed by the appellants prior to the oral argument of these appeals and since then appellants have filed “additional suggestions” which appellees have answered.
In their first brief appellants contend the action was premature; that the contract was within the statute of frauds, and that the evidence was insufficient to establish the contract as a matter of law.
Appellants present under one head their contentions with respect to the action being premature and that the contract was unenforceable under the statute of frauds. In their brief appellees state that neither question was presented in the court below and is not properly before this court, a statement not denied in briefs subsequently filed by the appellants, and perhaps that should end the matter. The claim of prematurity is based upon an involved argument that the sale of the lands was not to be had until the Kynaston estate was settled, and that the Kynaston estate was settled sooner than it should have been under the probate code. William Reed as executor made the final settlement and will not be heard to deny the fact. Even though the filing were premature the trial was not. Nor shall we dwell at length upon the statute of frauds. The petition alleged and the proof showed complete performance by the plaintiffs, in other words, as to them the contract was executed. Under our decisions the statute was not to be applied. See Richard v. Kilborn, 150 Kan. 579, Syl. ¶ 2, 95 P. 2d 545; Paton v. Paton, 152 Kan. 351, Syl. ¶ 4, 103 P. 2d 826, and cases cited in those opinions.
Appellants’ contention that the trial court erred in overruling their demurrer to the appellees’ evidence is based upon a résumé of evidence favorable to them and ignores all evidence favorable to the appellees. Under their contention it is argued there was no consideration for the contract; that there was no acceptance by Mr. and Mrs. Reed; that the evidence was not clear and satisfactory, and our attention is directed to testimony which appellants argue support their views. The premise for such a contention is at variance with our established practice. No point is served by detailing evidence that in order to avoid a contest of the Kynaston will, Mr. and Mrs. Reed agreed with the appellees that if appellees would refrain from such litigation they would sell the west farms and divide the proceeds among the appellees. Such a showing was sufficient to make a prima facie case. The trial court did not err in ruling upon the demurrer.
In their second brief appellants contend that the district court was without jurisdiction over the subject matter in the action commenced there, and that the proceeding commenced in the probate court was in the wrong estate. Appellants first direct attention to the proposition that the question of jurisdiction may be raised for the first time in this court (Behee v. Beem, 156 Kan. 115, Syl. ¶ 3, 131 P. 2d 675) and contend that the district court was without jurisdiction of the subject matter in the action against William Reed, a question concededly not raised in the trial court. Their argument runs that appellees entered into a contract with appellants that if appellees would not contest the Kynaston will and would continue to be friendly with Amy J. Reed, the Reeds would sell the west farms and divide the moneys among the appellees; that the effect of that contract was a family settlement whereby the Kynaston estate was to be divided contrary to Kynaston’s will; that the subject matter of the contract was the estate of Kynaston, and that such a contract had to be enforced by proceeding in the probate court in the Kynaston estate and could not be enforced by an action in the district court. In support of this argument they cite Erwin v. Erwin, 153 Kan. 703, 113 P. 2d 349, and In re Estate of Hinshaw, 164 Kan. 550, 190 P. 2d 386. An exhaustive review of those cases will not be made here. In the Erwin case, after appointment of an administrator, the heirs made a written contract for division of the decedent’s estate. Shortly thereafter the widow brought an action in the district court to set aside that contract on the ground of fraud. While that action was pending, a second contract was made providing for an adjustment of all claims and for dismissal of the district court action, and it was stated the contract was made to effect a quick and proper setlement of the estate in accordance with its terms. When the administratrix filed her petition for final settlement she attached a copy of the contract. Some heirs sought to have it stricken on the ground the probate court was without jurisdiction to make a settlement in accordance with its terms and could only make distribution in accordance with the laws of descent. Reference is made to that opinion for reasons assigned. This court held the probate court had jurisdiction to settle the estate in accordance with the contract. In the Hinshaw case is an involved state of facts. Petitions were filed in the probate court which if allowed would cause decedent’s property to pass other than as directed in the testator’s will. Over petitioner’s protest, the petitions were certified to the district court which, generally, refused to remand them to the probate court. Judgment was rendered on the merits against one petitioner. On appeal to this court it was held that the petitions were not subject to certification to the district court, that the probate court had exclusive original jurisdiction to hear the petitions and that under the circumstances the district court was without jurisdiction to hear and determine the matter on the merits.
In our opinion, under the facts presented the two decisions relied upon by appellants are not applicable. The contract alleged in the petition and found by the trial court was not one for a settlement of property rights in the Kynaston estate. The agreement made was not one to dispose of property in a different manner from that which would otherwise take place nor one which would result in the assignment of any property to the appellees, who were not beneficiaries under Kynaston’s will. It was not a family settlement as that term is used in the law. See definitions in Words & Phrases as well as the definition of “family arrangement” in Bouvier’s Law Dictionary. And see also Montgomery v. Grenier, 117 Minn. 416, 136 N. W. 9, where it was held that an agreement on the part of a brother of a deceased person with another brother and sister to refrain from contesting the will of the decedent in consideration of the latter, who were beneficiaries under the will, to pay him a certain sum of money, was not a family settlement within the meaning of the law upon that subject. The contract now under consideration not only did not provide for a disposition of the property in a manner contrary to the terms of the will but in effect provided that the will was to be carried out. The force of the contract was that if the appellees would not contest the will, the beneficiaries under the will would pay them moneys to be derived from the sale of certain real estate. It is not, and cannot be, contended that such a contract, if proved, was illegal or invalid, and had appellees asserted the contract in the probate court in the Kynaston estate, as appellants contend they should have done, it would have been contrary to the very agreement made. Appellants' contention that the district court was without jurisdiction in the action commenced there is not sustained.
Insofar as the proceeding commenced in the probate court is concerned, appellants contend that although appellees were in the proper court, they proceeded in the wrong estate, this on the theory that the agreement was a family settlement for division of the Kynaston estate and should have been asserted in that estate. What has been said concerning the action commenced in the district'court disposes of the contention there was a settlement for division of the Kynaston estate. Amy J. Reed, a party to the agreement not to contest the Kynaston will, died before she had carried out her part of the agreement. Appellees properly asserted this claim against her by the petition filed in the probate court against her estate. We hold that appellees proceeded in the proper estate.
The matters set forth in the belated “additional suggestions” are in part a reiteration of matters contained in the briefs and heretofore discussed. The new matter is an attempt to show a trust may be implied from the course of dealings between the parties, and if so, rights thereunder must have been asserted in the probate court. Such a question was never presented in the trial court, is raised here belatedly and will be disposed of shortly. We have read the authorities cited and conclude that no such trust relation existed as would affect the soundness of the trial court’s judgment.
From what has been said it follows that the judgment of the trial court must be and it is affirmed. | [
-48,
108,
-44,
-119,
-102,
-32,
11,
-72,
99,
-80,
-91,
115,
-23,
-36,
21,
109,
127,
77,
-47,
107,
-61,
115,
30,
1,
115,
-13,
-31,
-52,
-79,
-52,
-76,
119,
72,
32,
-118,
-43,
-26,
10,
-3,
-48,
-116,
80,
9,
-27,
-39,
-46,
54,
103,
86,
5,
-27,
-66,
-77,
43,
21,
-62,
-72,
60,
121,
45,
89,
-72,
-113,
-121,
125,
18,
-110,
6,
-118,
-77,
-56,
14,
-112,
17,
-128,
-24,
81,
-90,
-106,
-11,
75,
-119,
8,
102,
35,
48,
-3,
-17,
-72,
-102,
46,
86,
-67,
-90,
114,
73,
67,
64,
-74,
-99,
113,
80,
21,
124,
-4,
-100,
76,
-88,
12,
-113,
-106,
-79,
25,
-68,
-116,
-110,
-61,
76,
112,
113,
-53,
34,
88,
-61,
49,
27,
6,
-11
] |
The opinion of the court was delivered by
Thiele, J.:
The Cities Service Gas Company commenced a pro ceeding in the district court for the exercise of the right of eminent domain. Upon a hearing of the petition the court found that the company had the power of eminent domain and that it was necessary to its lawful corporate purpose that it obtain a limited gas pipe lines easement through the lands of Samuel A. Krehbiel and Alice Krehbiel, who are later referred to as the landowners, and three appraisers were appointed to actually view and appraise the value of the easement. The appointed appraisers qualified and gave publication notice as required by statute that they would meet at a designated place at a designated time then and there on actual view to appraise and assess the damages, a copy of that notice being served upon each of the landowners. Later the appraisers filed their report stating that on the date fixed they met at the place designated and actually viewed the lands described and that they appraised the damages of the landowners at the sum of $129.07. This report was presented to the court, which approved it. No appeal from the appraisement was taken by the landowners as provided by G. S. 1947 Supp. 26-102.
On the day following approval of the above report the landowners filed their motion reciting the giving of the notice above mentioned and its contents, and alleging “that the said above named appraisers did not meet at the place designated in said notice” and moving the court that the appraisal be set aside and held for naught. At the hearing on this motion the court heard the evidence introduced by the landowners and argument of counsel, found that the landowners had not sustained the burden of proving the facts alleged in their motion, and denied the motion.
From the decision on the above motion the landowners have appealed to this court. Their abstract of the record contains no specification of error but in their brief they state their entire contention is that they were not afforded an opportunity to talk to the appraisers and because of the failure of the appraisers to hold a meeting and meet with them the appraisal was void. As it is stated, the contention ignores the court’s finding that the landowners had not sustained the burden of proving the facts alleged in their motion.
The first question for consideration is whether the appeal presents any matter for appellate review. The decision on the motion was not one which determined the action and prevented a judgment and was not a final order as defined in G. S. 1935, 60-3303, nor was it one of the orders of the district court as specified in G. S. 1935, 60-3302, from which appeal lies to this court. Further, if it be assumed that because evidence was introduced in support of the motion, a trial was had, the decision was one of fact and not of law. There was no motion for a new trial, and under repeated decisions of this court there is nothing for appellate review. (See West’s Kansas Digest, App. and E., § 281; Hatcher’s Kansas Digest, App. and E., § 366.)
Under the circumstances, we need not discuss the appellee’s contention that the right to exercise the power of eminent domain having been adjudicated, the only concern of the landowners was the right to be heard on the matter of compensation (Buckwalter v. School District, 65 Kan. 603, 607, 70 Pac. 605) and that not having appealed from the award of the appraisers, it became a finality.
As the appeal presents nothing for appellate review it must be and is dismissed. | [
-16,
108,
-39,
-114,
8,
96,
58,
-103,
73,
-89,
-25,
83,
-19,
-53,
17,
125,
-21,
61,
116,
122,
-41,
-78,
67,
67,
-42,
-45,
-101,
-51,
-7,
94,
-10,
71,
76,
48,
-54,
-43,
-58,
-94,
-51,
90,
-114,
-123,
-103,
77,
-39,
64,
52,
11,
118,
79,
17,
-113,
-29,
44,
25,
-61,
-56,
44,
75,
53,
64,
-8,
-86,
-123,
95,
4,
0,
100,
-36,
-89,
-56,
10,
-112,
49,
-119,
-24,
85,
-90,
-106,
-76,
9,
-101,
41,
46,
107,
17,
108,
-17,
-24,
-120,
15,
-34,
-115,
-90,
17,
24,
66,
33,
-106,
-99,
116,
66,
71,
-2,
-26,
-123,
95,
-20,
15,
-113,
-42,
-95,
7,
109,
-104,
65,
-17,
5,
48,
96,
-51,
-22,
92,
71,
51,
31,
-114,
-72
] |
The opinion of the court was delivered by
VALENTINE, J.:
This action grows out of the same facts as were involved in the case of Armel v. Layton, 29 Kas. 576. That action was replevin, brought by Armel & Jones against J. J. Layton and Butler Wood for the recovery of certain cattle. Judgment was rendered in that action in favor of the defendants and against the plaintiffs for all the cattle, and in the alternative for $1,948, if a return of a certain portion of the cattle could not be had, and for costs. This action is by the same plaintiffs against the same defendants, for the value of the cattle in excess of all claims of the defendants against the plaintiffs, and for relief with respect to some other matters. In this action the plaintiffs allege in their petition, among other things, in substance, that the cattle, prior to said replevin action, were in .the possession of the defendant Layton, and held by him as the mortgagee of the plaintiffs, who were the mortgagors; that after default on the part of the plaintiffs, the defendant Layton sold and disposed of a portion of the cattle to bis co-defendant, Butler Wood, and retained the remainder thereof in his possession, and has not accounted to the plaintiffs for any portion of the cattle, or their value; and that if an accounting were had, a large amount would still be due to the plaintiffs over and above all claims of the defendants; and they pray for j udgment accordingly. Their petition is verified by the oath of the plaintiff Armel. A temporary injunction was granted, restraining the collection of said judgment for $1,948, until this action can be heard. The defendants answered separately. The following is the second defense contained in the defendant Layton’s answer, to wit:
“ SECOND DEFENSE. — And further answering the said petition of the said plaintiffs, the said defendant says:
“1. That he admits the making and executing of the written contract and agreement in said plaintiffs’ petition set out and referred to, but saith that each, all, and every one of the conditions, covenants and agreements of said contract, on his part were by him fully, faithfully and completely fulfilled, performed and discharged; and the said defendant denies severally and specifically each and every alleged breach on his part of said contract and agreement, or of any of the conditions, covenants or agreements thereof, as in said petition alleged, set out, and averred.
“ 2. Defendant further saith that he denies that he is indebted unto said plaintiffs in or for any sum whatever for or on account of any advances of money made to him by said plaintiffs at any time or times for the purpose of enabling him to fulfill his part of the said contract or otherwise, and that if any money was ever advanced to him by the said plaintiffs or either of them, at any time or in any manner, or if any payments were ever made by said plaintiffs to or for him or in his behalf, the same have been fully and completely repaid by the said defendant and discharged, and that he is not now, nor was he at the time of the commencement of this action, indebted unto the said plaintiffs in any sum whatever.
“3. The said defendant further saith that on or about the — day of October, 1878, and a.t about the time of the taking away from this defendant by the said plaintiffs of the fifty-five head of steers, as mentioned in the said plaintiffs’ petition, it was by and between the said plaintiffs and this defendant contracted and agreed that the said plaintiffs might and should take away the said fifty-five head of steers, and the plaintiffs then and there and thereby reserved the right to return the said cattle so to be taken away, in the spring, or to keep them permanently as their own, at their own option and election, and that if they chose and elected in the spring following to keep and retain them, then all of the cattle being and remaining in the hands of this defendant after the taking away of the said fifty-five head should vest in and become the absolute property of this defendant; that the said fifty-five head of cattle were taken away, and the said plaintiffs at the spring following wholly failed and refused to return the cattle taken away as aforesaid, and elected and chose to keep and retain the same as their own, and did say and agree to and with this defendant that he, the said defendant, might and should have and keep as his own the portion of cattle remaining in his hands. And the said defendant further saith that the several rights of these parties, both the plaintiffs and the defendant, of, in and to the cattle in said plaintiffs’ petition described as ‘the one hundred head, more or less/ and ‘the twelve cows and their increase/ were and have been finally adjudicated and determined in an action heretofore pending and determined in the district court of Woodson county, Kansas, in which Daniel Armel and Thos. P. Jones, partners as Armel & Jones (the plaintiffs in this action), were plaintiffs, and J. J. Layton (this defendant) and Butler Wood (his co-defendant in this action) were defendants; that said action was brought by the said plaintiffs against the said defendants for the purpose of recovering the said cattle last herein described; that the said cause was tried at the June term, A. D. 1882, of said court, by the court and a jury, and that therein the jury returned a verdict in favor of the defendants (the defendants in this action) and against the plaintiffs (the plaintiffs in this action), and thereupon and thereafter the said court at the October term, 1882, rendered judgment in favor of these defendants (defendants in said action) and against the said plaintiffs (plaintiffs in said action) for the said cattle. True copies of said verdict and judgment and the proceedings of the said court in the said cause at the said term are hereto attached,marked ‘Exhibit A/ and made a part of this answer; that said judgment has not been reversed, vacated, modified or set aside, and remains in full force, virtue, and effect.
“ Wherefore the said defendant prays that he may go hence without day, and may recover judgment against the said plaintiffs for his costs in this behalf expended, and that the temporary order of injunction heretofore issued in this cause may be dissolved, vacated and annulled, and that he may be allowed to proceed in the collection of his said judgment against the said plaintiffs; and for such other relief as in equity and good conscience he may be' entitled to.”
Exhibit A, referred to in the foregoing answer, contains only a small portion of the record of the former case; it contains, however, among other things, the verdict of the jury and the judgment of the court rendered thereon, which reads as follows:
“We, the jury, find for the defendants that at the time of the commencement of this action they were the owners and entitled to the immediate possession of the property in controversy; that the same (except the ten cows and six calves in controversy)' is now wrongfully detained from them by the plaintiffs, and that it is of. the value of $1,948.” .... “And it is therefore by the court held, considered, ordered and adjudged that the said defendants do have and recover of and from the said plaintiffs the cattle mentioned in said plaintiffs’ petition, and by the verdict of the jury in said cause found to be the property of the said defendants and to be wrongfully detained from them by the said plaintiffs, to wit: Ninety-two head of two-year-old cattle, consisting of steers and spayed heifers; ten head of cows and six calves, and eleven head of yearling steers and heifers, part of said cattle branded M. L.;’ or if a return thereof cannot be had, that they, the said defendants, do have and recover of and from the said plaintiffs the value thereof, to wit: the sum of one thousand nine hundred and forty-eight dollars, so as aforesaid found by the said verdict of the jury. And it is further ordered and adjudged by the court, that the defendants have and recover their costs in this behalf expended.”
For the purposes of the decision of this case it is not necessary to quote anything further from Exhibit A, for what we have already quoted is about all that is material. The plaintiffs demurred to a portion of the defendant Layton’s answer, in the following words, to wit:
“ Come now the plaintiffs and demur to the latter part of and all of said third count of the second defense of the separate answer of the defendant J. J. Layton, and state as the grounds of their demurrer the following:
“1. That said count does not state grounds sufficient to constitute a defense to the action of these plaintiffs.
“ 2. All the other statutory grounds of demurrer. Wherefore, they pray for judgment as in their petition.”
The court overruled this demurrer, and the plaintiffs, as plaintiffs in erroi’, now bring the case to this court for review. The question intended to be raised by the foregoing demurrer, and the question actually presented by the parties, is, whether the third subdivision of the defendant’s defense sets forth a sufficient plea of res adjudieata. The plea evidently refers to the aforesaid replevin action as being the former adjudication relied on by the defendants as a defense to this action. The question, therefore, which the parties desire to have considered, is, whether the judgment in the replevin action is a final determination of all or any of the essential questions now involved in this present action with reference to the aforesaid cattle, then and now in controversy. In other words: Is that judgment a final determination that the final contract or arrangement entered into between the parties was not a mortgage, but was an absolute barter or sale upon condition, which condition was afterward fulfilled so that the property in controversy became the absolute and unqualified property of the defendants? The defendants claim that the judgment in that action was a final and conclusive adjudication that the defendants were the absolute and unconditional owners of the cattle, in equity as well as in law; while the plaintiffs claim that the question as to whether the cattle were held by Layton merely as the mortgagee of the plaintiffs or not, was not and could not have been adjudicated in that action; and that the claim of the plaintiffs now presented, that the cattle were in fact so held, is perfectly consistent with the judgment rendered in that action, and with every necessary and essential fact involved therein, and with everything determined therein..
This leads us to the question: What may and what may not be determined in an action of replevin ? Title, of course, may be determined in such an action, but very often it is not. A defendant may defeat the plaintiff in such an action by merely showing that the defendant did not have the possession of the property at all, or did not detain it at all; or if he had the possession of the property, then he may defeat the plaintiff by showing that he had the right to the possession thereof, but without title; or he may defeat the plaintiff by showing that the plaintiff did not have the right to the immediate possession of the property; and while the judgment • in any one of these cases would be rendered in favor of the defendant and against the plaintiff, yet it would not show that the defendant had any title at all to the property; nor would it even show in whom the title was vested. In the present case, however, the defendant, Layton, did detain the property from the plaintiffs, and he detained the same upon a claim of title in himself and in his co-defendant, Wood; and to this extent we think the judgment in the replevin action was a final adjudication; and it would also be a final adjudication that the plaintiffs were not at that time entitled to the possession of the property, and that the defendants were entitled to the possession of the same; but the nature, character and extent of the defendants’ title was not necessarily involved in or adjudicated in that action. The question of ownership was settled in that action, and it was settled in favor of the defendants, but whether Layton’s ownership was that of a mortgagee, or was. of some higher or lower character, was wholly immaterial in that action, and may not have been litigated therein. Layton held his title directly from the plaintiffs, and may have been a mortgagee. Wood, however, held his title by purchase from Layton, and was of course the absolute and unconditional owner. But was it so adjudicated even as to him? This question is immaterial in this case; for the real question in this case, as presented by counsel, is, whether it has been adjudicated that Layton was not a mortgagee. A mortgagee in possession after default is not merely a lien-holder, but he is the real owner of the mortgaged property, and in him is vested the entire legal title. Mr. Jones, in his work on Chattel Mortgages, says, “Upon default, the title to the mortgaged property becomes absolute in the mortgagee,” and cites a number of authorities. (Jones on Chattel Mortgages, § 699; see also 3 Pomeroy’s Eq. Jur., §1229.) Of course, however, the mortgagor has the right to redeem the property by performance on his part within a reasonable time and before the mortgagee has sold the property; and in all cases the mortgagor has a right to any excess over the amount which it may require to satisfy the mortgagee’s claim; and the right to redeem or for an accounting he may enforce in equity. A contract like the one stated in the defendant’s answer may, under some circumstances, constitute a mortgage. (Bunacleugh v. Poolman, 3 Daly, 236; Fowler v. Stoneum, 11 Tex. 478; McKnight v. Gordon, 13 Rich. [S. C. Eq.] 222;) or it may, under other circumstances, constitute a conditional sale, which would become absolute upon default. (Chapman v. Turner, 1 Call, [Va.] 280; Johnson v. Clark, 5 Ark. 321.) But for the purposes of the question now under consideration, and as now presented by counsel, it is wholly immaterial what the character of that contract was. The only question now to be considered is, whether it has already been adjudicated that the contract between Armel and Layton was not a mortgage. No express adjudication of that kind can be found, and the judgment rendered in the replevin action is precisely what it would have been if it had been determined in that action that the contract was a mortgage. Probably the question as to whether such contract was a mortgage or not, was not litigated in that action. If it was, however, then the judgment in that action is in harmony with the theory that it was a mortgage; but if it was not, then it can hardly be said that there has been a final adjudication, or indeed any adjudication, upon the subject; and certainly it cannot be said that it has already been adjudicated that the contract was not a mortgage.
This is substantially an action in equity for an accounting, and it is probably the only kind of action that ever ought to have been brought between the parties. By it, substantial justice may be done. By the former action of replevin, complete justice was not done, and could not have been done, in whatever way the judgment in that action might have been rendered. If the judgment in the former action had been for the plaintiffs, justice would in all probability have been de- featecl; but as it was for the defendants, and as the parties may now in all probability have a fair and just accounting, justice will in all probability be rendered to both parties. This kind of action ought therefore to be encouraged, and we ought not to hold that the former action of replevin was a final adjudication between the parties with respect to the question now presented, unless under the facts and the law of the case no other conclusion could be reached.
The judgment of the court below will be reversed, and the cause remanded with the order that the demurrer to that portion of the defendant Layton’s answer which pleads a former adjudication be sustained.
All the Justices concurring. | [
-14,
108,
-48,
-83,
10,
96,
42,
-118,
65,
-94,
39,
-13,
-23,
-53,
4,
123,
-26,
61,
85,
106,
86,
-77,
22,
-96,
-109,
-13,
-47,
-51,
-79,
111,
-26,
85,
77,
52,
-54,
-107,
-30,
-64,
-63,
92,
14,
5,
9,
-51,
-3,
0,
48,
113,
116,
75,
117,
-114,
-13,
36,
25,
-45,
105,
44,
123,
45,
-47,
-8,
-66,
15,
63,
7,
-111,
102,
-100,
67,
-8,
46,
-104,
57,
1,
-23,
122,
-76,
-122,
84,
35,
-71,
8,
38,
103,
2,
64,
-49,
24,
-104,
47,
-37,
-113,
-90,
-112,
24,
35,
32,
-74,
-67,
88,
68,
39,
126,
-17,
-115,
31,
68,
5,
-49,
-106,
-77,
-33,
124,
-104,
-61,
-21,
-109,
48,
117,
-63,
-96,
92,
103,
26,
-109,
-114,
-14
] |
The opinion of the court was delivered by
Horton, C. J.:
This case was in this court at the July term for 1883. (31 Kas. 139.) At that time, the judgment of the district court was reversed, and the cause remanded for further proceedings in accordance with the opinion. Subsequently, a supplemental mandate was ordered by this court, directing that the taxes paid by the parties respectively be a lien upon the property as to priority, inversely in the order in which the taxes were levied and paid by the parties, and that the improvements made on the property, to wit, the fence erected by Bird in 1880, as shown by special finding of the court No. 15, in the original case, be a lien of the same priority and rank as the taxes levied for the year 1875. In compliance with this mandate, the district court entered judgment, giving the plaintiff in error the first and third liens upon the premises, and the defendant in error the second and fourth liens; that is, Bird was adjudged the sum of $8.68 as a first lieu for the taxes for 1880, 1881 and 1882, and the interest thereon as allowed by law. Belz was adjudged the sum of $36.11, as a second lien for the taxes of 1876, 1877, 1878 and l879, with interest thereon as allowed by law; and Bird was further adjudged $121.24, as a third lien for the taxes for the year 1875, with interest thereon amounting to $51.24, and also $70, for his improvements; and Belz was also adjudged the sum of $622.98, as a fourth lien for the taxes of 1861 to 1874 inclusive, together with interest thereon.
It was also decreed by the district court that if said several sums were not paid within ten days from the rendition of the judgment, that an order of sale should issue to the sheriff, directing him to appraise, advertise and sell the real estate, as provided by law, and out of the proceeds of the sale to pay, first, the costs of the action, together with the costs of the sale, and then, next, the several liens in their order. It was further decreed that the remainder of the proceeds of the sale, after paying the said several liens and interest, should be brought into court to abide the further order thereof. It was also provided in the decree that after the sale, confirmation, and the issuance of a sheriff’s deed to the purchaser, a writ of possession should issue to the sheriff to assist the purchaser to the possession of the premises against the defendant, or any person in possession thereof, claiming by, through or under him since the commencement or pendency of this action. Thereupon Bird filed his motion to correct the judgment, as follows:
“1. To make the fourth lieu upon the premises described in the petition, to wit, Lot No. five (5), block ‘Y’ old Atchi-son, in the city and county of Atchison, state of Kansas, the sum of $318.88.
“2. To strike out so much of said judgment as orders a writ of possession to issue to the sheriff to put the purchaser at the sale thereof in possession of said premises.
“ 3. To add thereto a clause prohibiting purchaser at such sale from taking any valuable improvements upon said premises, placed thereon, after the trial herein, in good faith and without notice of plaintiff’s claim thereon.”
This motion was overruled.
The contention is, that Belz was entitled to receive interest at the rate of seven per cent, only, and that the amount of his fourth lien should be $318.88 instead of $622.98. The date of the first deed to Belz was May 24, 1864, and the court gave interest on the amount of such deed and subsequent payments at the rate of 20 per cent. This was in accordance with the statute. (Comp. Laws of 1879, ch. 107, §142; Corbin v. Young, 24 Kas. 202; Belz v. Bird, 31 id. 139.)
Within the prior decisions of this court, the district court had full authority to declare the amount of taxes which Belz had previously paid on the land, together with the interest due thereon, a lien upon the premises, and to decree that the premises should be sold to satisfy and discharge such lien. (Russell v. Hudson, 28 Kas. 99; Fairbanks v. Williams, 24 id. 16; Arn v. Hoppin, 25 id. 707; Belz v. Bird, supra.)
In reference to the decree ordering a writ of possession to issue, counsel say:
“We do not contest the right of a court of equity to issue such a writ, but we do contest the right and power of any court to prejudge a case, or to order such a writ before the confirmation of a sheriff’s sale. For the purpose of making such order as may be proper up to and including the confirmation of the sale, and an order for the writ of possession upon a proper application and showing after the confirmation, the court retains jurisdiction of the cause, but until that showing is made, the court should not determine the right of the parties, present and prospective, and make an order upon which the writ of assistance may be issued by the clerk. The court cannot delegate to the clerk the judicial power to determine upon the precipe of attorneys, whether the person against whom a final writ of possession is asked, is in possession of the premises, claiming by, through or under defendant since the commencement of this suit, nor can the court authorize the sheriff holding such a writ to exercise such judicial functions and determine the right of the parties, nor could the sheriff having such a writ determine any question of fact involved.”
We perceive no error in the decree giving authority for the issuance of a writ of possession to assist the purchaser to the possession of the premises, after the sale and confirmation and the execution of a sheriffs deed; at least, we perceive no error in the decree prejudicial to the legal rights of the defendant below, the only party complaining. In Kershaw v. Thompson, 4 Johns. Ch. 609, it was said that—
“A court will enforce its decree by process for the actual delivery of possession, whenever, in pursuance of the decree, such possession ought to be delivered.”
It is stated in Kent’s Com., vol. 4, (13th ed.,) 192, that—
“Upon a decree for a sale, it is usual to insert a direction that the mortgagor deliver up possession to the purchaser; but whether it be or not part of the decree, a court of equity has competent power to require by injunction, and enforce by jorocess of execution, delivery of possession, and the power is founded upon the simple elementary principle that the power of a court to apply the remedy is coextensive with its jurisdiction over the subject-matter.”
It is the practice in this state, in the foreclosing of mortgages and in other actions for the sale of real estate to satisfy liens thereon, to provide in the decree that the defendant shall deliver up possession to the purchaser after sale, confirmation, and execution of sheriff’s deed. If this clause is not contained in the decree, it is sometimes the practice to embrace it in the order of confirmation.
In any event, after a purchaser has obtained his deed under the order of the court, there cannot be any good reason why he should not be put in possession as against the defendant, by the court which makes the sale and transfers the title. Under the decree in this case, the clerk cannot issue a writ of possession until after the sale, confirmation, and issuance of sheriff’s deed. The sheriff cannot dispossess anyone under the decree except the defendant, or some person in possession claiming by, through or under the defendant since the commencement or pendency of this action. If the defendant below, or any other person, is in possession of the premises under such rights as to be exempt from the operation of the decree, such defendant, or other person, has it within his power to institute a suit to restrain being dispossessed; but the purchaser ought not to be put to the trouble of instituting another suit or other proceedings to obtain possession as against the defendant. The parties in possession claiming through or under the defendant since the commencement of the action, having any rights above the decree, are'the ones to commence proceedings, if the circumstances of the case permit them so to do.
We have examined the case of Landon v. Burke, 36 Wis. 378, but as the ruling in that case seems to have been governed by certain sections of the Wisconsin statute, it is not controlling.
The order and judgment of the district court will be affirmed.
All the Justices concurring. | [
-15,
126,
-8,
62,
26,
64,
8,
-72,
19,
-31,
-76,
95,
75,
-109,
20,
105,
-93,
125,
85,
105,
-43,
-77,
55,
34,
-14,
-13,
-109,
-43,
-67,
92,
-25,
-41,
78,
36,
-62,
-99,
-26,
-30,
-59,
84,
6,
-91,
11,
109,
-39,
96,
52,
-5,
50,
75,
101,
-50,
-5,
47,
25,
-53,
104,
44,
89,
57,
-48,
-8,
-66,
12,
95,
19,
-109,
102,
-104,
7,
72,
46,
-104,
53,
8,
-23,
123,
-74,
-122,
84,
97,
-72,
8,
102,
98,
1,
77,
-17,
-32,
-104,
14,
-13,
-115,
-90,
-109,
88,
-118,
8,
-74,
29,
124,
80,
7,
126,
-26,
-107,
-103,
108,
25,
-98,
-106,
-109,
-49,
116,
-102,
91,
-25,
-93,
49,
97,
-49,
-94,
92,
-42,
115,
-69,
-105,
-36
] |
The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from a judgment of adoption made without the consent of the natural father.
There is no substantial dispute as to the facts.
Arthur Philip Waters married Loretta Brinkhoff in Idalia, Colorado, in 1955. Arthur then went to Japan as a teacher in the Armed Forces. Later he was joined by Loretta. Kenji Scott Waters, the subject of the adoption proceedings, was born in Japan on June 12, 1956.
On August 8, 1957, Arthur and Loretta were divorced and by the terms of a child custody agreement Arthur was to have unlimited visitation privileges until Loretta and Kenji left Japan. However, during the short time the mother and child remained in Japan their whereabouts were concealed from Arthur. Loretta, accompanied by Kenji, returned to Idalia, Colorado, the latter part of August 1957. Subsequently, and on June 17, 1960, she married Alvin R. Zweygardt. Since that time Kenji has lived with Loretta and Alvin on a ranch in northwest Kansas, about twenty-four miles from Idalia, where he has been given the care and affection of a natural son by Alvin.
Arthur has never seen Kenji since the divorce. In fact he has made no attempt to do so. He now lives in Montclair, New Jersey, where he is a high-school biology teacher. Arthur was in Idalia in the summer of 1961. His testimony regarding that visit can be narrated as follows:
“I made no effort to see the boy while I was in Idalia nor did I ask Mr. and Mrs. Brinkhoff [the grandparents] where he was. I did not attempt to call the boy on the telephone nor did I write a letter to the boy in the last five years.. I inquired about his health and growth from my friends in the Idalia community. I didn’t go to Mrs. Brinkhoff and ask where the child was because I know what her attitude was toward me during our marriage.
“I did not see an attorney about enforcing my visitation rights but I did stop sending the amount of payment to try to enforce these rights of visitation. Loretta could have known where I was all this time by the return address on the cards and gifts I had sent to Kenji through the years. I made no real effort to find him. I didn’t attempt to visit the child because I concluded I would have not been permitted to see him anyway.”
The record is not clear as to just what amount of child support was to be paid by Arthur. One Hundred Dollars per month is mentioned. However, it appears that One Hundred Dollars was paid only one or two months. Thereafter Sixty Dollars a month was paid for a time. Subsequently payments were reduced to Fifty Dollars per month. No payments were made after July, 1961. In this connection Arthur testified:
“. . . I stopped making payments after the July payment of 1961 because I was convinced that I would never get to see my son without some court action and felt that by stopping the payments, the court action would be commenced, as a result of which I would have an opportunity to visit my son. I expected her to start some action to collect this money since she had done so before. She never commenced any such action but I did receive a notice of the pendency of this action.”
The petition of Alvin R. Zweygardt for adoption of Kenji Scott Waters, which was filed in the probate court and was consented to by his mother, Loretta, was contested by Arthur Philip Waters. Arthur’s answer to such pleading alleged in part:
“That in an effort to force the issue of this answering party’s right of visitation to his son, Kenji Scott Waters, this answering party has, in fact, deliberately ceased making payments for the support of the said Kenji Scott Waters in the desperate hope that Loretta M. Zweygardt would commence some proceeding to require him to make such payments so that by said pro ceeding, she could be forced to divulge the location of said child and to grant this answering party reasonable visitation rights to said child.”
After a full and complete hearing the probate court found:
“. . . that the natural father of said child, Arthur Philip Waters, has failed to assume the duties of a parent for two consecutive years last past and that during said time he has not contributed to the support of said child; . .
and entered a decree of adoption in accord with the prayer of the petition.
On appeal from the probate court’s decree the district court, after an extended hearing, made findings which, for all purposes here pertinent, may be said to be identical to the heretofore quoted findings of the probate court. Pursuant to such findings the district court entered its decree and judgment ordering that Kenji be adopted by the petitioner and that petitioner be entitled to all the rights of a parent of the child and subject to all the liabilities of that relationship.
Thereupon the natural father, Arthur Philip Waters, perfected the instant appeal wherein he contends:
“The trial court erred in failing to find the appellant had justifiable cause for his failure to contribute to the support of Kenji Scott Waters, and that appellant had therefore not failed or refused to assume the duties of a parent for more than two years preceding the commencement of the action.”
The pertinent statute, now K. S. A. 59-2102, reads in part:
“Before any minor child is adopted, consent must be given to such adoption. “(3) by one of the parents if the other has failed or refused to assume the duties of a parent for two consecutive years. . . .” (Emphasis supplied.)
Although this court has not had occasion to consider what constitutes failure to assume the duties of a parent as that term is used in the adoption statute, we have no hesitancy in concluding that the conduct of the appellant, as established by the undisputed evidence in this case, justified the findings of the two courts below.
The appellant’s contention that he withheld payment of child support in order to force the mother to give him the right of visitation does not have much force. He testified that he made no particular effort to see the child. He did not know that the right to see the child would be refused. His failure to support the child in an effort to coerce the mother was not in line with his duty as a parent.
The duty of a parent goes further than mere support. We have more in this case than failure to pay child support. A parent who over a period of five years makes no effort to see or talk to a child is in no position to claim he is fulfilling the duties of a parent.
The appellant’s defense under the facts as presented might well have appeared to the probate court and to the district court as an after thought designed to excuse the appellant for his shortcomings. In any event whether a parent has failed to assume the duties of a parent for two consecutive years rendering unnecessary consent to adoption is a question of fact. The factual question is one for determination of the trier of facts on competent evidence.
The question of fact having been determined by the probate court and the trial court on substantial competent evidence should not be disturbed by this court on appellate review.
We have not ignored the authorities cited from other jurisdictions. However, they deal with different facts and statutes containing language different from the language of the Kansas statute and are of little if any assistance.
Neither have we ignored appellant’s rather ingenious argument to the effect that the trial court erred in finding he had failed to support the child for two consecutive years. The record does not support tibe appellant’s contention. He testified positively that he stopped making payments after the July 1961 payment.
A careful examination of the entire record discloses no error which would justify a reversal of the judgment.
Therefore such judgment must be and is hereby affirmed. | [
17,
108,
-35,
57,
58,
-95,
-82,
0,
118,
-21,
35,
-15,
-85,
83,
84,
-23,
-7,
47,
80,
113,
-43,
-78,
86,
-54,
-14,
-13,
-72,
-36,
-77,
92,
-27,
87,
76,
48,
-118,
-73,
66,
73,
-59,
-44,
-82,
18,
-101,
-24,
81,
-58,
48,
99,
-38,
14,
81,
-98,
-125,
46,
28,
-64,
-84,
46,
-5,
-67,
-40,
-8,
-85,
22,
-33,
6,
-93,
22,
-102,
-91,
89,
44,
-104,
49,
0,
-24,
-78,
-90,
-98,
109,
67,
-115,
25,
116,
99,
-124,
77,
-25,
-16,
8,
111,
-2,
-67,
-90,
-106,
80,
73,
37,
-68,
-3,
56,
80,
10,
-8,
-54,
-115,
95,
-92,
4,
-114,
-42,
-127,
-49,
58,
-100,
2,
-29,
-95,
33,
81,
-61,
-28,
93,
67,
123,
-105,
-98,
-13
] |
The opinion of the court was delivered by
Johnston, J.:
On the 28th day of September, 1882, the plaintiffs, Charles L. Mull & Son, obtained a judgment before a justice of the peace of Jackson county, against one W. A. Brown, for the sum of $60.85. An execution was issued thereon, and returned unsatisfied. On the 14th day of November, 1883, the plaintiffs made and filed with said justice the required affidavit, and caused a notice in garnishment to issue to A. L. McDowell, T. P. Moore, and the defendant herein, Ed. F. Jones, commanding them to appear and answer all questions touching their indebtedness to W. A. Brown, and the property and money of every description in their hands belonging to said Brown. On the 17th day of November, 1883, Ed. F. Jones appeared, and answered that he was not indebted to W. A. Brown, and had no money or property belonging to Brown in his hands at the time the notice was served upon him. His. answer not being satisfactory to the plaintiffs, notice was given to the justice of that fact, and a trial of the truth of his answer was demanded; whereupon a trial was accordingly had before the justice of the peace, and a finding made that the answer of said Jones was not true, that the disclosures were incomplete, and that at the time the garnishee notice was served upon him he was indebted to said W. A. Brown in the sum of $119.78.. The justice of the peace thereupon made an order that Jones, pay into that court the sum of money so found to be due, or so much thereof as would be sufficient to discharge the. judgment and costs recovered by the plaintiffs against ~W. A. Brown, to wit, the sum of $80.35. The plaintiffs then demanded of' Jones the amount so ordered to be paid, . which demand was refused. Thereupon, and on the 24th day of November, 1883, the plaintiffs, Charles L. Mull & Son, commenced this action against the defendant Ed. F. Jones, as garnishee, to recover the sum of $80.35, based upon the findings and order above-mentioned. On a trial before a justice of the peace, a judgment was obtained by default against the defendant, who thereupon appealed to the district court, and a trial was there had by the court and a jury, resulting in a verdict and judgment in favor of the defendant.
The plaintiffs allege error in the reception of testimony, and in the instructions given to the jury. In the objections to the-judgment and verdict made by plaintiffs, they discuss and present two points:
1. They contend that the order made by a justice of the-peace in a garnishment proceeding under § 42, ch. 81, Comp. Laws of 1879, requiring the garnishee to pay money due to-his creditor into court, is a judgment, and of such a character as concludes the garnishee, and precludes any future or further examination or consideration of the questions that were or might have been inquired into upon the trial of the truth of' the garnishee’s answer.
The force and effect of this order has already been considered by the court, and determined against the claim made by plaintiffs in Board of Education v. Scoville, 13 Kas. 32. In speaking of such orders made by a judge pro tern, of the district court and by a justice of the peace, the court say:
“Neither of said orders is a judgment. The making of them is not an adjudication between the parties. It does not determine their ultimate rights. It simply gives to the creditor the same right to enforce the payment of the money from the garnishee that the debtor previously had. It is in effect only an assignment of the claim from the debtor to the creditor. The creditor gains no more or greater rights than the-debtor had, and the garnishee loses no rights, and the payment of the money can be enforced from the garnishee to the creditor only by an ordinary action.” (See also Phelps v. Railroad Co., 28 Kas. 169.)
It is clear, then, that the defendant was not concluded by the order, and was entitled to show whether he was indebted to W. A. Brown at the time the garnishee process was served upon him, and if so, what the character of the indebtedness was. This was the nature of the testimony offered by Jones on the trial of this action, and we think there was no error in its admission by the court.
2. The other point contended for by the plaintiffs is, that the garnishee cannot set up the defense or introduce evidence to show that the money or property in his hands belonging to the judgment debtor, or his indebtedness to such debtor, is exempt. It appears from the testimony offered in behalf of the defendant Jones, that W. A. Brown, who is the head of a family and a resident of Jackson county, Kansas, owned a. team of horses, which he claims were exempt, and that he sold them to J. C. Brown, his wife, who afterward, in turn, sold them to A. L. McDowell, in payment of which, McDowell executed his promissory note payable to the order of J. C. Brown. Mrs. Brown placed the note in the hands of Jones for collection, and afterward withdrew it from him, and indorsed and sold the same to her mother, M. A. Crawford, who-thereupon returned the note for collection to the defendant Jones, and he collected the amount due thereon from McDowell on the same day that the garnishee notice was served upon him. Testimony was given showing that at the time W. A. Brown sold the team he had no other horses or mules, and therefore the team was exempt. All testimony of this character, and in regard to the exemption of the money, was objected to by the plaintiffs and admitted over their objection. After the evidence was all in, the plaintiffs asked the court to instruct the jury as follows:
“1. That the defendant Jones cannot in this case set up the defense that the money in his hands was exempt under the statute of the state of Kansas.
“2. That the order of the justice of the peace in the garnishee proceeding made in said cause, ordering Jones, the defendant herein, to pay the money in his hands into court, or so much thereof as will be sufficient to discharge the judgment in the case of the said plaintiffs against W. A. Brown, and the costs of said cause, and that said order not having been appealed from, that the said order is now final, and that said Jones cannot interpose the defense that said money in his hands is exempted by statute.”
Both of these instructions were refused by the court, and the court thereupon gave the following instruction:
“If you find from the evidence that the money in the hands of Ed. F. Jones, the defendant, was for a team of horses sold by W. A. Brown, and that it was the only team of horses he owned at the time, and that he had no mules or other horses, and that he was the head of a family and a resident ■of the state of Kansas, then the money is exempt and is not subject to garnishee process, and your verdict will be for the •defendant.”
Plaintiffs excepted to the giving of this instruction, as well as to the refusal of those which they had asked; and on this exception they- raise the question, Can the garnishee interpose the claim of exemption in behalf of his creditor? We think this question must be answered in the affirmative. The garnishee is required to appear and answer all questions that may be put to him touching the money or property in his possession belonging to the defendant, as well as to disclose what is owing from him to the defendant. He is not confined in his answers to the mere statement of the value or amount of the property or funds of the defendant in his hands, but he may, and probably should, state the description and character thereof, and if his answers disclose the fact that the money or property of the defendant which he may hold is exempt, or for any reason is not subject to seizure and sale in a garnishment proceeding, he cannot be compelled to deliver or pay over such property or money to the court. It is well settled that the garnishee cannot be charged for money or property of the debtor which he may have in his hands, unless the same is capable of being seized and sold on execution. (Drake on Attachment, § 480; Thompson on Homesteads and Exemptions, § 860.)
While exemption is in a certain sense a privilege, and one which may be waived by the person entitled thereto, yet it is a privilege which continues in a debtor until he waives the same. It will hardly be contended that the defendant has forfeited or waived that privilege until he has had notice of the garnishment proceeding. If upon notice he should expressly waive the exemption, or if after notice he should neglect and refuse to assert the privilege and claim the exemption, it possibly might be treated as an implied waiver of his right, which would protect the garnishee in case he should pay over the money or deliver the property from any subsequent action brought by the debtor against him to recover the same. But if there was no waiver of the exemption by the debtor, and the garnishee with knowledge that the property was exempt, failed to disclose that fact to the court, or to give the debtor notice that his property had been garnished, he would, we think, be liable to the debtor for such property, notwithstanding he may have delivered the same upon the order of the court in the garnishment proceedings, or that he may have satisfied a judgment obtained upon such order. To avoid such liability, we think the garnishee should be allowed to show any fact affecting the question of his liability as garnishee, and make such a defense as will protect himself. The theory of the law is, that the garnishee is impartial and indifferent as between the plaintiff and defendant, and is only in terested in making a proper disposition of the money or property which he may have, and which the plaintiff seeks to Teach by garnishment process. He should, as far as possible, be protected from unnecessary vexation and from future or further trouble and liability, and to that end should be permitted to interpose the defense and show that the property in his possession or the money held or owing by him to the defendant is exempt, and cannot be subjected by garnishment to the payment of the plaintiff’s judgment. This holding is well sustained by the authorities.
In Winterfield v. St. Paul & Milwaukee Rld. Co., 29 Wis. 589, the court hold that a garnishee may set up the defense that the property, money or credits of the debtor in his hands, or his indebtedness to such debtor, is exempt by law from seizure, or attachment, or execution, and, by proving that it is so exempt, defeat the garnishee suit, and that where the garnishee knew that the indebtedness was exempt it was not only his right, but very probably it was his duty for self-protection, to interpose the defense, and especially if the debtor had formally requested him to do so.
In Pierce v. C. & N. W. Rld. Co., 36 Wis. 283, it was held that a garnishee who knows that the property of the attachment debtor in his possession, or the money which he owes such debtor, is by law exempt from attachment and execution, must bring that fact to the notice of the court; otherwise the judgment against such garnishee and satisfaction thereof will not bar the action against him by the attachment debtor.
In C. & A. Rld. Co. v. Ragland, 84 Ill. 375, a railroad company which was indebted to its employé was garnished by the creditor of such employé, and judgment was recovered against the railroad company, which was paid, the company failing to claim for the benefit of its employé the exemption to which he was entitled under the statute of that state, which provides that the wages and services of a defendant who is the head of a family and residing with the same, to an amount not exceeding twenty-five dollars, shall be exempt from garnishment: held? that when a railroad company is garnished as the debtor of its ■employé for wages due him, he being the head of a family and residing with the same, it is bound to set up that fact for such employé and claim the benefit of the exemption given him by law in such cases, and that if the garnishee pays over money due from him to his employé for wages which are exempt, that he cannot set that fact up in defense to a suit brought by such employé to recover his wages.
In Clark v. Averill, 31 Vt. 512, it was claimed that in a trustee process the trustee can take no advantage of the fact that the property of the debtor in his hands was exempt; that the right was purely a personal right which could be asserted alone by the debtor; but it was held that a claim of exemption might be made and set up by the trustee, and if he established that the property was exempt and was not liable to be taken for the payment of the debts of the debtor, it would be a good legal answer in an action against himself, and a good ground for his discharge as trustee, even though the debtor made no .such claim.
In Lock v. Johnson, 36 Me. 464, the court held that a trustee indebted to the principal defendant for his personal labor is bound to disclose not only the indebtedness, but also that it accrued for such labor, and that if he did not disclose that the indebtedness accrued for such labor, a judgment against him as trustee will furnish no protection in an action against him by the laborer for the service. To the same effect are the following authorities: Drake on Attachment, § 480; Davenport v. Swan, 9 Humph. 186; Gery v. Ehrgood, 31 Pa. St. 329; Staniels v. Raymond, 4 Cush. 314; Morgan v. Neville, 74 Pa. St. 52.
The only authorities holding a contrary doctrine which have been brought to our attention are Conley v. Chilcote, 25 Ohio St. 320, and Moore v. C. R. I. & P. Rld. Co., 43 Iowa, 385, where it is held that it is not the duty of the garnisheé, nor ■can he claim the exemption for his debtor. This ruling seems to have been based upon reasoning that enough inconvenience is already imposed on the garnishee without requiring him to interpose a defense in behalf of the debtor defendant. But the ruling which affords protection to both debtor and garnishee and does not operate prejudicially to the plaintiff, is, to our minds, most reasonable and satisfactory.
Plaintiffs raise the question of the bona jides of the sale of the team by W. A. Brown to his wife, and of the transfer of the note given to Mrs. Brown by McDowell for the team to her mother, but we think the testimony in the record shows very clearly that when the team was s.old by Brown to his wife it was exempt. It is not claimed that the sale was an attempt to cover up the property so as to enable Brown to claim a double exemption, nor that it was an attempt to perpetrate a fraud upon the exemption law. The team being exempt, then Brown was at liberty to sell or give it to his wife or to any other person, and the sale or gift could not be a fraud upon his creditors. As has been.said by this court:
“A debtor cannot commit a fraud upon his creditor by disposing of property ‘ toward which the eye of the creditor need never be turnedA debtor in the disposition of his property can commit a fraud upon his creditor only by disposing of such of his property ás the creditor has a legal right to look to for his pay.” (Hixon v. George, 18 Kas. 260. See also Arthur v. Wallace, 8 id. 269; Monroe v. May, 9 id. 476.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
-16,
110,
-7,
-100,
-86,
-16,
40,
-38,
83,
33,
-75,
83,
-55,
-58,
9,
105,
-30,
29,
-12,
104,
70,
51,
23,
103,
-38,
-13,
-13,
-51,
-79,
-52,
-28,
-42,
76,
32,
-126,
29,
-26,
64,
-59,
-108,
-50,
9,
41,
-20,
-35,
104,
52,
123,
112,
75,
69,
-82,
-29,
47,
21,
67,
105,
61,
-21,
43,
80,
-15,
-114,
-123,
77,
20,
-111,
102,
-104,
-125,
72,
46,
-112,
49,
-126,
-24,
115,
-90,
6,
-12,
111,
-103,
9,
118,
102,
32,
-59,
-17,
-4,
-40,
15,
-2,
-99,
-90,
-112,
113,
-118,
73,
-66,
-99,
126,
80,
-121,
116,
-17,
20,
-99,
124,
3,
-113,
-106,
-73,
-113,
61,
-102,
11,
-29,
35,
-80,
117,
-49,
2,
77,
71,
53,
27,
-97,
-72
] |
The opinion of tihe court was delivered by
Parker, C. J.:
This appeal steins from a controversy over a certificate of convenience and necessity granted a truck fine by the State Corporation Commission.
The procedural facts may be briefly summarized.
The State Corporation Commission after two hearings granted a certificate of convenience and necessity to Ed Holestine, d/b/a Holestine Truck Line, to transport the following items to points and places in Kansas in truck load lots of 6,000 pounds, to-wit:
“1. Insulation and agricultural implements from Kansas City, Kansas (except to Leavenworth and Atchison).
“2. Steel and iron from one-quarter mile west of Bonner Springs (the present sole shipper being Southwest Ornamental Iron Works).
“3. Dog food from Turner, Kansas (the present sole shipper being Strong-heart Packing Company).”
The Graves Truck Line, Inc. and Centropolis Transportation Company protested before the Commission.
The Commission by order dated May 29, 1963, granted the authority sought by Holestine with certain exceptions. The two protesting truck lines filed an application for rehearing before the Commission. The Commission by order dated July 19, 1963, denied the applications for rehearing.
On August 1, 1963, the protestants filed an application for review in the district court of Shawnee County, the material portions of which read:
“That said order of May 29, 1963, is contrary to, and in violation of G. S. 1949, 66-118b [now K. S. A. 66-118b] in that the Application for Rehearing did not set forth the grounds on which the applicants considered the order of December 6, 1962, to be unlawful or unreasonable and further that the Commission by its order of May 29, 1963, enlarged the issue by hearing evidence on an amended application rather than the evidence to be presented under the purported application for re-hearing.
“That the evidence and testimony received by the defendant Commission in support of the original Application held by the Commission on November 8, 1962, and the evidence and testimony on Rehearing held on April 23, 1963, does not support the order of the defendant Commission granting said Certificate.
“Commission erred in not finding that the existing transportation facilities were reasonably adequate as required by G. S. 1949, 66-1,114 [now K. S. A. 66-1,114].
“That the order of the Commission in failing to make specific findings in fact, thus leaving the parties to speculate as to the basis for conclusion and granting the application to the applicant is contrary to the laws of the State of Kansas and is prejudicial to these parties.
“The order dated May 29, 1963, granting extension and adding certain restrictions is contrary to the evidence and testimony.
“The order dated May 29, 1963 granting extension and adding certain restrictions is contrary to the evidence and testimony and was arbitrary, capricious, unreasonable and unlawful.
“The order herein complained of, granting the extension to Ed Holestine, dba Ed Holestine Truck Line, upon its amended application is unlawful and unreasonable in that the record fails to show the public convenience and necessity would be furthered by the operations requested by this applicant.”
It will be noted that the application for review made no reference to the order dated July 19, 1963, which denied the protestants’ motion for rehearing and supplemented the order of May 29, 1963, with additional findings.
The district court made findings of fact in which it concluded:
“11. The evidence and testimony received by Defendant, Commission in support of the original application held by the Commission on November 8, 1962, and the evidence and testimony on re-hearing held on April 23, 1963, does hot support the order of the Defendant, Commission, granting said certificate.
“12. The Defendant, Commission, erred in not finding that the existing transportation facilities were reasonably adequate as required by G. S. 1949, 66-1,114 [now K.S.A. 66-1,114].
“13. The adequacy of existing common carrier service being one of the main standards governing the Commission’s determination of the propriety of a common carrier certificate, a finding in connection therewith is prerequisite to a valid order granting such certificate. The Commission erred in failing to make findings on all applicable standards which govern its determination.
“14. The order of the Commission in failing to make specific findings in fact, thus leaving the parties to speculate as to the basis for conclusion in granting the application to the applicant is contrary to the laws of the State of Kansas and is prejudicial to these parties.”
Ed Holestine and the State Corporation Commission appealed to this court from the findings and conclusions of the trial court and the judgment vacating the Commission’s order of May 29,1963.
The protestants have not filed briefs or made any appearance in this court in support of the judgment they obtained in the district court.
We find no merit in the appellees’ contention and the trial court’s conclusion that the Commission failed to make specific findings of fact, particularly in not making a finding as to the adequacy or inadequacy of the existing common carrier service.
It is conceded by the appellants that there was no finding of fact regarding public convenience and necessity, nor regarding present existing service in the original order of May 29, 1963, such as has been held by this court to be required by 66-1,114, supra. (Baldwin v. State Corporation Comm., 143 Kan. 580, 56 P. 2d 453; Class I Rail Carriers v. State Corporation Commission, 191 Kan. 201, 380 P. 2d 396.) However, this deficiency was cured in the order denying the motion for rehearing which was a prerequisite to appellees’ petition for review. In the application for rehearing following the order of May 29,1963, the appellees stated:
“That the order of the Commission in failing to make speecific findings of fact thus leaving the parties to speculate as to the basis for its conclusion and granting the application to the applicant, is contrary to the laws of the state of Kansas, and is prejudicial to these protestants.”
An application for a rehearing is a prerequisite to a petition for review under the provisions of K. S. A. 66-118b, which provide in part:
. . No cause of action arising out of any order or decision of the commission shall accrue in any court to any party unless such party shall make application for a rehearing as herein provided. Such application shall set forth specifically the ground or grounds on which the applicant considers such order or decision to be unlawful or unreasonable. No party shall, in any court, urge or rely upon any ground not set forth in said application. An order made after a rehearing, abrogating, changing or modifying the original order or decision, shall have the same force and effect as an original order or decision.”
The purpose of an application for rehearing is to permit the Commission to correct errors which are called to its attention and thus avoid a judicial review and determination. Certain inadvertent or technical errors may be corrected without granting a rehearing. It would appear from the language of the Commission’s order denying the rehearing that it found but inadvertently left out of its original order certain necessary findings. Pertinent portions of the order of July 19,1963, denying the rehearing, read:
“. . . The evidence established and the Commission found that the public convenience and necessity justified and required the institution of a part of the additional service. The record failed to disclose that existing carriers would be materially and adversely affected. Furthermore, the Commission concludes that the evidence was convincing that there was a need for the operation proposed by the applicant to the territorial extent set forth in the Commission’s order of May 29, 1963. The purport of the record persuades the Commission that the applicant’s past unauthorized operations should not preclude a grant of the request of the authority. In the opinion of the Commission a need for the service proposed has been amply demonstrated. The Commission further found-that the applicant was.fit, willing and able to institute and maintain a part of the additional service involved in the application for extension. Since there is no legal cause or reason why a rehearing should be granted, said application for rehearing should be denied.” (Emphasis supplied.)
The language so used constitutes an ample finding of public convenience and necessity. We must also conclude that a finding of absolute need for additional service is the equivalent of a finding that the existing service is inadequate.
We cannot agree with the trial court’s conclusion that the evidence does not support the Commission’s order and that the Commission erred in not finding that the existing transportation facilities were reasonably ádequate.
Moreover, we are inclined to agree with, appellants’ suggestion that the trial court attempted to substittue its judgment for that of the Commission. The court’s finding was that “The evidence and testimony received . . . does not support the order. . . .” of the Commission. There is no contention that the order is unreasonable if the evidence supports the finding that the additional service was a public necessity.
The trial court may not substitute its judgment for that of the Commission when supported by substantial competent evidence merely because the court if it had been sitting as a fact finding body would have arrived at a conclusion different than that of the Commission. See, e. g., Rock Island Motor Transit Co. v. State Corporation Comm., 169 Kan. 487, (Syl. ¶2.), 219 P. 2d 405; Southern Kansas State Lines Co. v. Public Service Comm., 135 Kan. 557, 662, 11 P. 2d 985; Class I Rail Carriers v. State Corporation Commission, supra.
Several witnesses testified before the Commission that they needed the transportation services of Holestine under the limited authority which consists of but four basic commodities. Dog food, insulation, agriculture implements, and steel and iron; from three origination points, Kansas City, Turner and Ronner Springs, Kansas.
Frank Calkins of Lite Weight Products Co., Fairfax District, Kansas City, Kansas, testified as to his product, insulation. That he felt the Graves Truck Line was not as well suited for their business as the 6000 lbs. minimum of Holestine. Holestine would haul to the job site and this was a convenience and he was not sure other truck lines would as some other truck lines do not.
Lite Weight Products Co. ships 5000 bags of insulation a month to Kansas points and because of the less minimum he can ship cheaper by Holestine, the freight is often as much as the value of the cargo because it is so light and freight costs are vital and the 20,000 minimum on Graves Truck Line is expensive if he ships less than the minimum.
Ray Humbird of the Oliver Co., Fairfax District, Kansas City, Kansas, testified his firm shipped farm equipment and used Holestine, Graves Truck Line and Santa Fe Trail Transportation Company has 50 to 100 shipments a day, and a truck load every month or two. He said he needed this additional service of Holestine’s along with the rest of the carriers because he could put on 2 or 3 tractors going to different cities and Holestine would stop and deliver them and that was necessary in their business and he doubted if Graves would do this.
Francis O. Hinkle of Southwest Ornamental Iron Works, Ronner Springs, Kansas, testified they had recently built a plant there and it had doubled the capacity of their former plant in Missouri, that they required equipment with movable sides and open top for the public convenience and few if any common carriers had solicited them for business.
Dillard E. Whitlow testified that Conmaco Steel Co. ships sheet steel piling and he shipped 92 tons with Holestine in the last 21 months and is of the opinion that Santa Fe Trails and Graves Transportation Co. equipment was not suited for 30 to 40 foot long sheets which load over the side.
Without further laboring the record it may be stated that there was evidence offered by Holestine of conditions and service which were peculiar to the needs of the shippers. One of the important features was Holestine’s equipment which made possible the transportation of 6000 pound loads as against a 20,000 pound minimum by the existing carriers.
It is the sound discretion of the Commission, not that of the courts, which is to be exercised in the issuance or refusal of certificates of convenience and necessity. (In re Inland Pipe Line Co., 143 Kan. 820, 823, 57 P. 2d 65; Southern Kansas Stage Lines Co. v. Public Service Comm., 665, supra.)
In view of what has been heretofore stated and held the judgment is reversed with instructions to reinstate the Commission’s order. | [
-76,
-24,
-15,
28,
11,
-62,
56,
-86,
87,
-79,
101,
115,
-83,
-58,
5,
43,
-2,
61,
-44,
122,
-27,
-77,
67,
-22,
-46,
-13,
-7,
-49,
-77,
91,
-91,
-44,
76,
112,
10,
85,
6,
74,
-58,
28,
-50,
10,
-88,
-31,
-39,
8,
48,
42,
50,
27,
17,
-114,
-29,
42,
24,
-61,
-87,
44,
-5,
44,
-47,
-16,
-70,
-105,
125,
6,
49,
36,
-99,
5,
-64,
47,
-104,
48,
56,
-24,
115,
-90,
-122,
116,
41,
-7,
8,
62,
99,
35,
29,
-19,
-4,
-104,
30,
-45,
-115,
-122,
-74,
24,
99,
33,
-106,
-107,
116,
82,
2,
-2,
-1,
5,
-33,
108,
7,
-114,
-72,
-109,
15,
97,
-120,
63,
-17,
-91,
18,
113,
-60,
-10,
93,
71,
56,
27,
-122,
-80
] |
Opinion of the court delivered by
Schroeder, J.:
Upon consideration of the appeal by this court based upon the record presented in the above entitled matter, the judgment of the lower court is reversed on the ground that it erred in sustaining the appellees’ motion for summary judgment. A formal opinion will be filed when prepared.
In view of our decision any application for a stay of proceedings should be addressed to the district court of Sedgwick County, Kansas. | [
-76,
-18,
-99,
-36,
10,
96,
50,
-98,
65,
-107,
39,
115,
-23,
-54,
20,
127,
43,
45,
-12,
123,
-45,
-77,
23,
-47,
-42,
-14,
-46,
-35,
-77,
92,
-10,
-58,
76,
48,
10,
5,
70,
-64,
-127,
28,
-114,
-121,
-119,
-4,
-47,
10,
52,
121,
18,
10,
113,
62,
-29,
42,
-104,
-61,
-87,
44,
-53,
101,
73,
-15,
-54,
23,
121,
18,
-125,
2,
-108,
7,
88,
-89,
-48,
57,
4,
-4,
122,
-58,
-122,
52,
9,
-69,
41,
110,
106,
35,
20,
-17,
-72,
-40,
14,
117,
-115,
-25,
-71,
88,
-29,
11,
-106,
-67,
117,
118,
14,
124,
-18,
5,
27,
-67,
-125,
-54,
-80,
-77,
30,
117,
-118,
-125,
-1,
-127,
49,
97,
-57,
-74,
92,
-58,
51,
-69,
-50,
-66
] |
Per Qwriam:
It appears, from the findings in this case, that the value of the property attached was $700; that the value of the property returned was $150. The question discussed upon the rehearing is, whether the $150, the value of the property returned, should be credited upon the judgment of $422.10? We think not. The finding of the jury is, that the $150 worth of property was returned to Davis, upon his claim of exemption, by the defendant, Hughes. Admitting that Shull sanctioned this return, we think he had the right so to do without prejudice to the recovery of the full amount due to him from Davis. His mortgage covered $700 of property. He had the right to sell any portion of this property, and in consenting to turn over to Davis $150 of the same as exempt, or permitting Davis to accept the same as exempt, he was not estopped from following the i’émainder of the property for the satisfaction of his mortgage. It is possible that some of the findings of the jury are against the preponderance of the evidence and unjust to the plaintiff' in error, but upon the record', we cannot correct them. They seem to be supported by sufficient evidence. ■
• The rehearing will therefore be denied. | [
-15,
-6,
-120,
-98,
10,
-32,
43,
-40,
73,
36,
55,
123,
105,
-54,
17,
45,
-28,
123,
117,
104,
94,
-93,
23,
67,
-38,
-69,
-47,
-43,
-71,
-51,
-28,
-35,
77,
34,
-62,
-107,
98,
-117,
-27,
80,
-114,
-124,
-104,
68,
-7,
112,
52,
57,
22,
1,
-79,
-113,
-29,
44,
-99,
-61,
77,
42,
59,
49,
80,
-40,
-113,
15,
-53,
5,
-112,
52,
-100,
71,
-38,
42,
-124,
61,
1,
-24,
115,
54,
-122,
80,
75,
-117,
44,
102,
98,
0,
73,
-21,
-16,
-115,
47,
-12,
13,
-89,
-111,
88,
67,
109,
-73,
-97,
104,
68,
54,
-4,
-18,
93,
93,
100,
31,
-49,
-106,
-77,
-83,
62,
-102,
10,
-41,
-109,
18,
113,
-51,
-96,
92,
4,
123,
-69,
-116,
-1
] |
The opinion of the court was delivered by
Johnston, J.:
This was an action brought by W. J. Pierce against the railroad company, to recover damages for the negligent killing of a cow owned by him. It was alleged by the plaintiff that on the 22d day of May, 1882, in the city of Paola, Miami county, Kansas, the defendant with its engine and cars carelessly and negligently ran against and killed the animal, and that it was not done through any carelessness or neglect on the part of the plaintiff. The railway company denied all allegations of carelessness or negligence on the part of its employés, and claimed that the plaintiff was guilty of contributory negligence, and was not entitled to recover. A trial was had before the court and a jury, and the verdict and judgment were given against the defendant railway company. It brings the case here, alleging error of the court in its instructions to the jury, and in overruling the motion for a new trial.
It appears that on May 22,1882, several cows belonging to plaintiff were being driven by his son along Locust street, in the city of Paola, to a pasture on the other side of the defendant’s railroad track, and that one of the cows was struck and killed by a passing freight train at the point where the railroad intersects Locust street, and within the limits of the city. Some distance east of Locust street, and at the eastern limits of the city, there is a public highway; the train which killed the cow was approaching from the east, and considerable testimony was offered by the plaintiff tending to show that the persons in charge of the train had failed to sound the whistle attached to the locomotive, at least eighty rods before reaching the eastern boundary of the city. Among the instructions the court gave to the jury are the following:
“7. The law of this state requires every railroad company to attach a steam whistle to each locomotive engine, which is to be sounded three times, at least eighty rods from the place where the railroad shall cross any public road or street. In this case, it is alleged that the injury complained of is within the limits of Paola, a city of the second class; and if this be true as alleged, the whistle should be blown three times, at least eighty rods before crossing the highway on the outside of the city limits.
“8. The jury are instructed that the neglect to sound the whistle three times of an engine, as mentioned in said statute, while it is negligence, yet it is not of itself such negligence as will justify a recovery for damages to persons or property injured on the track. To entitle the plaintiff to recover for such injury, it must appear from the evidence that the injury was the result of such omission to sound the whistle; it is not enough to create a liability for injuries caused by a railroad train, to prove that the whistle was not sounded three times. The jury are required to further find and believe from the evidence, that the injury complained of was caused by reason of such neglect. Whether the failure to sound the whistle on approaching the highway by the train in question was or was not the cause of the injury complained of, is a question of fact,, to be determined by the jury on consideration of all the evidence.
“ 9. The jury are instructed that, in a suit against a railroad company for injuries inflicted at a highway-crossing, if it appear from the evidence that no whistle sounded three times within the distance of eighty rods, as hereinbefore explained, before reaching the crossing, and if it appear from the evidence the company was guilty of other negligence which may have caused the injury, and it is doubtful whether the injury was caused by not blowing the whistle or by such other negligence or by both combined, then the company will be liable for the injury; provided, the jury believe from the evidence that the injury resulted from either or both of said causes, and that the plaintiff was free from fault or negligence, as explained in these instructions. Although the jury may believe from the evidence that the cow in question was killed by the defendant’s locomotive, and that there was a failure to sound the whistle eighty rods before reaching the city limits at the crossing, and if the jury believe from the evidence that there was no connection between the failure to blow the whistle and the injury to the cow, then the jury should find for the defendant, unless the jury further find from the evidence that the injury to and death of the cow was the direct result of negligence or misconduct of defendant other than the failure to sound the whistle.”
These instructions indicate that the case was tried by the court upon the theory that the statute imposing upon railway companies the duty of sounding the locomotive whistle at least eighty rods from the place where the railroad crosses the public road or street, is applicable to any injury or damage done at the crossing of streets within the limits of a' city. The statute, or so much of it as is necessary to be quoted here, is as follows:
“A steam whistle shall be attached to each locomotive engine, and be sounded three times, at least eighty rods from the place where the railroad shall cross any public road or street, except in cities and villages.” (Comp. Laws 1879, ch. 23, § 60.)
It will be observed that cities and villages are specially excepted from the provisions of this statute. If the collision had occurred at tlie crossing of a highway on the outside of a •city, these instructions would have been proper and applicable, but as it occurred inside of the city, they were clearly improper and misleading. It has frequently been ruled by this court that the failure to sound the whistle of the locomotive in accordance with this requirement is negligence. (Railroad Co. v. Rice, 10 Kas. 426; Railroad Co. v. Phillipi, 20 id. 12; Railroad Co. v. Wilson, 28 id. 639;) but that a railroad company is not liable for damages by reason of the failure to sound the whistle, (if it was not otherwise negligent,) unless the injury complained of is attributable to or caused by such failure. (Railroad Co. v. Morgan, 31 Kas. 77.) Nor do we think that the failure of the company to observe a statutory rule applicable only outside of cities can be attributed to it as negligence in the case of an injury done at a place where the rule is not operative or applicable, as within the limits of a city.
The purpose of the legislature in requiring this warning to be given before reaching a highway, is manifestly to afford protection to persons or property that may be upon, or passing over such highway, and therefore the omission of the company to comply with this statutory requirement cannot be held to be negligence as to any injury done except at the crossing of the particular highway for which the whistle is required to be sounded. The company owed no duty under this statute to parties crossing Locust street, within the limits of Paola, which is a city of the second class. Greater care and caution is necessary, and should be exercised, by railroad companies in the running of their trains within the limits of cities, and usually ordinances are enacted by city councils regulating the speed of trains passing through the city, as well as prescribing different and stricter rules in the matter of signals and warnings than are required to be given by the statute under consideration at crossings outside of cities. In this case it was doubtless the duty of the trainmen to keep a look-out for the crossings, and to exercise diligence and care to avoid collision or accident at the crossing of Locust street, but this duty did not arise from the statute in question.
The instructions of the court, therefore, which brought this statute so prominently before the jury, and directed them to be governed by its provisions in determining whether the company had been guilty of negligence in the collision which occurred inside of the city limits, were inapplicable and misleading; and when inapplicable instructions are given which may have misled the jury to the prejudice of the party complaining, the verdict cannot be permitted to stand. (Savings Association v. Hunt, 17 Kas. 532; Raper v. Blair, 24 id. 374; Railroad Co. v. Hay, 31 Kas. 177.)
The evidence in the case was conflicting, and while there is considerable testimony in the record which tends to show negligence on the part of the employés who were in charge of the train, there was also positive testimony to the contrary, offered in behalf of the defendant. We cannot say that the jury were not controlled in their verdict by the erroneous instructions.
The other exceptions we think are not well taken, and require no discussion.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
-16,
108,
-104,
-113,
10,
104,
40,
90,
65,
-95,
-10,
83,
-51,
-125,
5,
121,
79,
61,
85,
43,
-42,
-77,
23,
-126,
-102,
115,
119,
-51,
-71,
74,
-10,
-41,
73,
32,
74,
21,
-90,
-56,
-59,
92,
-114,
47,
73,
-28,
25,
-128,
-68,
121,
118,
71,
53,
-98,
-13,
42,
28,
-45,
45,
60,
-21,
111,
-128,
113,
-66,
-123,
124,
18,
51,
2,
-98,
-89,
72,
63,
-103,
53,
0,
-68,
115,
-92,
-125,
-12,
45,
-119,
8,
-26,
98,
33,
29,
-17,
44,
-120,
47,
94,
-115,
-89,
8,
88,
99,
4,
-98,
-99,
50,
86,
7,
126,
-25,
5,
-35,
32,
-127,
-117,
-76,
-93,
-49,
36,
-106,
21,
-21,
-91,
18,
97,
-55,
-78,
92,
71,
118,
-97,
-113,
-68
] |
The opinion of the court was delivered by
O’Connor, J.:
This is a direct criminal appeal wherein the defendant, John Thomas Freeman, was charged, tried and convicted in May 1959 of the offense of first degree robbery (G. S. 1949, 21-527). Having been convicted of felonies on four previous occasions, he was sentenced to life imprisonment in the state penitentiary under the habitual criminal statute (G. S. 1949, 21-107a). The defendant’s appeal, having previously been dismissed by this court for failure to comply with certain appellate procedural rules, was reinstated in April 1965. Present counsel, who assisted court-appointed counsel at the trial, was appointed for the defendant on this appeal.
Preliminary to a discussion of alleged errors occurring at the trial, the evidence will be reviewed. There was conflict between the testimony of the state’s witnesses and that of the defendant, but, as has been held, the credibility of witnesses and the weight of their testimony are not subjects for appellate review, and in considering the sufficiency of evidence to sustain a conviction, this court looks only to evidence favorable to the decision, and if the essential elements of the charge are sustained by any legally admitted evidence, the conviction stands. (State v. Greer, 163 Kan. 592, 593, 184 P. 2d 991, and cases therein cited.) Under the rule stated, the following facts were established:
On September 12, 1958, about 7:30 p. m., Sutton’s, Inc., a grocery store located in North Topeka, was robbed at gunpoint of over $19,500 by Freeman and his accomplice, Glenn Roy Maynard. Freeman approached the cashier’s booth, pointed a gun at the cashier, Verna Brown, and demanded the money from the safe. The cashier complied with Freeman’s demand and handed to him from the safe a bag containing the money. At the same time one of the cash registers was being robbed by Maynard. The two men then fled the supermarket in a 1950 black Chrysler automobile bearing Osage county license plates, No. 1382.
Later, on February 20,1959, while in custody of the United States Marshal in Baltimore, Maryland, for reasons not reflected by the record, Freeman was interviewed by two Florida law enforcement officers, Montie Smith and Carl W. Christy, who were' interested in an incident that occurred in Florida, the nature of which again is not a part of the record. During this interview Freeman orally admitted to Smith and Christy his participation in the Sutton robbery, the amount of money obtained and the disposition made of it.
Subsequently Freeman was returned to Kansas, and in a police line-up was positively identified by Mrs. Brown as the man who had robbed the store.
In his defense Freeman denied his guilt, denied ever having been in Kansas, except for a corner of the state, and claimed alibi.
The state rebutted Freeman s testimony, and particularly his purported alibi, by offering into evidence certain items of personal property bearing Freeman’s fingerprints which were found in a 1957 Ford Thunderbird in Lebo, Kansas, on the day of the robbery, together with items discovered in a 1950 Chrysler automobile bearing Osage county, Kansas, license tags, No. 1382, found parked in Omaha, Nebraska, on September 24, 1958. All of these items were admitted into evidence over the defendant’s objection and will be dealt with later.
It should be noted at this point the defendant’s motion for new trial presented only two grounds, namely, the court admitted illegal testimony over the objections of the defendant timely made, and the verdict of the jury was contrary to the law and evidence. The motion was filed, argued and overruled immediately after the jury returned its verdict finding the defendant guilty. Defendant appealed from the order overruling his motion for a new trial, and those specifications which are fairly within the purview of the grounds of said motion will first be considered.
Freeman first contends the trial court erred in admitting the testimony of Mrs. Brown identifying him as a participant in the robbery. He asserts Mrs. Brown identified him on the basis of the sound of his voice, which was in violation of his constitutional right against self-incrimination. The record discloses that at the trial Mrs. Brown positively identified Freeman as the man who demanded the money from the safe at the time of the robbery. During her examination, however, she testified she first saw the defendant, after his return to Kansas, at the police station in a show-up. She identified the defendant as the one who robbed her but wanted to hear him talk. The officers then engaged the defendant in conversation about his teeth. She said she was sure of her identification when she heard him speak. No objection was made by the defendant to Mrs. Brown’s testimony regarding her identification of his voice. The state strenuously urges that the defendant is now precluded from raising the matter on appeal.
K. S. A. 60-404, which provides:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” [Emphasis added.]
codifies the prior law of this state requiring timely and specific objection for a reversal to result because of the erroneous admission of evidence. (See Advisory Committee Notes, Gard’s Kansas Code of Civil Procedure Annotated, § 60-404.) The statement is sometimes referred to as the contemporaneous objection rule. As a corollary to the rule, objections to the admissibility of evidence will not for the first time be considered on appeal. (See numerous cases cited in 1 Hatcher’s Kansas Digest, Appeal & Error, § 332; 2 West Kansas Digest, Appeal & Error, § 204; 4 Jones on Evidence (5th Ed.) § 975.) The rule is a salutary procedural tool serving as a valuable aid in the orderly disposition of cases at the trial level. It also has a legitimate purpose in the appellate court, whose function is that of review rather than trial de novo.
The defendant, conceding that no objection was made to this testimony at the trial, contends, however, that under the holding of Henry v. Mississippi, 379 U. S. 443, 13 L. Ed. 2d 408, 85 S. Ct. 564, he is not precluded from raising a federal constitutional question concerning the admissibility of evidence, although,he did not comply with a state rule of procedure, namely, the contemporaneous objection rule. The constitutional claim raised in Henry dealt with evidence that was obtained as a result of an unlawful search. Inasmuch as we are of the opinion Mrs. Brown’s testimony relating to her identification of the defendant by his voice is so clearly not a violation of his constitutional right against self-incrimination no federal question is before us and the decision of Henry is inapplicable to the facts of the instant case. We reach this conclusion, although in doing so we are passing upon the admissibility of evidence to which objection was not timely made.
Defendant’s astute counsel indicates, and our research reveals, no cases in this jurisdiction relating to whether or not voice communications by an accused for the purpose of identification violate his privilege against self-incrimination. We do, however, follow the well-established rule that testimony by a witness as to identity of an accused is admissible in evidence if based upon the accused’s voice, features, or other distinguishing characteristics. (State v. Hill, 193 Kan. 512, 394 P. 2d 106; State v. Nixon, 111 Kan. 601, 207 Pac. 854; State v. Herbert, 63 Kan. 516, 66 Pac. 235.) Also, see 22A C. J. S., Criminal Law, § 652b; 21 Am. Jur. 2d, Criminal Law, § 368; Anno. 70 A. L. R. 2d 995, et seq.
Defendant urges our adoption of the view promulgated in State v. Taylor, 213 S. C. 330, 49 S. E. 2d 289, and Oscar Beachem v. The State, 144 Tex. Crim. 272, 162 S. W. 2d 706, namely, that should law enforcement officers compel an accused to utter the exact words used by a perpetrator of a crime in the presence of witnesses for purposes of identification of his voice, such compulsion is a violation of the accused’s constitutional right against self-incrimination. Roth of the cited cases are factually distinguishable from the instant case inasmuch as there is no suggestion here that defendant was compelled to speak the exact words used at the time of the robbery.
Our attention has been directed to cases from other jurisdictions where the factual situations are more nearly analogous to that of the case at bar. In Aaron v. State, 273 Ala. 337, 139 So. 2d 309, cert. den. 371 U. S. 846, 9 L. Ed. 2d 82, 83 S. Ct. 81, an accused was taken by a deputy sheriff into a room equipped with a one-way window which permitted a witness to observe the accused and hear his conversations without his knowledge. The court held the accused’s constitutional right against self-incrimination was not violated by such conduct. Furthermore, a California defendant in People v. Lopez, 60 C. 2d 223, 32 Cal. Rptr. 424, 384 P. 2d 16, cert. den. 375 U. S. 994, 11 L. Ed. 2d 480, 84 S. Ct. 634, reh. den. 376 U. S. 939, 11 L. Ed. 2d 660, 84 S. Ct. 794, was placed in a show-up along with a codefendant. The show-up was conducted in a large auditorium where the audience could observe and hear the conversations of the participants while the defendant’s view of the audience was obscured by a mesh screen. Lopez contended he and his codefendant were compelled to incriminate themselves by assuming various poses and making statements in response to questions by officers. The court rejected Lopez’ contention that his privilege against self-incrimination was violated and said:
. . There is no indication, on the record before us, that defendants made or were asked to make any statements that would tend to incriminate them. The privilege extends only to testimonial compulsion; requiring de fendants to assume a certain pose for purposes of identification, or to speak for voice identification, is not within the privilege. . . .” (p.244.)
While this precise question has been dealt with by only a few courts, Dean Wigmore indicates that the scope of the privilege against self-incrimination is limited to “testimonial compulsion” (8 Wigmore, Evidence §2263 [McNaughton rev. 1961]) and that voice identification is nontestimonial in character and thus outside the scope of the privilege (Ibid., § 2265).
After careful consideration of the above cases, we have no difficulty in concluding that under all the facts and circumstances the identification of the defendant by the sound of his voice did not violate his constitutional right against self-incrimination.
Defendant next asserts that the trial court erred in ruling that his oral statements to Smith and Christy, the two Florida police officers, were voluntary and thus admissible in evidence over the defendant’s objection. As a basis for such assertion, the defendant contends a prolonged interrogation and a failure to supply counsel render his statements involuntary in violation of his state and federal constitutional rights.
An examination of the record discloses Freeman was taken into custody on February 18, 1959, in Baltimore. Officers Smith and Christy questioned him from 10:00 a. m., February 20, to 12:45 a. m., February 21. Both officers testified that at the beginning of their conversation with the defendant they told him they were Florida police officers and interested in an incident which took place in Florida. They further advised him of his rights to remain silent, to have an attorney present, and that whatever he said might later be used against him in court. The officers testified that no threats or promises were made to him. Thereupon, the defendant gave them a detailed oral confession. No useful purpose would be served by setting out the details. Suffice it to say the confession disclosed a full and complete admission of each and every necessary element of the crime of robbery in the first degree as charged in the information. During the time Freeman was interrogated he was given coffee, and lunch was sent in because he did not want to go back to a cell. Freeman was later taken to Florida where he waived extradition to Kansas, arriving in Topeka on March 10, 1959. Shortly thereafter counsel was appointed for him at his preliminary hearing.
At the trial Freeman took the stand and denied not only his participation in the crime but also having been in Kansas, except across the edge thereof on the way to Kansas City, Missouri. He further denied making the statements related by Smith and Christy. Although Freeman testified he had no opportunity to contact an attorney, the record fails to show that he requested and was denied counsel prior to his confession.
To sustain his contention that a prolonged interrogation violates the “due process” provided for by the fourteenth amendment, the defendant directs our attention to Watts v. Indiana, 338 U. S. 49, 93 L. Ed. 1801, 69 S. Ct. 1347, and Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758. In the Watts case the accused was arrested on suspicion of murder and questioned by officers in relays from 11:30 at night until 3:00 the next morning. The same procedure of persistent interrogation by six or eight officers was followed for four days from late afternoon until early morning. After a day of rest the accused finally confessed, following a nine-hour period of interrogation. In holding the confession inadmissible, the court said that due process requires a confession must be the expression of free choice, and it is involuntary when it is the product of sustained pressure by police interrogation. The facts of the instant case are clearly distinguishable from those of the Watts case, and there was ample evidence to support the trial court’s finding that defendant’s confession here was not the product of his detention but was freely and voluntarily made.
We follow the rule that the prolonged detention of an accused does not of itself render a confession involuntary and inadmissible. In other words, a confession obtained during a period of prolonged detention is admissible if voluntarily made and not the product of the detention. (State v. Stubbs, 195 Kan. 396, 407 P. 2d 215, and cases therein cited.)
In holding that the decision of Escobedo v. Illinois, supra, was inapplicable to the facts in State v. Stubbs, supra, we said:
“. . . 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).”
There is a complete absence of any evidence in the record that Freeman requested and was denied the opportunity to consult an attorney prior to making his statements. This is but one factor and circumstance which distinguishes Escobedo v. Illinois, supra, from the instant case. Also, see Powers v. State, 194 Kan. 820, 402 P. 2d 328.
Freeman, fully understanding the purpose for which the police interrogated him and sought his admission, does not bring himself within either the spirit or letter of Escobedo-. He made his confession of his own free will, and to this cogent circumstance we have the added factor that he had been convicted of felonies four times previously and was no novice at police interrogation.
Another of the defendant’s specifications of error closely related to his preceding contention has to do with the trial court’s failure to instruct the jury that it could not consider the confession if involuntarily given or obtained by duress. The record indicates that no request was made for such an instruction, nor was the matter specified or presented in the defendant’s motion for new trial. This question, therefore, is not subject to review. In an abundance of caution, however, we have examined the record and find that the defendant’s contention is without merit. The trial court conducted a hearing in the absence of the jury, as required by State v. Seward, 163 Kan. 136, 181 P. 2d 478, and determined that the confession was freely and voluntarily made. Defendant neither requested, nor was he denied, the right to testify at such hearing; however, he did testify later in the presence of the jury. The necessity of an instruction being given on the voluntariness or involuntariness of a defendant’s statement was decided adversely to this contention in State v. Robinson, 182 Kan. 505, 322 P. 2d 767.
Defendant next contends the court erred in admitting the testimony of Fitch, McClain, Bowman and Freerksen as rebuttal evidence. The testimony of these four witnesses pertained to a Thunderbird automobile found on September 12, 1958 (the day of the Sutton robbery), and evidence that the defendant’s fingerprints were on an aerosol shaving cream can and a rear view mirror found in the automobile.
Rebuttal evidence may be defined as evidence presented in denial of some fact which the adverse party has attempted to prove. (20 Am. Jur., Evidence § 277.) Here Freeman’s defense was that of alibi in which he contended he was in Texas at the time of the Sutton robbery, he had never been in Kansas, except across the corner thereof on his way to Kansas City in August 1958, and he was not in Lebo, Kansas, on September 11 or 12, 1958. The evidence of the four rebuttal witnesses clearly refuted Freeman’s purported alibi defense and was properly admitted by the trial court.
Defendant next contends that the trial court erred in overruling his motion for new trial. By what has been heretofore said in this opinion, no illegal testimony was admitted over the objection of the defendant. The only remaining ground of the motion was that the verdict was contrary to the law and evidence. Defendant candidly concedes that the state proved the crime was committed but asserts it failed to prove by competent evidence the defendant committed the crime. We have herein decided all of defendant’s contentions regarding the admissibility of evidence are without merit; further, the defendant was positively identified as one of the participants in the crime. The evidence, if believed by the jury, amply supported its verdict finding the defendant guilty. When there is substantial competent evidence to support a finding of guilty, a verdict will not be disturbed on the ground it was contrary to the evidence. (State v. Russell, 182 Kan. 649, 323 P. 2d 913.) We have also carefully examined the court’s instructions which adequately set forth the law applicable to the case. We therefore conclude that the defendant’s motion for new trial was properly overruled.
Defendant next contends he was deprived of his constitutional right to a fair trial because of his financial inability to secure the appearance of his alibi witnesses at the trial. In his notice of alibi defendant stated he proposed to offer evidence that at the time of the robbery he was in the vicinity of Wichita Falls, Texas. In addition to himself he listed three witnesses from Wichita Falls who would support his alibi. Defendant testified his alibi witnesses were not present at his trial because he did not have funds to bring them to Topeka. Nowhere in the record does it appear that the defendant either prior to or during trial made any request to the court for an advancement of funds to secure the attendance of witnesses on his behalf; nor does it appear that any attempt was made by him to utilize the provisions of G. S. 1949, 62-1313, whereby a commission may be appointed to examine upon interrogatories any material witness who resides out of the state. Under these circumstances we are unable to say that the defendant made any attempt to secure attendance of his alibi witnesses or to obtain their testimony. Consequently, his contention that he has been deprived of a fair trial because of lack of funds is completely without merit.
Freeman’s last contention of substance is to the effect he has been deprived of his constitutional right to a full, fair and complete re view of his case on appeal because critical portions of the proceedings in the trial court were not recorded, namely, voir dire examination of the jury and final arguments of counsel.
The state has filed an affidavit signed by the judges of the district court of Shawnee county stating that it has long been the custom and practice in the trial of jury cases in said district for the official court reporter to record voir dire examination of prospective jurors and closing arguments of counsel only when the same are requested by counsel.
In the instant case no request was made by counsel that the voir dire examination or closing arguments be recorded; neither was such a record directed by the judge to be made. Full stenographic notes of all testimony were made, and the defendant was furnished a transcript of the same. This point was not included in the grounds of the defendant’s motion for new trial, nor does it appear to have been urged in oral argument on the motion. Strictly speaking, under such circumstances, the matter is not before us for appellate review. We have, however, carefully examined defendant’s argument contained in his brief and are unable to discern in what manner he has been prejudiced in the preparation of his appeal by the absence of these portions of the record. We believe that our decision in State v. Perkins, 193 Kan. 589, 396 P. 2d 365, is peculiarly applicable to this case, and defendant has failed to make it affirmatively appear his substantial rights were in any way prejudicially affected by the failure of the court reporter to record the voir dire examination and the closing arguments.
Defendant’s remaining specifications of error were in the nature of trial errors which were not included in his motion for new trial, nor does it appear that they were presented to the trial court at the hearing on the motion. The rule in this jurisdiction is that in a criminal case specifications of error not included in the grounds of the motion for new trial, and thus brought to the attention of the trial court, cannot be considered on appeal. (State v. Trams, 189 Kan. 393, 369 P. 2d 223, and cases therein cited.) Moreover, alleged trial errors not heard nor presented at the hearing on the motion for new trial are unavailing on appeal from a conviction. (State v. Malone, 194 Kan. 563, 400 P. 2d 712.) Notwithstanding our rule, we have carefully considered each of the specifications of error and find nothing approaching reversible error.
Defendant has had the benefit of able and competent counsel at the trial and also in the presentation of his appeal. After considering the entire record, we are convinced the defendant had a fair trial and a proper verdict was rendered. The judgment of the trial court is therefore affirmed.
It is so ordered. | [
112,
-30,
-8,
-66,
58,
-30,
58,
58,
83,
-96,
52,
51,
-19,
87,
1,
105,
125,
109,
85,
105,
-58,
-73,
19,
-95,
-14,
-13,
-55,
-43,
51,
-37,
-82,
-43,
76,
-64,
-126,
-47,
70,
72,
-29,
-100,
-120,
5,
-72,
-31,
87,
32,
32,
40,
36,
15,
49,
14,
-29,
34,
30,
-58,
105,
44,
-53,
-82,
80,
-79,
-117,
13,
-19,
20,
-125,
0,
-98,
5,
-40,
63,
-100,
49,
32,
104,
113,
-122,
-122,
-12,
127,
-55,
-116,
102,
98,
0,
-35,
-17,
-84,
-119,
38,
123,
-123,
-121,
-98,
80,
65,
101,
-108,
-99,
107,
20,
10,
-4,
-15,
20,
27,
108,
-121,
-50,
-16,
-77,
111,
124,
2,
-6,
-5,
33,
48,
113,
-114,
-22,
93,
84,
121,
-69,
-115,
-108
] |
The opinion of the court was delivered by
Fatzer, J.:
The defendant, Richard Wheeler, was found guilty by a jury of unlawful possession of a pistol pursuant to the provisions of G. S. 1961 Supp., 21-2611 (now K. S. A. 21-2611), and was sentenced to confinement as an habitual criminal.
After the conviction and imposition of sentence, the defendant indicated his desire to appeal. Instead of the court appointing the attorney who tried the case, it appointed The Honorable John A. Potucek to represent the defendant on appeal. Following MrPotucek’s election as judge of the district court of the twenty-fifth judicial district, Mr. Harold Pfalzgraf consented to argue the case in the Supreme Court as a personal courtesy to Judge Potucek. The abstract and briefs recite the factual situation, and those pertinent to the appeal follow.
On November 21, 1963, police officers acting- on information,, apprehended the defendant operating his automobile in an erratic manner. He was arrested for driving while under the influence of intoxicating liquor. A subsequent search disclosed an open bottle in the vehicle and a pistol on his person underneath his belt and. shirt.
We need not relate the facts pertaining to the liquor offense, but suffice it to say he entered a plea of guilty and a fine and jail sentence were imposed. There was no appeal from that conviction.
On January 2,1964, a complaint was filed, charging the defendant with the unlawful possession of a firearm having a barrel less than twelve inches long after having previously been convicted of grand larceny in the state of Oklahoma. (K. S. A. 21-2611.)
At the trial on April 15, 1964, several witnesses testified, but we confine our discussion to the testimony of the defendant. He testified he served ten years in his country’s service, part of that time as a tail gunner in the Army Air Force Bomber Group during World War II, and that he was the holder of two Purple Hearts, some air medals and many other citations. He was discharged from the service because of psychological problems and has received some phychiatric treatments. He testified he was an alcoholic and drank to overcome mental anxiety, however, he had drunk only one time since his release from prison in March, 1963. He further testified that he was to make application for treatment at the Larned State Hospital following the serving of the sentence for driving while under the influence of intoxicating liquor.
The defendant acknowledged two prior convictions for felonies, one for grand larceny of an automobile in Oklahoma and another for concealing mortgaged property in Kansas.
After completion of his cross-examination by the state, the following colloquy occurred between the court and the defendant:
“Court: Is this your gun? A. That’s the gun I bought, yes, sir.
“Court: Did drinking have anything to do with your carrying this gun? A. Yes, if I hadn’t been drinking I wouldn’t have had the gun.
“Court: When did you buy the gun? A. I bought it about one o’clock the afternoon of the 21st of November.
“Court: When did you start drinking? A. About ten o’clock that morning. I took my stepdaughter to Wichita and while I was up there I started drinking and I bought this gun.
“Court: You weren’t so drunk you didn’t know what you were doing, were you? A. I don’t think a half pint would make anybody drunk. I think I was in an emotional state,—I couldn’t reason with myself.”
At the close of all the evidence, the district court instructed the jury in writing and it returned a verdict of guilty as charged.
Following the overruling of his motion for a new trial, the defendant was sentenced under the provisions of the habitual criminal statute (G. S. 1949, 21-107a, now K. S. A. 21-107a) to confinement at hard labor in the Kansas State Penitentiary for a term of not less than fifteen years.
Hie defendant contends the district court erred in failing to instruct the jury as to the defendant’s state of intoxication as affecting his mental capacity at the time of the alleged offense; that it abused its discretion in conducting a cross-examination of the defendant, thereby assuming the position of an advocate, and in failing to stop the proceeding on its own initiative and make inquiry as to the mental condition of the defendant.
In this jurisdiction we follow the established principle of law that a defendant’s voluntary intoxication does not relieve or excuse him of responsibility for his acts. (State v. Guthridge, 88 Kan. 846, 129 Pac. 1143; Richardson v. Business Mens Protective Ass'n, 129 Kan. 700, 284 Pac. 599.)
An intoxication instruction is essential only when intent is a necessary element of the crime. Intoxication may be used to indicate a state of mind whereby an accused, because of his intoxication, is unable to formulate an intent. However, the statute in question (K. S. A. 21-2611) does not require intent as a prerequisite for its application. It merely requires that the accused have a previous conviction for certain specified offenses among which is grand larceny and ownership, possession or control of a pistol having a barrel less than twelve inches long. (K. S. A. 21-2610 and 21-2611.)
In State v. Anderson, 172 Kan. 402, 241 P. 2d 742, we fully discussed the district court’s function in giving instructions, and said:
“While it is true that it is encumbent upon a trial court to instruct the jury upon all matters of law necessary for their information in giving their verdict (G. S. 1949, 62-1447; State v. Smith, 161 Kan. 230, 167 P. 2d 594), a party who desires an instruction upon some particular question not included in the general charge should request that the trial judge give such instruction. Where no such request is made and the case is fairly presented to the jury, he cannot afterwards complain that the instruction was not given. The omission to instruct the jury upon some particular phase of the case for which no request was made is not error. (Skaer v. American Nat’l Bank, 126 Kan. 538, 540, 268 Pac. 801, and cases therein cited: State v. Rook, 42 Kan. 419, 22 Pac. 626; State v. Pfefferle, 36 Kan. 90, 12 Pac. 406; State v. Jones, 137 Kan. 273, 20 P. 2d 514; State v. Nelson, 68 Kan. 566, 75 Pac. 505.) . . .” (1. c. 406, 407.)
For additional decisions supporting this authority, see: Jukes v. North American Van Lines, Inc., 181 Kan. 12, 23, 309 P. 2d 692; State v. Cushinberry, 180 Kan. 448, 452, 304 P. 2d 561; State v. Inverarity, 150 Kan. 160, 92 P. 2d 45; State v. Brown, 145 Kan. 247, 65 P. 2d 333.
We have examined the district court’s instructions to the jury, and while they were general in form, none were erroneous as a matter of law. The defendant concedes he made no request for an additional instruction with respect to his state of intoxication, nor did he make any objection to the court’s instructions to the jury. No error can be predicated upon omission to give any particular instruction when no request therefor was made. (State v. Jones, 187 Kan. 496, 357 P. 2d 760, 88 A. L. R. 2d 1269.) Moreover, intoxication had no relationship to the issue before the district court.
The defendant argues that when the district court examined him, it assumed the position of advocate, thereby creating prejudice to his substantial rights by spoken word, facial expression and tone of voice.
This court has consistently followed the rule stated in State v. Keehn, 85 Kan. 765, 118 Pac. 851, where it was said:
“The purpose of a trial in a criminal case is to ascertain the truth of the matters charged against the defendant, and it is a part of the business of the trial judge to see that this end is attained. He is a vital and integral factor in the discovery and elucidation of the facts, and whenever in his judgment the attorneys are not accomplishing the full development of the truth it is not only his right but it is his duty to examine and cross-examine the witnesses. The presumption is that this liberty will be honorably and impartially exercised in the interest of justice, and in this case it was not abused by the trial judge.” (Syl. f 4.) (Emphasis supplied.)
Our later decisions are in accord with this rule. (State v. Miller, 127 Kan. 487, 274 Pac. 245; State v. Jones, supra.)
Defendant relies upon State v. Winchester, 166 Kan. 512, 203 P. 2d 229 and State v. Bean, 179 Kan. 373, 295 P. 2d 600, to support his contention. In those cases the district court went far beyond that of the district court in the instant case. In those cases, this court set out their distinguishing features and held an abuse of discretion had occurred.
The colloquy between the district court and defendant clearly indicates the judge was eliciting the truth as to material matters in the furtherance of justice. There is a total absence of improper questions, bias or an attempt to discredit the witness. We find nothing in the record to sustain defendant’s contention that the judge sought to assume the role of an advocate, nor does it support defendant’s contention that the judge created prejudice by spoken word, facial expression or tone of voice. In State v. Keehn, supra, it was said:
“. . . The judge will always have a personality of his own which he cannot disguise or conceal. But the only tact he need display is sincerity, and so long as he is sincere he need feel no timidity in the discharging of his public duty because of the possible tone or inflection of his voice or the play of his features.” (1. c. 786, 787.)
It is lastly claimed the district court abused its discretion and erred in failing to stop the proceedings and order an inquiry into the defendant’s mental condition. K. S. A. 62-1531, in pertinent part, provides that whenever any person under indictment or information, and before or during trial is found by the court or commission to be insane and unable to comprehend his position and make his defense, the court shall commit him to a state hospital for the dangerous insane until he shall recover, at which time he shall be returned to the court and placed on trial upon said indictment or information.
The policy of law in this state is not to try insane defendants but we have never heretofore construed K. S. A. 62-1531 as being applicable to alcoholic persons. However, when a proper showing of insanity is made, the law in effect makes the application for a inquiry for the defendant and no formal application is necessary under such circumstances. (State v. Detar, 125 Kan. 218, 263 Pac. 1071; State v. Badders, 141 Kan. 683, 42 P. 2d 943; State v. Collins, 162 Kan. 34, 174 P. 2d 126.) In an analogous case, State v. Kelly, 192 Kan. 641, 391 P. 2d 123, we analyzed the same question here urged, and it was said:
“In applying our statute (G. S. 1949, 62-1531) the test of a defendant’s sanity is not the so-called M’Naghten or ‘right and wrong’ rule. That rule concerns sanity in the sense of criminal responsibility for an act. (State v. Hickock & Smith, 188 Kan. 473, 363 P. 2d 541; State v. Latham & York, 190 Kan. 411, 428, 375 P. 2d 788.) The question here presented concerns sanity for the purpose of being triable. Sanity in this respect is determined by appraising the present ability of the defendant to understand the nature and purpose of the proceedings taken against him and his ability to conduct his own defense in a rational manner. (State v. Brotherton, supra; State v. Badders, supra.) If the district judge has a real doubt as to the sanity of the defendant, or from his observation, reasonable claim, or credible source, he concludes there is a real doubt as to the defendant’s mental condition to comprehend his situation or make his defense, it is the duty of the judge to order the inquiry even though not requested. (State v. Collins, supra; Brewer v. Hudspeth, supra.)
“As previously indicated, whether a district court on its own initiative should order an inquiry into the defendant’s sanity is a matter addressed to its sound judicial discretion, and its decision will not be disturbed in the absence of an abuse of that discretion. (State v. Collins, supra; State v. Smith, supra; 23 C. J. S., Criminal Law, § 940 [2] [b]; 142 A. L. R. 966.) The defendant has the burden in this respect (5 Am. Jur. 2d, Appeal and Error, § 775, p. 218; 5A C. J. S., Appeal and Error, § 1584, p. 38) and a strong showing is required to show an abuse thereof. (People v. Gomez, 41 Cal. 2d 150, 258 P. 2d 825.) In State v. Penry, 189 Kan. 243, 245, 368 P. 2d 60, it was held that the pre sumption that an accused is sane and responsible for his acts exists until the contrary is shown by sufficient evidence. Where; as here, it is urged that the district court had, or should have had, a doubt as to the present sanity of the defendant, the court’s failure to order the inquiry on its own motion is aided by that presumption.” (1. c. 644, 645.)
Throughout the trial, the district court had ample opportunity to observe the conduct, attitude and demeanor of the defendant, and it had the right to exercise its sound judicial discretion in determining whether those characteristics were such as to warrant a conclusion that the defendant was capable to comprehend his position and make his defense.
In fairness to the district court it was never intimated or claimed before or during the trial that the defendant’s condition, if one existed, was the result of insanity. Defendant’s counsel candidly admits that the defendant is not insane as that term is generally used. We have thoroughly searched the record and find no evidence which substantiates a reasonable claim the defendant’s mental condition was such that he was unable to comprehend his position or make his defense, and we conclude the district court did not abuse its discretion in failing to inquire into his mental condition.
Defendant advances other arguments which we have carefully considered. Our analysis finds they are without merit, and it is unnecessary to discuss them.
We find nothing in the evidence or contentions which support the defendant’s position, or justify a conclusion that the district court abused its discretion or committed reversible error.
The judgment is affirmed. | [
48,
-21,
-15,
94,
11,
96,
42,
-68,
82,
-28,
55,
82,
41,
75,
5,
121,
115,
79,
85,
120,
-81,
-73,
119,
-88,
-14,
-69,
-38,
-59,
-75,
73,
-28,
-12,
8,
96,
-118,
85,
38,
-54,
-121,
92,
-118,
4,
-71,
-16,
90,
-114,
40,
107,
54,
15,
49,
-113,
-29,
42,
30,
-61,
-55,
40,
75,
-72,
-64,
-71,
-104,
-115,
-35,
48,
-79,
34,
-100,
-59,
80,
62,
-100,
49,
8,
-4,
123,
-90,
2,
116,
47,
-103,
-116,
100,
98,
39,
29,
-23,
-84,
41,
78,
26,
-83,
-89,
24,
80,
97,
33,
-2,
-99,
110,
20,
15,
124,
-29,
85,
95,
108,
15,
-114,
-76,
-79,
-49,
56,
-110,
-6,
-21,
-125,
48,
113,
-51,
-26,
84,
69,
121,
31,
-26,
-112
] |
The opinion of the court was delivered by
Price, J.:
Plaintiff, Burton D. Thompson, being confined in the state penitentiary under a sentence of life imprisonment, filed a motion to vacate the judgment and sentence under the provisions of K. S. A. 60-1507.
He has appealed from an order and judgment denying relief, and the principal question presented is whether the state gave proper and sufficient notice of its intention to invoke the habitual criminal statute.
Although a proceeding under K. S. A. 60-1507 is an inquiry as to the validity of a sentence imposed in a prior criminal prosecution, the proceeding is civil in nature and the movant is technically a “plaintiff.” (Ramsey v. State, 194 Kan. 508, at pp. 509 and 510, 399 P. 2d 881.) We will, however, throughout this opinion refer to Thompson (movant—plaintiff-appellant) as defendant.
The background of the matter is this:
In 1962, in the district court of Sedgwick county, defendant, being represented by experienced retained counsel, was convicted by a jury of the offense of attempting to cheat and defraud (G. S. 1949, 21-101 and 21-551, now K. S. A. 21-101 and 21-551).
A motion for a new trial was filed and, after argument thereon, was overruled. The court then inquired if there were any legal reasons why sentence should not be imposed. None being offered, the court proceeded to pronounce sentence, but was interrupted by the assistant county attorney who stated that he had evidence of prior convictions so as to invoke the habitual criminal statute (G. S. 1949, 21-107a, now K. S. A. 21-107a). Counsel for defendant objected on the ground the state had not given proper notice of its intention to introduce such evidence. During a discussion of the matter between the court and counsel for both sides it was brought out and admitted that during the trial counsel for defendant had been advised of the state’s intention to invoke the statute. The court, after noting the fact the law requires that reasonable notice of the state’s intention to invoke the habitual criminal statutes be given to a defendant so as to enable him to defend against such charges—found that defendant had been informed of the state’s intention, and advised defendant that he would be given the time and opportunity to defend if he felt it to be necessary. Counsel for defendant then stated that a request for additional time in the matter would prejudice defendant’s rights with respect to an appeal and request for stay of execution. The court replied:
“Well, if he desires additional time we will set the ruling on the motion for new trial aside and hold it in abeyance to preserve his appeal.”
Following consultation with defendant, his counsel replied:
“We will not request additional time, your Honor.”
The state then introduced evidence of four previous felony convictions—three being in the state of Texas and one in the state of Missouri. It was stipulated that defendant was one and the same person as the defendant in those cases.
Following this the court, after finding the fact of the prior felony convictions, again inquired if there were any legal reasons why sentence should not be imposed. Counsel for defendant replied:
“Yes, because the verdict was contrary to the law and the evidence, your Honor. My argument earlier goes to that.”
Thereupon defendant was sentenced to confinement in the penitentiary for the remainder of his natural life. (See G. S. 1949, 21-107a and 21-109, now K. S. A. 21-107a and 21-109, and State v. Fountaine, 188 Kan. 190, 360 P. 2d 1119.)
Defendant did not appeal.
In 1964, on a date not shown, defendant, being confined under the 1962 sentence of life imprisonment, filed a motion under the provisions of K. S. A. 60-1507 to vacate the judgment and sentence, his principal ground being that he was not given proper notice of the state’s intention to invoke the habitual criminal statute.
Following a hearing on the motion the court found that defendant had received proper notice, that his rights had not been violated in any way, that he had not been denied due process of law, and denied the motion.
Defendant, through court appointed counsel, has appealed from the denial of his motion—and makes three contentions.
It first is contended the habitual criminal statute is an ex post facto law in that it aggravates the crime and makes the punishment therefor greater than at the time the crime was committed, thus permitting the court to inflict a greater penalty than the law annexed to the crime at the time of its commission, and that such ex post facto application of the statute to enhance the punishment amounts to a deprivation of defendant’s right to due process of law.
A like contention has been considered by this court and held to be without merit. (Cochran v. Simpson, 143 Kan. 273, 276, 53 P. 2d 502.)
It next is contended that by the application of the habitual criminal statute defendant was placed in double jeopardy in that for the second time he was placed in jeopardy for offenses for which he not only had been tried, but also punished.
This contention also has been considered and held to be without merit. (Johnson v. Crouse, 191 Kan. 694, 700, 383 P. 2d 978.)
Finally, it is contended that defendant was denied due process of law in that he did not receive proper notice of the state’s intention to invoke the provisions of the habitual criminal statute.
The necessity of, and what constitutes proper notice, is discussed fully in Browning v. Hand, 284 F. 2d 346, (10th Circuit) cert. den., 369 U. S. 821, 7 L. Ed. 2d 786, 82 S. Ct. 833; Sanders v. Hand, 190 Kan. 457, 375 P. 2d 785, and Johnson v. Crouse, above, and there is no occasion here to repeat what was there said and held. The facts of what transpired with respect to this matter have been related. They establish that defendant, who was represented by his own counsel, was given ample opportunity to defend against the state’s offer of evidence of prior felony convictions. His contention that he was not given proper notice is completely without merit.
The order denying defendant’s motion to vacate the judgment and sentence is affirmed. | [
-48,
-26,
-36,
31,
11,
96,
50,
-72,
115,
-13,
36,
83,
-19,
70,
0,
59,
123,
61,
85,
104,
77,
-73,
103,
-45,
-10,
-77,
-47,
-43,
63,
-33,
-4,
-76,
76,
-96,
2,
117,
70,
-54,
-107,
-44,
-50,
7,
-120,
-47,
82,
10,
48,
67,
20,
14,
113,
-33,
-25,
42,
26,
-58,
105,
44,
-53,
-82,
-40,
-80,
-71,
-99,
127,
4,
-77,
-90,
-100,
-121,
112,
46,
-116,
57,
33,
-24,
114,
-110,
-126,
116,
109,
75,
-84,
102,
66,
33,
5,
-17,
-88,
-103,
14,
87,
-99,
-89,
-102,
89,
97,
12,
-106,
-99,
117,
20,
-113,
116,
-12,
4,
23,
108,
-125,
-118,
-12,
-77,
-117,
125,
22,
115,
-5,
0,
0,
49,
-50,
-22,
92,
-41,
-8,
-37,
-50,
-108
] |
The opinion of the court was delivered by
Smith, J.:
This was an action for damages alleged to have been sustained when two automobiles collided at a street intersection. The trial court sustained defendants’ demurrer to plaintiff’s evidence and subsequently granted plaintiff a new trial. The defendants have appealed from the order granting a new trial.
The plaintiff alleged in her petition that about 4:20 p. m. she was driving an automobile east on Third street, in Wichita, at approximately ten miles per hour; that as she approached the intersection of Emporia and Third streets she slowed down to five miles an hour; that no automobiles were near the intersection from the north or south, and she proceeded to enter and cross Emporia, in the south lane of traffic on Third street, and that when she arrived in the southeast quarter of the intersection, proceeding east, one of the defendants drove an automobile owned by the Globe Construction Company at approximately forty miles an hour into the right rear end of her automobile, causing her to be injured. She alleged that the collision was caused by the negligent acts of the defendant driver in driving his automobile in such a manner as not to avoid injuring others using the street, and in driving the automobile with such speed, considering the weather and icy condition of the streets, as to endanger the life and person of this plaintiff; in driving the automobile at a greater rate of speed than was reasonable and safe having due regard for the use and condition of the streets and contrary to Ordinance No. 12-231, Section 27 (b), which is as follows:
“Section 27. Speed. It shall be unlawful to operate any vehicle at greater rate of speed in the City of Wichita, than the following:
“(b) Twenty-five (25) miles per hour upon all residential streets other than right-of-way streets', also, upon East Douglas Avenue from Washington Avenue to Kansas Avenue; Washington Avenue from Waterman Avenue to Central Avenue, and except as hereinafter provided.
“Provided, however, that no driver in any event shall drive at a greater rate of speed than is reasonable, safe and proper having due regard for the use and condition of the street and the occupancy thereof, at the time not at such a rate of speed as to endanger the life, limb and property of any person.”
She alleged her injury was caused by one of defendants driving his automobile so as to not yield the right of way to her, since she had already entered the intersection and was about to clear it at the point of impact, and contrary to Ordinance No. 12-321, Sec. 41 (a) as follows:
“The driver of a vehicle approaching an intersection shall yield the right-of-way to vehicle which has entered the intersection from a different highway.”
She alleged that all of the negligent acts on the part of the defendants were the sole and direct cause of her injuries. She prayed judgment in the amount of $9,835.
The defendants answered, admitting the collision, and denying that it was caused by the negligence of the driver of defendants’ car; alleged that the streets at the intersection were covered with snow and ice and slippery, and it was necessary for drivers to proceed with caution and to keep their automobiles under reasonable control and keep a lookout; that on the day in question the defendant, who was driving, saw a car was approaching the intersection at fifteen miles an hour and that as he approached it he made careful observation concerning the traffic; that he saw a car on his right, which was stopping at the intersection in order to give way to the north and south traffic on Emporia avenue and he also observed a car approaching from the west, which was at that time fifteen or twenty feet west of the intersection; that the car driven by plaintiff was proceeding at a high rate of speed in excess of thirty miles an hour and it became apparent to him that plaintiff was not going to slacken the speed of her car and yield the right of way to him; that he applied his brakes in an effort to avoid the collision, but plaintiff did nothing to retard the speed of her car and drove it directly in the path of his car, and as a result the car being driven by defendant was damaged. He alleged that plaintiff was guilty of negligence, which was the sole and proximate cause of the collision, in driving her automobile on the occasion of the collision in such a manner and at such a speed, considering all the existing circumstances, as to endanger the property of the defendants and other vehicles lawfully using the street; and in driving her automobile at a greater rate of speed than was reasonable and safe, having due regard for the use and condition of the streets and the occupancy thereof by the defendants; and in driving her automobile at a greater rate of speed than was permissible under the law and in failing to keep such a lookout for other users of the streets and exercising such care for other users of the streets as required by law; and in failing to yield the right of way to the defendant Curry under the circumstances existing immediately prior to the collision.
Ry way of cross petition, the defendants referred to their answer and alleged that the collision was caused solely by the negligence of plaintiff and but for that negligence there would have been no collision, and defendants were damaged in the amount of $204.83, for which they prayed judgment.
The plaintiff denied in her reply all the allegations in the answer, which were inconsistent with her petition, and specifically denied that defendants had the right of way, but alleged that she had the right of way.
Subsequently the defendants filed an amendment to their answer, wherein they alleged that if the driver Curry was guilty of negligence then the negligence of the plaintiff, which had been alleged, constituted contributory negligence, which was the proximate cause of the collision.
At the trial plaintiff testified that as she approached Emporia avenue driving east on Third street she slowed up at the inter section; the streets were icy; she was going ten to fifteen miles an hour; she looked both ways; no cars were in sight and'she proceeded on across the intersection; she had started to cross the street; the car of defendant hit her when the rear end of her car was twenty-four feet across the intersection. On cross-examination she testified to about the same effect except that she said when she got to the center of the intersection she was struck by a car and that she had not seen it up until that time.
Another witness testified that he was driving west on Third street; that as he stopped he saw the car being driven by defendant coming from the south and also saw plaintiff’s car coming on the other side of the street, but could not tell how fast it was coming. He testified it looked like the driver of the car being driven by defendant was going pretty fast; that the road was slick and the driver must have skidded about two car lengths when he stepped on his brakes; the front end of the Curry car hit the right side of the Schneider car. On cross-examination he testified that the collision occurred right at the center of the intersection; that he saw plaintiff’s car coming across the street but she did not drive right in front of the car being driven by defendant. He saw defendant coming and plaintiff was coming across the street — and that was all there was to it.
Another witness testified as to the city ordinances.
The city engineer testified that the pavement of Emporia avenue was 37.5 feet on the south side of Third street and 37.8 feet on the north side; that the width of Third street from curb to curb was 37/2 feet on the west side of Emporia and 40 feet on the east side.
At that point the plaintiff rested and defendants demurred to her evidence on the ground it was not sufficient to establish a cause of action in favor of plaintiff and against defendants, and on the further ground that it showed plaintiff was guilty of contributory negligence as a matter of law.
This demurrer was sustained on October 25, 1949. The plaintiff in due time filed a motion for a new trial on the grounds of abuse of discretion of the trial court; that the court erred in sustaining the demurrer; made erroneous rulings; the decision was contrary to the evidence and newly discovered evidence.
On January 23, 1950, the trial court sustained plaintiff’s motion for a new trial generally without stating any particular ground for doing so.
On February 6, 1950, the defendants appealed from the order sustaining the plaintiff’s motion for a new trial.
The only specification of error of defendants is that the trial court erred in sustaining the plaintiff’s motion for a new trial.
The defendants argue the appeal as though the question presented was whether the plaintiff introduced sufficient evidence to warrant the trial court in submitting the case to the jury. We are confronted at the outset with the question of whether the ruling of the trial court on the demurrer is here for review since the trial court sustained the motion of plaintiff for a new trial. We are informed by counsel that the only ground urged on the hearing of the motion was the court erred in sustaining the demurrer. As far as this record shows, however, the motion might have been sustained on any of the grounds stated in it.
The appeal is here on its merits because the action of the trial court in granting plaintiff a new trial after it had sustained defendants’ demurrer to the evidence was tantamount to overruling defendants’ demurrer to the evidence. (See Nigh v. Wondra, 167 Kan. 701, 208 P. 2d 239; also Roddy v. Hill Packing Co., 156 Kan. 706, 137 P. 2d 215.)
We shall consider the question whether the demurrer to the evidence should have been sustained. In so considering, we will not weigh evidence; we will give the evidence a liberal construction and will resolve all doubts against the defendants. Where reasonable minds might reach a conclusion in favor of the plaintiff, the demurrer should be overruled. (See Revell v. Bennett, 162 Kan. 345, 176 P. 2d 538; also Langston v. Butler, 165 Kan. 703, 199 P. 2d 190.)
Defendants concede the above to be the rule, but argue that the facts introduced can be construed to mean but one thing, that is, that plaintiff stopped at the intersection and saw no one, although she should have seen the car driven by defendant, and then drove into the intersection directly into the path of the car being driven by defendant. Defendants rely upon cases where we have said a person was presumed to have seen what he could have seen.
We do not take quite the same view of the evidence of the plaintiff that is taken by the defendants. If we take her evidence as true, then we have a situation where the plaintiff arrived at the intersection going between ten and fifteen miles an hour. She-looked to the north and to the south and saw no car coming from either direction and proceeded into the intersection. Emporia street is 37.5 feet wide at the point where she was crossing. The car of defendants hit the door and fender of her car. The rear of her car was twenty-four feet across the intersection when the collision occurred. That means she was more than halfway across. She was in the traffic lane on Emporia street in which defendants’ car was being driven, so defendants’ car had but a short distance to go after entering the intersection before the collision occurred. By the same token plaintiff’s car must have been in full view of the driver of defendants’ car as she proceeded toward the intersection from the time plaintiff entered the intersection until the collision occurred.
Another witness testified that the car of defendants was going pretty fast and slid two car lengths when the driver applied his brakes.
Defendants argue plaintiff’s testimony should be interpreted that their car was upon her right and at least closely approaching the intersection and she did not see it — even though the law presumes she did see it — hence made no attempt to stop her car and drove into the intersection directly in front of defendants’ car.
We think her evidence does not require such a conclusion when weighed by the rules covering demurrers to evidence. Stallings v. Graham, 146 Kan. 867, 73 P. 2d 1090, was a case involving a collision at an intersection. The facts are much the same. The defendant made the arguments defendants are making here. We said:
“The evidence also discloses a situation where, even if plaintiff and her driver had seen defendant’s car on West Cleveland street, they might have assumed defendant’s car would have been so driven that they could safely proceed northward and defendant’s' car would come on behind them, for the city ordinance gave plaintiff’s car the right of way. To say the least, the evidence presents no situation where it may be said the plaintiff and her driver proceeded oblivious of the surrounding circumstances and without regard to their own safety.”
(See, also, Spohn v. Southern Kansas Stage Lines, 142 Kan. 595, 50 P. 2d 1001.)
If we assume that the car being driven by defendant was somewhere in the block when plaintiff was about to enter the intersection, still we have evidence it was coming “pretty fast,” slid two car lengths when the brakes were put on, and hit plaintiff’s car when she was more than halfway across. She had a right to assume that the driver of the defendants’ car would obey the law and either come to a stop at the intersection or proceed slowly enough so she could cross in safety. (See Scheve v. Heiman, 142 Kan. 370, 47 P. 2d 70; also Hughes v. Motor Co., 111 Kan. 397, 207 Pac. 795.)
The trial court should not have sustained defendants’ demurrer to plaintiffs evidence and the plaintiffs motion for a new trial was correctly sustained.
The judgment of the trial court is affirmed. | [
-48,
122,
-80,
-18,
30,
64,
32,
-102,
113,
-47,
-92,
19,
-83,
-53,
5,
49,
-1,
125,
-44,
107,
-11,
-77,
23,
-85,
-110,
-109,
-13,
-53,
-117,
-53,
117,
-10,
76,
48,
75,
-99,
6,
-56,
5,
92,
-50,
-74,
-119,
-4,
-103,
66,
-92,
122,
82,
1,
113,
15,
-45,
40,
24,
-46,
40,
40,
75,
-24,
-63,
-15,
-55,
-123,
126,
22,
-78,
52,
-66,
-117,
92,
24,
-112,
49,
40,
104,
50,
-26,
-110,
-12,
109,
-117,
12,
-90,
98,
33,
21,
-49,
-4,
28,
6,
-6,
13,
-90,
-111,
89,
105,
-124,
-98,
23,
117,
18,
3,
126,
-1,
21,
89,
104,
1,
-53,
-80,
-103,
-49,
50,
18,
-105,
-21,
-123,
18,
97,
-21,
102,
94,
-59,
18,
-69,
95,
-106
] |
The opinion of the court was delivered by
Parker, J.;
This was an action to set aside a deed, to quiet title to real estate, for ejectment, and for an accounting for rents and profits. After joinder of issues the defendants moved for judgment on the pleadings. The appeal is from a judgment sustaining that motion.
The petition includes a first cause of action, a second cause of action, and a prayer for all the relief to which a plaintiff would ordinarily be entitled in an action of the kind above described. It is lengthy and in,such form it cannot be easily summarized. For that reason, and because all allegations essential to the disposition of the issue raised by the instant appeal appear therein, a copy of the first cause of action set forth in such pleading, omitting an exhibit and certain averments to which we refer in summarized form, is appended to and made a part of this opinion.
The defendants’ answer to the petition is also long. However, the,appellate issue is such we are not concerned with many of its allegations and they need not be quoted at length. For present purposes it will suffice to say it expressly admits the allegations contained and set forth in paragraphs 1, 2, 3, 4, 5 and 8 of the petition and other allegations pertaining to the execution and recordation of the deed from The Northern Trust Company, as trustee, to plaintiff. It then denies generally all other allegations of the petition and asserts that the defendants are the owners of the real estate in question under and by virtue of a valid quitclaim deed executed and delivered to them by Fred H. P. Howard in his lifetime. Next it alleges that on the 21st day of June, 1946, the plaintiff, as to each of the four tracts of real estate described in the petition filed in the office of the register of deeds of Logan county and caused to be recorded in that office a certain affidavit, caveat, and statement, signed by and on behalf of the plaintiff only, a copy of each which statement reads:
“Fred H. P. Howard died in Chicago, Illinois on fuly 1, 1945, and the above described property constituted a part of the estate left by him. By the terms of his will, which was admitted to probate in the Probate Court of Cook County, Illinois, on September 4, 1945, all of his estate was devised and bequeathed to Cornell University, a New York Corporation.
“The undersigned is informed and believes:
“That prior to the death of said Fred H. P. Howard, he executed a deed purporting to convey the above described property, but such deed named no grantee;
“That said deed came into the possession of Leonard H. Roach, who has, since the date of death of said Fred H. P. Howard, inserted the name of a grantee or grantees therein without the consent of the undersigned;
“That an)' authority which the said Leonard H. Roach received from said Fred H. P. Howard to insert the name of a grantee or grantees in said deed terminated upon the death of said Fred H. P. Howard, and that said deed is null and void.
“The undersigned claims that it is the owner of said property as sole lega tee and devisee under the will of said Fred H. P. Howard and that said purported deed is void and ineffective to convey any title to the above described real estate.
“CORNELL UNIVERSITY
“By George F. Rogalsky
“Treasurer.
“((Corporate Seal))
“Attest:
“Robert B. Meigs,.
“Secretary.”
Finally the answer charges that plaintiff failed and neglected for a period of more than thirty days after the date of the filing of such affidavits, caveats, and statements to commence an action or actions in a court of competent jurisdiction to enforce or establish its claims against and interest in the real estate described therein and that by reason of its failure to do so it is estopped, barred, and precluded from maintaining or prosecuting the instant action or any other action wherein and whereby it seeks to enforce or establish any claims against or interests in such real estate.
Following the overruling of a motion to strike all allegations from the answers respecting the affidavits, caveats, and statements the plaintiff filed its reply wherein it admitted it had filed such instruments as charged, conceded it had brought no suit to enforce the claims therein set forth within thirty days thereafter and denied that its failure to do so barred or estopped it from recovering the relief prayed for in its petition.
With issues joined as heretofore stated the defendants moved for judgment on the pleadings. In a summary way it can be said this motion, after reciting many of the facts set forth in the answer, is based upon the ground it affirmatively appears from the face of the foregoing pleadings plaintiff’s action is barred by the provisions of G. S. 1935, 67-254, and that the trial court’s action in sustaining it and in rendering judgment in favor of defendants and against plaintiff was based solely upon that premise.
Resort to the petition reveals allegations, which, under our decisions (See West’s Kansas Digest, Pleading, §350 [3]; Hatcher’s Kansas Digest, Pleading, § 71), must be accepted as true for purposes of our review of the ruling on the motion for judgment on the pleadings and for such purposes only, to the effect the appellees claim title to and ownership of the real estate in question under and by virtue of a deed which (1) was executed and delivered by Fred H. P. Howard who was mentally incompetent, as grantor, to Leonard H. Roach who, with full knowledge of that incompetency, procured and accepted the instrument and thereafter, without authority, inserted the appellees’ names as grantees for his own use and benefit, at least so far as an undivided one-half interest in the real estate described in the deed was concerned, (2) was delivered, to the appellee grantees without consideration, in violation of the express conditions under which the instrument had been executed and delivered, to Roach who at the time of such delivery did not have and never had possessed authority to deliver such instrument to them as grantees, and (3) had been materially altered under conditions and circumstances which, if established, would constitute forgery. The petition contains other allegations which, if true, might vitiate the deed but we need not labor them as those to which we have referred are all that need be mentioned for present purposes.
The rule in this jurisdiction with respect to the status of a deed which has been acquired under the first set of conditions and circumstances heretofore noted is well established. Long ago in Hospital Co. v. Philippi, 82 Kan. 64, 107 Pac. 530, we held:
“A deed executed by an insane person to one who has knowledge of die mental incapacity of the grantor and who gives no substantial consideration for the property is an absolute nullity. It does not operate to revoke a valid will previously made by the grantor, and a devisee under the will has sufficient interest to justify him in maintaining an action against the grantee to declare the deed to be void, although there has been no prior disaffirmance of the deed or a tender back of the nominal consideration paid by the grantee.” (Syl. ¶ 4.)
See, also, Anderson v. Anderson, 137 Kan. 833, 840, 22 P. 2d 471, where it is said:
“. . . When a man who knows another to be insane sets about getting a deed from the insane person of the insane person’s land, and succeeds, the court takes the land away from the clever person and restores it to the insane person’s estate. Rescission as in cases of fraud is not required, and no statute of limitations commences to run against the insane person. So it may be said a deed procured under the circumstances stated is void, and devisees under the will of the insane person, made before the conveyance and while he was competent to make a will, are proper persons to bring an action to determine what appears to be an adverse interest created by the deed. (Walter v. Julius, 68 Kan. 314, 74 Pac. 157; Hospital Co. v. Philippi, 82 Kan. 64, 107 Pac. 530; Jenkins v. Jenkins, 94 Kan. 263, 146 Pac. 414; Keefe v. Kill, 135 Kan. 15, 9 P. 2d 640.)” (p. 840.)
There can be no question regarding the status of a deed or the title acquired under its terms when obtained under the set of con ditions and circumstances secondly mentioned, namely without valid delivery. The rule is there must be a delivery of such a deed before it can operate as a valid transfer of title. This, we may add, as between grantor and grantees, including heirs and devisees of the grantor in case of his death, is so under our decisions even though the deed as originally executed was conditionally delivered to a third person and by him delivered to the grantees in violation of the terms and conditions under which it might have been delivered. (See e. g., In re Estate of Hulteen, 170 Kan. 515, 227 P. 2d 112; Burgin v. Newman, 160 Kan. 592, 164 P. 2d 119 ; Hush v. Reeder, 150 Kan. 567, 95 P. 2d 313, and decisions cited at page 576 of the opinion; Mundell v. Franse, 143 Kan. 139, 53 P. 2d 811; Stone v. French, 37 Kan. 145, 14 Pab. 530, also 26 C. J. S., Deeds, 244 § 43[d]).
Nor can there be any doubt regarding the title acquired by persons who assert title and ownership to real estate under a forged deed.
Long ago in Redden v. Tefft, 48 Kan. 302, 29 Pac. 157, in accord with the universal rule (See 26 C. J. S., Deeds, 269 § 54[g]; 16 Am. Jur. 451, 452, §§ 26, 27) we held that a fabricated or forged deed confers no title or equities whatever upon the alleged grantee.
In passing, especially since appellees place great weight upon the fact their deed was filed for record sometime prior to the recordation of the deed obtained by appellant from the Northern Trust Company, as trustee, it should perhaps be stressed that a void deed passes no title and that the recording of such an instrument will not validate the deed or give the grantees named therein any greater title than they had prior to the time it was filed for record (Stone v. French, supra, 16 Am. Jur. Deeds 449 § 21; 26 C. J. S. 307 §68).
Summarizing, what has been heretofore stated means that under the facts and applicable law the trial court held that under the provisions of G. S. 1935, 67-254, (now G. S. 1949, 67-254) the appellant was barred from maintaining the instant action bécause it had filed the statements heretofore mentioned and had failed to commence an action within thirty days to set aside the deed in question notwithstanding, under the facts pleaded in the petition, appellant at the time of the commencement of such action was the legal owner of such real estate and the appellees had never acquired any legal right, title, or interest therein. Otherwise and more drastically stated the force and effect of its decision is that, under the conditions and circumstances just related, such statute must be construed as divesting the appellant of its title to the real estate and vesting that title in appellees even though, except for its provisions, they would never have been able to establish any title thereto under and by virtue of their void deed. Let us see.
Conceding, as appellees insist, G. S. 1949, 67-254, is to be regarded and construed as a special statute of limitation, there remains the all decisive question as to when its provisions become operative and are to be given force and effect. The answer to this question must be and is to be found in the statute itself. In clear, express, and unequivocal terms it provides “That whenever any person shall file in the office of register of deeds any affidavit, . . . purporting to set forth any claim against, . . . any real property belonging to another, . . . such claim, . . . shall, after expiration of thirty days from date of filing the same, no longer constitute any claim against, . . . such real property, unless within such time, the claimant shall begin an action in a court of competent jurisdiction to enforce such claim.” (Emphasis supplied.) In our opinion this language limits application of the statute to cases where the statement filed purports to set forth a claim against real estate which belongs to another and excludes its operation in those where the ostensible owner files a statement of record wherein he gives notice that he is the absolute owner of real estate and that some third person is asserting title to or some interest in his property under and by virtue of a claim which is wholly void. This construction gives full force and effect to all language to be found in the statute whereas to construe it otherwise would wholly ignore the obvious meaning of the phrase “belonging to another” which, in construing the act in its entirety, we are compelled to assume was included within its terms with considered and deliberate legislative intent and purpose. It also eliminates constitutional objections, that otherwise construed, the statute by legislative fiat takes property of one person and vests it in another without due process of law.
The conclusion just announced means that under the conceded facts of the instant case the provisions of G. S. 1935, and 1949, 67-254, have no application and are not decisive of the rights of the parties. Therefore appellant’s admission in its reply that it had filed the statement in question and failed to commence an action within thirty days thereafter did not impair the issues of fact theretofore joined by the pleadings upon which a valid judgment might be based or make it clearly appear appellees were entitled to judgment. It necessarily follows the trial court erred in sustaining the motion for judgment on the pleadings and in rendering judgment for appellees on the theory appellant’s failure to comply with the requirements of such statute barred and estopped it from maintaining its action.
In conclusion it should perhaps be added that so far as we have been able to determine there are only two decisions of this court wherein the statute in question was even indirectly involved. One of these Glimac Oil Co. v. Weiner, 150 Kan. 430, 94 P. 2d 309, was an action for damages for disparagement of title and is not in point. The other Phoenix Joint Stock Land Bank v. Eells, 158 Kan. 530, 148 P. 2d 732, was here on appeal from a ruling on a motion to set aside a judgment rendered in a real estate foreclosure action and was decided solely upon the basis the movant had shown no valid grounds for setting aside the judgment. It appears from the opinion in such case that the party making the motion had filed a statement some two years after the rendition of the judgment giving notice to all persons of his claims respecting invalidity of the judgment and notifying prospective purchasers that they were buying the land at their own risk and peril. However, although it must be conceded that by way of dictum the court made some comment respecting the force and effect of G. S. 1935, 67-254, it is clear from the opinion the decision refusing to set aside the judgment was not based upon the rights of the parties under its terms, and we do not regard it as furnishing a precedent for our decision in the case at bar. Appellees suggest there is some language in the dictum indicating a view contrary to the one just expressed with respect to when the provisions of the statute are applicable. Under the circumstances we are not disposed to labor the question. It suffices to say that if there were any language in such opinion susceptible of that construction it should be disregarded and is hereby disapproved.
The judgment is reversed.
APPENDIX
Amended Petition
Comes Now the Plaintiff, Cornell University, by its Attorneys, Martindell, Carey, Brown & Brabets, of Hutchinson, Kansas, and in compliance with the Court’s Rulings on Defendants’ Motion to Strike and to Make Definite and Certain, for its Amended Petition alleges and states:
1. That it is a Corporation, organized and existing under and by virtue of the Laws of the State of New York, with its principal office and post office address at Ithaca, New York; that it is a nonprofit educational institution, engaged in literary, scientific, engineering and other research, supported largely by endowments and gifts.
2. That each and all of the Defendants are non-residents of the State of Kansas, and are residents of the State of Illinois; that Robert P. Howard and Eleanor Howard are husband and wife; Katherine Roach Jackson and Winfield H. Jackson are wife and husband, and Rosalie Roach Youngburg and Paul F. Youngburg are wife and husband.
3. That one Fred H. P. Howard, now deceased, was an alumnus of Cornell University; that at the time of his death he was a widower residing in Chicago, Illinois, and left no child or children, natural or adopted, nor any grandchild or grandchildren surviving him.
4. That said Fred H. P. Howard, died testate in Chicago, Illinois on the first day of July, 1945, and that his Last Will and Testament was duly admitted to probate and record in the Probate Court of Cook County, Illinois on the fourth day of September, 1945, and that The Northern Trust Company of Chicago, Illinois, which was named as Executor in said Will, was appointed and qualified as Executor of the Estate of said Fred H. P. Howard, Deceased, a copy of said Will is attached to the original petition filed in this Cause, marked Exhibit "A” and made a part hereof.
5. That said Will contained provisons in part as follows: (Here appears excerpts from the will of the decedent making The Northern Trust Company his executor and trustee with directions to that corporation to turn over to plaintiff by proper conveyances, after the death of the decedent’s wife, all property real and personal remaining in his estate).
6. That Edith W. Howard predeceased the said Fred H. P. Howard, and upon the death of Fred H. P. Howard all of his property, of every kind and nature, passed to this Plaintiff, subject only to debts and expense of administration.
7. That said Estate has been fully administered and all debts and claims paid and this Plaintiff has succeeded to all of the property and rights of the said Fred H. P. Howard, deceased.
8. That on the 31st day of January, 1947, an authenticated copy of the Last Will and Testament of Fred H. P. Howard, deceased, and Order of Proof of Will and Granting Letters Testamentary under the Seal of the Clerk of the Probate Court of Cook County, Illinois was duly admitted to Probate and record in the Probate Court of Logan County, Kansas, at which time the Probate Court of Logan County, Kansas found that administration of the Estate of Fred H. P. Howard was unnecessary in the State of Kansas.
9. Plaintiff further states that prior to June 22, 1945, and at the time of his death, Fred H. P. Howard was the owner of, and in possession of the following described real estate situated in Logan County, Kansas, to-Wit: (Here follows legal description of four quarter sections of land).
10. Plaintiff further states that the records in the office of the Register of Deeds of Logan County, Kansas in Deed Record Rook No. 45 at page 52, shows a warranty deed, purporting to be dated June 22, 1945, purporting to be signed by Fred H. P. Howard, and purporting to convey an undivided one-half interest in the above-described real estate to Robert P. Howard and to Katherine Roach Jackson and Rosalie Roach Youngburg, an undivided one-fourth interest each in the above-described real estate.
11. Plaintiff states that the said Deed was not filed for record until January 18, 1946, over six months after the death of said purported grantor, Fred H. P. Howard.
12. Plaintiff states that it does not know whether said deed was signed by Fred H. P. Howard, or not, and while said record above referred to shows that Fred H. P. Howard personally appeared before Mac J. Novak, a Notary Public, to acknowledge said Deed Plaintiff alleges that Fred H. P. Howard did not personally appear before said Notary Public and did not acknowledge said deed before or to said Notary Public.
13. Plaintiff states that if Fred H. P. Howard did sign said deed, which fact Plaintiff does not admit, that said deed is null and void and of no force and effect for the following reasons, to-wit:
(a) There was no valid delivery of said deed in the lifetime of said Fred H. P. Howard, the purported grantor therein.
( b ) At the time of the death of said Fred PI. P. Howard, said deed was incomplete in this, that no grantee whatever was named in said Deed, the space left in said deed where the name of the grantee or grantees was to be inserted was wholly blank.
(c) The names of the Grantees, as they appear of record were inserted in the deed after the death of Fred H. P. Howard by Leonard H. Roach, or at his direction, who had no power or authority to insert said names in said deed, the agency of said party, if any such agency existed, and Plaintiff specifically denies that such agency ever existed, was terminated by the death of said Fred H. P. Howard.
(d) That there was no valid consideration given for said Deed.
(e) Leonard H. Roach never had authority from Fred H. P. Howard to insert the names of the grantees in said purported Deed.
(/) Said Fred H. P. Howard was of unsound mind at the time said purported deed was purportedly executed, and he was not mentally competent at said time to make, execute or deliver said purported deed.
(g) Said purported deed was procured and obtained by, through and as a result of undue influence exercised and practiced upon Fred H. P. Howard by Leonard H. Roach as follows:
Said Leonard H. Roach was the confidential friend and adviser of said Fred H. P. Howard, handling and dealing with the real estate of said Fred H. P. Howard continuously over a number of years up until the last time Mr. Fred H. P. Howard went to the hospital, and on the date the deed in question was supposedly signed, the said Leonard H. Roach went to the Chicago Osteopathic Hospital where Fred H. P. Howard was then confined and secured permission to take him from said hospital by representing he would take Mr. Howard out for a ride and some fresh air.
That at said time Fred H. P. Howard was mentally incompetent to transact any business or execute any deed or deeds, but notwithstanding said fact, said Leonard H. Roach secretly and clandestinely took said Fred H. P. Howard to the home of Fred H. P. Howard, got the papers and files of said Fred H. P. Howard and removed the same, getting everyone else out of the room where he had Fred H. P. Howard, and then and there overcame the feeble and incompetent mind of Fred H. P. Morgan and had him sign not only the deed in question, but also various other deeds affecting all of, or an interest in fourteen (14) other quarter sections of land located in South Dakota, North Dakota, Montana and Gove County, Kansas, and that none of the deeds had the name of any grantee written therein at the time they were supposedly signed, and the said Leonard H. Roach, at said time represented that the names of the grantees were left blank in all of said deeds to facilitate or make easier the selling of said land, but that at said time said Fred H. P. Howard did not know what he was doing and did not realize he was signing a deed or deeds.
That said Leonard H. Roach had all of said deeds prepared in advance by his Secretary, Adda M. Craig, before he had had any talk with Fred H. P. Howard about executing any deeds, or who the grantees in said deeds would be.
That said Leonard H. Roach, took advantage of his confidential relationship with Fred H. P. Howard, and later, and after the death of Fred H. P. Howard, filled in the names of two of his daughters in the deed in question and all the other deeds, but for his own benefit, insofar as any interest of his daughters in said land was concerned.
(h) The deed in question to the Logan County, Kansas land, and all the other deeds were dated on a different day from the day on which they were supposedly signed, and were not dated at the time they were supposedly signed, and were procured by false and fraudulent representations made by Leonard H. Roach that'the names of the grantees were omitted from said deeds for convenience in selling the lands therein described, when at the time Leonard H. Roach intended to insert the names of his daughters in each of said deeds, without any consideration being paid therefor.
(i) The deed in question to the Logan County, Kansas land was materially altered after it was supposedly signed by including an additional land description in said deed, which was not in said deed when it was supposedly signed by Fred H. P. Howard.
14. Plaintiff further states that after the death of Fred H. P. Howard, and after his estate was settled, that it procured from The Northern Trust Company, as Trustee of the Fred H. P. Howard Estate, a Quit Claim Deed to the above described real estate in Logan County, Kansas, which deed was filed for record in the office of the Register of Deeds of Logan County, Kansas on the 23rd day of August, 1947, and duly recorded in book 45 at page 249 in said office.
15. Plaintiff further states that by reason of all the facts aforesaid it has succeeded to all of the rights of Fred H. P. Howard to bring this action to set aside the deed hereinbefore described which was recorded in book 45 at page 52 in the Office of the Register of Deeds of Logan County, Kansas.
16. Plaintiff further states that said Fred H. P. Howard left no personal property in the State of Kansas, and that all debts of his estate have been paid, and there is in fact no reason for administration of his Estate in the State of Kansas.
17. Plaintiff further states that the determination of questions involved in this action are not necessary to make final settlement and distribution of the Estate of Fred H. P. Howard, deceased; that there is no dispute among or between heirs or devisees or legatees as such under the Will of said Fred H. P. Howard, deceased, or any question of descent or distribution of the property hereinbefore specifically described, in this action, and the determination of the questions involved herein would not alter or affect the final settlement and distribution of the Fred H. P. Howard Estate, said Estate having been settled in the Probate Court of Cook County, Illinois, and Defendants are not in any way interested in the Estate of said Fred H. P. Howard.
18. Plaintiff states that by reason of all the facts aforesaid, it is entitled to have the deed hereinbefore described which was recorded in book 45, page 52, in the office of the Register of Deeds of Logan County, Kansas, cancelled, set aside and held for naught. | [
-16,
124,
-16,
29,
10,
-32,
40,
-8,
65,
-67,
39,
115,
111,
82,
5,
111,
-10,
45,
81,
107,
-107,
-14,
22,
-118,
-46,
-77,
-5,
-99,
-79,
-51,
-11,
-41,
76,
32,
-54,
-75,
-58,
-126,
-25,
80,
-114,
5,
-119,
109,
-39,
96,
48,
59,
0,
77,
17,
-49,
-5,
38,
28,
66,
8,
46,
-37,
-87,
-112,
-72,
-81,
-116,
127,
18,
-93,
39,
-68,
-61,
-8,
-118,
-112,
53,
-128,
-88,
115,
-74,
-106,
116,
3,
-117,
8,
110,
99,
16,
69,
-17,
-8,
-102,
46,
127,
13,
-90,
-74,
8,
33,
-95,
-68,
-99,
125,
80,
7,
126,
-26,
-115,
24,
108,
7,
-113,
-42,
-79,
-117,
-4,
-100,
3,
-17,
3,
48,
96,
-55,
64,
92,
99,
57,
59,
-114,
-78
] |
The opinion of the court was delivered by
Parker, J.:
This is an action brought by the payee of a check to recover against a bank which honored the check upon an alleged unauthorized endorsement. The plaintiff attempts to appeal from an order sustaining the bank’s motion to make the alleged unauthorized endorser a party defendant.
Another phase of this same case was decided by this court in Pearcy v. First National Bank, 167 Kan. 696, 208 P. 2d 217. With one exception the facts essential to an understanding of the nature of the controversy and disposition of the instant cause are fully set forth in the opinion of that case and need not be repeated. For present purposes all that need be said is that prior to perfection of the first appeal the alleged unauthorized endorser’s application to intervene in the action was denied by the trial court, from which ruling there was no appeal, and that after our decision reversing the case the bank’s motion to • make such endorser a party defendant was sustained. From this last ruling the plaintiff gave notice of appeal and now insists the trial court’s ruling with respect to that matter constitutes a final order under our statute (G. S. 1949, 60-3302 and 3303) and is now a proper subject for appellate review.
At the outset we are faced by appellees’ motion asking that the appeal be dismissed for the reason the order of the trial court making the alleged unauthorized endorser an additional party defendant is not an appealable order. This, of course, is a jurisdictional challenge and must be given first consideration.
Throughout the years this court by repeated decisions, to which we propose to adhere, has held that it is without jurisdiction to entertain attempted appeals from district court orders when it appears from the record no final order has been made or judgment rendered in favor of or against any party to the action, all of such decisions being based upon the salutary principle that such rulings do not have the effect of terminating the action or foreclosing the parties thereto from thereafter asserting the matters therein sought to be determined, never deprive any litigant of substantial rights, and at the most merely postpone their final determination until after the trial court has been afforded an opportunity to proceed with and dispose of the cause .upon its merits (see In re Estate of West, 167 Kan. 94, 204 P. 2d 729, and decisions there cited).
Appellant recognizes the rule to be as above stated but contends the instant appeal does not come within the purview of its terms because (1) the unappealed ruling of the trial court refusing to permit the endorser to intervene on his own application has become res judicata and acts as a bar or estoppel on the motion of the defendant bank to make him an additional party and (2) this court has held (Ousley v. Osage City, 95 Kan. 254, 147 Pac. 1110) the denial of an application to intervene is an appealable order. We shall consider the questions thus raised inversely.
The short answer to appellant’s second contention is that denial of an application to intervene by a person who is not a party to an action does terminate that action as to him whereas the sustaining of such an application, either on his motion or on that of some other litigant, has exactly the opposite effect and permits all parties to have their rights adjudicated.
Appellant’s first contention, while more complex in nature, has no more merit than the second. In fact the very grounds upon which it is based disclose its fallaciousness. Either of the grounds relied on could be asserted as a defense and it is certain appellant is not precluded from asserting them as such simply because the trial court, as the statute (G. S. 1949, 60-411) permits, directed that the endorser of the check be made a party defendant. Indeed the general rule, so elementary as to require no citation of authorities, is that unless they appear upon the face of the pleadings they must be pleaded in order to be availed of as a defense.
It is clear from the record the action of the trial court in allowing the bank’s motion and in making the endorser of the check a party was made pursuant to the provisions of 60-411, supra. With specific reference to such statute this court has held that orders making additional parties pursuant to its terms are not subject to appellate review (see Howard v. Bank, 107 Kan. 489, 492, 192 Pac. 746, and Dicks v. Wilson, 143 Kan. 716, 56 P. 2d 1036).
Eased upon the two last cited decisions and the others referred to earlier in the opinion we hold this court is without jurisdiction to entertain the instant appeal and that it must be dismissed.
It is so ordered. | [
-112,
-8,
-23,
28,
10,
96,
34,
26,
80,
-95,
-89,
83,
-87,
-62,
20,
123,
-1,
45,
117,
107,
-43,
-77,
39,
-56,
114,
-77,
-47,
-43,
-79,
94,
-10,
95,
12,
48,
74,
-43,
102,
-54,
-61,
-44,
-114,
36,
24,
-49,
-7,
-117,
48,
3,
20,
91,
-47,
-66,
-29,
40,
27,
-61,
105,
45,
-55,
61,
-112,
-80,
-113,
-115,
125,
20,
35,
4,
-102,
7,
-40,
62,
16,
57,
3,
-23,
114,
-74,
-122,
20,
107,
59,
0,
38,
98,
-128,
113,
-17,
-84,
-72,
47,
95,
15,
-90,
-112,
24,
43,
47,
-74,
-98,
127,
23,
7,
-4,
-2,
5,
31,
-20,
9,
-54,
-74,
-77,
31,
116,
26,
3,
-17,
-125,
-112,
97,
-51,
-32,
92,
-41,
57,
-103,
-114,
-108
] |
The opinion of the court was delivered by
Price, J.:
This is an appeal from a judgment of the lower court granting a permanent injunction enjoining the defendant from operating a portable hot asphalt mixing plant under certain conditions, hereinafter set forth.
Plaintiffs are homeowners and have resided for a number of years in a residential area a little northeast of the city of El Dorado. In June, 1948, the defendant set up and put into operation a portable asphalt mixing plant on property owned by the Missouri Pacific Railroad Company, which it had leased for such purpose. The plant is located from seven hundred feet to a quarter of a mile southwest of the residences of plaintiffs, and its product is used in making street and highway repairs. This action to enjoin was brought on the theory that the plant’s operation constituted a nuisance on account of the dust and obnoxious odors resulting therefrom, all to the damage and injury to plaintiffs and their properties.
The testimony of plaintiffs and other witnesses was to the effect that when the wind was in the right direction (from the southwest) a great amount of dust was blown over onto and settled on plaintiffs’ properties, finding its way into their homes, settling on clothing, furniture and food, and in general making life miserable for all concerned. Before rendering judgment the trial judge made a personal inspection of the properties so as to familiarize himself with the over-all picture.
Rather extensive findings of fact were made by the lower court, and they are as follows:
“1. That the defendant, Geo. M. Myers, Inc., is the owner and operator of a certain Barber-Greene Hot Asphalt paving plant, which will be hereinafter referred to as the ‘plant’.
“2. That said plant was used and operated by defendant at a location leased by defendant for said purpose, in the west end of the Missouri Pacific Railroad Company’s switching yards northeast of El Dorado, Kansas, outside the city limits of said city during certain days in the years 1948 and 1949.
“3. That said plant was so located by virtue of a written lease agreement made and entered into by and between defendant and the Missouri Pacific Railroad Company, which lease specifically provides for the operation of the plant in the switching yards of said railroad Company.
“4. That in 1948 said plant was in operation for 20 days beginning October 7, 1948, and ending November 2, 1948. That the time during which said plant was in operation during said 20 days varied from 2/á hours on October 12, 1948, to 12 hours on October 9, 1948.
“5. That in 1949 said plant was in operation for 29 days beginning June 23, 1949, and ending August 20, 1949. That the time during which said plant was in operation during said 29 days varied from 3 hours on June 27th and 30th, 1949 to 12 hours on July 22nd and on August 20, 1949.
“6. That the plaintiffs, and all of them, are residents of the general area to the Northeast of the location of said plant; that the home of plaintiff closest to the location of said plant is approximately 700 feet therefrom and the home of plaintiffs farthest from the location of said plant is approximately K mile therefrom.
“7. That a dirt and gravel road runs past said plant and the homes of all plaintiffs; that it connects the city streets of El Dorado with Kansas Highway 13 northeast of El Dorado, Kansas.
“8. That the City dump of the city of El Dorado is south of the homes of plaintiffs and on the south side of the switching yards of the Missouri Pacific Railroad Company.
“9. That the switching yards of said Railroad Company are used by it for the switching of freight cars, the switching of switch engines, coal burners, and for industrial purposes by lease agreement between the railroad Company and the users.
‘TO. That the plant of defendant is used in making hot asphalt paving material for street and highway construction.
“11. That the paving material produced by said plant is made by the processing of aggregate material, chat, therein by heating, to remove all moisture, in two revolving heating drums, each 12 feet long, by the application of liquid asphalt heated to provide liquification to permit it to be sprayed into the dried aggregate; the mixing thereof within a pug mill and then taken by endless belt conveyor to trucks for application as the finished product. That each revolving heating drum is equipped with a metal stack to carry off the steam resulting from drying of the aggregate and such dust as may escape the revolving heating drums. That each of said stacks is equipped with a dust collector, standard equipment of the plant.
“12. That no asphaltic spray from said plant escapes into free air.
“13. That plaintiffs will, if die wind direction be right and the wind velocity sufficiently strong, have dust which escapes said two stacks, blown upon them and are inconvenienced thereby.
“14. That the wind must be from a direction between 190 degrees and 220 degrees, true, to carry dust from said plant to plaintiff’s property.
“15. That the dust escaping from the stacks of said plant is dry; that it contains no oil, asphalt, or fats or other sticky substance.
“16. That said plant produces no noxious odors or fumes.
“17. That said plant produces or emits no soot or smoke.
“18. That the dust produced by said plant is the same as dust common to the community in which said plant is located and especially the road passing said plant and the homes of plaintiffs.
“19. That said plant is operated efficiently by the defendant and as prescribed by the manufacturer.
“20. That the main line of the Santa Fe Railroad Company runs parallel to the plaintiff’s property approximately 600 to 700 feet west thereof.
“21. That the plaintiffs have some dust, smoke, noise and odors thruout each year from
(a) The dirt and gravel road serving their general area.
(b) The Missouri Pacific Railroad Company mainline and switching operations.
(c) The Santa Fe Railroad mainline operations.
(d) The City refuse dump and its burning.
“22. The product of said plant is used by the City of El Dorado.
“23. Defendant intends to and will use said plant in said location in the future when work is available therefor and weather conditions permit said operations.
“24. That defendant’s uncompleted work, by contract with the City of El Dorado, Kansas, was, on July 13, 1949, $44,000.00.
“25 That the plaintiffs, with one exception, are the only residents of the general area of the location of said plant.
“26. That at the hearing on the temporary injunction herein, such temporary injunction was granted plaintiffs, subject to the filing, as provided by law, of their bond herein in the sum of $15,000.00; that said bond was not provided or filed.
“27. That the operation of said plant by defendant is not a continuous operation; is seasonal; has not been operated continuously when set up and able to operate in said location.
“28. That defendant is not and has not been guilty of negligence in the operation of said plant.”
The conclusions of law rendered by the court are:
“1. That the business of operating the hot asphalt plant is a legal and necessary business.
“2. That the defendant be restrained and enjoined from operating said asphalt plant at such times and manner that the dust and dirt coming therefrom will injure, molest, or interfere with the plaintiffs in the peaceable, quiet enjoyment of their property.”
The journal entry of judgment provides that the defendant be restrained and enjoined
“. . . from operating his asphalt plant at such times and in such a manner that the dust and dirt coming therefrom will injure, molest or interfere with the plaintiffs in the peaceable, quiet enjoyment of their property,
Defendant filed motions to amend and to set aside conclusion of law number 2 on the ground that it is contrary to and not supported by the findings of fact, and motions for judgment non obstante, and for a new trial. All of these motions were overruled, whereupon this appeal was taken.
Before passing to the real question in this lawsuit we pause briefly to take note of defendant’s first complaint, namely, that the court erred in overruling its demurrer and motion for judgment on the pleadings, based upon the ground the Missouri Pacific Railroad Company, owner and lessor of the property upon which the plant was located, should have been made a party to the action.
In view of our disposition of this case the question becomes immaterial, but in passing we find that nowhere is it made to appear that the railroad company was either a proper or necessary party to the action, and certainly defendant was in no way prejudiced by the fact it was not made such.
It is not contended by defendant that the findings of fact are not supported by the evidence, and so the real question before us is whether conclusion of law number 2, and the judgment ultimately rendered thereon, have any basis in or are supported by the findings.
Defendant company argues that the findings fall far short of showing injury or damage such as would constitute a nuisance and thus justify the granting of the injunction, and that the most that can be said for them is that plaintiffs were merely inconvenienced by the dust which occasionally was blown over on them.
On the other hand, counsel for plaintiffs, while conceding that the findings are not as “strong” as they would prefer them to be, contend that the frequency and amount of dust are merely a matter of degree, and cite Helms v. Oil Co., 102 Kan. 164, 169 Pac. 208, L. R. A. 1918C, 227; Gilbert v. Construction Co., 110 Kan. 298, 203 Pac. 1113; LeLand v. Turner, 117 Kan. 294, 230 Pac. 1061; King v. American Rock Crusher, 119 Kan. 618, 240 Pac. 394; McMullen v. Jennings, 141 Kan. 420, 41 P. 2d 753; and Asmann v. Masters, 151 Kan. 281, 98 P. 2d 419, as bearing on the general proposition of the right to enjoin nuisances.
While the word nuisance is perhaps incapable of precise definition, yet in general it is held to be something which interferes with the rights of citizens, whether in person, property, or enjoyment of property, or comfort. It has also been held to mean an annoyance, and, in its broadest sense, that which annoys or causes trouble or vexation, that which is offensive or noxious, or anything that works hurt, inconvenience or damage. (See 66 C. J. S., Nuisances, § 1, p. 727). What may or may not constitute a nuisance in a particular case depends upon many things, such as the type of neighborhood, the nature of the thing or wrong complained of, its proximity to those alleging injury or damage, its frequency or continuity, and the nature and extent of the injury, damage or annoyance resulting. Each case must of necessity depend upon its own particular facts and circumstances.
As a general proposition it may be said that dust which substantially interferes with the comfortable enjoyment of adjacent premises constitutes a nuisance, provided it is sufficient to cause perceptible injury to persons or property. On the other hand, a reasonable amount of dust in a manufacturing community or industrial district does not necessarily constitute a nuisance even though it may cause some annoyance, and this is particularly true where the dust caused by the operation of a business is only occasional and the resultant injury slight. In other words, a given amount of dust in one locality well might be considered and held to be a nuisance, and not so in others, all depending upon the particular facts and circumstances. (39 Am. Jur., Nuisances, § 57, pp. 339, 340; 66 C. J. S., Nuisances, § 23, p. 777. See annotations in 3 A. L. R. 312; 11 A. L. R. 1401; and 8 A. L. R. 2d 419.)
In the case before us we must take the facts as found by the trial court, and they show that the dust escaping from the stacks on the plant contains no oil or other sticky substance; that the plant emits no noxious odors, fumes, soot or smoke; that the dust produced by the plant is the same as dust common to the community and especially the road passing the plant and the homes of plaintiffs, and that plaintiffs have some dust, smoke and odors throughout the year from the dirt and gravel road, adjacent railroad lines, and from the city refuse dump. The findings further show that the plant is operated only occasionally; that it was not negligently operated, and that the dust from these occasional operations will be blown over onto plaintiffs’ properties only when the direction and velocity of the wind are right, that is, blowing sufficiently strong from a generally southwesterly direction, and that when such conditions prevail plaintiffs are inconvenienced thereby.
Now it may be that plaintiffs suffered actual injury and damage to their persons and property as a result of the plant’s operation, but the fact remains the lower court did not so find! It merely found they were inconvenienced! While it is perhaps true that “inconvenience,” depending upon its nature, extent and result, might, in some instances, be such as to constitute a nuisance in the eyes of the law, yet under all of the facts and circumstances of the case before us we cannot give the court’s findings such interpretation.
In Hajny v. Robinson Milling Co., 156 Kan. 506, 134 P. 2d 398, it was held:
“In an action tried by the court, which makes findings of fact and conclusions of law, the conclusions of law should be supported by the findings made.” (Syl.)
This action was predicated upon the injury and damage resulting to plaintiffs on account of the plant’s operation, and it is essential, of course, that its operation, which is sought to be enjoined, produce that result in order for plaintiffs to prevail. In our opinion conclusion of law number 2, and the judgment rendered pursuant thereto, are not supported by the findings of fact.
It therefore follows that the judgment of the lower court is reversed with directions to vacate and set aside the permanent injunction and to enter judgment for defendant. | [
-12,
106,
-76,
-116,
90,
97,
24,
-40,
77,
-95,
-9,
91,
-17,
-45,
4,
33,
-65,
29,
-16,
107,
-31,
-94,
83,
-61,
-106,
-69,
-5,
-35,
57,
94,
-26,
-41,
72,
0,
-54,
-107,
38,
80,
-60,
92,
-50,
37,
-119,
-24,
-39,
2,
-74,
59,
112,
79,
81,
-97,
-13,
45,
25,
-53,
105,
44,
-5,
45,
-55,
-8,
-70,
-105,
111,
20,
2,
32,
-116,
-121,
-8,
27,
-104,
25,
0,
-24,
115,
-90,
-106,
116,
69,
-85,
8,
-86,
99,
33,
5,
-81,
-20,
-120,
14,
-37,
-113,
-89,
28,
24,
122,
0,
-98,
-98,
116,
22,
-115,
126,
-2,
5,
95,
125,
-122,
-53,
-76,
-93,
15,
32,
-100,
5,
-21,
39,
53,
100,
-51,
-70,
94,
71,
114,
-97,
-57,
-108
] |
The opinioi} of the court was delivered by
Parker, J.:
These are separate actions brought by the plaintiffs in the district court of Johnson county against the Cities Service Gas Company as separate appeals from awards of damages made and filed by appraisers appointed by such court, in a condemnation proceeding, conceded to have been authorized by the eminent domain statutes of the state, instituted by the company for the purpose of acquiring a limited gas pipe line right-of-way easement in, under, through, and across premises owned by the respective plaintiffs. The actions were consolidated for purposes of trial by consent of the parties in the court below, also in this court for purposes of appeal.
The first action involves an appeal by the parties named as appellants in case No. 37,950 in the district court of Johnson county from an award of $480 made by the appraisers for damages sustained to their real estate, hereinafter referred to as Tract 1, consisting of approximately 80 acres of which approximately 4.045 acres were actually taken for right-of-way purposes. The second action involves an appeal by the parties named as appellants in case No. 37,951 in such district court from an award of,$100 made by the appraisers for damages sustained by such persons to their land, hereinafter referred to as Tract 2, consisting of approximately 4.481 acres of which 0.488 of an acre was taken as right of way. The third action is an appeal by the parties named in case No. 37,952 in the same district court from an award of $320 made by the appraisers for damages sustained by such appellants to their real estate, hereinafter referred to as Tract 3, consisting of 6% acres of which but 1.019 acres were actually taken for the right of way.
In district court the three cases were submitted to a jury which, after hearing the evidence and being instructed by the court as to the law, returned three separate general verdicts along with its answers to eighteen special questions. The verdict in case 37,950 was for the plaintiffs and assessed their damages to Tract 1 at the sum of $480. The verdict in case 37,951 was for the plaintiffs and assessed their damages to Tract 2 at $100. The verdict in case 37,952 was also for the plaintiffs and assessed their damages to Tract 3 at $320. .
Following the return of the general verdicts and the answers to the special questions the plaintiff in each of the three cases filed separate motions for judgment on the special questions notwithstanding the general verdict and motions for a new trial. The motions for new trial contained but two grounds, namely, that the verdicts were in whole or in part contrary to the evidence and instructions of the court and were contrary to and inconsistent with the answers to the special questions. In due time these motions were overruled by the trial court and judgment was rendered in each of the three cases in favor of the plaintiffs therein in accord with the amount assessed as damages by the jury in the general verdicts'. Thereupon the plaintiffs perfected separate appeals from the orders made by the trial court overruling their respective motions for judgment on the special questions and for a new trial.
In their briefs and on oral argument in this court the appellants admit that the evidence introduced during the trial was sufficient to sustain all the answers to the special questions, that they made no objection to the instructions given by the trial court, either when they were submitted or by motion for a new trial, and frankly concede that inasmuch as the jury by its answers to questions 7 to 15, inclusive, found portions of their land not actually taken for the involved right of way had not been damaged, the only question for decision on appellate review is the amount of damages they are entitled to recover for the land actually taken for right-of-way purposes. However, they strenuously insist the amount of damage in each case is conclusively determined by the jury’s answers to special questions 1, 2 and 3.
Ry reason of what has just been stated the first six questions submitted by the trial court and the answers made thereto by the jury become highly important and should be quoted. Such questions and answers read:
“1. What was the fair and reasonable market value of the approximately 4.045 acres of Tract 1 in the strip taken for said limited gas pipe line right-of-way easement on May 11, 1948? A. $1,820.25.
“2. What was the fair and reasonable market value of the approximately 0.488 of an acre of Tract 2 in the strip taken for said limited gas pipe line right-of-way easement on May 11, 1948? A. $341.60.
“3. What was the fair and reasonable, market value of the approximately 1.019 acres of Tract 3 in the strip taken for said limited gas pipe line right-of-way easement on May 11, 1948? A. $815.20.
“4. What amount of damages, if any, do you allow for the taking of the strip of Tract 1 for pipe line right of way purposes' and the construction thereon oí said pipe line? A. $480.00.
“5. What amount of damages, if any, do you allow for the taking of the strip of Tract 2 for pipe line right of way purposes and the construction thereon of said pipe line? A. $100.00.
“6. What amount of damages, if any, do you allow for the taking of the strip of Tract 3 for pipe line right of way purposes and the construction thereon of said pipe line? A. $320.00.”
For informative purposes it should perhaps be stated at this point the answers to questions not heretofore specifically mentioned, namely 16 to 18 inclusive, are to the effect the most advantageous use for which Tracts 1, 2, and 3 were adaptable was suburban acreage and are not material to a decision of the decisive issue.
When stripped of excess verbiage the gist of all contentions argued by appellants in support of their position the answers to questions 1, 2 and 3 are so inconsistent with the answers to questions 4, 5 and 6 and the general verdicts as to require the sustaining of their motions for judgment non obstante is predicated upon the premise the answers last mentioned as well as the general verdicts were based on an erroneous conception of what constitutes the measure of damages in the instant case. Decision of this issue, of course, can only be determined by a review of the instructions given by the trial court which, since they were neither objected to when given nor challenged by the motion for new trial, are not subject to appellate review and, under all our decisions, become the law of the case. For just a few of our cases so holding see Fisher v. Central Surety & Ins. Corp., 149 Kan. 38, 86 P. 2d 583; Montague v. Burgerhoff, 152 Kan. 124, 102 P. 2d 1031; Cruse v. Dole, 155 Kan. 292, 124 P. 2d 470; Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 287, 139 P. 2d 859, and Harvey v. Cole, 159 Kan. 239, 153 P. 2d 916. Numerous other decisions to the same effect can be found by reference to Hatcher s Kansas Digest, Appeal & Error, §§ 344, 359, and West’s Kansas Digest, Appeal & Error, § 853.
See, also, e. g., Abramson v. Wolf, 138 Kan. 856, 28 P. 2d 975, where it is said:
“The defendant, having stood by and, if he did not agree thereto, did permit the court to frame a theory of the case and submit it to the jury thereon, cannot now raise any question as to tire correctness of such theory (Nichols v. Weaver, 7 Kan. 373, syl. ¶ 3; Commission Co. v. Wolf, 74 Kan. 330, 333, 86 Pac. 128; Geppelt v. Stone Co., 90 Kan. 539, 542, 135 Pac. 573), nor can he raise any question as to the instructions to which he did not object, did not ask to have amplified by further instructions, and did not complain of in presenting his motion for a new trial.” (p. 859.)
Before giving consideration to the instructions, even though we believe the decisions to which we have referred make that point clear, it should perhaps be again emphasized that where — ■ as here — they have become the law of the case our only province is to determine whether a jury’s verdict and its answers to special interrogations are in accord with the legal theory on which the trial court submitted the cause. Therefore it should be kept in mind that in all cases where that situation prevails, including the one here involved, we do not pass upon the question whether, if proper objections had been made to the instructions, the trial court has submitted the case on a wrong theory or has inaccurately or erroneously stated principles of law which, except for the want of such objections, would otherwise have been applicable and required.
Turning to the instructions it can be said we are convinced nothing of benefit to the bench and bar of this state would be served by spreading them at length upon the pages of this opinion. It suffices to say they have been reviewed and that they fail to disclose, as the appellants contend, the court instructed the jury the measure of damages was the fair and reasonable market value of Tracts 1, 2 and 3 at the time it was taken for right of way purposes. On the contrary such instructions, when carefully examined, reveal the trial court instructed the jury the appellee company by its exercise of the right of eminent domain did not acquire title to but had acquired only a limited easement in such tracts of real estate, that the owners thereof, the appellants herein, retained the right, after construction of appellee’s pipe line to use the surface of such real estate for pasture, agricultural and other purposes not inconsistent with the appellee’s easement rights, and that they were only entitled to recover such damages as the jury should find had resulted to Tracts 1, 2 and 3 by the partial taking of those tracts for limited easement purposes.
Faced by instructions such as we have just described which, as we have seen are the law of this case, it cannot be said or held the answers to questions 4,5 and 6 or the general verdicts were determined by the jury upon some unwarranted rule of law as to the measurement of damages. In fact it is apparent the jury measured the damages in exact accord with the instructions submitted by the trial court. Nor can it be successfully urged the answers to questions 1, 2 and 3 are inconsistent with the general verdicts and the answers to questions 4, 5 and 6. Indeed, in view of the theory on which the case was submitted, except as they might be used for yardstick purposes in determining the amount of damages sustained to the particular tracts directly involved by the taking of the limited easements, the answers to questions 1, 2 and 3 are not only consistent with the other answers to special questions but are almost immaterial to a decision of the question whether the answers to all special questions submitted support the general verdicts.
The judgment is affirmed. | [
-16,
104,
-11,
30,
8,
96,
2,
-104,
73,
-79,
-10,
83,
-83,
-54,
9,
111,
-1,
61,
-11,
120,
-59,
-77,
91,
-30,
-110,
-77,
59,
-51,
-79,
78,
-12,
-57,
72,
80,
-54,
21,
70,
-64,
69,
92,
-114,
7,
-119,
76,
-55,
2,
52,
107,
114,
11,
53,
47,
-13,
44,
57,
-61,
72,
44,
-5,
-91,
17,
-72,
-88,
-107,
28,
23,
33,
102,
-100,
-125,
-56,
10,
-112,
57,
-128,
-24,
115,
38,
-58,
-12,
3,
-101,
12,
38,
103,
1,
61,
-49,
104,
-120,
15,
-36,
-117,
-89,
-128,
24,
123,
2,
-76,
-100,
124,
82,
-121,
126,
-18,
5,
31,
109,
-123,
-34,
-106,
-93,
-113,
104,
-118,
3,
-17,
-89,
48,
97,
-51,
-30,
94,
71,
54,
31,
15,
-71
] |
The opinion of the court was delivered by
Thiele, J.:
The six appeals under consideration present the basic question whether under the provisions of G. S. 1949, ch. 26, art. 1, the condemnor may deposit with the clerk of the district court the appraisement made by the appraisers, pay the court costs and appraisers’ fees as fixed by the court, and at the same time perfect and maintain an appeal from the appraisement. Such differences as there are in the appeals will be noted later.
Under the provisions of G. S. 1949, 68-413 the state highway commission may acquire title by exercise of the right of eminent domain to any lands necessary for the construction, improvement, reconstruction, maintenance or drainage of the state highway system, and when such right is exercised it is in accordance with the provisions of G. S. 1935, ch. 26, art. 1, and any amendments thereto. As amended the statute now appears as first above mentioned. G. S. 1949, 68-413, contains no supplementary or restrictive provisions on exercise of the right of eminent domain nor on the procedure to be followed.
Acting under the above statutes the state highway commission, hereafter referred to as the commission, on December 21, 1949, filed its petition in the district court of Kingman county for condemnation of several tracts of land in that county. The petition was approved, appraisers were appointed, requisite notices were given and on January 17, 1950, the appraisements were made and later returned into court. On February 16, 1950, the commission paid the amounts of the several appraisements to the clerk of the district court. On the same day the commission filed notices directed to the owners of the several tracts of land that it was dissatisfied with the appraisement made in each particular case and drat it appealed to the district court for a trial de novo on the question of damages, and it also filed the bonds for costs as provided by G. S. 1949, 26-102, and thereafter each appeal was separately docketed and given a number. Later and on March 20, 1950, the commission paid to the clerk of the court the costs in the condemnation case.
In the case covered by our number 38,101, the landowners on March 24,1950, filed their several motions in the original condemnation proceeding alleging the appraisement; that the commission had paid the amount of the appraisement into court and had taken possession of the involved lands; that petitioners had made demand upon the clerk to pay the award to them but that the clerk had not done so, and they prayed for an order directing the clerk to make such payment. On March 27, 1950, these motions were heard by the trial court and sustained, and from the several orders made the commission has appealed to this court.
In the cases covered by our numbers 38,102, 38,103, 38,104, 38,105 and 38,106 the several landowners filed their motions in the actions docketed as a result of the appeals from the awards alleging the appraisement; that the commission had paid the amounts of the award into court and had taken possession of the lands condemned; that the commission by so doing had acquiesed in the appraisement and had no right to appeal therefrom and they prayed that the several appeals be dismissed. On March 27, 1950, these motions were heard by the trial court and sustained, and from the several rulings made the commission has appealed tó this court.
Under an order of this court the appeals were ordered consolidated for the purpose of briefs and argument and they have been so presented. Although not expressly stated, the commission seems to concede that if it may not appeal under the circumstances set forth, the trial court did not err in ordering the amounts of the appraisements paid to certain landowners, and the only question presented for our consideration is the one first stated herein.
Reference to G. S. 1949, 26-101, will disclose that it provides that:
“Any corporation having the right of eminent domain, except railroad and interurban railway corporations, and any partnership holding a certificate of convenience issued by the state corporation commission and having the right of eminent domain, shall exercise such right in the following manner: . . .”
Provision is then made for the filing of a petition, for a finding of power to condemn in the petitioner, for appointment of appraisers, for notice to landowners, for appraisement and for filing of the appraisers’ report in the office of the district court. The section then concludes:
“If the petitioner desires to acquire the land at tire appraised price it shall within thirty days deposit with the clerk of the district court the total amount of such appraisement, shall pay the court’s costs and the fees of the appraisers, to be fixed by the court or the judge thereof, and the title to all such lots and parcels of ground thereupon shall immediately vest in the said petitioner, and the said petitioner shall be entitled to the immediate possession thereof and all remedies provided by law for tire security of such title and possession. If tire petitioner shall not within thirty days comply with all of the terms of such condemnation or appeal therefrom, judgment for the costs of such proceeding, including appraisers’ fees, shall be entered against the petitioner as in other cases.”
Provision for appeals is made in G. S. 1949, 26-102, which reads:
“If the petitioner or tire owner or any lienholder of record of any lot or parcel of ground so condemned shall be dissatisfied with the appraisement thereof, he shall, within thirty days, file a written notice of appeal with the clerk of said court, and give bond for tire costs thereof, to be approved by said clerk, and thereupon an action shall be docketed and tried the same as other actions.”
In its argument that it can pay the amount of the appraisement into court and take possession of the land and at the same time appeal from the appraisal, the commission first directs our attention to article 12, section 4, of our state constitution, that “No right of way shall be appropriated to the use of any corporation, until full compensation therefor be first made in money, or secured by a deposit of money, to the owner, . . .” We shall not discuss whether that provision is applicable here, but see Comm’rs. of Pottawatomie Co. v. O’Sullivan, 17 Kan. 58; Callen v. Junction City, 43 Kan. 627, 23 Pac. 652; and Sullivan v. City of Goodland, 110 Kan. 359, 203 Pac. 732. The commission, after quoting a portion of G. S. 1949, Ch. 26, as set out above, then directs our attention to Glover v. State Highway Comm., 147 Kan. 279, 77 P. 2d 189, and makes a long quotation from that portion of the opinion beginning on page 285 where the nature of condemnation in the light of our statutes is discussed. Examination of that opinion will disclose that the question there involved was whether a dissatisfied landowner had properly perfected an appeal from the appraisement made. The language quoted does contain a comprehensive review of the law concerning condemnations but it is silent, either by direct statement or by analogy, on the question now before us.
The commission places strength on the statement in the Glover case, supra, that the award or appraisement made in a condemnation proceeding is not a judgment and argues that the deposit of the amount of the appraisement is merely a compliance with the constitutional provision and the statute mentioned which enables it to become entitled to the possession of the lands condemned, and that mere payment of the amount of the appraisement into court in order that it complete its right to possession does not preclude its right to appeal. It passes lightly over that part of the statute that, “If the petitioner desires to acquire the land at the appraised price it shall within thirty days deposit with the clerk of the district court the total amount of such appraisement,” and stresses the last sentence of that paragraph that, “If the petitioner shall not within thirty days comply with all of the terms of such condemnation or appeal therefrom, judgment . . . shall be entered against the petitioner . . .” and argues that such language provides for appeals by the condemnor as a matter of right. Ampliflying its argument the commission states that for the court to decide that it could not pay the amount of the appraisement and thus take possession of the lands condemned, and at the same time appeal would be tantamount to a denial of the right of appeal and would cause delay in public improvements pending litigation over the amount of the appraisement and if speed was required the highway commission would be at the mercy of the appraisers, and that undue hardship would result.
In support of the above argument the commission directs attention to textbooks and general authorities, Nichols on Eminent Domain, 2 Ed., Vol. 1, page 643; 30 C. J. S. 19, 24, Anno.; 55 A. L. R. 201, and to the case of City of St. Louis v. Gerhart Realty Co., 328 Mo. 103, 40 S. W. 2d 661, which for present purposes may be said to support its argument, and to our decision in Central Branch U. P. R. Co. v. Atchison, T. & S. F. R. Co., 28 Kan. 453, which does not. In that case, after the commissioners appointed by the judge of the district court had filed their report with the county clerk, the condemning company deposited the amount of the damages awarded with the county treasurer. The landowner company appealed under the provisions of Comp. Laws 1879, ch. 23, § 86. When the condemning company was about to enter upon the land the landowner company applied for an injunction which was denied, and appeal followed. On appeal the judgment of the trial court was affirmed. We shall not set out here a review of the rather long opinion, but shall merely point out that the statute was held to be constitutional, that under its terms the condemning company might take possession and use the land notwithstanding the appeal, and, so far as we are now concerned, the gist of the decision is embodied in the fifth paragraph of the syllabus, which reads as follows:
“The legislature of 1870 enacted a statute which authorized, on the application of a railroad company, the appointment of commissioners to assess damages caused by the appropriation of land for the right of way, and required the company to deposit the amount of such award with the county treasurer, subject to the order of the land-owner. It further provided that the landowner might appeal from such award, but that such appeal should only be as to the amount of damages, and should not delay the prosecution of the work; and that the railroad company, upon giving a bond conditioned for the payment of all damages which should finally be recovered, might enter upon the land and construct its road. Held, that such statute was valid; that the occupation by the railroad company pending the appeal was provisional only; and that the land-owner, seeking to avail himself of the benefit of the appeal, must take it subject to the conditions imposed by the legislature.”
As can be seen, that case did not involve nor decide the right of the condemnor to pay the amount of the award and at the same time appeal.
The commission also quotes at length from State Highway Comm, v. Puskarich, 148 Kan. 385, 83 P. 2d 131, where the commission instituted proceedings which resulted in an award to the landowner, which was paid into court. The commission and the landowner, each filed a notice of appeal. The commission then discovered it was already the owner of a strip included in the lands sought to be condemned and it filed its motion to abandon the proceedings and to have the award returned to it. The district court permitted withdrawal of the deposited money. It also denied the motion to abandon and made an order that the award be redeposited. On appeal the question was as to the commission’s right to abandon the condemnation proceedings. This court held it had such right. The question of the right to pay and also to appeal is not mentioned.
An exhaustive review of our various statutes wherein the right of eminent domain may be exercised, the procedure specified, and what may be done in case the condemnor desires to appeal from the appraisement of damages or award made would unduly extend this opinion. Only a few instances will be noted.
Under the general drainage district law the power of eminent domain is granted and provision made as to the manner. Insofar as appeals by the district are concerned, it is provided, in effect, that upon the payment of the award and the filing of a certain report, the district shall have the right to occupy the lands. It is further provided that if the district deems itself aggrieved it may appeal and in such case shall not be required to deposit the award or have any right to occupy the lands (G. S. 1949, 24-441, 442, 444). A similar provision is made with reference to appeals by the city in public improvements made by the city (G. S. 1949, 13-1051). (See, also, G. S. 1949, 13-1025g.)
The statute conferring the right of eminent domain on railway corporations (G. S. 1949, 66-901 to 906) is substantially the same statute as was considered in Central Branch U. P. R. Co. v. Atchison, T. & S. F. R. Co., supra, and need not be further detailed here. In the provision for condemnations generally by cities it is provided the city may appeal in the same manner as provided for appeals by the owners of land except that the city need not give bond for costs and shall not be required to make deposit of the money or have any right to occupy the land condemned pending the appeal (G. S. 1949, 26-206). The above statement does not exhaust the statutory provisions, but we deem it sufficient to show that language appropriate to protect the rights of the condemnor and the landowner with respect to payment of the award, possession of the land and the right to appeal has been used on various occasions by the legislature.
Taking up the statute governing the instant appeals, it is noted that it is limited in its terms to any corporation having the right of eminent domain except railroad, interurban railway corporations and certain partnerships. If appellant’s argument that a denial of its right to pay the appraisement and costs and at the same time appeal from the appraisement would cause undue delay in public improvements and put the commission at the mercy of the appraisers is sound, it would mean that the same right to pay and nevertheless maintain an appeal was open to every condemnor within the purview of the act. We shall not pursue this phase of the matter further than to state that such a result should not be declared unless compelled by the statute.
We are of the opinion, however, that the lanuage of the statute is such that the legislative intent is clear. It is expressly stated that if the petitioner desires to acquire the land at the appraised price it shall pay the amount of the appraisement and the costs as specified to the clerk of the court and it shall be entitled to the immediate possession of the land. In this case it is undisputed that the payments were mao ¿ and the possession taken. The statute further provides that if the petitioner does not, within thirty days, comply with all the terms of such condemnation, that is, pay the amount of the appraisement and costs, “or appeal therefrom” judgment ^hall be entered against it for costs. To sustain the commission’s contention we would have to read “or appeal therefrom” as though it read “and appeal therefrom” for at no place in the section is there any other provision with reference to its right to appeal. We need not labor the point that a condemnation in its first stage is only an inquest and that the amount of-the appraisal is not a judgment. Conceding both to be true, it must always be borne in mind that the right to condemn is being exercised under a statute the constitutionality of which is not challenged, and that under its provisions, the commission may acquire the land and its possession by paying the amount of the appraisal and costs. If done, that would constitute an acceptance of the appraisement. The only provision for appeal by the commission is in the event it does not comply with the first provision. The conclusion just expressed is fortified by the language of the succeeding section of the statute which provides that, “If the petitioner . . . shall be dissatisfied with the appraisement” he shall do certain things to perfect his appeal. The only appeal the petitioners may have is that granted by the legislature and under the statute here involved, die petitioner was not given an added right of appeal but only an alternative one. The action of the commission in paying the amount of the award and the costs and taking possession can only be construed as a satisfaction with the appraisement.
Roth parties direct our attention to language in Miltimore v. City of Augusta, 140 Kan. 520, 527, 38 P. 2d 675, where in connection with a claim for interest on the entire compensation award as found by the jury rather than only on the amount in excess of the appraisement. It was there said:
“But suppose he had drawn the money as soon as it was available? What would have happened to his appeal? Any tyro in the law could tell him that such an act on his part would be tantamount to an unqualified acceptance of the award and thus utterly defeat his appeal. (Citing cases) In Paulson v. McCormack, 133 Kan. 523, 526, 1 P. 2d 259, it was said:
“ ‘Time and again it has been held that anything that savors of acquiescence in a judgment cuts off the right of appellant review.’ ”
The commission argues that the appraisement is not a judgment and that the conclusion of the Paulson case does not pertain to the appraisement. We see no reason, however, in the absence of a statutory provision to the contrary, why acceptance of an appraisement by a condemnor should not be equally as binding as an acceptance by the landowner.
During the course of the oral argument attention of counsel was directed to our decision in State Highway Commission v. Weiss, 167 Kan. 427, 207 P. 2d 480, which was not cited in either brief. In that case the appraisement in condemnation proceedings covered the interest of the landowner Weiss and damage to her tenant Safeway Stores. The commission paid the total amount of the appraisement into court and at the same time filed an appeal. Later, on February 25, 1947, as disclosed by a journal entry, all parties appeared in the district court and orally stipulated that the amount of the appraisement to Weiss should be paid to her and that the abandonment of that part of the commission’s appeal should in no way affect the status of the appeal as to the amount to which Safeway Stores was entitled and an order was made accordingly. On July 24, 1947, Safeway Stores filed a motion that the amount of the appraisement damages be paid to it and the commission filed its motion for a refund of the amount to it. On March 5, 1948, the motion of Safeway Stores was denied and on May 27, 1948, the commission’s motion was allowed. On June 29, 1948, Safeway Stores appealed to this court. The commission’s objection that the appeal of Safeway Stores on its motion to draw down the amount of the appraisement to it was too late was sustained; but the court did consider the appeal insofar as the ruling on the commission’s motion for a refund was concerned. In the decision is some discussion of the contention of Safeway Stores that the commission, by paying the amount of the appraisal into court, waived its right to appeal and of the commission’s contention it did not. The contentions as presented were not expressly decided. It was held that the real gist of the dispute was over the amount due, if any, to the tenant as was disclosed by the language of the journal entry of February 25, 1947, and that under the record pre sented the funds should be paid into court pending determination of the commissions appeal.
Our opinion in the above appeal was filed June 11, 1949, and thereafter in the district court Safeway Stores filed its objection to the reception of evidence on the ground that the commission could not deposit the amount of the appraisement with the court, take possession of the land and at the same time appeal from the appraisement. This motion was not allowed, evidence was received and a judgment in favor of the commission followed. Safeway Stores appealed from that judgment and in this court again raised the proposition that the commission had no right to maintain an appeal from the amount of the appraisement. In an opinion filed January 27, 1951, (State Highway Commission v. Safeway Stores, 170 Kan. 413, 226 P. 2d 850), this court adhered to the rule as set forth in the first appeal. A rehearing was granted and the matter was reargued at the March session. Upon consideration, it was determined that the appellant’s contention, theretofore denied, should be sustained and that the commission, having paid the amount of the appraisement into court, may not maintain an appeal and that the judgment of the trial court should be reversed with directions to enter judgment that the amount of the appraisement there involved be paid to Safeway Stores. See State Highway Commission v. Safeway Stores, 170 Kan. 545, 228 P. 2d 208.
Some other arguments are made in the briefs which we find it unnecessary to discuss.
The judgments appealed from are affirmed. | [
-16,
121,
-76,
-99,
43,
66,
26,
-104,
73,
-71,
-26,
83,
-87,
74,
16,
61,
127,
53,
116,
106,
-57,
-14,
83,
-93,
51,
-13,
-45,
-33,
59,
-36,
-92,
118,
76,
-79,
-38,
21,
70,
-32,
71,
26,
-50,
-121,
-101,
-51,
-39,
96,
52,
107,
18,
-117,
-79,
-17,
-29,
37,
25,
-29,
105,
44,
91,
40,
17,
-72,
-86,
-99,
125,
7,
0,
96,
-120,
-127,
-56,
58,
-112,
53,
-104,
-24,
87,
-74,
-106,
-12,
79,
-101,
8,
62,
102,
16,
125,
-25,
-24,
-104,
14,
-2,
-115,
-91,
-126,
24,
74,
65,
-106,
-99,
121,
18,
7,
126,
-26,
-44,
94,
-20,
3,
-118,
-42,
-77,
79,
60,
-119,
11,
-61,
-123,
16,
112,
-49,
-30,
93,
71,
51,
-33,
14,
-80
] |
The opinion of the court was delivered by
Wedell, J.:
This was an action to set aside an oil and gas lease executed and delivered to the defendant by four plaintiffs, as trustees.
The court denied the relief sought and quieted the title to the lease in the defendant. The plaintiffs, appeal.
The action was tried by the court on an agreed statement of facts which reads:
“1. That plaintiffs were on the 18th day of September, 1945, at the time the ‘Mureiy Trust’, hereinafter referred to, was executed, the owners of the following described property, to-wit: [Description of one half a quarter section] and are now, and have been ever since, the owners thereof, subject only to whatever affect said ‘Murtey Trust’ has upon said ownership, and the rights of said parties.
“2. That on the 16th day of November, 1949, Anna M. Fowler, Elizabeth L. Fry, Ruth E. Fry and Edna Lucile Fry, as Trustees of the ‘Murtey Trust’, for a valuable consideration, executed and delivered to Defendant, an Oil, Gas and Mineral Lease, upon said property, the same being recorded in Book 30, page 145, of the Oil and Gas Records of Rooks County, Kansas, and a true and correct copy of the same is attached to Plaintiffs’ Petition, as Exhibit ‘A’. That Defendant has been ever since, and now is, the owner and holder of said lease.
“3. That Plaintiffs did not intend to execute said lease as individuals which Defendant well knew, and was accepted by Defendant as being executed by said parties in their capacity as Trustees, only.
“4. That said Trustees executed said lease by virtue of the purported authority granted them in a purported Trust Agreement, known as the ‘Murtey Trust’, dated the 18th day of September, 1945, recorded in Book ‘O’, pages 137-138 of the records of Rooks County, Kansas, a true and correct copy of said Trust Agreement is attached to Plaintiffs’ Petition, marked Exhibit ‘B’, and is incorporated in this Statement of Facts, by reference.
“5. The Oil, Gas and Mineral Lease, a copy of which is attached to Plaintiffs’ Petition, as Exhibit ‘A’, is incorporated in this statement of facts by reference.
“6. The purported Trust Agreement, known as the ‘Murtey Trust’, was executed by all of the Plaintiffs, together with the spouse of the only one of them that was married on the 18th day of September, 1945, as shown by said instrument, that no revocation of said agreement has been made, or attempted to be made by the parties thereto, or any of them, or any Court, or otherwise and the same has been ever since the execution thereof, and now is, in full force and effect, according to the terms thereof.”
The trust instrument is quite lengthy and we shall set forth only such provisions thereof as are necessary in view of appellants’ contentions. Among the trust provisions are the following:
“Whereas, said parties desire to create a Trust to perpetuate the name of Mureiy, to insure an income for them during their respective lifetimes and for the parties hereinafter named, particularly the direct descendants of said parties on the Murtey side for the term herein after specified.
“Now, Therefore, said Anna M. Fowler, Elizabeth L. Fry, Ruth E. Fry and Edna Lucile Fry hereinafter called Trustors, hereby convey and transfer said property to Anna M. Fowler, Elizabeth L. Fry, Ruth E. Fry and Edna Lucile Fry, and their successors, as Trustee, until the death of the last survivor of said persons, and Kenneth Dale Fowler, Wilma Fowler, Ralph Clifton Fowler and Stanley Fowler, children of Anna M. Fowler now living and Twenty-one (21) years thereafter.
“During the term of said Trust, said property shall be managed, controlled, and supervised by said Trustees and their successors. Said Trustees shall have full authority to execute oil, gas, and mineral leases upon said property, upon such terms and conditions as they desire, collect and receive the bonuses, delay rentals, royalties, and other benefits therefrom, but they shall not have power to sell, mortgage, pledge, or hypothecate said property, or any part thereof.”
Appellants’ first contention is the trust agreement is invalid because it appoints the owners of the property as the trustees thereof. They insist a sole beneficiary of a trust cannot be the sole trustee thereof and conversely that a sole trustee of a trust cannot be the sole beneficiary thereof, citing Restatement, Trusts, §99 (5) and § 115 (5). That statement need not be labored. It is sound. It is based on the established principle that if the rule were otherwise the legal title and the entire beneficial interest would be merged in the same person who could freely dispose of the property as any other owner. In other words there would be no separation of the legal and beneficial interest and hence no trust relationship.
That, however, is not true under the terms of the instant instrument. Here there are four trustees. True they are also beneficiaries but each is a trustee not only for his own beneficial interest but also for the beneficial interest of each of the others. Here each of the beneficiaries has an equitable interest which is separate from the legal interest held by the whole group. No one of the trustees without the concurrence of the others could properly transfer an undivided legal interest in the property free of the trust. The same sections of the text from Restatement on Trusts relied on by appellants state the rule applicable to the present case. Section 99 (4) reads:
“If there are several beneficiaries of a trust, the beneficiaries may be the 'trustees.”
In § 115 (4) the principle is stated conversely as follows:
“If there are several trustees of a trust, the trustees may be the beneficiaries of the trust.”
That is also the rule in this state. In Johnson v. Muller, 149 Kan. 128, 134, 86 P. 2d 569, we held:
“The rule that the same person cannot be at the same time sole trustee and sole beneficiary of the same identical interest, and that a trust cannot exist where the legal and beneficial interests are in the same person, does not apply to a situation where several beneficiaries of a trust, whose interests therein are not common to each other, are also the trustees.” (Syl. ¶ 5.)
In the Johnson case the trust was created by a will. Here it is an agreement inter vivos. We know of no reason for holding a different rule applies in this case and none is suggested.
Furthermore it will be observed the instrument discloses on its face the trust included other beneficiaries than the trustees. Four named children of Anna M. Fowler were made beneficiaries. The trust instrument also contains a specific provision for succession of trustees. In Johnson v. Muller, supra, we said:
“We are of opinion that under the will the interests of the beneficiaries are not common to each other, that each trustee is to look after the interest of aE beneficiaries, that each beneficiary is interested in what aE of the trustees may do in the management and control of his estate, and there being specific provision for succession of trustees, that it may not be said that any beneficiary is trustee for himseE alone.” (p. 135.)
Although there is some contrariety of view on the subject it appears the rule adhered to in this jurisdiction is the sounder doctrine and is approved by at least a slight majority of the courts and text writers. See Blades v. R. R., 224 N. Car. 32, 29 S. E. 2d 148, 151 A. L. R. 1278, and anno, at 151 A. L. R. 1287, 1289, 1296, et seq.
Appellants next argue the trust instrument should be held void as constituting an unreasonable restraint upon alienation of property and as being contrary to public policy. No authorities are cited supporting the view that persons may not among themselves agree to restrict alienation of their own property under a trust agreement made for the benefit of themselves and their children so long as it does not contravene the rule against perpetuities. In Grossenbacher v. Spring, 108 Kan. 397, 195 Pac. 884, it was held:
“It does not offend any rule of law or pubhc poEcy of Kansas for a testator to so dispose of his estate as to prevent its dissipation for a reasonable length of time, provided his estate will eventuaEy vest in aEodial fee upon some taker within the period countenanced by the rule against perpetuities.” (Syl. f 4.)
It also may be well to state the instant case involves no claim of creditors of any trustee or any beneficiary. The sole issue is the validity of the trust as between the parties who created it. They are endeavoring to set aside the lease they executed pursuant to the authority of their own creation, the trust.
Appellants also argue the trust should be held void because it does not contain a penalty for its breach of forfeiture by the trustees. No authorities are cited requiring such a provision in a trust of this character. Persons dealing with trustees ordinarily are required to know their powers. If a trustee exceeds his powers his acts are a nullity and absent other considerations are ordinarily without force or effect. On the other hand if a trustee fails to perform his duties redress to compel performance may be had through the courts. No penalty provision for breach of duty therefore appears to be necessary in a trust instrument of this character in order to render the trust valid.
Appellants further assert the oil and gas lease was void for the reason the previously quoted portion of the trust did not grant the trustees the right to execute an oil and gas lease on some portion of the land but granted only the right to execute leases on all of it. The contention is unsound. If they had authority, and they did, to execute a lease, or leases, on all the lands covered by the trust they obviously, in the absence of an express provision to the contrary, had authority to execute a lease on a part thereof. The trust embraced 880 acres of land lying in five separate sections and we are told in four noncontiguous tracts. The trust did not make it mandatory to lease all or none of the land. Moreover the trust granted the right to execute not one lease but ‘leases.” Furthermore the trust instrument contains no provision leases on the various tracts had to be executed at the same time. The fact the lease covered only one eighty acre tract of the land did not render the lease invalid.
The judgment is affirmed. | [
-44,
108,
-12,
29,
40,
-16,
58,
-102,
67,
-72,
103,
83,
-87,
-55,
4,
125,
78,
125,
117,
121,
99,
-77,
2,
17,
-45,
-5,
89,
-51,
-79,
95,
-74,
-41,
8,
96,
-54,
85,
-62,
-62,
-59,
28,
-114,
37,
-72,
-28,
89,
0,
48,
99,
52,
77,
81,
14,
115,
41,
124,
99,
-24,
60,
107,
61,
73,
112,
-85,
-121,
95,
16,
1,
5,
-100,
-61,
72,
46,
-112,
112,
41,
-24,
-37,
-90,
-58,
-12,
47,
27,
40,
-90,
99,
33,
-28,
-17,
-4,
28,
30,
-102,
-115,
-89,
-110,
24,
96,
73,
-106,
-103,
124,
84,
-89,
-10,
-26,
-123,
95,
37,
4,
-53,
-106,
-95,
13,
-3,
-110,
9,
-29,
-89,
49,
116,
-55,
-94,
92,
71,
124,
31,
15,
-80
] |
The opinion of the court was delivered by
Thiele, J.:
This was a proceeding originally commenced in the probate court, under which the petitioner sought to establish a demand against a decedent’s estate. The proceeding was certified to the district court and the trial there resulted in a judgment against the petitioner, who has appealed to this court.
In a preliminary way it may be stated that on January 25, 1948, one Noel Erwin, traveling alone, was driving a Studebaker truck north along a highway in Labette county; at the same time Leon Richardson was driving south along the same highway in a Plymouth coach accompanied by Lester Blevins, Roy Lee Blevins and Wayne McCabe. The two vehicles collided and the two drivers and the passengers other than Lester Blevins were killed. As the result of proceedings in the probate court Orda Erwin was appointed as administrator of the estate of Noel Erwin and Effie F. Richardson was appointed as the administratrix of the estate of Roy Lee Blevins who was her son.
Under date of December 24, 1948, Effie F. Richardson, administratrix of the estate of Roy Lee Blevins, filed her petition for allowance of a demand against the estate of Noel Erwin which, for our purposes, alleged the happening of the collision and the death of Roy Lee Blevins and charged Noel Erwin with being negligent in seven particulars, which we summarize as follows: (1) In driving the Studebaker truck to the left of the center of the highway and on the wrong side thereof and against the automobile in which Roy Lee Blevins was riding; (2) in driving at a high, dangerous and excessive rate of speed; (3) in failing to keep a careful and reasonable lookout for vehicles upon the highway; (4) in failing to turn aside and thus avoid the collision; (5) in failing to stop and thus avoid the collision; (6) in faffing to slow down and thus avoid the collision; and (7) in failing to keep his truck under control and thus avoid the collision. Allegations as to the extent of damage need not be set forth. In due time Orda Erwin, administrator of the estate of Noel Erwin, filed his answer denying generally and alleging that if the death of Roy Lee Blevins resulted from the collision (1) that the sole and proximate cause of the collision and death was the negligence of Leon Richardson, the driver of the car in which Roy Lee Blevins was riding; (2) that Roy Lee Blevins was guilty of negligence in failing to take proper steps and precautions for his own safety and to protect himself; and (3) that the collision and death was the result of an accident and not by reason of any fault or negligence of Noel Erwin. Petitioner’s reply was a denial of matter inconsistent with her petition.
The proceeding, under the issues thus formed, was certified to the district court for trial. The trial was by a jury which returned a general verdict in favor of the Erwin estate and against the petitioner, and answered special questions submitted as follows:
“1. Do you find that the collision was the result of an accident, as defined by the Court’s instructions?
“Answer: Yes.
“2. Whereabouts in the road were the left front wheels of each vehicle when the collision occurred?
“Answer: In the center track.
“3. At what rate of speed was the Studebaker truck driven by Noel Erwin traveling at the time of the collision:
“Answer: 36 mi per hr.
“4. At what rate of speed was the Richardson Plymouth car traveling at the time of the collision?
“Answer: 46 mi per hr.
“5. Do you find Noel Erwin guilty of negligence?
“Answer: No.
“A. If you answer the foregoing question in the affirmative, please state what act of negligence you find Noel Erwin, deceased, guilty of.
“Answer:--”
The petitioner’s motions to set aside the above answers and for a new trial were denied, and appeal to this court followed, the petitioner’s specification of errors covering the matters hereafter discussed.
Appellant’s contentions require a summary of the evidence, and of other events occurring during and after the trial.
Each of the motor vehicles was approximately six feet wide. The highway had been resurfaced recently with white chat or stone and had a ridge of that material along its east side. The highway was very dusty. At the place where the collision occurred the distance from the west side of the road to the row of material on the east was seventeen feet. The highway had three well defined tracks in the chat, one down the center and two about a car’s width apart to either side. Lester Blevins, the surviving passenger, stated that he and his companions in the Plymouth had been skating and after taking one of the skating party to her home they went west along a road until they reached an intersection about 500 feet north of the scene of the collision and stopped. He saw a vehicle coming from the south about one-half mile away; it was kicking up dust. The Plymouth turned south and when it was about 500 feet south of the intersection the approaching vehicle passed the Plymouth at a speed of about sixty miles an hour, stirring up the dust so that he could not see anything; that the dust blinded “us”; “about a split second after this car passed us we collided” with the Erwin truck. He stated that at that time the Plymouth car was on the right hand side of the road and was about a foot from the west shoulder and was traveling about twenty-five or thirty miles per hour. The next thing he knew he was in the hospital. He further testified he had filed a claim against the Erwin estate and had also filed a suit against Erwin’s father. However, other witnesses who had no interest in the outcome of the proceeding testified they saw the Erwin truck some distance to the south of the collision proceeding north at a speed of about twenty to twenty-five miles an hour and that it was passed by another truck. One witness, and as far as the record shows, the last person to see the Erwin truck prior to the collision, stated she saw it a mile south and that it went down the road on its own right side at a speed of about twenty miles per hour and that when she last saw the truck it was about one-half mile south of the point of collision. It was also shown there was no wind and that a cloud of dust hung over the road. There was also testimony of other persons who were driving north on the highway and who, when some distance north of the collision and shortly before it occurred, passed a Plymouth car of a description similar to the one involved in the collision and in which four or five boys were riding and that the car was proceeding south at a high rate of speed and that their own driver pulled to the side of the road and almost stopped as the Plymouth car was weaving slightly. Another witness who lived on the east and west road and about one-half mile east of the intersection mentioned, stated that she went to the scene of the accident and saw the Plymouth car; that she had been in her yard for an hour and a half before the collision and would have seen any car passing to the east toward the intersection and that she did not see the Plymouth pass along the east and west road'. No one except Lester Blevins saw the collision. Persons who arrived there immediately thereafter stated the rear wheels of the Plymouth were in die west ditch with the front wheels up on the highway and that the Studebaker was in the highway with the front wheels straddling the ridge of chat. These persons, in part, testified that the left front parts of the two vehicles had come to gether, and that steam was spouting from the radiator of the Plymouth. Other evidence will be referred to later if need be.
The record discloses that plaintiff objected to certain instructions to the jury, later discussed, and to the submission of special question No. 1, and after return of the general verdict and the special answers, filed a motion to have those answers set aside and a motion for a new trial. Those motions were denied and judgment was rendered in favor of the defendant. Plaintiff in due time appealed to this court.
Throughout the greater part of her discussion of her specifications of error, appellant contends that the evidence discloses that Lester Blevins, who survived the collision, was the only witness as to what happened immediately before and at the time of the collision and that he was in no way disputed, or impeached, and that the jury had no right to disregard his version of what occurred, and our attention is directed to Sundgren v. Stevens, 86 Kan. 154, 119 Pac. 322, as holding that the jury are not authorized arbitrarily or from partiality or caprice to disregard uncontradicted and unimpeached testimony; to Woulfe v. Interurban Railway Co., 115 Kan. 640, 223 Pac. 817, as holding that jurors have no right to disregard the only evidence upon a material question in controversy and return a verdict in direct opposition; to Gibbs v. Central Surety & Ins. Corp., 163 Kan. 252, 181 P. 2d 498, where the rule is discussed, and to other authorities of like import which have been examined. She also contends that because the appellee offered in evidence a statement taken from Lester Blevins giving his version of what occurred, that appellee is bound by the statements therein, and our attention is directed to Durham v. Carbon Coal & Min. Co., 22 Kan. 232; Bell v. Johnson, 142 Kan. 360, 46 P. 2d 886; Ray v. Allen, 159 Kan. 167, 152 P. 2d 851; Burton v. Ostertag, 166 Kan. 374, 201 P. 2d 676; and Ort v. Allied Industries, 166 Kan. 487, 203 P. 2d 234; wherein, under the facts in those cases it was held that where testimony is given by a party, or by agents of a corporation still in employ as to acts done by them, such testimony.will be accepted as true. Without elaborating, the last rule contended for has no application to the facts of this case for under no view may it be said that Lester Blevins was a party or even an agent of a party to the action much less an agent of the appellee or his decedent. As to the rule first mentioned there can be no argument of its soundness, although there may be as to its applicability. In Ragland v. Watkins Nat'l Bank, 129 Kan. 426, 283 Pac. 632, it was held that some uncontradicted and unimpeached testimony tending to establish the claim of a party having the burden of proof was not sufficient to reverse the finding of the trial court unless such evidence covered and reached all necessary points to complete the showing of his right to recover. In Gibbs v. Central Surety & Ins. Corp., supra, is a further discussion of the same rule. See also Weber Implement & A. Co. v. Dubach, 132 Kan. 309, 295 Pac. 979; and Kallail v. Solomon, 146 Kan. 599, 72 P. 2d 966.
It is not necessary that we reiterate the evidence summarized above. While it is true that no one except Lester Blevins survived the collision and no one other than he testified as to the immediate event nor directly contradicted what he said, there was evidence of other circumstances that at least tended to discredit his version. His statement that the Plymouth car had been on the east and west highway, had stopped before entering the north and south highway and that it was traveling about twenty-five or thirty miles per hour and that the Studebaker truck approached at a high rate of speed, was to be measured against the testimony of a witness that the Plymouth car had not been on the east and west road, against the testimony of other witnesses that a car of like description, even though not positively identified, had passed going south just shortly before the collision, against the evidence that immediately after the collision steam was escaping from the broken radiator of the Plymouth, and against testimony that very shortly before the collision the Studebaker truck was seen proceeding north on the highway at a speed of twenty to twenty-five miles an hour. Without further recitation, we conclude it may not be said that the evidence of Lester Blevins was uncontradicted and must be accepted without deviation by the jury.
Appellant’s first specification of error is that the trial court erred in its instruction, Nos. 8 and 9, to the jury. At the trial appellant did enter a general objection to the above and other instructions on the stated ground they were prejudicial and did not state the law of the case. She did however make a more specific objection to No. 8 and No. 9 and that the latter was wrong because there was no evidence showing an accident. Her argument in her brief is more directed to No. 9.- In earlier instructions the court had advised the jury concerning negligence and proximate cause and that if plaintiff recover it must be on the grounds of negligence alleged in her petition. In instruction No. 8 the jury were told that negligence was not to be presumed but was a fact to be proven by the petitioner and, in substance, that the mere receipt of injury and damage was not proof of negligence, nor did the mere proof thereof entitle plaintiff to recover unless the jury found, under the rules given, that such injury and damage, if any, resulted from the negligence of Noel Erwin, in the manner alleged in the petition “and was not merely accidental.” Instruction No. 9 was as follows:
“You are instructed that if you shall find and believe, from a preponderance of the evidence, that petitioner sustained damage, as alleged by her in her petition, and you further find and believe from such evidence, said damage was accidental or was the result of an accident and was not the result of the negligence of Noel Erwin, as by petitioner alleged in her petition, then the petitioner cannot recover of the respondent in this case, and your verdict should be for the respondent.
“An accident is an inevitable casualty or the act of Providence or such unforeseen events, misfortunes, losses, acts or omissions as are not the result of any negligence or the misconduct of the deceased, Noel Erwin.”
Directing attention to Harshaw v. Kansas City Public Ser. Co., 154 Kan. 481, 486, 119 P. 2d 459, where it was said to be elementary that instructions should be germane to the definite issues made by the pleadings and limited to such of them as are supported by some evidence, appellant, although recognizing that appellee had pleaded the collision was due to accident, makes an extended review of the evidence, stressing the claim that the evidence of Lester Blevins was undenied and unimpeached and argues there was no evidence which warranted any instruction as to accident. She reviews at some length the facts in Meneley v. Montgomery, 145 Kan. 109, 64 P. 2d 550, which do bear some similarity to those in the case before us. In that case the defendant’s request for an instruction on “pure and unavoidable accident” was denied, and the denial was held not to be erroneous. It is noted that in that opinion a quotation was made approvingly from 1 C. J. 393 that “mere accident” or “pure accident” are terms often used when it is desired to repel the idea of negligence and are equivalent to the words “not by defendants’ negligence” but it was pointed out that defendant’s own evidence required submission to the jury the question of its own negligence and did not present the question of pure or unavoidable accident.
Inasmuch as appellant’s complaint is not that the instruction is inherently wrong or that the definition of “accident” as therein included is erroneous, but simply that the evidence was such the instruction should not have been given, we shall not discuss all that may be comprehended by the word “accident.” Those inter ested may find the word, its meaning and use, discussed in 1 C. J. S. [Accident] p. 425, et seq.; 65 C. J. S. [Negligence, § 21] p. 429; and 38 Am. Jur. [Negligence, § 6] p. 647. (See also The State v. Hansford, 76 Kan. 678, 685, 92 Pac. 551.)
We have heretofore pointed out that appellant’s contentions with respect to the scope of effect of Lester Blevins’s testimony may not be sustained. At the time the trial court instructed the jury, the weight and credibility of the evidence remained to be determined. At that time it was clear that there had been a collision resulting in injury and damage, but as the trial court properly told the jury that did not prove that Noel Erwin was at fault. There was evidence also that each of the motor vehicles involved were six feet wide and that they were traveling on a highway whose extreme traveling space was a width of seventeen feet; that the highway had three tracks made by passing vehicles; that at some distance away from the collision a truck not involved in the collision came from the rear and passed the truck driven by Noel Erwin, leaving a big cloud of dust and that very shortly thereafter the collision occurred. None of that evidence disclosed that Erwin was not on his side of the road. The sole evidence tending to show he was not, was that of Lester Blevins that the right side of the Plymouth car was about a foot from the west side of the traveled part of the roadway. Lester Blevins was rendered unconscious by the collision and the next thing he knew he was in the hospital. There was other evidence tending to show that Lester Blevins’s testimony was not accurate in all respects. It was for the jury to determine what happened, but when the instructions were given, it still remained open for decision whether Lester Blevins’s version was to be fully credited for if it was Noel Erwin had to be on his left side of the center of the highway, whether Lester Blevins’s version was not to be credited, and the evidence of high speed and a weaving Plymouth car given such weight, when considered with the condition of the road and where the vehicles were after the accident, that it might be said the Plymouth was on its wrong side of the highway, or whether the jury might find, under all the circumstances, Noel Erwin was not at fault, and not being at fault, the collision might be termed an accident. What the jury might eventually conclude has nothing to do with the correctness of the instruction.
Appellant also makes some contention she was entitled to have the jury say definitely that Noel Erwin was negligent, or that Richardson, driver of the Plymouth car, was negligent, or that if both were negligent whether Roy Lee Blevins was guilty of contributory negligence. Instructions were given covering this phase of the matter, no objections were made thereto and no special questions other than as to Noel Erwin’s negligence were submitted, and it is not ground for reversal simply because the jury, by its general verdict, did not agree with appellant, and in any event the question of Roy Lee Blevins contributory negligence went out of the case when the jury found that Noel Erwin was not negligent.
The trial court did not err in giving instructions Nos. 8 and 9 to the jury.
Appellant’s second specification of error is that the trial court erred in submitting special question No. 1 to the jury over her objection. It is contended that under Foley v. Crawford, 125 Kan. 252, 260, 264 Pac. 59, questions submitted to the jury should not only be within the pleadings but also within the evidence. The question submitted called for an answer on the question of accident. As has been shown heretofore, that question was within the pleadings and the evidence and needs no further attention here.
Appellant’s third specification of error is that the trial court erred in not sustaining her motion to set aside the answers to special questions for the reason that the answers were irreconcilable and inconsistent with each other and were not supported by the evidence. Taking up first the latter part of that motion, it is noted that appellant again assumes that Lester Blevins testimony must be fully credited and, if so, there is no testimony' to support' the answer to question No. 4. The question of Lester Blevins testimony has been treated heretofore. An examination of it and other testimony satisfies us that the answer to question No. 4, as well as to the answers to other questions, are supported by the evidence. Appellant argues that the answers were inconsistent with each other, could not be reconciled with each other and with the general verdict, that they should have been stricken and a new trial granted. The gist of appellant’s argument is that by answer No. 2 the jury found that Noel Erwin was guilty of negligence in driving his truck with its left front wheels in the center track of the highway, and being guilty of such negligence, the collision could not have been an accident as found by answer No. 1. A somewhat similar argument is made that by answer No. 5 Erwin was found not guilty of negligence which was inconsistent with answer No. 2. Our attention is directed to authorities from other jurisdictions dealing with emergencies, which in view of the record we need not review, and to a number of our own decisions holding that consistent special findings control the general verdict when contrary thereto, but when they are inconsistent one with the other, some showing a right to a verdict and some showing the contrary, a new trial should be granted, citing Railroad Co. v. Holland, 58 Kan. 317, 49 Pac. 71; Osburn v. Railway Co., 75 Kan. 746, 90 Pac. 289; Willis v. Skinner, 89 Kan. 145, 130 Pac. 673; Craig v. Sturgeon, 151 Kan. 208, 98 P. 2d 139; and Packer v. Fairmont Creamery Co., 158 Kan. 191, 146 P. 2d 401. Many other cases supporting the rule as stated might be cited. It has also been held repeatedly that the general verdict imports a finding upon all issues in the case not inconsistent with the special findings and nothing will be presumed in favor of the special findings, which shall be given such 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. (See e. g. Marley v. Wichita Transportation Corp., 150 Kan. 818, 96 P. 2d 877, and cases cited.) It has been further held that in the consideration of special findings it is the duty of the court to harmonize them where it is reasonably possible to do so and the court is not permitted to isolate one answer and ignore others but is required to consider all together, and if one intrepretation leads to inconsistency and another to harmony, to adopt the latter. (See e. g. Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 139 P. 2d 859; Underhill v. Motes, 160 Kan. 679, 165 P. 2d 218, and cases cited.) Applying the above stated rules to the situation presented by the record before us, and considering all of the answers returned in the light of the evidence and the instructions to the jury, which guided the jury in making the answers, it is clear that by answer No. 1 the jury found there was an accident which, under the instructions to the jury, must be interpreted as holding that Noel Erwin was not at fault. By answer No. 5 the jury so found.
Is it possible to reconcile answers No. 1 and No. 5 with answer No. 2? While the evidence disclosed that there were three tracks in the gravel on the highway and that the middle of these tracks was in the center of the road, it did not disclose the width of either track. It was not shown how far the sides of the center track ex tended beyond the exact center of the seventeen foot roadway. The burden was on the plaintiff to prove the negligence of Noel Erwin, not on his administrator to prove he was not negligent. A finding that the left front wheel of each vehicle was in the center track is not necessarily a finding that Noel Erwin was on his wrong side of the road, and will not be so interpreted in view of answer No. 5. that he was not guilty of negligence. The three answers which it is contended are inconsistent with each other can be reconciled and so considered are consistent with the general verdict. The trial court did not err in denying the appellant’s motion.
Appellant’s fourth specification of error is that the trial court committed prejudicial error in admission of evidence. The contention arises out of the following: Charles Francisco testified he was traveling north on the highway and passed Erwin’s truck about two miles south of where the collision occurred. He proceeded north and when about four-tenths of a mile north of where the collision later occurred he passed a dark gray Plymouth car with four or five boys in it. We need not follow out the rest of that testimony. On cross-examination he was asked whether he did not tell one Lee Carnahan the day after the collision that he had been racing with Noel Erwin, and a considerable part of the conversation between the two men was brought out. Later, on redirect examination inquiry was made as to further details of the conversation, and appellant objected that the questions called for hearsay, stating that questions asked on cross-examination were for impeachment purposes only. The objection was sustained. Later, as the result of further questions on redirect examination, the witness was permitted to tell a part of what he said during the conversation. The complaint also is that he was permitted to state what he said in a subsequent conversation, but from the record as abstracted, we cannot discern much but that in the later conversation he told Carnahan that some paper, the nature of which is not disclosed, did not involve the witness. The gist of appellant’s complaint is that her questions to the witness were asked for impeachment purposes only, that the witness had not then been impeached, and that it was not permissible for him to support his testimony by showing he had made other statements in conformity with his testimony. In support she cites State v. Fouts, 169 Kan. 686, 695, 696, 221 P. 2d 841. In that case as a witness for the state, a woman had testified concerning the fact that she had seen a truck on the highway at a particular time, no impeaching questions being asked her by the defendant. Over defendant’s objection the state then offered testimony of her husband that his wife had told him on the day in question about seeing a truck on the road. It was the husband’s testimony which this court held to be erroneously admitted. The facts in the case at bar are clearly distinguishable. In this case, after the witness had testified on direct examination, appellant brought the Carnahan conversation into the examination. She did not limit cross-examination to asking whether a certain statement was made by Francisco to Carnahan but asked about another conversation several months later. It would seem that within reasonable limits at least that where appellant asked about parts of a conversation, appellee could have the witness explain and amplify the same subject matter. The rule seems to be that where matters tending to discredit a witness have been drawn from him on cross-examination it is proper to permit him to explain such matters to rebut their discrediting effect. See 70 C. J. [Witnesses § 1031], p. 820. and 58 Am. Jur. [Witnesses § 670], p. 367. Appellant’s contention of error is not sustained.
Appellant’s fifth specification of error is that the trial court erred in overruling her motion for a new trial. Her contentions under this heading go essentially to the fact that the instructions were erroneous, the principal reason asserted being that the testimony of Lester Blevins was in no way impeached nor disputed and that the instructions, in parts, covered matters outside the issues. What has been said previously disposes of such a contention.
Appellant’s sixth specification that the trial court erred in rendering judgment is predicated on an assumption the trial court erred in the matters previously found not to be erroneous.
It follows that the judgment of the trial court should be and it is affirmed. | [
-48,
77,
-64,
-114,
59,
-30,
24,
26,
119,
115,
-91,
87,
-21,
-38,
69,
43,
127,
29,
84,
107,
-25,
-77,
86,
-94,
91,
-109,
127,
-50,
19,
-54,
54,
127,
77,
32,
10,
-43,
-30,
74,
-59,
-102,
-50,
36,
41,
-15,
-39,
18,
52,
120,
20,
13,
-47,
-113,
-61,
46,
30,
67,
45,
45,
123,
41,
-48,
-80,
-20,
7,
127,
6,
-125,
6,
-72,
41,
88,
10,
-112,
49,
-128,
-4,
48,
-90,
-125,
116,
107,
-119,
12,
38,
-25,
32,
13,
-19,
-24,
24,
14,
58,
29,
-89,
62,
25,
-120,
-27,
-106,
29,
113,
112,
15,
122,
-52,
5,
92,
-32,
-115,
-54,
-106,
-79,
-59,
112,
-100,
27,
-21,
69,
55,
113,
-87,
-42,
93,
7,
87,
-101,
87,
-80
] |
The opinion of the court was delivered by
Smith, J.:
This was an action to recover money which had been obtained by the alleged fraud of the defendant. The question with which this appeal is concerned involves garnishment proceedings. The trial court refused to set aside an order dissolving a garnishment order. The plaintiff has appealed.
The facts are as follows: The plaintiff sued the defendant and filed garnishment proceedings against a number of banks in Wichita. The Fourth National Bank answered on June 28, 1948, that it had money of the defendant. On October 22, 1948, the trial court overruled a motion of defendant to quash the service of summons on him. On December 2, 1948, the trial court heard a motion of the defendant to dissolve the garnishment on the Fourth National Bank. On February 2, 1949, this motion was sustained. The plaintiff appealed from that order. The appeal was dismissed in this court because it had not been taken in time. (See First National Bank v. Bryant, 168 Kan. 471, 213 P. 2d 1002.) On February 1, 1950, the plaintiff filed a motion to vacate the order dissolving the garnishment that had been issued on February 2, 1949, and to appoint a guardian or trustee to represent defendant Rryant. The grounds for this motion were that the defendant had been convicted of a felony on January 10, 1949, and sentenced to confinement and hard labor for a term less than life. The motion alleged that on the same day the defendant was committed and began serving his sentence. The motion alleged that by this sentence all civil rights of the defendant had been suspended and the order of February 2 was void. The record of the conviction and sentence of the defendant was admitted in evidence. The return of the marshal on the commitment shows that the defendant was delivered on February 3, 1949, to the warden of the United States Penitentiary at Leavenworth, Kan. The motion to set aside the order of February 2 was denied and the plaintiff has appealed.
The basis of this appeal is that under the terms of G. S. 1949, 21-118, all civil rights of the defendant were suspended when he was sentenced on January 10th. That section provides as follows:
“A sentence of confinement and hard labor for a term less than life suspends all civil rights of the person so sentenced during the term thereof, and forfeits all public offices and trusts,- authority and power; and a person sentenced to such confinement for life shall thereafter he deemed civilly dead.”
The defendant makes a persuasive argument here that G. S. 1949, 21-134, which provides “The right and power to make contracts in respect to their property, both real and personal, is hereby conferred on all persons confined in the penitentiary for a period less than life as fully and completely as if their civil rights were not suspended” prevents G. S. 1949, 21-118, from having the effect argued for by appellant. We find it unnecessary to decide that interesting question, however. The record shows that the defendant was not delivered to the warden of the federal penitentiary until February 3, one day after the making of this order. The loss of civil rights attendant upon a person being sentenced to hard labor in the penitentiary for less than life does not take place until the person sentenced has actually begun serving his sentence. (See Harmon v. Bowers, 78 Kan. 135, 96 Pac. 51; Handrub v. Griffin, 127 Kan. 732, 275 Pac. 196; also Everly v. Byrd, 159 Kan. 187, 152 P. 2d 831.)
The judgment of the trial court is affirmed. | [
-48,
-8,
-72,
-36,
10,
-32,
46,
-102,
81,
-79,
-89,
83,
-23,
6,
5,
105,
119,
61,
116,
121,
-53,
-105,
23,
9,
-46,
-13,
-39,
-43,
-73,
95,
-28,
-42,
12,
48,
66,
-107,
102,
-64,
-61,
-36,
-116,
1,
-88,
-19,
113,
9,
48,
35,
54,
11,
49,
-66,
-13,
106,
24,
66,
73,
41,
-33,
-85,
-48,
-7,
-85,
7,
125,
21,
35,
5,
-98,
70,
112,
-82,
-112,
17,
0,
-24,
114,
-74,
-126,
116,
111,
-117,
44,
102,
98,
32,
21,
-17,
-104,
-103,
62,
-65,
-99,
-90,
-112,
72,
3,
45,
-74,
-103,
109,
16,
15,
-4,
-2,
4,
53,
108,
3,
-114,
-74,
-109,
15,
61,
10,
-101,
-29,
-89,
48,
112,
-52,
32,
92,
71,
121,
59,
-114,
-43
] |
The opinion of the court was delivered by
Wedell, J.:
This was an action by a person riding in an automobile against the owner and driver thereof to recover damages for personal injuries sustained as the result of a collision with another vehicle. The trial court sustained defendant’s demurrer to plaintiff’s petition and from that ruling plaintiff appeals.
The pertinent part of the petition involved in the ruling is brief. It reads:
“That on July 28, 1948, and for some time prior thereto, plaintiff and defendant were employed by the Santa Fe Railway Company out of Emporia, Kansas, and worked together on the same crew. Plaintiff and defendant entered into an agreement on or about the 18th day of July, 1948, whereby each agreed to transport the other to and from work in his automobile on alternate dates, in order to save the expense of both of them driving their automobiles to work every day. Such agreement was put into operation immediately thereafter, and pursuant to the agreement, on July 28, 1948, plaintiff was riding home from work in the defendant’s automobile.” (Our italics.)
Thereafter the petition narrated the acts of appellee’s alleged negligence on July 28, 1948, in running into another automobile parked along the curb in the city of Emporia on the return from the day’s work. The trial court sustained defendant’s general demurrer on the ground the petition disclosed plaintiff was a guest of the defendant as contemplated by our guest statute, G. S. 1935, 8-122b, which reads:
“That no person who is transported by die owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle.”
Appellant filed the action on the theory he was a passenger rather than a guest and contends the agreement of the parties discloses payment for his transportation and removes the action from the operation of the guest statute. Holding this view appellant alleged only negligence instead of gross and wanton negligence on the part of appellee as would be required if he attempted to recover as a guest.
The real question presented is confined within narrow limits. It is whether the allegations of the petition are tantamount to an assertion appellee received payment for the transportation he furnished to appellant. We are not concerned presently with what the evidence on the trial may be but only with the allegations of the petition. In substance those allegations are that a transportation agreement, a contract, was entered into by and between the parties. The agreement does not pertain to transportation for mutual pleasure, companionship, accommodation or the like but to transportation of the parties to a place of work outside the city of Emporia. The petition expressly alleges a single and definite motivating cause, or purpose, for the agreement. It states the agreement was entered into “in order to save the expense of both of them driving their automobiles to work every day.”
Can it be said, as a matter of law, the saving of such expenses by each of them did not constitute payment for the transportation furnished by one to the other? It need not be demonstrated here that it requires money to own and operate an automobile. Both parties owned automobiles but it was unnecessary for both to operate them if they could agree on a reciprocal method of transportation to and from their employment. Under the alleged agreement each could save the other fifty percent of the operating expense of his car including the cost of repairs, tires, gasoline and oil. That such a saving is a substantial consideration for a contract need not be debated, especially in view of present day costs.
The demurrer admits the parties entered into such a money saving contract. Had the costs of transportation been calculated and each had paid such amount on alternate days to the other it scarcely would be contended there was no payment for transportation. Did the equivalent contract nullify the element of payment? We do not think so. It also may be well to observe this was not an action to recover damages for a breach of contract or for specific performance thereof in the future. This agreement had been mutually executed until the date of the unfortunate accident. The demurrer admits the contract had been performed for a period of eleven days and that appellee had received the benefits of appellant’s performance on each alternate day.
Payment for transportation within the meaning of the guest statute precludes classifying a person riding in the automobile as a guest. Payment, however, need not be in money but may consist in some substantial benefit conferred on the owner or operator of the vehicle. It is sufficient to constitute payment if some substantial consideration moves to the owner or operator of the vehicle. (Elliott v. Behner, 146 Kan. 827, 73 P. 2d 1116; LeClair v. Hubert, 152 Kan. 706, 708, 107 P. 2d 703; Pilcher v. Erny, 155 Kan. 257, 260, 124 P, 2d 461; Srajer v. Schwartzman, 164 Kan. 241, 246, 188 P. 2d 971.) What consideration constitutes payment is fully discussed in the foregoing cases and lengthy quotation therefrom is unnecessary.
In Elliott v. Behner, supra, a number of workmen employed by Montgomery county were riding to their homes in the county’s truck at the close of their day’s work. One of the workmen, Behner, the defendant, drove the truck and negligently collided with a stick of timber which projected from another truck parked on the highway. Elliott, another of the workmen who was riding in the county’s truck, was struck and killed in the accident. Elliott’s widow brought an action for the wrongful death of her husband, charging Behner with negligence. We held Elliott was not a mere guest, that Behner did receive some compensation, to wit, his homeward bound transportation, and that the transportation of Elliot was not purely gratuitous. In the opinion it was also said:
“It seems clear that where the driver receives compensation, the passenger is not a guest. While the defendant, Behner, received no extra compensation for driving the car, he did secure transportation to and from his home in Cherryvale. This was a material compensation to him. It was not necessary the consideration pass from the passenger to the driver.” (pp. 830, 831.)
In LeClair v. Hubert, supra, the demurrer to plaintiff’s petition conceded that plaintiff accompanied the defendant in his truck to assist the defendant in loading heavy tractor wheels. We concluded the demurrer conceded defendant received some consideration for plaintiff’s transportation and determined plaintiff was not a guest. In the LeClair case we reaffirmed what was said in the Elliott case relative to the kind and character of compensation for transportation which would take a case out of the guest statute. We there also quoted with approval from Albrecht v. Safeway Stores, Inc., 159 Ore. 331, 80 P. 2d 62, in which it was held:
“ ‘The determination of whether an automobile occupant has made payment for his transportation . . . depends on whether some substantial benefit has been conferred on the owner.’ ” (p. 708.)
In the Srajer case, supra, it was held:
“Within the meaning of the guest statute (G. S. 1935, 8-122b) ‘payment’ for die transportation sufficient to preclude classification of the passenger as a ‘guest’ need not be a payment in money, but it must constitute a benefit or advantage to the owner or operator which is a substantial consideration, motivating and not merely incidental in character.” (Syl. ¶ 2.)
In the Pilcher case, supra, we quoted with approval from Ark Valley Cooperative Rural Elec. Co. v. Elkins, 200 Ark. 883, 891, 141 S. W. 2d 538, where it was held an important element is the identity of the persons advantaged by the carriage, and if the carriage tends to the promotion of mutual interests, of both passenger and driver, or if it is primarily for the attainment of some objective or purpose of the driver, the passenger is not a guest within the statute.
Although the authorities are somewhat divided with respect to what constitutes payment our decisions on that point are in harmony with respectable authority elsewhere as will appear from an examination of A. L. R. annotations to be referred to presently. For a col lection and discussion of the subject of who is a guest within the contemplation of the guest statute, see annotations in 82 A. L. R. 1365 and 95 A. L. R. 1180. In view of the single motivating purpose of the arrangement alleged in this petition we are not concerned with decisions pertaining to similar arrangements for pleasure, accommodation, companionship and the like, as distinguished from a business trip, and, of course, express no views thereon.
The arrangement pleaded under the agreement alleged in the instant case is commonly referred to as a “share-a-ride” arrangement. It frankly should be stated the decisions involving “share-a-ride” arrangements for business purposes are not in complete harmony. In some of them the facts vary more or less. A careful reading of some of them tends to indicate the conflict is not as real as first impressions would indicate. Many of the “share-a-ride” cases are discussed in an annotation at 146 A. L. R. 640 and in a supplemental annotation on the same subject in 161 A. L. R. 917. See, also, Everett v. Burg, 301 Mich. 734, 4 N. W. 2d 63, 146 A. L. R. 639, and Coerver v. Haab, 23 Wn. 2d 481, 161 P. 2d 194, 161 A. L. R. 909. We think it safely may be said the weight of authority, at least numerically, is that a person occupying the position of appellant in the instant case is a passenger and not a guest in contemplation of guest statutes substantially the same as ours. The facts of the particular cases contained in these annotations and the reasoning of the courts are all set forth in the annotations and need not be repeated here. In view of the allegations of the instant petition concerning the single motivating cause for the agreement, which the demurrer concedes, we think it cannot be said appellee received no payment for transporting appellant.
Having concluded the petition alleged facts which disclose appellant was a passenger rather than a guest, we hold the petition stated a cause of action without alleging gross and wanton negligence.
The order sustaining the demurrer to the petition is reversed. | [
-16,
106,
-48,
-113,
11,
104,
34,
-102,
113,
-57,
39,
19,
-17,
-55,
-124,
57,
127,
61,
113,
59,
-11,
-93,
70,
-118,
-46,
19,
121,
77,
-83,
75,
102,
-26,
79,
48,
74,
-43,
-26,
75,
-63,
92,
-50,
-124,
-117,
-32,
-39,
-128,
-80,
120,
84,
76,
-31,
-114,
123,
42,
24,
87,
45,
46,
107,
-89,
-80,
112,
-53,
5,
126,
18,
33,
4,
-100,
-91,
80,
27,
-104,
-71,
56,
-36,
115,
-74,
-126,
-12,
109,
-101,
8,
34,
99,
33,
21,
-95,
-68,
-104,
46,
-6,
-113,
-89,
118,
88,
9,
9,
-98,
29,
115,
22,
13,
126,
-4,
21,
93,
100,
3,
-53,
-76,
-80,
-17,
102,
-106,
9,
-21,
39,
33,
113,
-56,
-14,
92,
71,
26,
-101,
23,
-108
] |
The opinion of the court was delivered by
Parker, J.:
A. O. Stalnaker, a resident of Sumner county, brought this action under the declaratory judgment act (G. S. 1935, 60-3127 to 60-3132, inch) in the district court of such county for the purpose of obtaining an interpretation of an oil and gas mineral conveyance held by him on eighty acres of land in that county, claiming that under the facts set forth in his petition and the terms of such conveyance he was entitled to a portion of the proceeds received from the sale of oil and gas which was being produced from such tract of land.
The defendants, Daniel P. McCorgary and May Francis McCorgary, the grantors in such mineral conveyance, filed a general demurrer to the petition which was sustained by the district court. Plaintiff appeals from that order and judgment.
Appellant’s first specification of error is that the trial court erred in sustaining the demurrer to the petition.
No useful purpose would be served by setting forth in detail the allegations of the petition which, we pause to add, by reference include a copy of the mineral conveyance in controversy. It suffices to say such pleading has been examined and that its allegations make it clearly appear there is an actual controversy between the parties with respect to the construction to be given the terms of the instrument in controversy. In that situation the established rule in this jurisdiction is that the petition-is sufficient as against a general demurrer and requires adverse parties to move forward with an answer in order that there may be a full and complete adjudication of the rights of the respective litigants based upon all the prevailing material facts and circumstances which may ultimately become involved in the remedial relief sought under provisions of the act.
Long ago in School District v. Sheridan Community High School, 130 Kan. 421, 286 Pac. 230, we held:
“When an action is filed for a declaratory judgment and the petition sets forth facts showing an actual controversy concerning some matter covered by the statute, R. S. 60-3127, it is the duty of the district court to overrule the demurrer to die petition and proceed with the cause in accordance with the provisions of R. S. 60-3127 to 60-3132, inclusive.” (Syl. 1.)
Our reasons for pronouncement of the rule announced in the case just cited were clearly set forth in the later case of City of Cherryvale v. Wilson, 153 Kan. 505, 112 P. 2d 111, where we said:
“It is rare that a demurrer is an appropriate pleading for the defendant to file to a petition for a declaratory judgment. Assuming there is an actual controversy between the parties, the petition should state the facts out of which the controversy arose, should state clearly the view or claim of plaintiff, and also state clearly the view or claim of the defendant, and the court should be asked to adjudicate the controversy. The appropriate pleading for defendant to file is an admission that the controversy arose from the facts stated by plaintiff, and that plaintiff’s contention is correctly stated; also, that defendant’s contention is correctly stated, if, of course, defendant agrees that the matters are so pleaded. If defendant thinks the facts giving rise to the controversy are not accurate or fully stated, or that the contention of the plaintiff or that the contention of the defendant is not accurately or fully stated, his answer should plead the facts and the contentions as he understands them to be. If defendant pleads the facts and the contention is contrary to that pleaded by plaintiff, plaintiff by reply should either admit those, or deny them. Normally, a declaratory judgment action is not well suited to a case in which there is a controversy as to how the contentions of the parties arose, or as to what they are; these things should be agreed upon in the pleadings, or some other form of an action should be brought.” (pp. 510 and 511.)
In Doman Hunting & Fishing Ass’n v. Doman, 159 Kan. 439, 445, 155 P. 2d 438, we again had occasion to pass upon the force and effect of a demurrer to the petition filed under the provisions of the declaratory judgment act and once more adhered to the rule announced in School District v. Sheridan Community High School, supra.
Later in Hurst v. Brown, 166 Kan. 496, 203 P. 2d 246, we definitely indicated there was but one test to be applied in determining the sufficiency of a petition in a declaratory judgment proceeding. At pages 502 and 503 of the opinion in that case we said:
“. . While a demurrer is rarely used in attacking a petition for declaratory judgment when a party elects to so employ it we have held the test to be applied in determining its sufficiency is whether such pleading sets forth facts which make it clearly appear there is an actual controversy between the parties and just what that controversy is. See City of Cherryvale v. Wilson, 153 Kan. 505, 112 P. 2d 111. When the first cause of action is measured by the foregoing rule we have little difficulty in concluding the trial court’s action in overruling the demurrer on the ground now under consideration was proper.
“This appeal, as we have seen, is limited solely to the sufficiency of the petition. No one contends the trial court rendered a declaratory judgment on the facts as pleaded. Notwithstanding, appellant seeks to enlarge the scope of our review by attempting to argue and have us decide the merits of the cause. This we cannot do. Under the statute (G. S. 1935, 60-3302) giving us appellate jurisdiction our province, in fact the extent of our power, is to reverse, vacate, or modify or sustain the trial court’s judgment.”
Still later and in the very recent case of Hyde Park Dairies v. City of Newton, 167 Kan. 730, 208 P. 2d 221, we cited with approval all of the decisions to which we have heretofore referred and held:
“When an action is filed for a declaratory judgment and the petition sets forth facts showing an actual controversy concerning some matter covered by the statute, R. S. 60-3127, it is the duty of the district court to overrule the demurrer to the petition and proceed with the cause in accordance with the provisions of R. S. 60-3127 to 60-3132, inclusive.
“An amended petition framed with the view of obtaining remedial relief under the declaratory judgment act examined, considered and held, the demurrer thereto was improperly sustained.” (Syl. j[ff 3, 4.)
And in the opinion said:
“The soundness of this general rule seems obvious. While there may be cases in which no facts a defendant might plead and no contentions he might make could possibly affect the interpretation or validity of a statute or ordinance, we do not desire to so conclude in advance of an answer and hearing in this case. We are convinced it was not the intention of the declaratory judgment act to prejudge matters which might become material in determining the propriety or justice of the relief sought. . . .
“In any event the amended petition clearly discloses an actual controversy exists and the order sustaining the demurrer must be reversed. . . .” (pp. 732, 734.)
We fail to discern any sound or plausible reason for relaxing the rule announced in the foregoing decisions and to which we have heretofore adhered. Indeed where a petition is filed under the provisions of the declaratory judgment act, except where it fails to set forth facts which clearly make it appear there is a controversy between the parties and just what that controversy is, we are unable to conceive of any situation where a demurrer, based on grounds such pleading fails to state facts sufficient to constitute a cause of action, should be sustained. This conclusion, we believe, is inescapable when due consideration is given to the fact the act itself clearly contemplates an adjudication based upon the rights of the respective parties after a full disclosure of all the pertinent existing facts and circumstances together with their contentions with respect thereto and not a finding or decision, as it must be conceded is true upon the sustaining of such a demurrer, that the party filing the petition has simply failed, by reason of the insufficiency of its allegations, to state what, in some other form of action, would deprive him of a full and complete hearing upon the merits of the existing controversy.
While not essential to a decision of the cause it should perhaps be here stated the instant case furnishes another illustration of the soundness of the general rule to which this court is committed. The parties are not in agreement as to certain facts set forth in the petition and their briefs are replete with contentions respecting the weight to be given those facts in determining their respective rights under the terms of the involved mineral conveyance.
Since the petition sets forth an “actual controversy” between the parties as to their respective rights under the involved mineral conveyance the district court should have overruled the demurrer and proceeded with the cause as contemplated by the provisions of G. S. 1935, 60-3127 to 60-3132, inclusive. Therefore the judgment is reversed with directions to overrule the demurrer and proceed as herein indicated. | [
-42,
-18,
-15,
13,
-85,
96,
32,
-102,
65,
-79,
37,
83,
109,
90,
4,
63,
-61,
121,
100,
106,
-42,
-74,
6,
64,
86,
-77,
-47,
-43,
51,
95,
-28,
-41,
76,
0,
-54,
85,
70,
-30,
-59,
-36,
-114,
7,
-119,
77,
-55,
-128,
60,
110,
18,
11,
97,
-66,
-14,
33,
25,
-61,
73,
46,
-23,
-68,
65,
-79,
-70,
13,
127,
3,
-127,
101,
-104,
6,
-56,
42,
-112,
57,
11,
-24,
114,
54,
66,
117,
43,
-103,
8,
102,
98,
1,
61,
-19,
-68,
-120,
14,
-9,
-115,
-26,
-14,
24,
-93,
13,
-105,
29,
124,
20,
7,
126,
-30,
-123,
30,
124,
23,
-54,
-42,
-79,
15,
48,
-102,
19,
-21,
-109,
48,
116,
-59,
-94,
92,
71,
48,
27,
7,
-72
] |
The opinion of the court was delivered by
Harvey, C. J.:
This was an action for the possession of a described tract of land about sixty feet wide and half a mile long, which plaintiff claimed to own, for damages for its alleged wrongful use by defendants, and to enjoin them from removing certain improvements therefrom. The action and the temporary injunction sought by plaintiff was brought in October, 1945. The tidal of the action was delayed pending the outcome of litigation over an official survey of plaintiff's property made by the county surveyor earlier in October, 1945. This litigation reached this court and was decided by an opinion handed down December 11, 1948, and reported in 166 Kan. 246, 200 P. 2d 322. On May 14, 1949, plaintiff filed her second amended petition. We shall refer to this as her petition, since the earlier ones are not before us. In the petition plaintiff, after stating the parties and their residence, alleged plaintiff was the owner of the legal title to the west half of the southwest quarter of Section Nineteen, Township Twenty-four South, Range Two East, Sixth Principal Meridian, in Harvey county, Kansas, and was entitled to possession thereof; that when she acquired the property it was used for agricultural and grazing purposes and was so used up to the time of the wrongful exclusion of plaintiff, later alleged; that the northern approximately three-fourths of the property was under cultivation by a tenant or tenants of plaintiff and used for the production of crops, from which plaintiff received income; that the remainder of the property was pasture land and used for grazing purposes; that plaintiff is informed, believes and so alleges that defendants are the owners of the legal title to real estate adjoining on the east of the real estate described as belonging to plaintiff; that the real estate owned by defendants is described as the east half of the southwest quarter of Section Nineteen, Township Twenty-four, Range Two East, in Harvey county, Kansas; that at the time this real estate was acquired by defendants, and for many years prior thereto, the real estate owned by the plaintiff was bounded on the east and the real estate now owned by defendants was bounded on the west by a fence common to both properties, which fence was located at or near the true boundary between the two properties; that at some date known to defendants but unknown to plaintiff, but which plaintiff is informed and believes was during the late spring or summer of 1936, defendants erected a fence approximately sixty feet west of the east line of plaintiff’s property; that since the date of the erection of the fence defendants have wrongfully and unlawfully excluded plaintiff from the use and possession of that portion of plaintiff’s property lying east of the fence, and have deprived her of the income from the same, by reason of which she has been damaged in the sum of $500. The petition contained a second cause of action as a basis for the injunction prayed for, but we need not detail those allegations. Plaintiff prayed that she be given possession of all her property enclosed within defendants’ fence; that she recover $500 as damages; that defendants be temporarily and permanently enjoined from removing any and all fences and other improvements, or impounded water placed on the property by defendants, and that she have judgment for costs and other equitable relief.
On July 9, 1949, the defendants filed their joint and several answers, in which they denied generally all the allegations of the petition “except such as may be hereinafter specifically admitted.” The answer admitted the allegations with respect to tire parties and their residence,
“and that the plaintiff is the owner of the following described real estate situated in Harvey County, Kansas, to-wit:
“The West Half (W/2) of the Southwest Quarter (SW/4) of Section Nineteen (19), township Twenty-four (24) South, Range Two (2) East of the Sixth Principal Meridian.
“and that the defendant, Courtney B. Davis, Inc., is the owner and in possession of the following described real estate situated in Harvey County, Kansas, to-wit:
“The East Half (E/2) of the Southwest Quarter (SW/4) of Section Nineteen (19), Township Twenty-four (24) South, Range Two (2) East of the Sixth Principal Meridian.
“THIRD: Further answering, these defendants specifically deny that the plaintiff is the owner of and/or entitled to the possession of the west 58 feet of the East One-Half of the quarter section above described.”
The answer further alleged that in January, 1936, the defendant, Courtney B. Davis, for a valuable consideration, received a warranty deed covering the east half of the quarter section from persons named, who had a plain and connected title in law and equity, as shown in the office of the register of deeds of Harvey county, and went into tire open, notorious, peaceable, adverse and hostile possession in contemplation of making valuable improvements, and that he caused the quarter section previously described to be surveyed and the line between the east and west halves thereof to be established; that the survey was made by one Mavity, who was then the duly appointed county surveyor of Harvey county, at some time in 1936, which survey established the dividing line equidistant from the east and west boundaries of the quarter section, allowing the east and west halves thereof an equal number of acres; that relying upon the legality and accuracy of the survey the defendant, Courtney B. Davis, expended large sums of money in making lasting improvements immediately to the east of the line so fixed by the survey as made by Mavity. ,It was further alleged that on July 31, 1937, the defendant, Courtney B. Davis, for a valuable consideration, conveyed the east half of the quarter section to the defendants, Courtney B. Davis, Inc., a corporation, which is now the owner thereof, which corporation continued to make improvements on the land; that at all times subsequent to the acquisition of the east half of the quarter section by Courtney B. Davis, and prior to the first day of September, 1945, a period of more than nine years, plaintiff was in the possession of the west half of the quarter section and the defendants were in the actual, open, notorious and peaceful possession of all the real estate, as alleged to be occupied by the defendants, as set forth in plaintiff’s petition. Defendants further alleged that they under stand or are informed and therefore allege the fact to be that plaintiff had knowledge of the survey made by Mavity, saw the fence and other improvements placed upon the land in controversy, and for approximately nine years the plaintiff sat by and by inactivity passively acquiesced in the making of the improvements. Defendants admit that since 1936 they have made lasting and permanent improvements upon the west fifty-eight feet of defendants’ property, to a value which is stated, and made further allegations as to the reasonable value of the property without improvements and with the improvements defendants have placed thereon, and allege:
“That by reason of the above and foregoing the plaintiff has been guilty of laches and is estopped to deny the right, title, interest and estate of the defendant, Courtney B. Davis, Inc., in and to that particular strip of land approximately 58 feet in width together with the improvements thereon lying along the west side of the above described property.
“Wherefore, The defendant, Courtney B. Davis, Inc., prays for an order of the Court adjudging and decreeing it to be the owner of the East Half of the Southwest Quarter of Section 19, Township 24 South, Range 2 East in Harvey County, Kansas, including a strip of land approximately 58 feet in width lying along the west line of the East Half of said quarter section upon which said defendants’ permanent and lasting improvements are located as referred to in the plaintiff’s petition and barring, enjoining and excluding the plaintiff from having or claiming to have any right, title, interest or estate therein.
“These defendants further pray that in the event a judgment is entered herein dispossessing the defendant, Courtney B. Davis, Inc., of the above described strip of land, that it recover under the provisions of the occupying claimant’s law for all permanent lasting improvements, that a jury be empaneled to assess the valuation of the improvements so made, and that this Court make all orders necessary for the carrying out of said occupying claimant’s act in effect.”
On July 7,1949, plaintiff filed a motion for judgment on the pleadings, in which she specifically waived all the damages prayed for in her petition other than the cost, and moved the court to render judgment on the pleadings in her favor and against the defendants for the reason that defendants’ answer states no defense to plaintiff’s petition. This motion was duly heard, and on January 5, 1950, was sustained by the court and judgment was rendered for plaintiff in accordance with the motion therefor. In due time defendants appealed from the judgment.
In this court, for establishing the rules of law applicable to a judgment on the pleadings, appellants quote the following from Smith v. City of Emporia, 168 Kan. 187, 188, 211 P. 2d 101:
. a motion for judgment on the pleadings is tantamount to a demurrer, admits all facts well pleaded by the opposing party, and is only sustained when, notwithstanding such facts, it clearly appears the party making the motion is entitled to judgment.”
And from Ewing v. Pioneer Nat’l Life Ins. Co., 158 Kan. 371, 147 P. 2d 755:
“A motion for judgment on the pleadings cannot be sustained when issues of fact upon which a valid judgment might be based are joined by the pleadings.”
Counsel for appellee concede these authorities lay down the correct rule to be followed by the court in ruling upon a motion for judgment on the pleadings.
Counsel for appellants argue that the issues were joined by defendants’ answer in four separate instances.
‘T. By the specific denials of the plaintiff’s title and right to possession of the 3% acres of land involved in this lawsuit.”
The point is not well taken. The answer specifically admitted that plaintiff was the owner of the west half of the quarter section and that the defendants were the owners of the east half of the quarter section. The case of Neiman v. Davis, 166 Kan. 246, 200 P. 2d 322, between these same parties, while it was dealing primarily with a survey of the west half of the quarter section as distinct from trying title, definitely fixed the boundary line between the west half and the east half of the quarter section. In the opinion, at page 255, it was said:
“The entire section was patented to the Atchison, Topeka and Santa Fe Railroad Company, the patent disclosing clearly that the section contained 654 acres. On September 28, 1883, the company conveyed by warranty deed to Haines, predecessor in title of Davis, five separate tracts including the Davis land, containing in all 400.16 acres more or less ‘according to the United States Survey.’ No showing is made that each tract did not contain the statutory quantity of eighty acres, and we assume that it did so. The excess of 16/100 acres, even if added to the Davis land, would not materially alter its boundaries. However, later and on July 3, 1885, the railroad company conveyed by warranty deed to Whitcroft, predecessor in title to Neiman, the west half of the southwest quarter of the particular section, ‘contáining in all Eighty Seven 14 (87.14) acres more or less according to the United States Survey.’ According to the government plat, and as detailed above, the quarter-quarter sections embraced in the above west half contained respectively 43.54 and 43.60 acres, or the total of 87.14 acres. It thus appears that the railroad company, the last common owner of the entire southwest quarter, conveyed the east and west halves as containing the actual acreage as shown on the government plat. No subsequent conveyance could or did change the division so made, and that it was conformable to the survey and plat may not be denied.”
In that case as in this one defendants relied upon the Mavity survey. The evidence in the former case disclosed that Mavity had not given notice of his survey to anyone. He had simply been requested by defendant Davis to make the survey. The survey had no legal standing, a matter thoroughly determined in the former case. It is useless to argue here that it has any legal standing. In their answer in this case defendants denied “that the plaintiff is the owner of and/or entitled to the possession of the west fifty-eight feet of the east one half of the quarter section.” That was a fruitless denial. In plaintiff’s petition she did not claim to own anything in the east half of the quarter section. In both the cases it is clear that plaintiff was claiming to own this strip of land, variously stated as being sixty feet wide or fifty-eight feet wide. Plaintiff in her petition asserted ownership and a right of possession to the west half of the quarter section. In their answer defendants made no specific allegation that they were entitled to or had any right of possession to any portion of the west half of the quarter section.
“2. By the general denial contained in the defendants’ answer and the affirmative allegations of ownership as set out in the answer.”
The general denial of the allegations of plaintiff’s petition was “except such as may be hereinafter specifically admitted.” The answer then proceeded to admit that plaintiff was the owner of the west half of the quarter section. There is no place in the answer where there is an allegation that defendants were the owners of any portion of the west half of the quarter section. Counsel for appellants in their brief do talk about the Mavity survey, but in Neiman v. Davis, supra, at page 252, the court ruled that:
“It thus appears the division line between the two halves as fixed by Mavity was about 58 feet west of the line as fixed by Craig.”
and went further and held that the Craig survey properly determined the true boundary line between the east half and the west half of the quarter section, and that the real estate lying to the west of the line, as established by Craig, is the west half of the quarter section. The result is that this point is not well taken.
“3. By allegations of fact contained in the answer squarely within the provisions of the Occupying Claimant's Act.”
The pertinent provisions of the Occupying Claimant’s Act (G. S. 1935, 60-1901) read:
“In all cases, any occupying claimant, being in quiet possession of any lands or tenements for which such person can show a plain and connected title in law or equity derived from tire records of some public office; or, being in quiet possession of and holding the same by deed, devise, descent, contract, bond or agreement from and under any person claiming title as aforesaid, ... or by deed duly authenticated and recorded; . . . shall not be evicted or thrown out of possession by any person or persons who shall set up and prove an adverse and better title to said lands until said occupying claimant, . . . shall be paid the full value of all lasting and valuable improvements made on said lands by such occupying claimant . . .”
It is clear that the strip of land in question lies in and along the east edge of the west half of the southwest quarter. Defendants by their answer do not claim title to any land in the southwest quarter of the section. Before appellants could claim the benefits of the Occupying Claimant’s Act they must allege two things: First, that they were in quiet possession of the property. The answer may be construed as making that allegation. Second, they must also plead a plain and connected title derived from the public records or hold possession under some person showing a plain and connected title derived from the public records. Since they claim no title to the west half of the quarter section they do not come within the provisions of the act.
“4. That the allegations of fact contained in the answer, if true, were sufficient to constitute laches on the part of plaintiff and estoppel.”
The allegations referred to are to this effect: That plaintiff had knowledge of the Mavity survey and the erection of a fence during the spring or summer of 1936 and had personal knowledge of the substantial and permanent improvements being erected immediately east of the line as fixed by Mavity, and had knowledge that defendants were in possession of the real estate, and that during the period of about nine years the plaintiff sat by and inactively and passively acquiesced in the making of the improvements by defendants. Under the authorities that is not enough. The nine years’ possession under a claim of title is inadequate to establish title by adverse possession. (See, Beeler v. Sims, 93 Kan. 213, 144 Pac. 237; Steinbruck v. Babb, 148 Kan. 668, 84 P. 2d 907.) Mere silence on the part of the plaintiff does not work an estoppel against her. Before plaintiff can be held to have lost her land by estoppel she must have done something or concealed something from defendants which they did not know, upon which defendants relied in going upon her place and making improvements. She is charged here with nothing but “inactivity.” Plaintiff must have had knowledge of facts of which defendants were ignorant. In this case tire reverse is true. Davis moved the east line fence on plaintiff’s land. The plaintiff did not. She may have had knowledge of Mavity’s survey. Certainly Davis did. She may have had constructive knowledge that the survey was wrong. Davis had exactly the same knowledge. Davis knew as much or more about the Mavity survey than the plaintiff did. He knew the survey was made without notice to plaintiff, and in fact secretly as to her. If there is any concealment here it was by the defendants. (See, Chellis v. Coble, 37 Kan. 558, 15 Pac. 505; Harris v. Deffenbaugh, 82 Kan. 765, 109 Pac. 681; Bank v. Commission Co., 113 Kan. 545, 215 Pac. 828; 21 C. J. 1150; 31 C. J. S. 301.) The result is the case of Neiman v. Davis, supra, settled the boundary line between the west half and the east half of the quarter section in question. Plaintiff alleged that she owned the west half of the quarter section, and defendants admitted that allegation. Their answer claimed no title nor right to possession of any portion of the west half of the quarter section. The allegations of the answer do not bring defendants within the statute pertaining to occupying claimants. Inactivity on the part of plaintiff did not constitute laches or estoppel which denied her right to recover.
The judgment of the trial court is affirmed.
Wertz, J., not participating. | [
-47,
-18,
-76,
93,
42,
-24,
40,
-102,
99,
-69,
102,
83,
-19,
-56,
4,
109,
90,
45,
64,
121,
-25,
-77,
91,
-63,
20,
-13,
-37,
93,
59,
93,
-10,
-58,
76,
-80,
10,
-107,
70,
-64,
73,
28,
-114,
-121,
-119,
-44,
-39,
40,
60,
57,
48,
75,
21,
47,
-13,
44,
61,
-61,
-23,
44,
-53,
61,
73,
-8,
-70,
-107,
-65,
3,
1,
6,
-108,
-57,
72,
59,
-112,
60,
32,
-84,
115,
-74,
-106,
116,
31,
-101,
40,
38,
99,
49,
-20,
-81,
-8,
-103,
14,
51,
-115,
-89,
52,
8,
99,
96,
-66,
-99,
125,
20,
11,
126,
-25,
5,
31,
40,
15,
-53,
-106,
-79,
79,
56,
-126,
7,
-29,
33,
49,
96,
-51,
-26,
92,
71,
81,
-101,
-114,
-104
] |
The opinion of the court was delivered by
Wedell, J.:
A tenant of a city building filed an action against her landlord to recover damages for an alleged unlawful eviction. The district court sustained a demurrer to her amended petition. The correctness of that order is the sole issue on appeal.
The tenant, appellant, previously had been evicted from the premises at the conclusion of an unlawful detainer action instituted by the landlord, appellee, in the city court of Wichita. The demurrer admits as true the following allegations of the amended petition:
The original written lease was executed on or about January 31, 1946, for a period of five years to Mary Montgomery who, on or about April 1, 1946, orally assigned it to appellant and another person, together with the fixtures and equipment in the beauty shop and its good will; about one year thereafter the other assignee orally assigned her interest in the lease and beauty shop to appellant who has since operated it; appellant promptly paid the rentals as they fell due and has complied with all other terms of the lease; on or about June 1,1949, appellee requested that appellant surrender possession of the premises stating he had not given his written consent to the assignment of the lease as required by the lease contract; appellant refused to surrender possession and the unlawful detainer action followed.
The parties concede the issue raised and determined against appellant in the city court was the validity of the assignment and her right to remain in possession of the premises in view of her compliance with the terms of the lease over the period she had been in possession of the property.
It is unnecessary to detail all the allegations of the amended petition in the instant damage action. The fundamental question argued by the parties relative to the ruling on the demurrer is whether the amended petition discloses on its face the judgment of the city court is a bar to the instant action for damages. Appellee contends it does. Appellant insists it does not. These contentions require examination of another allegation in the amended petition. It refers to the complaint filed in the city court and reads:
“That said complaint in said action was unverified at the time said summons was issued and served, and that defendant requested and was' granted leave to verify said complaint at the trial of said purported action.” (Our italics.)
The summons in the city court, of course, had been issued and served prior to the amendment of the complaint. Appellant contends, absent a verified complaint before the summons issued, the city court could not direct the issuance of a summons and it acquired no jurisdiction in the unlawful detainer action; under these circumstances the city court had no power to permit an amendment of the complaint and its judgment was a nullity. In support of these contentions appellant relies on G. S. 1935, 61-1305 and Harris v. Christy, 166 Kan. 395, 201 P. 2d 1067, in which we held:
“The jurisdiction of a justice of the peace, or of a city court, in unlawful detainer or in forcible entry and detainer actions, is subject to a legal issuance of summons in such an action.
“An action in forcible entry and detainer is a special proceeding, summary in its nature, and in derogation of the common law. Unless statutes conferring jurisdiction in such actions are strictly pursued in the method of procedure prescribed, jurisdiction will fail to attach and the proceeding will be not merely voidable, but void.
“Under the express provisions of G. S. 1935, 61-1305 a summons may not be issued until the plaintiff has filed a complaint in writing under bath and the issuance of a summons in violation of the statute before the required verified complaint has been filed will not cause jurisdiction to attach.
“The mere fact a party to an action may by conduct waive previous lack of jurisdiction over his person does not vest a court with jurisdiction of the subject matter.” (Syl. ¶ 2, 3, 4, 5.)
In appellee’s counter abstract his counsel set forth additional proceedings which it appears occurred in the city court prior to the trial of the detainer action and state these proceedings will not be denied by appellant’s counsel. The trouble with that statement is the additional proceedings set forth by appellee are no part of the amended petition. A demurrer admits only facts appearing on the face of the pleading attacked by demurrer. (G. S. 1935, 60-705.) Assuming, without deciding, the additional facts set forth by appellee in the counter abstract are true courts cannot reach out and make them a part of the amended petition. (American Glycerin Co. v. Freeburne, 157 Kan. 22, 138 P. 2d 468; Elam v. Bruenger, 165 Kan. 31, 32, 193 P. 2d 225.)
The mere allegation in the amended petition previously quoted, standing alone, is not sufficient to disclose the city court had jurisdiction to entertain the action. The additional facts on which appellee relies to establish the city court’s jurisdiction must be brought into the instant action by answer. (G. S. 1935, 60-710.) Only then can their legal effect be determined.
The question of the city court’s jurisdiction is the first and fundamental issue to be determined in the instant action. If the city court acquired no jurisdiction in the detainer action then no question involved in that proceeding, whether it be the validity of the assignment or any other question, has been determined. On the other hand if the additional facts on which appellee now desires to rely disclose the city court acquired full jurisdiction then its judgment, absent an appeal therefrom, is a finality. That is true irrespective of whether its judgment was right or wrong. Until the question of the city court’s jurisdiction has been properly raised and determined we shall not pass on the identical legal question pertaining to the validity of the assignment which the city court laid at rest if it had jurisdiction.
Appellant also contends the instant action to recover damages for wrongful eviction is an action entirely distinct and different from the unlawful detainer action in the city court and that it may be maintained after judgment by the city court even though the judgment of the city court against her was correct, citing G. S. 1935, 61-1303.
The contention is too broad. We need not pursue the contention as applied to an entirely different state of facts. Here it is conceded the judgment of the city court was based on the single issue of the invalidity of the assignment of the lease and appellant’s performance thereunder. Other than the question of the city court’s jurisdiction that is the primary issue in the instant damage action. As previously stated, if the city court had jurisdiction its judgment on that issue, absent an appeal therefrom, is final. Under that judgment appellant was not entitled to possession. If she was not entitled to possession then no damages could result from her eviction. It is well to observe appellant’s right to possession as pleaded in the amended petition in this action is not based upon a changed state of facts from those existing at the time of the trial before the city court. In this connection see McHenry v. Hubbard, 156 Kan. 415, 134 P. 2d 1107.
Appellant, as already indicated, is, however, correct in her contention that the amended petition does not disclose on its face the city court had jurisdiction. It follows the order sustaining the demurrer must be reversed. It is so ordered. | [
-48,
-18,
-3,
15,
74,
96,
42,
-104,
98,
-123,
39,
83,
-31,
-62,
4,
109,
87,
121,
81,
105,
73,
-89,
6,
107,
-14,
-45,
-61,
85,
-71,
127,
-11,
-42,
74,
49,
-62,
-107,
-58,
-126,
-25,
92,
78,
-121,
-119,
100,
-13,
64,
48,
57,
32,
13,
113,
-2,
-13,
44,
24,
82,
-21,
44,
-53,
-89,
-16,
-71,
-101,
-115,
91,
7,
49,
4,
-98,
-121,
122,
-120,
-108,
60,
1,
-24,
51,
54,
-122,
116,
103,
-101,
45,
102,
98,
32,
-123,
-5,
-8,
-68,
38,
58,
-67,
-92,
-112,
88,
75,
1,
-66,
-103,
125,
22,
103,
126,
-9,
-124,
29,
108,
-121,
-50,
-44,
-79,
15,
-16,
-110,
-55,
-17,
-93,
-127,
112,
-52,
6,
92,
103,
82,
-37,
-49,
-40
] |
The opinion of the court was delivered by
Parker, J.:
This is an action to recover wages. The plaintiff recovered and the defendant appeals.
In his petition the plaintiff states:
“2. That on or about March 7th, 1946, the defendant engaged the plaintiff to work for the defendant at Tipton, Kansas, and that the plaintiff was employed by the defendant from March 7th, 1946, until August 29th, 1947; that there was no written agreement covering said employment. Plaintiff further states and alleges that at the time he agreed to work for the defendant the defendant agreed to pay him the usual wages for work in that community. Plaintiff further states and alleges that he did work for the defendant for a period of seventeen and one-half (17K) months as set out above and that he performed valuable services for the defendant at all times during that period of time; that the minimum wage for such services in the community in which plaintiff was employed by the defendant and during the time plaintiff was working for defendant was the sum of $200.00 per month and that the fair and reasonable value of the services rendered by the plaintiff to the defendant was the sum of $200.00 per month or a total of $3500.00 for the seventeen and one-half (17/2) months the defendant received the services of the plaintiff.
“3. Plaintiff further states that the defendant during said period paid the plaintiff in money for services the sum of $845.00 and that the defendant paid the plaintiff during said period in clothing, tires and other sundry supplies of the value of $298.50, making a total amount paid the plaintiff by the defendant of the sum of $1143.50. Plaintiff further states and alleges that there is a balance due from the defendant of the sum of $2356.50; that the plaintiff has made repeated demands upon the defendant and the defendant fails and refuses on demand to pay the amount due plaintiff for the fair value of the work and labor and services plaintiff performed for the defendant.”
The defendant’s answer to the petition consists of a general denial, ail admission of residence in the county wherein the action was instituted, and the following averments:
“And for further Answer, the defendant alleges that the plaintiff was a boy with little or no experience, and unfortunate physically, and that he was not strong and had very poor eyes. The plaintiff did not do good work, but was paid promptly according to the mutual agreement of plaintiff and defendant for the services that plaintiff performed, and was fully paid from time to time during said employment. That plaintiff only worked part time, and took time off from his work, sometimes with and sometimes without, the consent of this defendant, often times when the defendant was absent and the limited services of the plaintiff would have been most beneficial. That all amounts due the plaintiff by reason of any employment plaintiff had with defendant have been fully paid, and paid in an amount far in excess of the value of the services rendered.”
All allegations of the answer inconsistent with the petition are denied by the plaintiff in his reply.
On issues raised by the foregoing pleadings the cause was tried by a jury which returned a general verdict in favor of the plaintiff and against the defendant for the sum of $1,131.50 along with its answers to special questions which read:
“QUESTION NUMBER 1. For how long a time do you find the plaintiff worked for the defendant? ANSWER: 17K months (approximately).
“QUESTION NUMBER 2. Iiow many hours a day do you find the plaintiff usually worked while working for tire defendant? ANSWER: 10 hours.
“QUESTION NUMBER 3. How many days a week do you find the plaintiff worked for the defendant? ANSWER: Seven.
“QUESTION'NUMBER 4. What do you find to be the reasonable monthly value of the services performed by plaintiff for defendant? ANSWER: $130.00 per month.
“QUESTION NUMBER 5. Has the plaintiff been fully compensated for his services? ANSWER: No.
“QUESTION NUMBER 6. Was there an agreement as to compensation between the plaintiff and the defendant? ANSWER: Yes.
“QUESTION NUMBER 7. If you answer the above question in the affirmative, what was the agreement? ANSWER: The plaintiff was to receive the usual wage in that community.”
At the outset appellant assigns error in the overruling of his demurrer to appellee’s evidence. In support of his position he first directs our attention to the fact the petition charges the defendant agreed to pay plaintiff the usual wages for work in the community and asserts there is no evidence to establish that fact. We do nob agree. The record discloses appellee testified that he asked the appellant about the amount of pay he would receive if he went to work for him and that appellant answered he would pay him whatever was right and not to worry about it. That statement, in our opinion, meant that appellant would pay the usual or prevailing wage and suffices to establish the allegation of the petition to which we have heretofore referred. Appellant’s further contention on this point to the effect that other material allegations of the petition are unsupported by evidence has little merit and need not be labored.
Appellant complains of the trial court’s action in overruling its request for an instruction directing the jury to return a verdict in his favor. He also insists the general verdict was contrary to the evidence and that therefore his motion for a new trial should have been sustained. Both of these claims require an examination of the record. No useful purpose would be served by detailing the evidence. It suffices to say that after having carefully reviewed all the testimony we are convinced this was essentially a fact case where the jury would have been warranted in returning a verdict for or against either of the parties depending on whom it believed. It saw fit to believe the appellee and disbelieve the appellant. In such a situation it cannot be said the trial court erred in failing to give the requested instruction or in refusing to grant a new trial on the ground heretofore mentioned.
Another contention advanced by appellant is that the court erred in giving Instruction No. 9. By this instruction the jury was told the evidence disclosed the appellee had worked for appellant seventeen and one-half months, that appellant had accepted his services for that period and that under such circumstances appellee was entitled, under the pleadings and the evidence, to recover the reasonable value of his services even if it found there was no express agreement between the parties regarding the amount to be paid for such services. The instruction also advised the jury how, in that event, it was to ascertain the reasonable value of appellee’s services and whether he had been paid therefore. Assuming as appellant contends, without deciding the question, there was something wrong with this instruction the fact it was given affords no sound ground for reversal of the instant judgment. By its answer to Question 6 the jury found there was an agreement between the parties as to compensation and based its verdict on that premise without regard to the factual situation covered by such instruction. Under our statute (G. S. 1935 60-3317) error complained of which does not prejudice the substantial rights of a party affords no sound basis for the reversal of a judgment and must be disregarded. This rule is, of course, applicable where errors or defects in instructions become nonprejudicial by reason of special findings (see Sternbock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 91, 98 P. 2d 162).
There is little if any merit in appellant’s assignment of error the trial court erred in rendering judgment for the appellee upon the answers to special questions. In the first place the record discloses the judgment was rendered upon the general verdict, not upon the special findings. If, by this assignment of error, appellant intends to complain because the court failed to render judgment upon the answers to such questions his complaint still lacks -merit. Upon examination of the answers to special questions we fail to find any legal inconsistency between the special findings and the general verdict. Of a certainty it cannot be said they are so inconsistent when considered as a whole that they overthrow the general verdict. The' rule, under all our decisions, is that the general verdict and the special findings must be harmonized if possible and unless the special findings clearly overthrow the general verdict the latter must be permitted to stand. (See Taggart v. Yellow Cab Co. of Wichita, 156 Kan. 88, 131 P. 2d 924; Jelf v. Cottonwood Falls Gas Co., 162 Kan. 713, 178 P. 2d 992, and cáses therein cited.)
During the course of the trial while appellant was testifying as a witness in his own behalf he was asked on cross-examination how many times he had been sued for accounts. Objection was made to the question but before it could be ruled upon appellant moved for a mistrial. There ensued, in the presence of the jury, a colloquy between court and counsel with respect to the objection and the motion in which appellant’s counsel volunteered the information his client had been sued on a number of accounts, that he had been found to be right on some of them and that counsel thought he was right on all of them. Ultimately the court overruled the motion for a mistrial and sustained the objection to the question. Later, and after the jury had retired to the jury room to consider its verdict, appellant’s counsel claimed to have acquired information to the effect there had been some discussion in the jury room about the matters discussed in the presence of the jury. Still later on a motion for new trial he insisted that he be permitted to call in some of the jurors and interrogate them about such matters. The court refused to permit this to be done. It is now claimed that the trial court erred in such action and in its action in refusing to declare a mistrial.
Appellant cites no decisions holding the mere asking of a question of the kind to which we have referred is ground for a mistrial when an objection thereto is sustained. It has been said that under such circumstances (See McCoy v. Fleming, 153 Kan. 780, 783, 113 P. 2d 1074) this court might well conclude his counsel, after diligent search, have been unable to find any, in which case the judgment should be affirmed. In any event our view is the trial court did not err in overruling the motion for a mistrial.
We are not disposed to labor appellant’s contention the trial court erred in refusing to permit interrogation of some of the jurors, in connection with the presentation of his motion for a new trial, on matters pertaining to comments alleged to have been made in the jury room regarding appellant having been sued on various accounts or concerning his reputation for paying his bills. Nor are we inclined to write a treatise on the subject of when conduct of that character results in misconduct on the part of a jury. It suffices to say, that under the facts and circumstances of this case, where appellant opened the door and made it possible for the jury to comment on the matters complained of, we do not believe it can be said, and we are not inclined to hold, action of the trial court in refusing to permit him to interrogate members of the jury on such subject for the avowed purpose of obtaining a new trial constitutes such clear and palpable error as to require a reversal of the judgment. This court has long adhered to the rule (See Meyer Sanitary Milk Co. v. Casualty Reciprocal Exchange, 145 Kan. 501, 66 P. 2d 619) that reversal of a judgment cannot be secured on invited error.
The judgment is affirmed. | [
80,
-24,
-78,
93,
10,
96,
42,
-110,
113,
-93,
39,
115,
-23,
-58,
12,
123,
-10,
61,
-44,
104,
-33,
-77,
17,
-24,
-14,
-77,
-7,
-35,
-71,
77,
-12,
-44,
77,
48,
2,
-43,
102,
-62,
-59,
84,
-50,
5,
-119,
-24,
-39,
0,
48,
57,
50,
75,
49,
-98,
-5,
40,
28,
-61,
-119,
44,
123,
59,
80,
-80,
-70,
-115,
109,
16,
-93,
7,
-98,
71,
-8,
46,
-104,
57,
0,
-56,
114,
-74,
-126,
116,
99,
-119,
13,
102,
98,
50,
21,
-25,
-4,
-39,
46,
-70,
-99,
-90,
-79,
88,
11,
77,
-106,
-100,
124,
20,
7,
126,
-3,
13,
29,
108,
11,
-114,
-74,
-77,
-113,
44,
-106,
-117,
-17,
2,
-111,
97,
-51,
-94,
93,
71,
120,
-109,
-97,
-99
] |
The opinion of the court was delivered by
Parker, J.:
Plaintiffs, as partners, brought this action in September, 1949, against the ■ defendants to recover damages to their tractor truck and for loss of the use thereof, all claimed to have been sustained by them as the result of an accident and collision between three motor trucks on the public highway near Manhattan.
All issues involved on appeal relate to the sufficiency of the petition. For that reason and because such pleading discloses the factual situation about as clearly as it could be described in narrative form we shall quote from it at length omitting only formal averments and other immaterial allegations to which we shall presently refer.
After alleging that the plaintiffs were a partnership with their principal place of business at Clyde, Kansas, that the American Surety Company is a New York corporation authorized to do business in Kansas, that the defendant, John Elsesser is a resident of Sheboygan, Wis., and that Hensel Transfer and Warehouse Company is a Wisconsin corporation with its principal place of business at Sheboygan, Wisconsin, licensed by the Interstate Commerce Commission to operate vehicles on the Highways, the petition reads as follows:
“That, at all times hereinafter mentioned, the Hensel Transfer and Warehouse Company was the owner of a 1946 White Tractor, which tractor was operated as a part of the business of the Hensel Transfer and Warehouse Company for tire purpose of transporting household goods across the highways of the State of Kansas, and which truck was being operated on the highways of Kansas pursuant to Section 66-1305 General Statutes of Kansas.
“That, at all times hereinafter mentioned, John Elsesser was the agent, servant and employee of the Hensel Transfer and Warehouse Company and was operating said truck on behalf of and in furtherance of defendant Hensel Transfer and Warehouse Company’s business.
“That, prior to the 10th day of January, 1948, for the purpose of gaining admittance into the state of Kansas, and for the purpose of operating said equipment over the highways of the State of Kansas, pursuant to Section 66-1305 1947 Supplement to the General Statutes of Kansas, the American Surety Company issued its liability insurance policy No. MV-53934M wherein they guaranteed to indemnify any individuals who suffered damages as a result of the negligence of the defendant Hensel Transfer and Warehouse Company in the operation of the 1946 truck hereinbefore mentioned.
“That, a copy of said policy is not attached for the reason that plaintiffs do not have a copy and are unable to obtain a copy but the defendants have the policy and are well acquainted with the terms of said policy. That a photo static certified copy of the Port of Entry records made pursuant to 66-1305 1947 Supplement to the General Statutes of Kansas is hereto attached and made a part of this petition and marked Plaintiff’s Exhibit ‘A’.
“Merle Willcening was at all times hereinafter mentioned the owner of a 1946 Chevrolet truck which truck was operated on the highways of the State of Kansas pursuant to authority of Common Carrier Route No. 3022 granted by the Kansas Corporation Commission.
“That, pursuant to Section 66-1108 General Statutes of Kansas 1935, the defendant Maryland Casualty Company issued its policy No. 15-458690 to the defendant Merle Wilkening and filed a copy with the Kansas Corporation Commission wherein it agreed to reimburse and hold harmless any individual who was injured or who suffered damage to their property as a result of the negligence of Merle Wilkening, his agents, servants and employees.
“That, a copy of said policy is not attached hereto for the reason that plaintiff does not have a copy but the defendants have said policy in their possession and are familiar with its terms.
“That at all times hereinafter mentioned plaintiffs were the owners of a 1948 White Tractor and a 1947 32-foot Wilson trailer.
“That on the 11th day of January, 1949, Highway 24 and 40 near the Blue River Bridge was covered with ice and snow but the entire highway was clear for traffic.
“That on or about tire 11th day of January, 1949, at approximately 3 p. m., C. J. Billups was driving the above described vehicle on Highway 24 and 40 traveling on the South side of the highway at a speed of approximately 18 to 20 miles per hour.
“That, at approximately 3 p. m. on January 11, 1949, and near tire Blue River Bridge, Merle Wilkening was driving his truck in a Westerly direction, traveling at a speed of 30 to 35 miles per hour.
“That immediately behind Merle Willcening a distance of approximately 20 feet, tire defendant John Elsesser was driving a Hensel Transfer and Warehouse Company truck, traveling in a Westerly direction. As the lead truck, being driven by Merle Wilkening approached tire plaintiff’s vehicle, which was traveling toward the defendant, Merle Wilkening, without signalling, applied his brakes and brought his vehicle to a stop.
“At the time Merle Willcening stopped, he knew the defendant Hensel Transfer and Warehouse Company’s truck was so close upon him that it could not stop. That because of his stopping and because of the close proximity of the defendant’s truck, Hensel Transfer and Warehouse Company, a collision occurred between these two trucks. As a result of this collision, the defendant John Elsesser drove his truck to the left or the south side of the highway and crashed into the vehicle of plaintiff, knocking it from the highway into a ditch on the South side of the road.
“That, as a result of the negligence of the defendant, plaintiffs’ vehicle was damaged in an amount of $2,328.11, the cost of repairs to their vehicle. A copy of the repair bill is hereto attached, made a part hereof and marked Plaintiffs’ Exhibit ‘B’.
“That, in addition thereto, the plaintiffs paid the sum of $350.00 for wrecker services to remove the vehicle from the creek.
“That at tire time of the accident plaintiff’s vehicle was being used for transporting livestock from and in the vicinity of Clyde, Kansas, to Kansas City, Missouri, an average of two times per week and plaintiffs earned $125.00 net per trip.
“That, as a result of this accident, they missed four trips to Kansas City and lost the sum of $500.00.
“Plaintiffs further allege that on or about the 3rd day of February, 1949, the War Department attempted to lease the truck from plaintiffs at an hourly rate of $13.75 for the the purpose of transporting feed and other commodities to the snowbound area of Wyoming and the Dakotas.
“That, because of the accident, plaintiffs were unable to lease this truck and, as a result thereof, lost seven weeks’ work with it and lost the net sum of $6,145.00 by reason of being without the use of said truck.
“That the damage to the vehicle of plaintiffs was the result of the joint negligence of the defendants and each of them.”
The remaining allegations of the petition are of little consequence and need not be quoted. It suffices to say they relate to specific acts of negligence on the part of the two truck driver defendants which for present purposes must be regarded as conceded and to the amount of damages claimed, together with a prayer for their recovery.
In the court below the defendants, American Surety Company, John Elsesser and Hensel Transfer and Warehouse Company, filed a motion to make the petition more definite and certain and to strike certain of its allegations. The American Surety Company also demurred to such pleading. Defendant Wilkening filed a motion to strike certain allegations from the petition and to make others more definite and certain. The defendant Maryland Casualty Company also demurred to the petition and in addition filed a motion to dismiss the alleged cause of action against it as set out therein, with an affidavit in support thereof. All of the foregoing motions and demurrers were overruled and the defendants having given due notice of appeal now seek to have the propriety of the trial court’s ruling with respect thereto reviewed and determined.
Before passing on the more serious questions involved we shall dispose of those which are of importance only because they are raised by the parties’ specifications of error.
The Maryland Casualty Company, hereinafter referred to as Maryland, supporting its position by an affidavit, complains of the overruling of its motion to dismiss based on the ground that notwithstanding allegations of the petition to the contrary its insured, Merle Wilkening, was operating his motor truck on his own personal behalf and business and not pursuant to any authority granted him by the Kansas Corporation Commission as therein alleged. There are two good reasons why such complaint lacks merit. In the first place this court has repeatedly and uniformly held that the overruling of a motion to dismiss an action, made by defendant, is not a final order and hence not one of the orders of the district court from which an appeal lies to the Supreme Court until final disposition of the cause below. (Brown v. Kimble, 5 Kan. 80; Montgomery Ward & Co. v. Ellis, 152 Kan. 320, 103 P. 2d 817; St. Paul Fire & Marine Ins. Co. v. Bender, 153 Kan. 752, 113 P. 2d 1062; Hudson v. Hudson, 142 Kan. 358, 46 P. 2d 882; Pulliam v. Pulliam, 163 Kan. 497, 499,183 P. 2d 220; Singleton v. State Highway Comm. 166 Kan. 406, 201 P. 2d 650.) In the next it does not propose to permit a defendant to contradict the allegations of a petition by an affidavit and in such manner obtain a decision respecting disputed questions of fact before joinder of issues and a trial upon the merits.
Defendants, American Surety Company and Hensel Transfer and Warehouse Company, hereafter referred to as American and Hensel, respectively, also defendant Elsesser, joined in a motion asking that plaintiffs be required to state whether they were licensed by the Corporation Commission as either a contract, public, or private carrier and if so that they be required to attach a copy of their license or certificate of convenience to the petition and state whether the Commission had ever authorized them to lease any of their equipment, particularly the truck in question, to the War Department for the purpose of transporting feed to the area described in the petition. In such motion they also asked that if plaintiffs were so licensed and had not been authorized to lease such equipment to the War Department that the trial court require them to strike from their petition all allegations having to do with and tending to support their claim for damages arising out of the alleged loss of the rental and lease of their truck to the Federal Government. Defendant Wilkening’s motion to make definite and strike contains allegations and requests of similar import and in addition a demand that plaintiffs be required to state what hauling such defendant was doing at the time and place of the accident in question pursuant to the authority of the common carrier permit which had been granted him by the Commission.
The established rule in this jurisdiction is 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. (Nelson v. Schippel, 143 Kan. 546, 56 P. 2d 469; LaHarpe Fuel Co. v. City of Iola, 152 Kan. 445, 448, 105 P. 2d 900; Gibson v. Bodley, 156 Kan. 338, 133 P. 2d 112; Estes v. Tobin Construction Co., 159 Kan. 322, 153 P. 2d 939; Giltner v. Stephens, 163 Kan. 37, 42, 180 P. 2d 288; Atkinson v. Sowersby, 165 Kan. 678, 683, 198 P. 2d 158; Hill v. Hill, 168 Kan. 639, 640, 215 P. 2d 159.)
Turning to phases of the motions to make the petition more definite and certain we know of no rule of law requiring that plaintiffs’ petition contain allegations respecting whether their truck was licensed by the Corporation Commission as a contract, public or private carrier, in order to state a cause of action against the defendants in negligence for damages to their truck. Neither is it certain the absence of allegations to the effect the Commission had authorized them to lease their truck to the War Department preclude them from recovering damages for profits lost by reason of their inability to lease the truck to the Government because of that negligence. Nor are we sure they were obliged, in order to state a cause of action against Wilkening, to advise that individual by averments in the petition as to what particular hauling such defendant was doing pursuant to the authority of the common carrier permit granted him by the Commission. Be that as it may, we are not required to now pass upon the questions to which we have just referred. For the moment it suffices to say that, so far as the defendants making the motions are concerned, such questions have to do with matters of defense which could have been pleaded by the particular defendant involved by way of answer and that to require any such defendant to so plead did not substantially prejudice his rights and as to him, of a certainty, did not have the effect of determining the action. Therefore, under the rule to which we have heretofore referred, the rulings of the trial court in refusing to make the petition more definite and certain were not appealable orders and cannot be disturbed.
Inasmuch as defendants’ motions to strike depend entirely upon their right to have the petition amended in the particulars previously noted it necessarily follows from the conclusion just announced the record fails to reveal any error on the part of the trial court in overruling such motions.
In passing it should perhaps be stated that under the rule to which we have last referred a contrary conclusion with respect to the motions to make more definite and certain would not entitle the defendants to a review of the rulings on the motions to strike. Assuming, without in any sense deciding, that there may be some legal obstacle which would preclude plaintiffs from recovering damages for loss of profits by reason of being únable to lease their truck to the War Department it is clear from the record that such loss was only a portion of that which they had suffered as a result of the accident and for which they were seeking recovery under the allegations of their petition. Under such conditions the overruling of the motions to strike are not to be regarded as final orders within the meaning of the term “final order” as defined in the code of civil procedure (G. S. 1949, 60-3303) and are not made appealable by statute (G. S. 1949, 60-3302). This, we may add, would be true even if it be assumed the trial court in ruling on such motions treated them as tantamount to demurrers.
Under our decisions a petition which otherwise states a cause of action is not subject to a demurrer for the reason it seeks to recover more or different relief than that to which plaintiff is entitled. (See Cooley v. Shepherd, 170 Kan. 232, 236, 225 P. 2d 75, and cases there cited.)
Having disposed of contentions advanced by the parties with respect to rulings of the trial court on motions we are now in position to give attention to their claims respecting its action in overruling the demurrers to the petition.
Maryland’s demurrer is based upon the single premise the petition does not state facts sufficient to constitute a cause of action against it and in favor of plaintiffs. In support of its position it directs our attention to our decision in Lawrence v. Travelers Mutual Cas. Co., 155 Kan. 884, 130 P. 2d 622, also other cases cited in the opinion, and points out that such authorities hold that in a case of the character here involved a petition states no cause of action against an insurer unless it contains specific allegations to the effect the insured, at the time and place of the accident in question, was operating his truck pursuant to authority granted under the certificate which had been issued him by the Corporation Commission. It then insists the instant petition contains no allegations susceptible of that construction and that therefore the trial court erred in overruling its demurrer. The rule is correctly stated but we doubt that the construction placed upon the petition can be upheld.
The particular provision of the pleading thus challenged by the ■ demurrer, which we requote for purposes of emphasis, reads as follows:
“Merle Wilkening was at all times hereinafter mentioned the owner of a 1946 Chevrolet truck which truck was operated on the highways of the State of Kansas pursuant to authority of Common Carrier Route No. 3022 granted by the Kansas Corporation Commission.”
In connection with its position on this point Maryland insists the foregoing provision is subject to critical analysis and is to be strictly construed against plaintiffs on general demurrer because Wilkening by his motion to make more definite and certain, in which it is conceded Maryland did not join, attempted to have such provisions made more definite and certain by stating what he was doing at the time and place of the accident in question.
The question thus raised compels a review (See Mead v. City of Coffeyville, 152 Kan. 799, 107 P. 2d 711) of the propriety of the order of the trial court in overruling such motion even though, as we have heretofore indicated, that action so far as it pertained to Wilkening himself was not appealable. Its decision, in our opinion, must stand or fall upon whether the petition was properly attacked by the motion. We do not believe it was. Plaintiffs’ cause of action against Wilkening did not depend upon whether the latter’s truck was being operated at the time and place of the accident pursuant to a Corporation Commission certificate but upon whether his negligence at that time and place was the legal cause of such accident. Without laboring the petition it can be said, indeed no one contends to the contrary, that under its allegations a cause of action was stated against him for negligence without any amendment. Therefore, such pleading was not open to attack by him and his motion was properly overruled. It follows the petition must be construed as if no motion had been leveled against it. That under all our decisions (see Campbell v. Kansas Tower & Light Co., 165 Kan. 134, 193 P. 2d 177; West’s Kansas Digest, Pleading, 35[1]), means that it must be given a liberal construction in favor of the pleader. When so construed we have little difficulty in concluding that even under our decision in Lawrence v. Travelers Mutual Cas. Co., supra, on which it places so much reliance, the petition states a cause of action against Maryland and that the trial court did not err in overruling its demurrer. Conceding the language of the particular provision in question might have been more skillfully worded we think its meaning is clear, i. e., that at the time and on the date subsequently mentioned in the petition Wilkening was operating his truck upon the highway pursuant to his permit and that there is no merit whatsoever in Maryland’s suggestion allegations with respect thereto must be regarded as mere naked conclusions.
American’s demurrer is lengthy and will not be quoted at length. It is based upon two statutory grounds (1) that the petition fails to state a cause of action and (2) that such pleading shows on its face there is a misjoinder of causes of action.
Shortly stated, the over-all question it raises is whether, under the facts and circumstances set forth in the petition, the plaintiffs may maintain a direct action against it as Hensel’s insurer. In the demurrer itself, also in the briefs and argument, American recognizes, concedes, and accepts the force and effect of our decisions in Dunn v. Jones, 143 Kan. 218, 53 P. 2d 918; Twichell v. Hetzel, 145 Kan. 139, 64 P. 2d 557; and Fitzgerald v. Thompson, 167 Kan. 87, 204 P. 2d 756, as well as numerous other decisions cited in the opinion of the latter case, which hold that where, under our statute (G. S. 1949, 66-1,128), an insurance company has executed an insurance policy to enable a public or contract carrier of property to obtain a certificate or license as such, and that policy has been filed with the Corporation Commision pursuant to the terms of such statute, a single action may be maintained against the insurer and the insured notwithstanding that ordinarily such an action against a tortfeasor and a contract obligor would be subject to an objection for misjoinder under the civil code (G. S. 1949, 60-705).
Limits of time and space preclude a detailed discussion of the intricacies of the rule to which we have referred or what is required in order to state a cause of action in conformity with its terms. For our purposes it will suffice to say those matters are outlined in a summary way in the opinion of Fitzgerald v. Thompson, supra, where it is said:
“The rule deducible from the above authorities is that the liability assumed by the insurer is neither a contract liability nor a statutory liability. It is a tort liability — the liability in tort which the insured has ‘from the negligent operation’ of his business under the permit. The fact that this tort liability is determined by the statute and by the insurance policy does not keep it from being a tort liability.
“If the petition states a cause of action in tort against the permit holder and alleges the filing and approval of the liability policy it states a cause of action against the insurer. This is the basis for the holdings of the court that one who sustains injury in his person or property by the negligent operation under the permit of the permit holder may sue both the permit holder and the insurer, or either one of them, and the action is in tort, not in contract.” (pp. 90, 91.)
Resort to the petition heretofore quoted will reveal that so far as American is concerned, plaintiffs do not bring this action under the statute (G. S. 1949, 66-1,128) involved in the foregoing cases but seek to maintain it under the provisions of G. S. 1949, 66-1305, which provide in substance that no motor vehicle transporting passengers or property for compensation entering this state, including motor vehicles not registered or licensed therein, shall be allowed to proceed from the state’s port of entry into the state upon the highways thereof, until and unless it has been duly registered, inspected and a clearance certificate issued therefor. It will also be noted this same section of the statute contains a requirement with respect to insurance, similar to that to be found in G. S. 1949, 66-1,128, which provides in substance that motor vehicles, not licensed or registered in Kansas, shall not be allowed to proceed through the port of entry and into the state and upon its highways unless, among other things, such vehicle shall be covered by liability insurance with coverage for its operation within the state of not less than $5,000 for one person or less than $10,000 for all persons who may sustain injuries or be damaged in any one contingency or accident covered by such policy.
It must be kept in mind our review of the ruling on the demurrer is limited and that we cannot reach out and take into consideration matters, defensive or otherwise, which do not appear upon the face of the petition. It must also be remembered that where— as here — such a pleading has not been motioned upon matters material to the disposition of the demurrer all well pleaded allegations to be found therein must be accepted as true and given the benefit of all reasonable inferences. When that is done it is clear the petition states a cause of action against Hensel and Elsesser for negligent operation of the truck and in addition charges that at the time and place of the accident in question American, for the express purpose of enabling Hensel to get his truck within the state of Kansas and operate it upon its highways pursuant to G. S. 1949, 60-1305, had issued its liability policy whereby it had guaranteed to indemnify any one who suffered damage as a result of the negligence of Hensel in the operation of such truck.
In Fitzgerald v. Thompson, supra, we held that under our statute (G. S. 1949, 66-1,128) the liability of an insurer who gives a liability insurance policy to enable a public or contract carrier of property to obtain a certificate or license as such is a tort liability for the negligent operation of the insured carrier.
In the instant case the petition alleges the insurer issued its liability policy to enable Hensel, who was such a carrier, to obtain a permit which would authorize him to come into the state and operate as such over its highways. We see no sound reason why the liability of an insurer who gives a liability insurance policy to enable a public or contract carrier to obtain a certificate or license under the provisions of G. S. 1949, 66-1,128, should be any different than that of an insurer who gives such a policy to enable the same kind of a carrier to obtain a permit authorizing him to enter the state and use its highways pursuant to the provisions of G. S. 1949, 66-1305. Indeed the reasoning which warrants the conclusion in the first situation, if adhered to, compels a similar conclusion in the second. Therefore, based on Fitzgerald v. Thompson, supra, and the numerous other decisions cited therein, we hold that the liability of American under the allegations of the instant petition, is a tort liability for the negligent operation of its insured carrier. It follows the trial court did not err in overruling the portion of its demurrer based on grounds of misjoinder.
It is suggested the petition does not state a cause of action against American because, under our decisions, Smith v. Republic Underwriters, 152 Kan. 305, 103 P. 2d 858, and Lawrence v. Travelers Mutual Cas. Co., supra, a failure to allege facts showing the truck in question was then being operated pursuant to a permit issued by the Corporation Commission was fatal to any right to proceed against the insurance company, which insured the truck. This suggestion has little merit. The official state board authorized to issue clearance certificates or permits under the provisions of G. S. 1949, 66-1305, is the Port of Entry Board. Other allegations of the petition being sufficient, and as heretofore set forth, a cause of action is stated if the petition alleges the truck, at the time of the accident, was being operated under the permit or certificate of clearance issued by that body. That, when construed in connection with its other allegations, is to be inferred from the instant petition to which is attached a photostatic certified copy of the clearance certificate issued by the Port of Entry Board for the particular trip in question.
In closing it should perhaps be stressed the conclusion just, announced assumes the correctness of and is limited strictly to the factual averments set forth in the instant petition. We are fully aware that upon joinder of issues and a trial upon the merits the plaintiffs may be unable to sustain the cause of action set forth in their petition by adequate proof. That, of course, is a matter not presented by the instant appeal and one .on which we cannot pass until the trial court has been given an opportunity to do so.
The judgment is affirmed. | [
112,
104,
-8,
45,
8,
98,
42,
26,
113,
-91,
39,
83,
-87,
-54,
5,
125,
-18,
61,
81,
106,
-73,
-89,
71,
-70,
-110,
-77,
-5,
-51,
-78,
75,
36,
-42,
77,
48,
10,
-43,
-90,
-54,
-123,
28,
-50,
4,
59,
-24,
-39,
104,
-76,
107,
48,
75,
113,
-113,
99,
32,
24,
-57,
-87,
44,
43,
-83,
-47,
-80,
-85,
-51,
119,
6,
-77,
4,
-104,
5,
-38,
10,
-108,
-79,
41,
-88,
114,
-90,
-121,
-12,
43,
-119,
8,
38,
103,
17,
21,
-19,
-4,
-104,
46,
114,
-99,
-89,
-80,
88,
17,
1,
-65,
31,
80,
49,
7,
-2,
-3,
5,
31,
108,
5,
-49,
-12,
-79,
-49,
114,
-100,
5,
-17,
-121,
-78,
112,
-52,
-14,
93,
71,
58,
31,
-122,
-78
] |
The opinion of the court was delivered by
Thiele, J.:
Alfred T. Berry was tried and convicted on a charge of robbery in the first degree as defined by G. S. 1935, 21-527. His motion for a new trial was denied and he perfected his appeal to this court specifying error in particulars which he discusses under three general headings in his brief.
Appellant’s first contention is that the verdict was not supported by the evidence and was the result of passion and prejudice. His argument that the verdict was not supported by the evidence is predicated on his own review of the evidence wherein he concludes that certain facts were or were not shown. That method of approach to the problem is not in accord with our decisions. The credibility of witnesses and the weight to be accorded their testimony are for the jury and are not subject to appellate review. On appeal the supreme court, in considering the sufficiency of the evidence to sustain a conviction, looks only to evidence favorable to the decision, and if the essential elements of the charge are sustained by any legally admitted evidence, the conviction stands. See, e. g., State v. Greer, 163 Kan. 592, 184 P. 2d 991, and cases cited. It is not necessary that we detail the evidence. The fact that there was a robbery within the terms of the above statute cannot be gainsaid. The only question was whether appellant committed it. The person robbed positively identified appellant as the robber and that alone was sufficient evidence to present the question to the jury notwithstanding appellant’s offered evidence of an alibi. (See State v. Wright, 139 Kan. 14, 29 P. 2d 1099.)
The claim of prejudice is based on statements allegedly made by the county attorney in his opening statement that the person robbed and his companion, who were soldiers, had rendered long and loyal service in the United States armed forces. The abstract does not disclose what the opening statement was or that there was any objection to it and the question is not properly before us for review. If it were, we would have great difficulty in holding that the appellant was prejudiced by its being made, particularly when his own testimony showed that he too served three years in the military service.
Appellant’s second contention is that the trial court erred in denying him permission to endorse the name of Marva Bond on his notice of the plea of alibi. Under our code of criminal procedure (G. S. 1935, 62-1341) the conditions under which an alibi may be proved are set forth and it is provided that a defendant proposing to offer evidence of an alibi must serve a specified notice on the county attorney, and that was done in the instant case. The statute further provides that upon due application and for good cause shown the court, using the discretion with respect thereto now applicable to allowing the county attorney to endorse the names of additional witnesses on an information, may permit the defendant to endorse additional names on the notice of the plea of alibi and the present controversy arises under the latter provision, which has been interpreted as giving the trial court a wide discretion as to the endorsement of additional names. See State v. Rafferty, 145 Kan. 795, 800, 67 P. 2d 1111, where it was pointed out the testimony excluded was merely corroborative, and also State v. Parker, 166 Kan. 707, 711, 204 P. 2d 584. The trial was commenced on March 14,1950. On December 7,1949, appellant, through his counsel, had filed a notice of plea of alibi which listed among others, the name of Mary Bond but which did not list the name of Marva Bond. The notice also contained a statement “other divers witnesses whose names will be set out on demand.” As a result of the state’s motion, on January 16, 1950, the trial court ordered that the names of the other witnesses be set forth by January 20, 1950. No additional names were listed. At the trial, appellant offered Marva Bond as a witness and the state objected to her being used as an alibi witness because her name was not endorsed on the list of alibi witnesses. Appellant’s counsel sought to excuse failure to endorse her name for the reason he had made a mistake and listed Mary Bond when he intended to list Marva Bond and he asked permission to change the name of Mary to Marva and that she be permitted to testify. The jury was excused and at such time appellant’s counsel made a statement of what Marva Bond would testify and that her testimony would be “practically the same as given by Janet Bond” who had previously testified. The trial court sustained the state’s objection and Marva Bond did not testify. Appellant contends the trial court abused its discretion. We do not agree, but even if so the claimed error may not be relied on in this court. On the hearing of the motion for a new trial, appellant made no showing, as required by statute, what Marva Bond would have testified. Under G. S. 1935, 62-1414, new trials in criminal cases may be granted for like causes and under like circumstances as in civil cases. The civil code (G. S. 1935, 60-3004) provides that where the ground of the motion for a new trial is error in the exclusion of evidence or want of a fair opportunity to produce evidence, such evidence must be produced on the hearing of the motion by affidavit, deposition or oral testimony of the witnesses, and our previous rulings are consistent with the statutory command and that if the statute is not complied with there is nothing open to review. See State v. Thomas, 157 Kan. 526, 142 P. 2d 692; State v. Riner, 143 Kan. 520, 54 P. 2d 990, and cases cited.
Under the circumstances obtaining appellant is not entitled to be heard.
Appellant’s third contention is that the trial court erred in not permitting him to endorse on the list of alibi witnesses the names of three other witnesses which it is said were belatedly discovered. The abstract is silent as to any such request or any ruling. In the assignment of errors it is said these three witnesses would have testified as had two others, but there was no showing made on the hearing of the motion for a new trial. What has been said previously suffices to show there was no error.
A review of the record presented discloses no error and the judgment of the trial court is affirmed. | [
48,
-22,
-7,
-65,
56,
96,
34,
92,
81,
-95,
-90,
115,
41,
-58,
5,
107,
-70,
13,
84,
96,
-34,
-73,
23,
-31,
-6,
-13,
-5,
-43,
-79,
-35,
-90,
116,
13,
112,
-126,
-47,
102,
-56,
-59,
28,
-114,
-124,
-88,
83,
82,
48,
36,
110,
-58,
15,
-47,
-97,
-13,
42,
18,
-57,
-23,
44,
-53,
-72,
112,
113,
-118,
-49,
-35,
20,
-77,
2,
-68,
5,
-40,
38,
88,
49,
1,
120,
121,
-90,
-122,
84,
109,
-119,
12,
110,
98,
49,
44,
-22,
36,
-119,
46,
126,
-113,
-89,
20,
64,
-63,
-27,
-106,
-99,
103,
49,
6,
-24,
-13,
28,
29,
108,
47,
-33,
-76,
-77,
9,
52,
-110,
106,
-5,
-95,
16,
113,
-51,
106,
92,
85,
89,
-45,
-122,
-106
] |
The opinion of the court was delivered by
Smith, J.:
This was a mandamus action to compel payment of an award in a highway condemnation proceeding» Judgment was for the plaintiff. The defendants have appealed. The plaintiff has cross-appealed from one item in the judgment.
The motion for a writ alleged that the plaintiff was the owner of certain real estate that was condemned by the county commissioners for highway purposes, pursuant to G. S. 1935, 68-114; that the board viewed the land and awarded plaintiff $114.25 for the land taken and $150 as damages; that a report was filed in the office of the county clerk and the board took possession of the land and caused work to be done thereon.
The motion further alleged that subsequently plaintiff filed his application for additional damages with the board, in the total sum of $801.80, which application was denied and $264.25 allowed; that thereafter plaintiff appealed to the district court, where a trial was had, and a verdict returned for appellant in the amount of $1; and thereafter the trial court allowed the appellant a new trial.
The motion then alleged that while the matter remained undetermined in the district court the plaintiff dismissed his appeal; that thereupon the appeal of plaintiff from the award was terminated and the award of $264.25 became due plaintiff and the board was liable for such amount and had sufficient funds to pay it; that since the termination of the appeal plaintiff had demanded payment and it had been refused.
The prayer was for a writ ordering the board to deliver a warrent for the amount of the award to plaintiff. A motion of the defendants to require the plaintiff to make his petition more definite and certain by stating whether the board should be required to pay the award made on August 7, 1948, or the allowance made on September 7, 1948, was sustained.
Plaintiff then filed an amended motion alleging that on September 7,1948, the board denied plaintiff’s application for damages, affirmed the award made on August 7, and allowed $264.25 only paid him as damages and further alleged that the board was legally liable to him for the award in the amount of $264.25. The motion of the defendants to quash the writ on the ground that neither the writ nor the amended motion stated a cause of action was overruled. In due time the board filed its return. The return denied that the board affirmed the award made on August 7, 1948. It admitted that the commissioners had viewed the road; that plaintiff had asked for damages in the amount of $801.80 and that the appeal in the district court had resulted in a verdict in the amount of one dollar and that the trial court had allowed a new trial. The return then set out a copy of the commissioners’ journal at a meeting on March 28, 1949, which showed that on August 19, 1948, plaintiff had filed a claim for $801.80 with the county clerk; that he referred to the fact that on September 7, 1948, the board had allowed him $264.25; that he had appealed this to the district court, which trial had resulted in a verdict of one dollar; that a new trial had been ordered and plaintiff had appealed. The journal entry pointed out that the warrant drawn on September 7,1948, in favor of plaintiff in the amount of $264.25 had been cancelled by the board.
The journal of the board further recited that the board had on further consideration and discussion of the special benefits accruing to plaintiff by reason of the alteration and widening and construction of the road resolved that plaintiff would receive greater benefit than the value of his property taken and his damages thereto and that the plaintiff should be allowed one dollar in full settlement of his claim filed on September 7,1948, and that all resolutions and other actions of the board in connection with the claim were rescinded.
The return further denied that upon the dismissal of the appeal the award of $264.25 became immediately due, and denied that the board was indebted to the plaintiff in that amount and alleged that there was no stautory provision for the allowance of the original appraisement made on August 7, 1948, and pursuant to G. S. 1935, 60-114, plaintiff was not entitled to any damages on account of the appraisement.
The answer then denied that plaintiff had no adequate remedy at law and alleged that upon plaintiff’s appeal to the district court, the district court then acquired and had original jurisdiction to determine the defendants’ liability and the amount thereof; that when plaintiff voluntarily dismissed his appeal the defendants were relieved of any and all liability to him. The answer denied that their refusal to make the award of $264.25 was wrongful and alleged that mandamus was an extraordinary remedy and only available where plaintiff did not have adequate remedy in the ordinary course of the law and that defendants were not liable to plaintiff in any amount in excess of one dollar.
When the case came on to be heard, at the request of the trial court, the parties made an agreed statement of facts. This was about as the ultimate facts were pleaded in the motion for a writ and the return, except for conclusions, that is, the board awarded plaintiff $114.25 for the land and $150 for damages; took possession of the land; that on August 19, 1948, plaintiff filed an application for damages amounting to $801.80; that this was denied on September 7, 1948, but it was determined that plaintiff should be allowed $264.25; that plaintiff filed notice of appeal; the trial was had in district court; a verdict reached in the amount of one dollar and on December 23, 1948, the county clerk canceled the certificate of $264.25; that on January 17, 1949, the district court sustained plaintiff’s motion for a new trial; that on March 7, 1949, the plaintiff dismissed his appeal; that sufficient money was on hand to pay the amount of $264.25; that on March 28, 1949, the county commissioners decided, as recited in the journal, set out in the answer, that plaintiff had been benefited by the road to the extent that he was not entitled to any damages; that he be allowed $1. It was further agreed that the county pay $9 as expenses of the publication notice and the expense of the trial of two days in the amount of $129.10; that after dismissal of the case in the district court plaintiff requested payment of the $264.25 but payment was refused.
The journal entry of the trial court recited the facts about as they have been detailed here and found that the defendant board of county commissioners had wrongfully refused to make the payment of $264.25 to the plaintiff; that sufficient funds were available for the payment to be made; that plaintiff had no adequate remedy at law and that the writ of mandamus should issue commanding them to make the payment. The trial court also found that defendants should pay the costs of the action, but not including any fee for plaintiff’s attorney. The board has appealed from the order overruling the motion for a new trial and commanding them to make the payment. The plaintiff has cross-appealed from as much of the order as found that the defendant should not be required to pay any attorney’s fees for plaintiff.
Defendants first argue that the trial court erred in issuing the writ because the plaintiff had an adequate remedy at law. To sustain this view they point out G. S. 1935, 60-1702. That section provides, in part:
“The writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law.”
Defendants argue that plaintiff had an adequate remedy by his appeal and abandoned his remedy when he dismissed it.
This argument overlooks the proper interpretation to be given the statute. (See G. S. 1935, 68-114.) This section provides in detail for the taking of land when it is found necessary to do so in order to lay out, relocate, alter, widen or vacate a highway. The power to exercise the right of eminent domain where necessary is placed in the county commissioners. It provides that they shall view the proposed road, appraise the value of the land to be taken, assess the damages, and file a written report of their findings with the county clerk. The statute then has a provision as follows:
“. . . All applications for damages must be filed in writing with the county clerk on or before the first day of the next regular session of the board following the filing of said report, and the board shall at said regular session finally determine upon the amount to be'paid as damages to any owner or owners of any land. And the amounts so allowed shall be paid from the general fund or the road fund of the county in case of county roads and from the township road fund on township roads. The right of appeal from the award of damages made by the county commissioners shall be the same as is now provided by law in other road cases, but such appeal shall not delay any work upon or in relation to said road.”
The plaintiff followed the procedure outlined in the above section by filing his application for damages with the county clerk.
It should be noted the statute provides that the board shall .finally determine the amount to be paid as damages to any owner or owners of any land. The argument of defendants asks us to overlook the provision the board shall at said regular session finally determine. The action of the county board at its meeting of March 28, 1949, finding that plaintiff had not been damaged, was an attempt to reexamine the issues heard by it when it considered the application of plaintiff for damages on September 7,1948, and allowed him $264.25. There is no provision in the statute for such reconsideration.
The situation is somewhat analogous to what was considered by us in Meehan v. Barber County, 108 Kan. 251, 194 Pac. 916. The statute at that time provided that boards of county commissioners should assess and determine the amount of damages sustained by any person through whose property a road was proposed to be established. It further provided in cases where any person had not received notice of the view he might at any time within twelve months after the lo cation of the road file an application for damages with the county-commissioners, who should determine the amount of damages sustained by such person. (See G. S. 1915, § 8760.) The next section provided that the commissioners should make a separate certificate stating the amount of damages assessed by them at the time they made the view and that any person feeling himself aggrieved by the award might appeal to the district court.
The plaintiff whose land had been appropriated took advantage of the twelve months provision and filed an application for damages. The commissioners denied the application. Instead of appealing, the person whose land had been taken commenced an independent action for damages in the district court. We affirmed the judgment of the trial court sustaining the demurrer to the petition and said:
“It is familiar law that filing a claim for damages, under the circumstances stated, waives notice, constitutes a general appearance, and waives irregularity in the proceeding. In passing on a claim for damages, the commissioners exercise quasi-judicial power. Their decision stands as a determination of the subject of damages, by the tribunal appointed by law for the purpose. It has all the conclusiveness of a judgment and cannot be reviewed except in the statutory manner, that is, by appeal (Gen. Stat. 1915, § 8761). Whatever courses were originally open to the plaintiff, he voluntarily came into the road proceeding, and must be satisfied with the remedy applicable to such a proceeding.”
This case is of importance here because we held that the action of the county commissioners in passing upon the application for damages was the exercise of quasi-judicial power and we said further that their action stood as a determination of the subject of damages by the only tribunal provided by law for the purpose.
The statute we are considering here is clearer in its provision for finality than was the statute then passed. G. S. 1935, 68-114, provides that the board shall finally determine upon the amount to be paid as damages. Clearly the legislature in the enactment of that statute intended to confer finality upon the decision reached by the board of county commissioners at its next regular meeting after the view, with the exception that the statute provided for the right of appeal as in other road cases. That is the procedure set out in G. S. 1947 Supp. 68-107. The section with which we are concerned is as follows:
“Any person feeling himself aggrieved by the award of damages made by the board of county commissioners may appeal from the decisions of said board of county commissioners to the district court upon the same terms, in the same manner and with like effect as in appeals from judgments of justices of the peace in civil cases; . . .”
It is to be noted that nowhere in any of these statutes is the right of appeal conferred on the board of county commissioners. The reason for this is plain that since the board makes the award in the first place there would be no reason to confer on them the right to appeal from their own order.
Since this section, G. S. 1947 Supp. 68-107, provides that the appeal shall be in the same manner and with like effect as in appeals from judgments of justices of the peace in civil cases we must look to G. S. 1947 Supp. 61-1005, which provides, in part, as follows:
“If the appeal be dismissed, the cause shall be remanded to the justice of the peace, to be thereafter proceeded in as if no appeal had been taken.”
When we relate that section back to G. S. 1935, 68-104, and these proceedings we find that the plaintiff in-this case did dismiss the appeal and the conclusion is inescapable that when he dismissed his appeal it was the duty of the district court to remand the cause to the county commissioners, to be thereafter proceeded with as if no appeal had been taken. It does not appear in this record whether the trial court did remand the cause back to the county commissioners. If the court did not do so, it was because of action of the board of county commissioners wherein they changed their award from $264.25 to $1. When the plaintiff dismissed his appeal it became the duty of the board to pay him the amount of his award. When the county commissioners refused to pay it on demand, the only thing left for him was to bring this action.
We find it unnecessary to consider the other questions argued by defendants. This disposes of the appeal of defendants.
There remains the cross-appeal of plaintiff. It has to do with that part of the judgment which found the plaintiff was not entitled to recover an attorney s fee as part of the costs. In the journal entry of judgment the trial court said:
“It is further ordered, adjudged and decreed that the defendant Board of County Commissioners pay the costs of this proceeding but not including any fee for plaintiff’s attorney.”
Plaintiff points out that he paid the costs of the trial of his appeal in the district court and argues that when he dismissed that appeal it became the duty of the defendants to pay him the amount of the award. In his petition in this case he alleged that the defendants “wrongfully, maliciously, intentionally and arbitrarily refused to make the payment.”
We have held in mandamus actions under certain circumstances the plaintiff was entitled to an attorney’s fee to be taxed as costs against the defendant. (See King v. Wooster, 111 Kan. 625, 208 Pac. 654.) We have uniformly held, however, that in order for a plaintiff in a mandamus action against a public official to be entitled to an attorney’s fee to be taxed as costs it must appear that the official acted arbitrarily, unfairly or oppressively and where he acted in good faith he was relieved from such personal liability. (See Day v. Cowley County Comm'rs, 146 Kan. 492, 71 P. 2d 871; Cates v. Knapp, 104 Kan. 184, 178 Pac. 447; State, ex rel., v. Bone, 125 Kan. 818, 266 Pac. 85; and Kittredge v. Boyd, 136 Kan. 691, 18 P. 2d 563.)
There was no dispute about the actual facts. The only dispute is as to the conclusion to be drawn therefrom. We find nothing in this record to warrant a conclusion that the action of the board was anything more than the careful scrutiny of the expenditures of public funds which it is the duty of those officials charged with such responsibilities to exercise. There is nothing to indicate they acted arbitrarily or unreasonably.
The judgment of the trial court on the appeal and cross-appeal is affirmed. | [
-16,
-14,
-76,
-100,
74,
-64,
10,
-104,
73,
-7,
-90,
83,
-83,
2,
4,
39,
-86,
61,
117,
105,
-57,
-13,
87,
-29,
-77,
-77,
-5,
-43,
53,
-51,
-4,
86,
76,
32,
-62,
-107,
102,
-64,
-59,
80,
-50,
-121,
-71,
-19,
-55,
72,
48,
63,
0,
75,
53,
-114,
99,
45,
25,
67,
105,
44,
123,
-87,
-56,
-71,
-114,
-115,
111,
12,
17,
-91,
-102,
-127,
72,
42,
-104,
49,
-128,
-24,
115,
-74,
-121,
-12,
73,
-103,
8,
48,
102,
1,
85,
-17,
-8,
-104,
14,
126,
-115,
-90,
27,
88,
74,
97,
-74,
-103,
116,
16,
-121,
126,
-18,
5,
89,
44,
15,
-53,
-110,
-79,
-113,
44,
-118,
75,
-53,
35,
16,
112,
-51,
-70,
94,
102,
121,
27,
15,
-112
] |
The opinion of the court was delivered by
Kagey, J.:
This is an appeal from an order of the district court dismissing an appeal from a ruling of the probate court on a demurrer to a demand, for the reason that the order sustaining the demurrer in probate court was not an appealable order. From the ruling dismissing the appeal from the probate court, the case was appealed to this court.
E. H. Fast, a resident of Shawnee county, died intestate on May 26, 1948, leaving as his sole and only heirs at law Myrtle M. Fast, widow, of Rurlingame, Kansas, and nine sons and daughters, all of whose names and addresses were set out in the petition for administration. John M. Fast, one of the sons, was appointed special administrator of the estate on June 3, 1948, and on July 13, 1948, was appointed general administrator. Minnie M. Minglin’s petition for allowance of her demand was filed February 18, 1949, and was, in essence, a demand for $2,000 allegedly owed by the deceased to her; and for one-half of the property involved consisting of many tracts and parcels of land, household furniture, car, notes, currency and other personal property of an approximate value of $31,000 according to the inventory. The basis of the claim was the alleged existence of a partnership between claimant and E. H. Fast, deceased, prior to his death. To this demand John M. Fast, administrator, lodged a demurrer and Myrtle M. Fast a motion to make more definite and certain. The motion to make more definite and certain was sustained as to certain parts of the demand and overruled as to others; the demurrer was sustained. An appeal was taken to the Shawnee County District Court and the district judge dismissed the appeal on the ground that the order sustaining the demurrer in the probate court was not an appealable order.
Appellant, Minnie M. Minglin, had a claim in the probate court and, whether meritorious or not, was prevented from having her claim heard by virtue of the proceedings in the probate court. G. S. 1947 Supp., 59-2401, detailing appealable orders, does not provide that an appeal may be taken to the district court from the probate court from an order sustaining or overruling a demurrer to a claim or a demand.
Appellee in his brief has called the attention of the court to the cases of Burns v. Drake, 157 Kan. 367, 139 P. 2d 386; Erwin v. Leonard, 166 Kan. 630, 203 P. 2d 207; and In re Estate of Pratt, 164 Kan. 512, 190 P. 2d 872, as supporting the proposition that the bench and bar of this state have approved the filing of demurrers in probate practice. In none of the cases above cited, nor in any other cases decided by this court, did this court pass upon the propriety of the filing of demurrers to claims or demands in the probate court; nor did it pass upon the specific question involved in this appeal.
No purpose would be served in again reviewing the history of our comparatively new probate code. Suffice to say that some objectives of the framers were to simplify procedure and expedite the administration of estates. In the case of Burns v. Drake, supra, this court commented upon the many and important changes the probate code made in the law and said it was not surprising that a number of questions of interpretation and application had already arisen, and that “Others will doubtless arise.”
G. S. 1947 Supp., 59-2237 provides in part as follows:
“Exhibition of demands and hearing thereon; allowance without hearing, when. Any person may exhibit his demand against the estate of a decedent by filing his petition for its allowance in the proper probate court . . . The verification of any demand may be deemed prima facie evidence of its validity unless a written defense thereto is filed. Upon the adjudication of any demand, the court shall enter its judgment allowing or disallowing it . . .” (Italics supplied.)
G. S. 1947 Supp., 59-2210, relating to the form of notice, which the legislature itself authored, of any proceeding in the probate court, provides in part as follows:
“Notice of any hearing, if such is required, shall be in substantially the following form:
“You are hereby notified that a petition has been filed in said court by (name of petitioner and capacity in which he appears) praying for (state nature of petition and the nature of the judgment, order or other relief sought), and you are hereby required to file your written defenses thereto on or before . . .” (Italics supplied.)
The above statutes are the statutes relating to procedure in the probate court after the filing of the demand insofar as they relate to pleadings. It will be seen from the above that the only pleading necessary or proper for opponents of a demand to file in the probate court is a written defense, and that any demurrers or other motions of a similar nature are not proper matters for the probate court. The probate code fixes its own rules relating to pleadings; the code of civil procedure has no application to the probate code, and the only function of the probate judge after a hearing on a demand in an estate proceeding is to allow or disallow it. In the instant case, no hearing was had and no such order made by the probate court.
Appellant has assigned three specifications of error and stated in her brief that there are five questions involved. Briefs were filed by amicus curiae arguing points raised in this appeal. We note also that appellee has filed a “brief of appellee and cross-appellant.” We fail to find any specifications of error, notice of appeal, or argument on a cross appeal, and assume that appellee has abandoned any notion he might have had of cross-appealing from any orders of the lower court. From the view we have taken of the case, it is unnecessary to consider any of the other specifications of error or questions involved.
The judgment of the court below is reversed with directions to remand this case to the probate court for further proceedings.
Price, J., concurs in the result. | [
-112,
108,
-71,
-99,
58,
-96,
3,
40,
98,
-111,
52,
83,
-87,
-14,
5,
127,
122,
29,
-15,
121,
-13,
-73,
54,
-96,
-46,
-13,
-91,
-35,
49,
89,
-25,
-41,
72,
49,
34,
-107,
-58,
66,
-51,
-44,
-52,
11,
-119,
-19,
89,
-62,
48,
121,
50,
11,
113,
47,
-13,
43,
57,
-30,
-23,
46,
-39,
-86,
-52,
-112,
-81,
-123,
127,
31,
16,
-123,
-102,
-121,
88,
-86,
-108,
49,
2,
-24,
51,
38,
-122,
84,
107,
-39,
8,
52,
67,
51,
-91,
-19,
-72,
-102,
46,
26,
-97,
-90,
-70,
25,
42,
97,
-74,
-99,
117,
32,
-117,
-2,
-18,
20,
95,
40,
14,
-49,
-106,
-111,
15,
48,
-100,
-102,
-17,
97,
48,
113,
-55,
-62,
92,
70,
49,
27,
-122,
-78
] |
The opinion of the court was delivered by
Thiele, J.:
The question in this appeal is whether a trust created by the will of Anice R. Hauck has been terminated.
Anice R. Hauck was a resident of Harvey county, who died in November, 1927. Her will was admitted to probate on December 20, 1927. The will, executed under date of September 9, 1927, contained five numbered paragraphs which are summarized or quoted as follows:
Paragraph 1 provided for the payment of debts out of her personal property. Paragraph 2 was:
“After the payment of the debts and expenses above provided to be paid, and for which I trust and hope my personal property will be sufficient, I hereby give and devise to my son, A. B. Hauck, in trust for his' son and my grandson, Arleigh LaVerne Hauck, the West Half (WK) of the Northeast (NEfá) Quarter of Section Six (6), Township Twenty-three (23) South, Range Two (2) East of the Sixth Principal Meridian, Harvey County, Kansas. The terms of the trust in paragraph numbered 2 created shall be as follows:
“(a) The net income derived from said land, or trust funds or property derived from the sale of said land, shall be devoted to the support and education of my said grandson, Arleigh LaVerne Hauck.
“(b) The trust shall be terminated when my said grandson reaches the age of thirty years, at which time said trust estate shall become his absolutely, or in the event he shall die before attaining the age of thirty years, then said trust estate shall become the property absolutely of my son A. B. Hauck, or in the event my son A. B. Hauck dies before Arleigh LaVerne Hauck dies or reaches thirty years' of age, then said trust estate shall become the property of my son, V. S. Hauck, and in the event both of my said sons shall die before the death of my grandson and before he reaches the age of thirty years, then said trust estate shall become the absolute property of my grand-daughter, Signa Brightman.
“(c) My said s'on, A. B. Hauck, shall act as trustee of the trust estate herein created without bond. In the event he dies before my grandson dies or before my grandson reaches the age of thirty years, then my son V. S. Hauck shall act as such trustee without bond, and in the event both my sons die before the termination of said trust, then the court shall appoint a trustee to succeed them and carry out the terms of said trust. Each of the trustees in the order named shall have full power and authority to sell, convey, mortgage, lease or in any manner dispose of the real property above described, always with the provision that the proceeds thereof shall be held intact and reinvested to the best interest of the trust estate.”
Paragraph 3 was a devise of réal estate in Newton, Kan., to Signa Brightman. Paragraph 4 bequeathed and devised the remainder to Signa Brightman. Paragraph 5 appointed a son, V. S. Hauck, as executor.
Although out of order chronologically, as conducive to a better understanding of the pleadings later mentioned, we here note that no question was raised as to the administration of the estate of Anice R. Hauck nor of the trust created by her will. At the trial in the district court, later mentioned, it was stipulated that A. B. Hauck, testamentary trustee, died January 30, 1947; that on February 5, 1947, V. S. Hauck, named as his successor, filed his declination.to serve; that on the same day W. G. Regier was appointed as such trustee and duly qualified; that V. S. Hauck died June 26,1948, and that the records and files of the probate court in the Anice R. Hauck estate should be considered as introduced in evidence. Those records disclose that at the death of Anice R. Hauck she was seventy-nine years old, and that the then ages of the various persons named in the will were as follows: A. B. Hauck, forty-eight, V. S. Hauck thirty-seven, Signa Brightman seventeen and Arleigh LaVerne Hauck five.
On June 13, 1949, Signa Brightman Shuler, the former Signa Brightman, filed her petition in the estate of Anice R. Hauck in the probate court, alleging the creation of the trust created for Arleigh LaVerne Hauck and directing particular attention to paragraph 2 (b) as quoted above, and alleging further that Arleigh LaVerne Hauck had not attained the age of thirty years and that A. B. Hauck and V. S. Hauck were both deceased, and that under the terms of the will in the event both of testator’s sons shall die before the death of Arleigh LaVerne Hauck and before he reaches the age of thirty years, then said trust estate shall become the property of Signa Brightman, and that the real estate described in the will had become the absolute property of petitioner. She further alleged appointment of Regier as trustee and that he should be required to file his final report and make final settlement, and the real estate and all property in his hands as trustee should be assigned to and vested in her as her absolute property, and she so prayed.
Arleigh LaVerne Hauck answered, stating that he was the beneficiary of the trust and now twenty-seven years of age, and, in a summary way, that the provisions for termination of the trust were subordinate, inferior and wholly dependent upon his death prior to his attaining the age of thirty years and that the trust was not terminated. He prayed that the court find the trust terminable only upon his attaining the age of thirty years or upon his death prior thereto; that the alternate contingencies or possibilities of inheritance were insubordinate, inferior and wholly dependent upon his death prior to attaining the age of thirty years; that he had a vested interest subject only to be divested if he should die before attaining the age of thirty years, and that petitioner take nothing under her petition.
Regier, the trustee, filed an answer asking for instructions as to the further administration of the trust estate.
On July 8, 1949, the probate court heard the matter and rendered judgment in favor of Arleigh LaVerne Hauck and against Signa Brightman Shuler and denied her petition. She appealed to the district court, which, in substance, found that paragraph 2 of the will created a trust terminable only upon Arleigh LaVerne Hauck’s attaining the age of thirty years or upon his death prior to attaining that age; that his interest in the property forming the corpus of the trust was a vested interest subject to being divested by his death prior to attaining the age of thirty years; that he was twenty-seven years of age and the beneficiary and that the alternate contingencies or possibilities set forth were subordinate and inferior to his right and wholly dependent upon his death prior to attaining the age of thirty years, and that the words and phrasing following those words stating the trust shall be terminated when he reaches the age of thirty years were, at the time of the judgment, immaterial and would become material only in the event of his death prior to attaining the age of thirty years; that the petition of Signa Brightman Shuler should be denied and that Regier, trustee, should continue with his administration of the trust. The petitioner’s motion for a new trial was denied and she perfected her appeal to this court from the judgment and all adverse rulings, her specification of error being that the trial court erred in not finding the trust terminated and that she was the owner of and entitled to the trust estate.
Appellant and appellees direct attention to authorities treating of rules of law for the construction of wills, but as they are not in disagreement, we need not dwell at length thereon.
In a summary way it may be said that where there is no ambiguity or uncertainty in a will, and where the intention of the testator is clearly and unequivocally expressed, there is no occasion for employing rales of construction (Martin v. Martin, 93 Kan. 714, 145 Pac. 565; In re Estate of Ellertson, 157 Kan. 492, 142 P. 2d 724) and that the ordinary rule for the construction of contracts applies to trust agreements and if their text is plain and unambiguous, the intention will be ascertained from the language used and there is nothing to construe. (Bayless v. Wheeler-Kelly-Hagny Trust Co., 153 Kan. 81, 87, 109 P. 2d 108; Herd v. Chambers, 158 Kan. 614, 149 P. 2d 583.) Where construction is necessary the court must put itself in the situation of the testator when he made his will and from a consideration of the language used in the entire will determine as best it can the intention he endeavored to convey (Dyal v. Brunt, 155 Kan. 141, 123 P. 2d 307; In re Estate of Chevalier, 167 Kan. 67, 204 P. 2d 748) the cardinal rule being that the intention of the testator as gathered from the whole will must control (Selzer v. Selzer, 146 Kan. 273, 69 P. 2d 708; Johnson v. Muller, 149 Kan. 128, 86 P. 2d 569) unless contrary to settled principles of law. (Calkin v. Wallace, 160 Kan. 760, 165 P. 2d 224.) The cases above noted contain citation of others to like effect.
As stated by appellant, there is no dispute of fact. Assuming for the moment the language of the will requires construction, in addition to the facts heretofore stated, the record as abstracted discloses little whereby the court may put itself in the position of the testatrix to determine her situation when she made her will. The probate records disclose that in the inventory filed in her estate the lands described in paragraph 2 of her will were appraised at $2,800 and that the real estate devised by paragraph 3 of her will was appraised at $1,200. It further appears from the records that the lands described in paragraph 2 were subject to a mortgage but the amount thereof is not shown in the abstracts.
In her printed brief, appellant presented an argument based entirely on what she contends the will and the situation disclosed the intention of the testatrix to be, and, although later referred to in more detail, that the testatrix intended the last clause of paragraph 2 (b) to be of primary and controlling force and that under it she became the owner of the trust estate. At the oral argument she made some contention that paragraph 2 contained executory limitations or constituted an executory devise and she filed a belated brief directing attention to some authorities thereon.
As background for her contentions appellant reviews a part of the factual situation and she says that perhaps she was the favored beneficiary under the will because of the devise to her, the fact she is the residuary legatee and the possible beneficiary under the trust created, and, inferentially that the testator’s intention is to be resolved favorably to her. Such a conclusion can be reached only by assuming that she is the beneficiary of the trust and that is a question for decision.
Although presented at length, the gist of appellant’s argument that the trial court erred in its judgment is that the testatrix, after devising the real estate to her son A. B. Hauck in trust for his son and her grandson Arleigh LaVerne Hauck, the income to be used for his support and education, then provided the manner in which the trust should be determined. She contends that the testatrix intended by paragraph 2 (b) that the trust was to be determined when Arleigh reached the age of thirty years, and that event not having occurred at the date of the proceeding and judgment, the trust was not yet determined, his right to take was still potential, and subject to succeeding provisions; that in the event he die before attaining the age of thirty years, then the trust estate was to go to his father, but as the father died first, that particular provision need not be noticed. The next “or” clause that if A. B. Hauck dies before Arleigh the property shall go to V. S. Hauck is explained away by noting that while the word “absolutely” is used with reference to other provisions, it is not used with reference to V. S. Hauck and the only interest he acquired was as trustee and not as an individual owner, and that on his death his interest as trustee ceased and that the final clause is that if both sons died before the grandson and before he reached the age of thirty years, then the trust estate became her property, and by reason of the facts came into operation. She argues further that the provision of paragraph 2 (c) as to a successor trustee is not inconsistent with her analysis for there would have to be a trustee to make a final account in the probate court and a delivery of the trust estate to the beneficiary.
We cannot agree with the contentions advanced by the appellant. In determining the intention of the testatrix from the words used in her will, we are of the opinion it must be assumed she used those words consonant with and not contrary to the law applicable. Under repeated decisions of this court the law favors the early vesting of testamentary gifts, and we are committed to the rule that unless a contrary intention clearly appears an interest will be regarded as vested rather than as contingent. See Cramer v. Browne, 159 Kan. 423, Syl. ¶ 4, 155 P. 2d 468, and cases cited in that opinion. It may not be assumed, as appellant does, that Arleigh LaVerne Hauck’s interest is contingent. Neither are we in agreement with her contention that such interest as V. S. Hauck might have taken was only as a trustee. If her contentions were otherwise correct, under the terms of the will the trust estate vested in him upon the death of A. B. Hauck. In view of our conclusions presently to be stated we need not pursue the question of V. S. Hauck’s rights.
Our consideration of the will leads to the following. Although not of controlling importance, it is to be remembered that when Anice R. Hauck made her will she was seventy-nine years of age, her granddaughter, the appellant, was seventeen, while her grandson Arleigh was an infant of five. Her estate was not large and seems to have consisted of a house and lot in the city of Newton, which she devised to her granddaughter, the appellant, and which so far as the record shows was clear of encumbrance, and of the tract of land now included in the trust involved and which was encumbered in some undisclosed amount. The record does not disclose the state of health of the testatrix nor the family situation of either of her sons, A. B. Hauck and V. S. Hauck. From the will which she made it is apparent that the only persons whom she wished to make beneficiaries were her granddaughter and her grandson. That she made a valuable devise to the granddaughter cannot be denied. It may be assumed from the manner of disposition that she realized that if she gave Arleigh the tract of land, it should not, in view of its encumbered situation and his tender age, be by an absolute devise, and that she considered if she made an absolute devise his interests would have to be preserved through guardianship proceedings and that a trust arrangement would be more suitable to procure her desire that the income from the land, or its proceeds if sold, be used for his support and education. That under paragraph 2 of her will an enforceable trust was created is not open to argument for the property was devised to her son A. B. Hauck in trust for Arleigh, in a manner that offended no rule of law.
How long was the trust to continue? The first clause in paragraph 2 (b) is clear and positive that the trust shall be terminated when Arleigh reaches the age of thirty years. This is clear and unambiguous language fixing the term of the trust, which should not be restricted or cut down by any subsequent vague or doubtful expressions (see, e. g., Holt v. Wilson, 82 Kan. 268, 108 Pac. 87). No two scriveners of a will- would use the same formula of words to express the same provision, but we think it clear from the entire subdivision (b) that all clauses subsequent to the first are subordinate to the first provision that if Arleigh survived to the age of thirty years the trust estate was to become his absolutely, and that the will may not be read and interpreted otherwise. By reason of the prior deaths of A. B. Hauck and V. S. Hauck they or their heirs take nothing. The concluding clause that “and in the event both of my said sons shall die before the death of my grandson and before he reaches the age of thirty years, then said trust estate shall become the absolute property of my granddaughter, Signa Brightman,” does not say and ought not to be contorted to mean that the death of A. B. Hauck and Y. S. Hauck before Arleigh invested her with the trust estate for such an interpretation ignores the important words “and before he reaches the age of thirty years.” Those words are to be read in connection with all of subdivision (b) preceding and refer to the limitation first fixed that the trust is to continue until Arleigh reaches the age of thirty years and mean that Signa takes only if A. B. Hauck and V. S. Hauck die before Arleigh and he die before reaching the age of thirty years. If there were any doubt as to the above it is cleared by subparagraph (c) which expressly provides that if the testatrix’s son A. B. Hauck, the named trustee, shall die before her grandson Arleigh reaches the age of thirty years then her son V. S. Hauck shall be trustee and in the event both shall die before the termination of the trust the court shall appoint a successor. This very provision can have no meaning other than that the trust shall continue until Arleigh reaches the age of thirty years or dies before reaching that age.
From what has been said it is clear from the language used by the testatrix that she intended to vest in him a present interest in the trust estate and that the provisions for termination of the trust do not constitute conditions precedent to such vesting; that on the contrary, those provisions are conditions subsequent which may cut off his interest. (See Hawkins v. Hansen, 92 Kan. 740, syl. ¶ 1, 142 Pac. 280, L. R. A. 1915 A 95.)
We find it unnecessary to discuss the subject of executory limitations, as expounded in 31 C. J. S. 132 (Estates, § 120) et seq. and 19 Am. Jur. 555 (Estates, § 95) et seq. and other aurthorities dealing with the subject, and to classify the devise made by paragraph 2 of the will for if that were done we still would be faced with the problem of the intention of the testatrix and that has been determined.
As applied to the facts presented, it appears that at the date of the judgment that Arleigh LaVerne Hauck was alive and had not attained the age of thirty years. His- interest was still subject to being divested, but the conditions which would divest it had not as yet oc curred. Under such circumsances the appellant was not entitled to a judgment that the trust had terminated and that she was entitled to the trust estate.
It does not appear that the judgment of the trial court was erroneous and it is affirmed. | [
-10,
108,
-44,
-84,
-118,
-32,
26,
-102,
97,
-81,
-95,
83,
-23,
-102,
16,
111,
114,
-83,
-63,
123,
-29,
-77,
23,
1,
-42,
-13,
-6,
-33,
-77,
93,
-10,
86,
76,
48,
10,
-44,
-58,
-55,
-55,
84,
-114,
-122,
-117,
49,
89,
64,
54,
103,
22,
23,
-43,
14,
-13,
41,
29,
-30,
108,
44,
-37,
61,
24,
-16,
-85,
-121,
-33,
23,
1,
4,
-112,
-85,
72,
42,
-104,
53,
-120,
-8,
82,
-90,
-106,
116,
15,
9,
44,
118,
118,
17,
52,
-17,
-80,
-120,
15,
-122,
-123,
-90,
-128,
89,
34,
73,
-108,
-66,
125,
-74,
7,
124,
-26,
69,
26,
-20,
8,
-113,
-44,
-127,
29,
124,
-104,
9,
-13,
53,
33,
97,
-100,
-30,
92,
3,
57,
19,
-98,
-78
] |
The opinion of the court was delivered by
Smith, J.:
This was an action for damages alleged to have been suffered when dust and soot escaped from an asphalt plant and were blown onto the premises of plaintiffs. The trial court sustained plaintiffs’ demurrer to an amended answer of the defendant. The defendant has appealed.
The action was started on January 5, 1949, in the county court of Butler county. The amended petition alleged that the defendant owned and operated a portable asphalt plant; that it mixed hot asphalt and crushed rock, which mixture was poured into a revolving drum, to which was connected a blower, which blew dust and fine particles of rock, smoke and soot through the stack and it was blown upon the home, trees, shrubs and other property belonging to the plaintiffs; that the plant had been operated intermittently for about a month prior to November, 1948; that plaintiffs’ home was about 300 yards from the plant and it was impossible for them to live in it without having their windows and doors tightly closed; that when defendant was about to install this plant at this place, plaintiffs and other parties requested its manager to install it in a less populated area; that they were advised the plant would not cause them damage or discomfort because it had a dust collector attached to it. The petition then alleged that the mixture of dust and oil and other fine particles of soot and smoke were injurious to the plaintiffs’ health; that Mrs. Hofstetter suffered from bronchial asthma and this smoke and soot aggravated her bronchial asthma; that they were unable to keep their home and furniture clean; that it was necessary for them to repaper their house and to clean and refinish their household goods; that they had been deprived of the use of their screened-in porch; that they suffered much discomfort and damage because they had to keep the home closed during the time the plant was operating; that Mrs. Hofstetter could not do her washing and could not keep their yard neat and clean; that the plant was no longer being operated at that location but plaintiffs had suffered property damage in the amount of $785 and $200 damages for discomfort, inconveniences, worry and injury to their health.
On February 12, 1949, the defendant demurred to this petition. The demurrer was overruled.
The defendant’s answer was a general denial. A jury was waived and the court gave judgment for plaintiffs for $408.30 on June 15, 1949. This judgment was appealed. In the district court the defendant moved the court for permission to file instanter a supplemental answer. This permission was given. This answer alleged that on June 28, 1949, the plaintiffs in this case and other plaintiffs filed an action in the district court of Butler county, in which they sought a temporary restraining order and permanent injunction to restrain the asphalt plant, the operation of which was the subject matter of this action, from operating; that this action was tried on its merits and on November 27,1949, the district court made findings of fact and conclusions of law and subsequently entered judgment denying all motions and requests made by both plaintiffs and defendant to set aside findings except to include the words “and are inconvenienced thereby” at the end of one finding, and the plaintiffs had not filed any motion for a new trial and these findings were binding upon the plaintiffs in this action. The pleadings and files in the damage action were made a part of the answer. It was alleged that the cause of action sought to be litigated in the case we are considering should have been litigated in the action for an injunction and the plaintiffs were barred and estopped from maintaining this action. The second amended petition in the injunction action was made a part of the supplemental answer by reference. This amended petition alleged the location of the asphalt plant; about how it caused disagreeable, obnoxious and unhealthy odors to permeate the homes and houses of plaintiffs and to settle upon the plants, trees and other vegetation on the lands of plaintiffs; made it necessary to close the doors and windows; that closing the windows did not keep out the dust, soot and smoke and the cleaning and removing this dust had worn and deteriorated plaintiffs’ home and furnishings and that the particles of soot and dust irritated the lungs and nasal passages of the plaintiffs. The prayer was for an order restraining defendant from operating the asphalt plant at its-present location.
In answer, the defendant George M. Myers, Inc., denied every material allegation except that it admitted it was operating the asphalt plant; alleged the plant was located upon the real estate of the railroad company’s right of way and it denied its operation resulted in any damage or injury to any of the plaintiffs; denied that any soot, smoke, asphalt, oil or noxious or obnoxious fumes or odors were discharged into the air; stated that plaintiffs, and each of them, lived along a dirt and gravel highway in the vicinity of the plant and in a slightly northeasterly direction from the location of the plant and the closest being approximately 800 feet and the farthest being approximately one-fourth mile from the plant; stated it did emit some dust into the air; that before this dust could reach the homes of any of plaintiffs the wind direction had to be within an arc of approximately 15 degrees of a general south-southwesterly direction and of sufficient velocity to carry the dust from the plant to their homes; alleged that the product of the plant was used in the making of public streets and highways; that if operating conditions should permit and there was a market for this product in El Dorado sufficient to warrant its operation, the plant would be operated; that the plant was equipped with the most efficient dust collectors recommended by the manufacturer and its operation was seasonal and was not a continuous day to day operation. The answer also alleged that if plaintiffs were damaged by reason of any smoke or obnoxious or noxious odors or fumes that they came from the daily operation of the coal burning switch engines and locomotives in the railroad yard and burning done at the city refuse dump located south of the homes of plaintiffs and if plaintiffs were damaged, annoyed or inconvenienced by the dust it came from the dirt and gravel on the highway and if the plaintiffs had been dam aged by reason of the operation of the hot asphalt mixing plant of defendant they had an adequate remedy at law against defendant.
The court found that the plant was located as alleged in the petition and also that the dirt and gravel roads ran past the plant and the homes of all plaintiffs; that no asphalt spray escaped into the free air; that the plaintiffs would, if the wind direction were right, and the wind velocity sufficiently strong, have dust which escaped from two stacks blown upon them and would be inconvenienced thereby; that the wind must be from the direction of between 190 degrees and 220 degrees to carry dust from the plant to plaintiffs’ property; that the dust escaping from the stacks of the plant was dry; that it contained no oil, asphalt or fats or other sticky substances; that the plant produced no noxious odors or fumes; produced no soot or smoke and the dust produced by the plant was the dust common to the community; that the plant was efficiently operated; that the main line of a railroad ran parallel to plaintiffs’ property approximately 600 to 700 feet west thereof; that the plaintiffs had some dust, smoke, noise and odors throughout each year from the road, two railroads and the city dump; that the plaintiffs had not been quilty of negligence in the operation of the plant and its operation was seasonal.
The conclusions of law in that case were that the defendant should be enjoined from operating the plant at such times and manner that the dust coming therefrom would injure, molest or interfere with plaintiffs in the peaceable quiet enjoyment of their property. Judgment was entered in accordance with those findings. It should be stated here that all the foregoing was a part of the supplemental answer filed in this action.
The plaintiffs demurred to this supplemental answer on the ground it did not state facts sufficient to constitute a defense to plaintiffs’ cause of action, as set out in their petition, and for the further reason that the allegations contained in the supplemental answer were wholly irrelevant and immaterial. This demurrer was sustained and the defendant has appealed.
The defendant argues that once these facts have been litigated in the injunction action they should not have to be tried again in this action and the findings made there should be binding upon both of the parties in this litigation.
Briefly stated, we have a situation where a party had sued another for damages in the county court and while that action was pending on appeal to district court, together with other parties, brought and carried to final judgment another action to enjoin the defendant in the damage action from carrying on the activity upon which the damage action was based.
We have seen the trial court in the injunction action found many of the issues of fact adversely to the contentions of the plaintiffs in the damage action. Defendant’s position is that when it pleaded the final judgment in the injunction action it thereby stated a defense to the plaintiffs’ action for damages.
All concede the soundness of the rule that where a cause of action has been once litigated it cannot in a subsequent action between the same parties be relitigated.
The question with which we are confronted, however, is whether under the peculiar circumstances the judgment in the later injunction action is res judicata of the issues in the earlier damage action.
The rule as to when one judgment is res judicata of the issues in another action was stated as follows in A. T. & S. F. Rld. Co. v. Comm'rs of Jefferson Co., 12 Kan. 127:
“To make a matter res judicata there must be a concurrence of the four conditions following, namely: 1st, Identity in the thing sued for. 2d, Identity of the cause of action. 3d, Identity of persons and of parties to the action. 4th, Identity of the quality in the persons for or against whom, the claim is made.”
This has been reaffirmed in Rea v. Telephone Co., 87 Kan. 665, 125 Pac. 27. (See, also Rea v. Telephone Co., 88 Kan. 82, 127 Pac. 603; also Atchison & Eastern Bridge Co. v. Atchison County Comm'rs, 150 Kan. 24, 91 P. 2d 34.) We need only ascertain whether these two actions come within this rule.
In the first place, the parties are not identical. The damage action was brought and tried in the county court and is pending in the district court in the name of Mr. and Mrs. A. A. Hoffstetter only. The subsequent injunction action was brought and carried through by Mr. and Mrs. A. A. Hoffstetter and eight other persons. While two of the parties are the same th’e fact there are eight other parties in the injunction action prevents holding that the parties in the two actions are identical. In the second place, there is no identity in the causes of action. The petition in the damage action charged defendant with having, during a month prior to November, 1948, until the second week in that month, all prior to January 5,1949, so operated its asphalt plant as to damage plaintiffs. The action was to recover these damages. Final judgment in that action was entered in the county court on March 2, 1949. The judgment was of necessity based on acts and conduct of defendant prior to that time. The plaintiffs could not ask for damages on account of future conduct of defendant. The defendant appealed that judgment to the district court on March 9, 1949. Nothing more was done in that action until almost a year later, when permission to file the supplemental answer was asked and granted. In the meantime, according to the supplemental answer, the injunction action had been commenced on June 28, 1949. It was carried through to a final judgment on.December 27, 1949. The cause of action sued for in that action was the manner in which defendant had been operating its plant during the time covered by the pleadings, that is, from June, 1948 to August 6, 1949. It will be noted most of this period of time was subsequent to the date when the judgment was entered in the damage action. It is true the petition in the injunction action alleged that the plaintiffs had suffered damages from the operation of the machine. However, in order to state a cause of action for an injunction it was necessary that the petition further state “and will continue to suffer such damages in the future if said machine is continued in operation.”
The findings of fact in the injunction as to the manner in which the asphalt plant was operated were all in the present tense except the finding that the defendant had not been guilty of negligence in the operation of the plant. In this connection it should be noted the plaintiffs in the damage action did not predicate their cause of action on the negligence of defendant.
For anything that appears in this record the manner in which the plant was operated, which plaintiffs in the damage action argued damaged them, could have been corrected by the time the injunction action was tried.
The situation here is analogous to that in Stroup v. Pepper, 69 Kan. 241, 76 Pac. 825. That was an ejectment action where the defendant claimed the rights of a mortgagee in possession. We held:
“In an action of ejectment defendant claimed the rights of a mortgagee in possession. Plaintiff showed that in a prior suit between the same parties defendant in the ejectment action sought to foreclose the mortgage relied on to justify possession, but it appeared that, after setting it up as a cause of action, all reference to it was stricken from the pleadings by the court because of improper joinder of causes of action. Held, that, although the mortgage might have been foreclosed in the equity suit, the rights of the mortgagee were not actually determined, and that the decree therein did not affect the rights of defendant as a mortgagee in possession in the subsequent ejectment action.”
That decision was cited by us in Chanute Brick & Tile Company v. The Gas Belt Fuel Company, 89 Kan. 177, 130 Pac. 649 a per curiam opinion. There we said in part:
“The only issue litigated in the former action was whether the brick company was entitled to certain equitable relief. The question of damages for failure to furnish gas was not considered. The former judgment therefore could not be pleaded as a defense to the present action. (Stroup v. Pepper, 69 Kan. 241, 76 Pac. 825.) The evidence in the first suit would not have tended to sustain the issue here.”
There, as here, the only issue litigated in the injunction action was whether the plaintiffs in that action were entitled to certain equitable relief. The question of damages for the period of time for which damages were claimed in the damage action was not litigated. Without deciding whether an action for damages and an action for an injunction may be joined, suffice it to say that they were not joined in this case and in the injunction action there was no claim for damages, no evidence as to damages and no finding as to damage. The demurrer to the supplemental answer was correctly sustained.
Defendant next argues his demurrer to plaintiffs’ petition should have been sustained because several causes of action were improperly joined. The action was brought in the name of a husband and wife to recover for damages to their home. What defendant refers to as different causes of action are merely different items of this alleged damage. The demurrer was properly overruled.
The judgment of the trial court is affirmed. | [
-12,
120,
-8,
-68,
10,
-31,
56,
-40,
79,
-95,
-9,
83,
-19,
-61,
-115,
33,
-65,
121,
81,
107,
-29,
-93,
23,
18,
-110,
-77,
-69,
-43,
-72,
78,
-11,
-2,
108,
52,
-62,
-115,
-90,
-48,
71,
92,
-50,
13,
105,
-19,
-39,
66,
-80,
59,
-78,
77,
21,
-98,
-13,
46,
25,
-57,
41,
41,
-5,
-88,
67,
-16,
-118,
-123,
111,
26,
-93,
-28,
-124,
-125,
-40,
74,
-112,
49,
-128,
-24,
115,
-90,
-108,
-12,
39,
-87,
8,
96,
98,
49,
21,
-25,
-24,
-104,
38,
-2,
-65,
-90,
19,
88,
27,
-128,
-66,
-98,
116,
18,
-113,
58,
-18,
21,
93,
40,
-114,
-54,
-76,
-95,
15,
48,
-100,
3,
-21,
-93,
34,
117,
-55,
-70,
94,
-59,
51,
-101,
70,
-40
] |
The opinion of the court was delivered by
Smith, J.:
This was a proceeding to determine the validity of an antenuptial contract and to determine the rights of the surviving widow in the assets of the estate of her deceased husband. The trial court upheld the contract and held the widow to be entitled to certain statutory rights. The executor and certain legatees have appealed and the widow has cross-appealed.
The executor named filed a petition for probate of the will of Carl Neis alleging testator died August 14, 1948, leaving some twenty-one devisees and at the time of death owned real property worth $40,000 and personal property worth $15,000; that he was named executor in the will and was a resident of Douglas county. He prayed for an order admitting the will to probate and naming him executor.
The will referred to a contract between testator and his wife, bequeathed her $15,000, left specific bequests to named persons and left the residue to his brothers and sisters and heirs of a deceased brother or sister and provided these heirs should take the share the brother or sister would have taken had they survived. The will was duly admitted to probate and on September 17, 1948, an inventory was filed as follows:.
“Real estate ............................................. $54,187.00
Corporation Stock ....................................... 30,175.00
Bonds, mortgages and other written evidences of debt.......... 32,634.75
All other personal property ................................ 9,535.91
Total appraised value of estate.................... $126,532.66”
On December 9, 1948, the widow filed her election to take under the law rather than under the will and on the same date filed her petition to set aside homestead and personal property under the statutes. In this she alleged that she was the widow; that there were no minor children and at the time of his death she and the testator occupied a described quarter section as a homestead; that it was then occupied as her homestead and she desired it to be set apart to her as a homestead and she selected certain personal property, including a described automobile and $750 to be allowed her from the estate in accordance with G. S. 1947 Supp., 59-403.
On December 16, 1948, the executor filed a petition to determine the rights of the widow in the estate under an antenuptial contract between her and the testator. In this he alleged that he was, in addition to being executor, one of the beneficiaries under the will. He pointed out the clause of the will bequeathing Ora $15,000 and a clause directing the executor to sell the property and to pay the bequests. He further alleged that on December 20, 1945, deceased and Ora entered into an antenuptial contract, which was still in full force and effect. He next referred to the petition to set aside homestead and personal property and to her election to take under the law and further stated that in his judgment all the property should be sold by him as directed in paragraph X of the will. He alleged that he could not carry out the terms of that paragraph until the court had determined the claim of Ora, the widow; that she and all the devisees were interested parties, as well as the Internal Revenue Department of the United States; that in accordance with the antenuptial contract Ora should receive $15,000 and no more and she was barred from claiming any homestead rights or other rights in the property with the exception of the $15,000 mentioned. Pie prayed for an order setting the case for hearing, declaring the antenuptial agreement to be in full force at that time and at the time of the death of the deceased and that Ora be barred from any rights in the estate with the exception of $15,000 and that her petition to set aside the homestead and personal property rights be denied. The antenuptial contract, to which reference has been made, was as follows:
“This Indenture, Made this 20 day of December, 1945, between Carl Neis of Eudora, Kansas, of the one part, and Ora E. Cooper of Lawrence, Kansas, of the other part.
“Whereas, a marriage is intended to be solemnized between said parties, and in view of the fact that after their marriage, in the absence of any agreement to the contrary, their legal relations and powers as regards property may, by reason of some change in their domicile, or otherwise, be other than those of their present domicile, or other than those which they desire to have apply to their relations, powers and capacities; and
“Whereas each of the parties hereto has disclosed to the other the full amount of all property owned by each of said parties:
“Now This Indenture Witnesseth, that each of them, the said Carl Neis and Ora E. Cooper hereby agrees, covenants and declares it to be his or her desire that during their marriage each of them shall be and continue completely independent of the other as regards the enjoyment and disposal of all property, whether owned by either of them at the commencement of the marriage or hereafter acquired, or coming to them or either of them during the marriage. And each of them hereby agrees and covenants with the other, in view and consideration of said proposed marriage, that so far as is legally possible by their private act and agreement, all the property belonging to either of them at the commencement of the marriage, or acquired by or coming to either of them during the marriage, shall be held and be enjoyed by him or her, and be subject to his or her disposition as his or her separate property in the same manner as if the said proposed marriage had never been celebrated. And if either party desires to sell or mortgage his or her property or any part thereof, the other agrees to join in said deed or mortgage without any consideration, other than the marriage herein referred to.
“And the parties hereto expressly further agree and covenant to and with each other, that upon the death of either, the survivor, shall not have and will not assert any claim, interest, estate or title, under the laws of any state, because of such survivorship, in or to the property, real, personal or mixed, or life insurance, of which such deceased party die seized or possessed, except as hereinafter provided: and such survivor hereby relinquishes to the heirs, devisees, administrators, executors and assigns of such deceased party, any and all of his or her claim, distributive share, interest, estate, or title, that he or she would be entitled to, as the surviving husband or wife respectively; and agrees upon demand, to make, execute and deliver to the heirs, devisees, administrators, executors and assigns of such deceased party any and all such claim, interest, estate, right or title, and upon demand to make, execute and deliver to the heirs, devisees, administrators, executors and assigns of such deceased party any and all acquittances, assignments, assurances, deeds, instruments and receipts, that may be necessary and required to effectually carry out and make effective, his or her agreements herein contained.
“It is distinctly understood and agreed between the parties hereto that if Ora E. Cooper shall remain with and be the wife of the other party, Carl Neis up until the date of his death then she shall receive from his estate the sum of Fifteen Thousand Dollars ($15,000.00), but if she does not remain with and be the wife of Carl Neis up until the date of his death then in that event she shall not receive said Fifteen Thousand Dollars ($15,000.00).
“The parties hereto have read the above and foregoing agreement and each of them knows the contents thereof, and fully understand all the terms and conditions contained in this contract.
“To the full and proper performance of all the foregoing agreements, covenants, and stipulations, the parties hereto, respectively bind themselves, their heirs, devisees, executors, administrators and assigns.
“In Witness Whereof, the said parties have hereunto set their hands and seals at Lawrence, Kansas, this 20 day of December, 1945.
“Carl Neis
“Ora E. Cooper.”
A power of attorney given testator by Ora was attached to the contract. This provided as follows:
“Know All Men By These Presents, That I the undersigned, Ora E. Cooper of Lawrence in the county of Douglas, State of Kansas, have made, constituted and appointed, and by these presents, do make, constitute and appoint Carl Neis of Eudora, in the county of Douglas, State of Kansas, my true and lawful attorney in fact, for me and in my name and stead, and to my use, to grant, bargain, sell or mortgage any and all property which he may own or hereafter acquire, or any part thereof, for such price and on such terms as to him shall seem meet, and for me and in my name to make, execute, acknowledge and deliver good and sufficient deeds of conveyance or mortgages for the same, with or without covenants of warranty, hereby giving unto my said attorney in fact, full authority and power to do everything whatsoever requisite or necessary to be done in the premises, as fully as I could or might do if personally present, hereby confirming and ratifying all that my said attorney in fact, shall lawfully do or cause to be done, hereunder.
“This power of attorney having been executed as part consideration for the marriage mentioned in the contract hereto attached, shall not be subject to revocation.
“Witness My Hand, this 20 day of December, 1945.
“Ora E. Cooper.”
On January 10,1949, the executor filed his answer to Ora’s petition to set aside the homestead and personal property. In this he referred to an antenuptial agreement; stated that it was full force; alleged that by reason of it Ora was barred from having the homestead and personal property set apart; stated that it barred her from making any election to take under the laws of the state of Kansas or any other state concerning descents and distribution with the exception that she was to receive in accordance with the terms and conditions of such agreement the sum of $15,000.
He prayed for an order denying the petition of Ora to set apart the homestead and personal property.
On January 10, 1949, each of the beneficiaries except Ora and the executor filed his separate answer in which each referred to the ante-nuptial contract and said it barred Ora from receiving anything from the estate except the $15,000.
On February 4,1949, Ora filed her amended answer to the executor’s petition. She stated in this that she and the testator were married on December 22,1945, and on December 20,1945, deceased suggested to her that they have prepared and executed the antenuptial contract. She alleged that there was no discussion as to its terms; that she went to a lawyer’s office and that in a consultation in the lawyer’s office the lawyer dictated an agreement; that the testator told the lawyer to provide in the agreement to give her twelve or fifteen thousand dollars; that they left the office and when they returned the document was written and they signed it; that she took no part in the negotiations with reference to the contract; that the statement and agreement reading “And whereas each of the parties hereto had disclosed to the other the full amount of all property owned by each of said parties” was not a correct statement; that testator never had disclosed to her the amount of his property; that her estate was nominal; nor did testator ever tell her of the extent of his estate; that no statement was made in the presence of the lawyer that he owned any amount of real or personal property; that she did not know he owned $70,000 or that the real estate owned by him was of the value of $50,000. She alleged that she was not acquainted with the provisions of the Kansas statutes with reference to the right to inherit from a deceased spouse but that she had been a resident of Missouri and did not know the laws of Kansas and she was not informed of her rights or given any opportunity to consult a lawyer. She alleged she was not advised by testator that he had executed the will which had been offered for probate and the testator did not ask her to consent to its terms; that she was deceived by the concealment as to the extent of the property owned by testator and had she known the extent of his property and the provisions of the statutes of Kansas she would not have entered into the contract. She prayed that the contract be set aside; that she be allowed to take under the law instead of under the will; that she be allowed the statutory provisions due a widow in reference to a homestead and statutory allowances.
By these pleadings two proceedings were put at issue — first, the application by Ora for an order awarding her the use of the homestead and other allowances and exemptions due a widow and half of all the property of which testator died seized; second, a petition by the executor setting up the antenuptial contract and asking for an order holding it valid and that the widow be required to accept the $15,000 provided in it given her by the will of Carl.
On February 10, 1949, all of the matters were put in issue by the pleadings and were heard by the probate judge. The evidence furnished was taken in shorthand and reduced to writing. The court found that it was agreed that all the evidence should be heard in one hearing. The court further found that the antenuptial contract entered into between decedent and Ora on December 20, 1945, was a valid antenuptial contract and was in full force and effect and Ora was bound by it and her election not to take under the will was unenforceable and of no effect. The court further found that notwithstanding the antenuptial agreement Ora was entitled to have set apart to her the 160 acres which she asked to have set apart to her, as well as personal property, wearing apparel, family library, pictures, musical instruments, furniture, household goods, utensils and implements used in the home, one automobile, fuel or anything for her support for a year, and the sum of $750.
Judgment was entered by the probate court accordingly.
In due time Ora appealed to the district court from that part of the order holding the antenuptial agreement to be valid. The other devisees and the executor appealed from that part of it allowing the petition of Ora for allowances and the homestead. The district court heard the appeal on the written transcript of the evidence that had been made following the hearing in the probate court.
The district court found that the antenuptial contract was fairly and understandingly made, was a valid agreement and in full force and effect and the election of Ora to take under the law was inoperative. The court further found that notwithstanding the ante-nuptial contract, Ora was entitled to have set apart to her the quarter section mentioned as her homestead and was also entitled to have set apart to her from the personal property of which decedent was possessed at his death the wearing apparel, family library, pictures, musical instruments, furniture and household goods, utensils and implements used in tire home, one automobile, provisions and fuel necessary for Ora’s support for one year and the sum of $750 as her statutory allowance of personal property as the widow of decedent.
Ora has appealed from that part of the judgment that held the contract to be valid. The executor has appealed from as much of it as held Ora to be entitled to have the homestead and personal property set off to her.
We first consider Ora’s appeal. At the outset she points out to us the district court heard the appeal on the transcript of evidence taken in probate court. She argues that under such circumstances we on appeal will review the evidence and will make our own findings and conclusions therefrom. She is correct in this. (See In re Estate of Kemper, 157 Kan. 727, 145 P. 2d 103; and Protheroe v. Davies, 149 Kan. 720, 89 P. 2d 890.)
We shall, therefore, examine the evidence. The rule is that an antenuptial contract is valid and binding, if freely and understandingly made, and there is no fraud or deceit. Our problem is to decide whether the evidence is such as to compel a finding that this contract does not meet that test. As determiners of the fact. we must consider all the surrounding circumstances. At the outset, Ora charges she did not know and was not advised of even the approximate extent of the property of her husband-to-be. She charges this was fraud by concealment.
It is true she testified she was not told of the amount of her husband’s worth. She could testify and her husband’s lips are sealed. There is a bit of evidence on this point, however, from the lawyer who drew the contract. He testified that when the three were going over it and reached the point where it stated the parties had told each other what property each had he asked them if they had done that and decedent said “I told her what I had but I am not interested in what she has.” In reference to this bit of evidence, she testified the statement in the contract “all the parties hereto have disclosed to the other the full amount of all property owned by each of said parties” was not true. She testified “I just supposed Carl would tell me later what he had. I figured he thought it wasn’t any of Mr. Riling’s business so he would tell me later, but he never did.” At any rate, this record does not disclose that she did anything more than sit mute when decedent stated to his lawyer in her presence that he had made a disclosure to her. There is another interesting circumstance bearing on this point in her testimony. She testified that she had known decedent about four years before they were married; that she knew he lived on a farm but did not know that he owned it; she just supposed he did; that she and her former husband went around socially with decedent and she guessed her former husband borrowed money from decedent. These four years were evidently spent there in the same neighborhood with decedent. Under all these circumstances, it hardly seems reasonable that she would not have learned that decedent was a man of substantial means, at least. Then there is the circumstance of her signing the income tax returns for 1945 and 1947, and having no knowledge of their contents. This hardly seems reasonable. We cannot overlook the testimony of the barber. When Ora told him she was going to marry Carl he said “that old boy is pretty well fixed.” He further testified she said in reply “Maybe you think I don’t know that.” All these circumstances weigh quite heavily with us. We will consider them later together with another phase of the case.
Ora argues that since there was a confidential relationship between her and decedent the duty was upon him to make a full and complete disclosure of the property owned by him and that in an action such as this to enforce an antenuptial contract the burden is upon him to show that he did make a complete and full disclosure. She bases that argument upon the fact that the provision made for her in the antenuptial contract was disproportionate to his means. In this connection she points out that decedent’s estate at the time of execution of the contract was well over $100,000 and that he agreed to give her in the contract only $15,000. There are some circumstances which we feel compelled to consider, however, in this connection.
In the first place, the lawyer who drew the contract testified that when they all three discussed the payment of the $15,000 she said:
“Well, in addition, if Carl should die before I do, in addition to the Fifteen Thousand Dollars, I’d have a home there up until the time of his death and I would have a place to raise chickens and accumulate something in addition to the fifteen thousand.”
This sounds like the statement of a woman who was happy to know she was to have a home where she would be well treated and allowed to carry on the sort of an enterprise most farm wives carry on, that is, the raising of chickens. We have, too, the evidence of the lawyer, of a statement of decedent that he could make any gifts he wished to Ora during her lifetime and the contract would still be valid. In this connection we must consider that Ora had not had too easy an existence up to then. She had been married twice and had a daughter by one of her husbands. She had divorced her first husband and received no estate from him. Her second husband had died and had left her only a small estate, so at the time of the execution of the contract she had $2,000. At that time she was earning $37 a week and she was 53 years old.
From the story of her lifetime the $15,000, which she was to receive at Carl’s death, together with a home and an opportunity to raise chickens, and the care every husband is bound by law to give his wife was a welcome change from her existence up to that time working for $37 a week. We find nothing sinister about the fact that decedent employed a lawyer to write the contract nor do we give much weight to the fact that decedent told Ora on Sunday night, December 20, before they were married the following Thursday, that he wanted to enter into an antenuptial contract with her. The fact in and of itself does not give rise to any doubt as to his good faith.
There is still another persuasive circumstance on this point. The lawyer who drew up the contract testified as to a conversation with Ora in the hospital after the death of decedent. She was badly injured and had requested the lawyer to come out there. He testified at that time she was worried and expressed concern about whether the family would let her have the stove, the icebox and the chickens that were on the home place. It appears she claimed decedent had given her these things. We have already stated the conversation about the chickens at the time the contract was signed. She also expressed concern about whether she would be permitted to stay on the home place until she recuperated. This sounds more like the action and talk of one who realized the force and effect of the contract in question than of one who was preparing to resist the enforcement of the contract. It leads us to believe the idea about claiming the contract was not freely and understandingly executed was an afterthought. This conversation furthermore is entirely consistent with the conversation at the time the contract was executed. There is the added circumstance that decedent’s will was executed for some time before his death, she read it and knew its provisions and said nothing.
When an appellate court examines a record and makes a finding of fact it must set down the reasons impelling it to reach such a finding. Juries and trial courts are spared that burden. We have read this record carefully and have reached the conclusion the trial court made the only finding it could have made on this point. To find otherwise would be to establish a precedent that in the case of an antenuptial contract after one of the parties to it was dead the other party could tell any story and thereby strike the contract down. The only recourse triers of issues of fact have in a case such as that is to weigh the circumstances carefully. In Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537, we said:
“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.”
Hafer v. Hafer, supra, is the leading case in this state on the question of the validity of antenuptial contracts. Later in Watson v. Watson, 104 Kan. 578, 180 Pac. 242, we held:
“An antenuptial contract must be upheld unless some fraud, deceit or unreasonable inadequacy or disproportion appears. If the latter appear, the presumption of fraud is raised, and the burden is on the husband or those claiming under him to show that the wife was fully informed as to his property.”
See, also, In re Estate of Cantrell, 154 Kan. 546, 119 P. 2d 483, where we held:
“Where it appears that an antenuptial contract was understandingly made and freely executed, and where there is an absence of anything showing fraud or deceit, the mere fact tire intended husband did not disclose in detail to the intended wife tire nature, extent and value of his property will not, of itself, invalidate tire contract or raise a presumption of fraudulent concealment, and if from a consideration of all the facts concerning the situation of the parties, such as their respective ages, family conditions, property rights, etc., at the time the contract was made the trial court concludes the intended wife was not overreached, the contract should be sustained.”
(See, also, In re Estate of Place, 166 Kan. 528, 203 P. 2d 132; In re Estate of Schippel, 169 Kan. 151, 218 P. 2d 192.)
We conclude that the court did not err in holding the antenuptial contract was freely and understandably executed and was valid and in force at the time of the death of the decedent.
We go now to the appeal of the executor from so much of the judgment as sets aside the homestead and personal property to Ora. The language of the contract on this question will be repeated here even though it has heretofore been set out in this opinion. It is as follows:
“And the parties hereto expressly further agree and covenant to and with each other, that upon the death of either, the survivor shall not have and will not assert any claim, interest, estate or title, under the laws of any state, because of such survivorship, in or to the property, real, personal or mixed, or life insurance of which such deceased party die seized or possessed, except as hereinafter provided: and such survivor hereby relinquishes to the heirs, devisees, administrators, executors and assigns of such deceased party, any and all of his or her claimed distributive share, interest, estate, or title, that he or she would be entitled to, as the surviving husband or wife respectively; and agrees upon demand, to make, execute and deliver to the heirs, devisees, administrators, executors, and assigns of such deceased party any and all such claim, interest, estate, right or title, and upon demand to make, execute and deliver to the heirs, devisees, administrators, executors, and assigns of such deceased party any and all acquittances, assignments, assurances, deeds, instruments, and receipts, that may be necessary and required to effectually carry out and make effective, his or her agreements herein contained.”
If Ora could waive her homestead rights in the home place by an antenuptial contract the above language is plain enough that she did so. However, we have said that she could not do it in the same cases that have heretofore been cited. In Hafer v. Hafer, supra, we held that the homestead of the parties and occupied by his widow and minor child after his death could not be partitioned until the widow remarried or the child reached maturity notwithstanding the ante-nuptial contract and even though the minor child asked that it be partitioned. We placed the decision on the fact that what constituted homestead rights was not alone for the husband and wife or for either of them, but as a protection for the family. We remarked that strict constitutional and statutory regulations have been placed upon its alienation. We said:
“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 have followed the rule consistently since. See Watson v. Watson, 106 Kan. 693, 189 Pac. 949, where we held:
“The restrictions of the constitution and statutes touching tire alienation of a homestead are for the protection of the family, and cannot be varied or avoided by an antenuptial contract providing that in case the wife survives the husband she is to have no part in his estate. Hence, so long as such surviving widow remains unmarried she may occupy the homestead regardless of such contract.”
See, also, In re Estate of Place, supra. This is a familiar case and we took some pains to go over the same. After doing so we said:
“There is no doubt that under the cases above noted, homestead rights could not be cut off by the antenuptial contract under consideration. Review of cases dealing with postnuptial contracts is unnecessary.”
Indeed the executor’s argument in this connection asks us to reexamine the authorities and change the rule. We do not care to do that.
A somewhat different situation presents itself as to that part of the court’s judgment setting aside the personal property. That is a statutory matter. In In re Estate of Place, supra, we considered that question and held that the widow of decedent could waive her right to the statutory allowances although we held that under the contract being considered she had not waived it. (See, also, In re Estate of Fawcett, 163 Kan. 448, 183 P. 2d 403 and Burns v. Spiker, 109 Kan. 22, 202 Pac. 370.) A fair interpretation of this contract leads us to the conclusion that Ora did waive her statutory allowance of personal property here.
It follows that sp much of the judgment of the trial court as sets aside the personal property to Ora cannot stand.
The judgment of the trial court holding the antenuptial contract to be a valid contract is affirmed. So much of the judgment as holds that the homestead should be set off to Ora is affirmed. So much of the judgment as holds the personal property should be set off to Ora is reversed. | [
115,
124,
-124,
-99,
58,
-32,
-86,
-103,
105,
-24,
37,
115,
-23,
10,
20,
107,
51,
45,
65,
107,
-41,
-77,
22,
-95,
86,
-77,
-77,
-49,
-80,
-36,
-67,
95,
77,
36,
42,
-59,
102,
-117,
69,
16,
-52,
2,
-119,
-31,
-39,
114,
48,
59,
-10,
-55,
-47,
-34,
-13,
45,
61,
66,
40,
46,
123,
-88,
-64,
-72,
-85,
-123,
93,
23,
-111,
6,
-36,
-25,
72,
10,
-104,
57,
-120,
-24,
115,
-74,
-106,
92,
107,
-71,
12,
102,
102,
34,
-43,
-17,
-8,
-104,
15,
54,
29,
-89,
23,
88,
-125,
99,
-74,
25,
109,
16,
11,
-10,
-26,
92,
24,
108,
13,
-118,
-42,
-79,
15,
124,
-120,
10,
-21,
-126,
49,
113,
-55,
34,
92,
99,
121,
-103,
-114,
-80
] |
The opinion of the court was delivered by
Wertz, J.:
These two actions were brought by the administrator of the estate of O. J. Connell, deceased, to recover as part of the decedent’s estate corporation stock transferred' from decedent either before or after his death. They were heard together in the court below and consolidated here. Two of the defendants, M. M. Buist and F. J. Buist, demurred to plaintiff’s amended petitions. In each case the demurrer was overruled by the court. Pleadings in each case insofar as the pertinent question on appeal is concerned are identical; therefore, in the interest of brevity, one case only will be stated and the conclusion reached therein will be equally applicable to the other case.
The actions were commenced June 9, 1949, by the filing of petitions which, in each case, were later amended to conform with court orders. We will narrate the formal parts of the petition in case no. 37,985 and quote those parts pertinent to the question involved here.
Plaintiff for his cause of action against defendants, The Saco Oil Company, Inc., a Kansas corporation, and M. M. Buist, F. J. Buist, and E. J. Bribach, as individuals and as officers of the Saco Oil Company, alleged plaintiff’s residence to be El Dorado, Kan.; that he was appointed administrator of the estate of O. J. Connell, deceased, by the probate court of Butler county, Kansas, on August 13, 1947; that the action was commenced by virtue of an order of the probate court; that the Saco Oil Company is a corporation and that M. M. Buist is secretary-treasurer of the corporation, F. J. Buist is vice-president, and E. J. Bribach is acting in the capacity of president. The residence of all parties was set forth. It was alleged that O. J. Connell died intestate at El Dorado on August 3, 1947; that he had been president of defendant corporation from the time of its organization in 1934 until his death; that according to the stock record books of the corporation, twenty-three stock certificates were issued by the date January 12, 1948; that until May 5, 1939, the capital stock consisted of 500 shares of which O. J. Connell owned more than 51 percent; on May 5, 1939, the outstanding capital stock of defendant corporation was increased to 1,500 shares; certificate No. 16 was issued to O. J. Connell for 500 shares and certificate No. 15 to E. J. Bribach for 500 shares.
“9. That on December 31, 1946, the common stock of said defendant corporation was owned, in the following manner, to-wit:
(a) O. J. Connell.
Certificate No. 11 for 200 shares. Certificate No. 12 for 48 shares.
Certificate No. 13 for 80% shares. Certificate No. 16 for 500 shares.
Certificate No. 17 for 1 share. Total 829% shares.
(b) E. J. Bribach.
Certificate No. 14 for 166% shares'. Certificate No. 15 for 500 shares.
Total 666% shares.
(c) M. M. Buist.
Certificate No. 4 for 1 share. Certificate No. 18 for 1 share.
(d) F. J. Buist.
Certificate No. 9 for 1 share.
(e) L. M. Nixon.
Certificate No. 19 for 1 share.
“10. That on the 13th day of February, 1947, the said decedent, O. J. Connell, became ill and incapacitated, that he was on said date, and at the time of his death, the owner of 829% shares of stock of the defendant, The Saco Oil Company, Inc., as' above set out, which 829% shares constituted more than 51% of the total outstanding shares of capital common stock of said defendant corporation.
“11. That in addition to the 829% shares of stock owned by decedent as above set out, he was, at all times pertinent hereto and at his death, in fact the owner of: Certificate No. 4 and 18, for one share each, held by M. M. Buist for convenience only, and Certificate No. 9, for one share, held by F. J. Buis't for convenience only.
“12. That since the year 1931 and continuously until the death of said O. J. Connell, the defendant M. M. Buist, was the employee of the decedent and after 1934 an officer of the corporation; that she was the trusted confidant of O. J. Connell in all business matters; that she was responsible for the personal books, papers and records of business affairs of said O. J. Connell and either kept, or directed the keeping of books, records and papers, by others, of the said O. J. Connell with relation to the business matters of said O. J. Connell and that she did, as an officer, keep the books, records and papers of the defendant corporation. That the said books, records and papers of s'aid O. J. Connell were kept at the office of the defendant corporation in El Dorado, Kansas, by said M. M. Buist and were under her exclusive custody and control from the date of the death of the said O. J. Connell until on or about the . . . day of . . ., 1948, when they were delivered either to this plaintiff, as Administrator, or to the Probate Court of Butler County, Kansas.
“13. That the defendant E. J. Bribach, was' a business associate of said O. J. Connell for more than ten years immediately prior to the death of said O. J. Connell; that they were mutually interested in joint ventures as between each other and as between themselves and defendant corporation; that he was familiar, in a general way, with the personal business of O. J. Connell and the defendant corporation.
“14. That at all times pertinent hereto the stock certificates owned by O. J. Connell, evidencing the ownership in him of 829% shares of the capital common stock of the defendant corporation, were kept and left at the office of decedent O. J. Connell, the same being the office of the defendant corporation at El Dorado, Kansas; that on the 13th day of April, 1947, and continuously thereafter, until delivered to the Probate Court of Butler County, Kansas, said certificates, more specifically described by number as Stock Certificate No. 11, 12, ^nd 13, were under the exclusive care and control of defendants M. M. Buist, F. J. Buist and E. J. Bribach, and defendant corporation.
“15. That certificate No. 12 of said defendant corporation, issued to and owned by O. J. Connell was on a date unknown to this plaintiff, signed by him on the assignment blank thereon provided, by the placing of the signature ‘O. J. Connell’ thereon and the remainder of said assignment form being left blank; that delivery thereof was made to no person, as assignee, by said O. J. Connell.
“16. That on some date, unknown to this' plaintiff but prior to the date said stock certificates No. 11, 12 and 13, purportedly cancelled, were delivered to and placed in the custody of the Probate Court of Butler County, Kansas, the said defendants, M. M. Buist, F. J. Buist and E. J. Bribach did enter into a conspiracy to defraud the said O. J. Connell or the estate of said O. J. Connell, deceased, of the said capital common stock of the defendant corporation represented by said stock certificates No. 11, 12 and 13, to-wit: 329% shares. That the said conspiracy consisted of an agreement by and between each of said defendants, M. M. Buist, F. J. Buist and E. J. Bribach, to obtain fraudulently, dishonestly and by unlawful conversion to, for, and for the benefit of said M. M. Buist, F. J. Buist, and E. J. Bribach, all of said 329% shares of said stock belonging to the said O. J. Connell or to tire estate of said O. J. Connell, deceased, thereby unlawfully, illegally and by unlawful conversion obtaining for and on behalf of said M. M. Buist, F. J. Buist and E. J. Bribach ownership of a majority of tire common stock of said defendant corporation in themselves and away from the said O. J. Connell or the estate of O. J. Connell, deceased.
“17. That in furtherance and consummation of said conspiracy to so defraud as alleged in paragraph 16 above, tire said M. M. Buist, F. J. Buist and E. J. Bribach did fraudulently, dishonestly, illegally and by unlawful taking and conversion do and commit the following fraudulent, dishonest and illegal acts, to-wit:
“(a) Cancel as a valid outstanding stock certificate, the said capital common stock certificate No. 11 of the defendant corporation owned by O. J. Connell, or the estate of O. J. Connell, deceased, in the amount of 200 shares; did issue the said 200 shares represented thereby to defendants M. M. Buist, F. J. Buist, as evidenced by stock certificate No. 21 and of stub in the stock record book of the defendant corporation; did cause the stock record book of said defendant corporation to show that said transaction took place and happened on April 1, 1947, and to show further that said stock certificate No. 21 was accepted by said M. M. Buis't or F. J. Buist on April 1, 1947. That the said stock certificate No. 11 was so cancelled and said stock certificate No. 21 was so issued upon the cancellation of stock certificate No. 11 although the said stock certificate No. 11, belonging to and being the property of said O. J. Connell or the estate of O. }. Connell, deceased, did not contain an assignment by O. J. Connell to any person but was and is now, in fact blank in all respects and was not delivered by O. J. Connell to any person but was removed from the books, records and papers of said O. J. Connell of the defendant corporation without the knowledge or consent of said O. J. Connell.
“(b) Cancel as' a valid and outstanding stock certificate, the said capital-common stock certificate No. 12 of the defendant corporation owned by O. J. Connell or the estate of O. J. Connell, deceased, in the amount of 48 shares; did issue 45 shares thereof represented thereby to the defendants M. -M. Buist or F. J. Buist as evidenced by stock certificate No. 21 and to stock record book stub thereof, of said defendant corporation and the remaining three shares thereof represented thereby to defendant E. J. Bribach as evidence by stock certificate No. 20 and the stock record book stub thereof, of said defendant corporation; did cause the stock record book of said defendant corporation to show that said transaction took place and happened on April 1, 1947, and to show further that said stock certificates No. 21 was' accepted by said M. M. Buist or F. J. Buist on April 1, 1947, and said stock certificate No. 20 accepted by the defendant E. J. Bribach on July 31, 1947. That said stock certificate No. 12 was so cancelled and said stock certificate No. 20 and 21 were so is'sued although the said stock certificate No. 12 was not assigned or delivered to any person by O. J. Connell, but that the assignment form thereon did and does contain the signature of O. J. Connell, in blank, as' set out in paragraph No. 15 above; that said assignment form was and is in blank and said stock certificate was removed from the books, records and papers of the said O. J. Connell or of the defendant corporation without the knowledge or consent of said O. J. Connell.
“(c) Cancel as' a valid outstanding certificate, the said capital common stock certificate No. 13 of the defendant corporation owned by O. J. Connell or the estate of O. J. Connell, deceased, in the amount of 80K shares; did issue the said 80/3 shares represented thereby to defendant E. J. Bribach as evidence by stock certificate No. 20 of said defendant corporation; did cause tire stock record book of said defendant corporation to show that said transaction took place and happened on April 1, 1947, and to show further that said stock certificate No. 20 was accepted by defendant E. J. Bribach on July 31, 1947; that said stock certificate No. 13 was so cancelled and said stock certificate No. 20 was so issued although the s'aid stock certificate No. 13 belonging to O. J. Connell or to tire estate of O. J. Connell, deceased, was not assigned or delivered to any person by said O. J. Connell and did not and does not contain an assignment of any kind but the assignment form thereon was' and is in blank in all respects and was taken by said defendants M. M. Buist, F. J. Buist and E. J. Bribach, from the files, records, books and papers of said O. J. Connell, or of tire defendant corporation without his consent and either before or after his death.
“(d) Cancel as a valid outstanding certificate of defendant corporation of capital common stock certificate No. 19 owned by said O. J. Connell or the estate of O. J. Connell, deceased, and held in the name of J. C. Scanlon as nominal holder, in the amount of one share; did issue the said one share of said stock represented thereby to one L. M. Nixon, as evidence by the stock record book of defendant corporation, certificate No. 19; did cause the stock record book of said defendant corporation to show that said transactions took place and happened on April 1, 1947; that the said L. M. Nixon did not and has not accepted said stock certificate No. 19, and that said certificate so remains in the stock record book of said defendant corporation and in the possession of the District Court of Butler County, Kansas; that said stock certificate No. 19, in addition to having been fraudulently, unlawfully and illegally executed and issued, contains the name of O. J. Connell written thereon as President of defendant corporation and that said name of O. J. Connell was not written by said O. J. Connell, but by some other person and is a forgery of the signature of said O. J. Connell.
“That by reason of the allegations above set out said capital common stock assumed the characteristics and protection of such stock had it been stolen, lost or misplaced stock certificates.” (Italics supplied.)
Paragraph 18 alleges that certificate No. 19 is in the possession of the district court of Butler county, Kansas; certificate No. 20 is in the possession of E. J. Bribach; and certificate No. 21 is in the possession of M. M. Buist and/or F. J. Buist.
“19. That this plaintiff verily believes that said stock certificates No. 20 and 21, issued as set out in paragraph 17 above, do not contain thereon as to either of them, the signature of O. J. Connell as president of the defendant corporation; that if the name of O. J. Connell does appear thereon, or on either of them, in writing, then that the said writing of the name of O. J. Connell is not the signature of said O. J. Connell but the writing of some other person. (Italic^ supplied.)
“20. That plaintiff does not know and cannot state the time, date or place of the beginning of the conspiracy, as above set out, or the time, date or place of the fraudulent acts alleged and pleaded herein except that plaintiff does set out and allege that all physical acts done by said defendants M. M. Buist, F. J. Buist and E. J. Bribach to affect the illegal, fraudulent and unlawful transfer of stock of defendant corporation as set out in paragraph 17 above were done and consummated by said defendants between December 31, 1946, and May 10, 1948.”
Paragraph 21 alleges that a stockholders meeting was called by the defendants on May 10, 1948, at the offices of defendant corporation; that the defendant M. M. Buist, secretary-treasurer of the corporation, orally announced that the records at that time showed the stockholders and stock held by them were as follows: M. M. Buist, 2 shares; M. M. Buist and/or F. J. Buist, 493 shares; F. J. Buist, 1 share; E. J. Bribach, 502 shares; L. M. Nixton, 1 share; O. J. Connell estate, 501 shares; that the purported stockholders meeting was conducted by defendants and the meeting conducted as if they were the owners of said stock, and the purported board of directors was elected, being composed of the defendants herein and others; and that said purported meetings of the stockholders and the board of directors were illegal and unlawful by reason of the facts set forth in paragraph 16 and 17 of the petition herein-before set out.
“22. That by reason of the fraudulent, unlawful and illegal acts of the de fendants M. M. Buist and F. J. Buist and E. J. Bribach, as individuals and as officers and purported officers of defendant corporation; and by reason of the fraudulent, unlawful and illegal acts of said defendant corporation, the estate of O. J. Connell, deceased, has been fraudulently, illegally and unlawfully deprived of sufficient of the capital common stock of said defendant corporation so as' to lose control thereof; that by reason thereof this plaintiff has no adequate remedy at law.
“23. That this plaintiff obtained knowledge, evidence and discovery of all fraudulent and unlawful acts as herein alleged and especially as set out in paragraphs No. 16 and 17 hereof on the 25th day of April, 1949.”
Paragraph 24 alleges that no demand was made because it would have been futile.
“25. That this plaintiff verily believes that said decedent O. J. Connell, had no reason, during his lifetime, to believe said M. M. Buist, or E. ]. Bribach to be untrustworthy or dishonest; that this plaintiff had no reason prior to the discovery of the facts as herein alleged to believe said defendants, M. M. Buist, or E. J. Bribach to be untrustworthy.” (Italics supplied.)
Paragraph 26 of the petition is a prayer for relief by declaring the cancellation of capital common stock certificates No. 11, 12 and 13 to be fraudulent and void; by declaring the issuance of capital common stock certificates No. 20 and 21 to be the result of fraudulent, dishonest, illegal and unlawful acts of the corporation and the defendants named; by declaring the purported meetings of the common stockholders and the board of directors held on May 10, 1948, and all acts and business transacted by them to be null and void; by directing defendants M. M. Buist, F. J. Buist and E. J. Bribach to surrender capital common stock certificates No. 20 and 21; by requiring defendant corporation through its officers to correct the records of the corporation to speak the truth in relation to the shares of capital stock owned by the estate of O. J. Connell, deceased, to be 833/3 shares; and for an accounting and other relief not material to this appeal.
M. M. Buist and F. J. Buist filed motions to make definite and certain and to strike certain allegations from the petition, which motions were by the court overruled in all particulars except one, and the petition was amended in conformity thereto.
To the petition as amended, appellants M. M. Buist and F. J. Buist filed their separate demurrers setting forth five grounds therefor:
1. That the Court has no jurisdiction of the subject of this action.
2. That the plaintiff has no legal capacity to sue or maintain this action.
3. That there is pending another action for the same cause between the same parties.
4.' That several caus'es of action are improperly joined.
5. That such amended petition does not state facts sufficient to constitute a cause of action.
On November 1, 1949, appellants argued their demurrers confining their arguments to the fifth ground thereof, i. e., that the amended petition does not state facts sufficient to constitute a cause of action. The matter was submitted to the court and taken under advisement until November 14, 1949, at which time the demurrers were overruled by the court.
A careful analysis of appellants’ claims of error reveals that in the lower court they relied on the theory that appellee’s cause of action was barred by the statute of limitations. For that reason other matters presented here will be disposed of early in this opinion.
As to appellants’ claim of error on the court’s ruling on their motions to strike and make definite and certain, we have repeatedly held that such motions are addressed to the sound discretion of the trial court and ordinarily refusal to grant them will not be disturbed unless it clearly appears that the trial court’s discretion has been abused. A close examination of the motions and the petition discloses that substantial rights of appellants were not affected by such ruling and it cannot be said the trial court abused its discretion. (Krey v. Schmidt, and cases cited therein, ante, p. 90, this day decided.)
As to appellants’ claim of error on the court’s ruling on their demurrer, it is noted that the first three grounds of the demurrer were not presented to the lower court and are neither briefed nor argued in this court, and under our decisions they must be regarded as abandoned. (Dalton v. Hill, 169 Kan. 388, 392-3, 219 P. 2d 710, and cases therein cited.)
Appellee challenges appellants’ right to be heard on the fourth ground of the demurrer: that several causes of action were improperly joined. While appellants raise the question in this court and present oral arguments and briefs thereon, an examination of the record discloses that this ground of the demurrer was not presented nor argued in the lower court. Counsel for appellants argued only matters contained in the fifth ground of the demurrer. We have held that questions not presented to nor considered by the trial court cannot be raised and urged in this court for the first time. (Herd v. Chambers, 155 Kan. 55, 122 P. 2d 734; In re Estate of Gereke, 165 Kan. 249, 256, 195 P. 2d 323.)
Appellants’ final contention is that the amended petition shows upon its face that the cause of action is barred by the statute of limitations. It is alleged the fraud was committed sometime between December 31, 1946, and May 10, 1948, and this action was begun June 9, 1949. G. S. 1935, 60-306 (3) requires an action to be brought within two years of the discovery of fraud. Appellants further contend that — giving the petition the most liberal construction in favor of appellee — no allegation is made that O. J. Connell did not discover the fraud until within two years of the bringing of this action.
The petition expressly alleges that on December 31, 1946, the records of the corporation disclosed that the original certificates of stock in question stood in the name of O. J. Connell; that on February 13, 1947, O. J. Connell became ill and incapacitated, and on that date and at the time of his death August 3, 1947, he was owner of the certificates of stock in question. It further alleges the fiduciary relationship existing between appellants and O. J. Connell; that the original certificates were endorsed in blank by O. J. Connell and delivery thereof was made to no person but that they were removed by appellants from the books, records and papers of O. J. Connell ivithout his knowledge or consent and the stock books of the corporation were caused to show that the same were canceled and new certificates issued to appellants and E. J. Bribach on April 1, 1947, without the knowledge or consent of O. J. Connell, and at a time when he was ill and incapacitated; that the purported signature of O. J. Connell, president, on the new certificates purportably issued by these appellants for the corporation was a forgery and not the signature of O. J. Connell but that of some other person; it is further alleged that O. J. Connell had no reason during his lifetime to believe these appellants to be untrustworthy or dishonest, and that the appellee administrator did not discover the fraud until April 25, 1949, less than two months prior to filing the petition herein.
The petition does not allege.that the wrongful acts in issuing the new certificates were committed on April 1, 1947, as contended by appellants. It alleges that appellants caused the stock record books to show that said cancellation of stock took place on April 1, 1947; however, the petition states that new stock certificates issued to E. J. Bribach were not delivered and accepted by him until July 31, 1947, well within the two years provided by statute for filing the petition.
Appellants would have us place a strict construction on the pleadings by holding as a matter of law — admitting all the facts set forth in the petition — that O. J. Connell, being president of the corporation and knowing he was owner of the stock in question December 31, 1946, should have discovered the fraud perpetrated by appellants prior to becoming incapacitated on February 13, 1947, or before his death on August 3, 1947. We feel the petition has alleged facts sufficient to toll the statute. Courts will not lightly seize upon some small circumstance or by strict construction when a liberal construction should be made, deny relief to a party plainly shown to have been defrauded against those who defrauded him, on the ground he did not discover that he had been cheated as soon as he might have. Only where a party defrauded would plainly have discovered the fraud except for his own inexcusable inattention, will he be charged with a discovery in advance of actual knowledge on his part. (Rutherford v. Rideout Bank, 11 Cal. 2d 479, 80 P. 2d 978, 117 A. L. R. 383.) In view of the fiduciary relationship existing between O. J. Connell and appellants, it cannot be said he owed any obligation to examine the records daily between December 31, 1946, and the date he became incapacitated February 13, 1947, or until the date of his death August 3, 1947.
Appellants contend that the amended petition fails to allege that by the exercise of reasonable diligence O. J. Connell could not have discovered the fraud earlier, and in support of their contention they cite Malone v. Young, 148 Kan. 250, 81 P. 2d 23, and Schulte v. Westborough, Inc., 163 Kan. 111, 180 P. 2d 278. This same theory was advanced and given serious consideration, and determined by this court contrary to appellants’ contention, in the case of Dalton v. Hill, supra, where we said:
“Thus, since we are not here concerned with the sufficiency of evidence, it appears tire gist of their claim on this point is that appellee entirely failed to allege in the pleading in question that he could not have discovered the fraud earlier by the exercise of reasonable diligence and therefore failed to state a cause of action.
“They cite Malone v. Young, 148 Kan. 250, 81 P. 2d 23; Preston v. Shields, 159 Kan. 575, 156 P. 2d 543, and Schulte v. Westborough, Inc., 163 Kan. 111, 180 P. 2d 278, and insist that what is there said and held compels the sustaining of their position. We do not agree. When thos'e decisions are carefully examined and analyzed the most that can be said for them is that they hold that in such an action a party is required to plead facts which disclose inability to discover the fraud by the exercise of reasonable diligence. Even so, that does not mean, nor can those decisions be construed as intending to hold that the pleading under attack must contain express affirmative allegations of that character. If — as here — it contains an express allegation the fraud relied on was not discovered until within two years from the date of the commencement of the action it is sufficient to withstand an attack by demurrer based upon the ground it fails to state a cause of action unless other facts set forth therein suggest a source from which the fraud could have been discovered earlier. To hold otherwise would disregard the plain language of our civil code stating that a defendant can only demur to a petition on the ground it fails to state a cause of action when that defect appears on its face (G. S. 1935, 60-705) and providing that when it does not so appear upon the face of the pleading the objection may be taken by answer (G. S. 1935, 60-707). It would also wholly ignore the universal rule that as against a demurrer the allegations of a pleading are entitled to the benefit of all reas'onable inferences.” (pp. 395-6.)
The court sees no reason to reverse or modify its position set out above.
There is sufficient information in the petition to reasonably apprise appellants of the nature of the action. Failure of the appellee to plead additional facts which would have further disclosed his inability to discover the fraud by the exercise of reasonable diligence is neither fatal nor required.
The judgment of the lower court is affirmed in each case. | [
-12,
108,
-7,
28,
42,
-32,
42,
-102,
104,
-93,
-91,
83,
-23,
-37,
1,
125,
-14,
61,
-48,
106,
-9,
-77,
83,
-53,
86,
-13,
-7,
-107,
48,
95,
-25,
-1,
-55,
32,
10,
85,
-90,
-62,
73,
28,
-50,
0,
-118,
-28,
-39,
16,
50,
107,
19,
73,
81,
-114,
-13,
33,
31,
91,
105,
44,
123,
-65,
-55,
-72,
-117,
-123,
127,
19,
1,
0,
-104,
-29,
88,
107,
-104,
-15,
-104,
-32,
-13,
-90,
6,
-12,
35,
73,
8,
98,
99,
-93,
-91,
-25,
-72,
-104,
14,
-69,
-115,
-58,
-108,
88,
105,
32,
-74,
-99,
112,
26,
-126,
-12,
-2,
-124,
30,
44,
5,
-117,
-42,
-79,
15,
118,
-100,
19,
-21,
-83,
32,
96,
-119,
-74,
93,
71,
126,
-97,
7,
-112
] |
The opinion of the court was delivered by
Harvey, C. J.;
Plaintiff brought this action under G. S. 1935, 47-117 for damages to his crops alleged to have been caused by defendant permitting his swine to run at large in violation of G. S. 1935, 47-112. A jury trial resulted in a judgment for plaintiff of $1,066.75. Defendant has appealed. No complaint is made of the amount of the judgment if plaintiff is entitled to recover.
The pertinent facts may be stated briefly as follows: In 1948, and for several years prior thereto, plaintiff was a tenant living upon a described eighty acre tract of land in Osage township in Labette county and engaged in the business of truck farming, raising tomatoes, sweet corn, and other crops usually raised by truck farmers. The land which could be farmed on the eighty acre tract was especially suitable for that purpose. Defendant owned or leased and operated a large acreage of land contiguous to the tract plaintiff was farming on the east, west and south. On the north of the eighty acre tract was a county road, and across the road to the north the defendant used other land. It was rough country mostly covered with brush and timber. Defendant used this land for the raising of hogs. In the area to the east, south and west of plaintiff’s property he turned forty-five brood sows in the timber to raise their broods. A few years earlier he had built a hog-tight fence along the east and west sides and south end of plaintiff’s property. This was 26-inch hog wire with two or more strands of barbed wire above. The tract on which plaintiff lived had some high land, where the improvements were, and the land sloped to the east, south and west. On the night of June 22, 1948, there was a heavy rainstorm in that locality which washed out the fences at places on the south and east of plaintiff’s land — at one place for a distance of about 250 yards. Soon after that defendant’s hogs began to get into plaintiff’s fields, and on July 11 plaintiff notified defendant that his fences were down and his hogs were entering plaintiff’s land and destroying his crops. Nothing was done by defendant about repairing these fences until about August 13. In the meantime the hogs had done a great deal of damage to plaintiff’s crops.
The statutes relied upon by plaintiff read:
“All persons owning or having charge of any swine in this state shall keep the same from running at large, except as in this article otherwise provided.” (G. S. 1935, 47-112.)
“If any swine shall be suffered to run at large in any township where the legal voters thereof have not voted to be exempt from the operations of this article, and shall trespass upon the land of any person, the owner or person having possession of such swine shall be liable for all damages the owner or occupant of such land may sustain by reason of such trespass.” (G. S. 1935, 47-117.)
Our statutes (G. S. 1935,47-113 to 47-116) authorize an election in any township to be exempt from the provisions of 47-112, and in Scott v. Lingren, 21 Kan. 184, in a similar action, where there had been no effort on the part of the plaintiff to show that such election had not been held under these statutes, the court held he could not recover. On a demurrer to plaintiff’s evidence defendant argued that there had been no such showing in this case. The point is not well taken. It had been shown by the township clerk’s books, as far back as 1902, which was as far back as they were in possession of the township officials, that no such election had been held at any time since 1902. Residents of the township who had lived there for many years before 1902 testified they never heard of such an election. The county clerk, who testified that minutes were made in the clerk’s books of the township elections, testified she had examined them and found no notation concerning a township election of any character pertaining to livestock running at large. Under this showing we think the demurrer was properly overruled on this point.
Appellant argues: “Swine that escape from an enclosure surrounded by a barrier reasonably adapted to their restraint and without knowledge or fault of their owner are not running at large’ within the meaning of G. S. 1935 47-112 and 47-117,” and for this reason the pleadings and opening statement did not establish any liability of defendant. The point is not well taken. The suit is not predicated upon the fact that the fences were washed down by the water, but upon the facts alleged in the petition and shown by the evidence, which were that after defendant knew of that fact, and knew that his hogs were running on the land of the plaintiff, he permitted them to do so for as long as a month, within which time the damage was caused.
In the court’s instructions the court gave four paragraphs dealing with the general law of negligence. Before giving the instructions to the jury the court had submitted the instructions to counsel. Counsel for plaintiff objected to those instructions and stated that he did not predicate his case upon negligence but upon the statute. Counsel for defendant also objected to the instructions on negligence and also to some of the other instructions. The court considered these objections and finally concluded that under the evidence the instructions should be included. Perhaps this view was prompted by the fact that much of the evidence on defendant’s behalf pertained to his efforts to round up the hogs in the pasture contiguous to plaintiff’s land and transfer them to the pasture north of the highway. His witnesses testified as to how they searched for the hogs in the brush and weeds, which were higher than their heads on horseback, to round them up and drive them over to the other pasture, and that out of the forty-five sows with their pigs which were in that pasture they had succeeded in getting thirty-five of them. Six were found sometime later, with plaintiff’s help, and four of them had not been found. In this situation there is reason to say, as appellee argues, that the instructions on negligence were more helpful to the defendant than to the plaintiff. Appellant cites cases to the effect that where the parties “stipulate” that certain instructions should not be given it is error for the court to give them. But here there was no stipulation. In a charge of violating the law there is frequently evidence of negligence.
Appellant contends that certain evidence introduced by the plaintiff was improperly admitted. We have examined the rulings criticized under this head and find no substantial error.
Appellant argues that he is entitled to judgment on the answers of the jury to the special questions. This is laz'gely a reargument of other questions argued earlier and we think the court’s ruling upon that matter was proper.
The case is an unusual one, but there is nothing in the record to indicate that the parties did not have a fair trial, or that the result is improper. Apparently the jury was very careful in considering all the evidence and if anything they were quite conservative on the amount of damages, Some of the evidence on plaintiff’s behalf would have justified a substantially larger sum. We find no error hi the record which would justify a reversal.
The judgment of the trial court is affirmed. | [
-15,
-18,
-71,
44,
8,
96,
40,
-102,
87,
-87,
-74,
87,
-17,
-125,
5,
109,
102,
125,
68,
121,
69,
-74,
53,
-126,
22,
-5,
-69,
-51,
-69,
77,
-26,
71,
78,
80,
10,
-43,
-26,
-16,
-127,
92,
-98,
6,
-117,
-35,
93,
10,
56,
43,
84,
79,
53,
15,
-21,
46,
53,
-29,
41,
44,
-21,
45,
65,
-7,
122,
-115,
126,
3,
-93,
68,
-104,
1,
-38,
42,
-112,
57,
-127,
-8,
115,
-74,
-122,
116,
15,
-103,
44,
54,
102,
17,
124,
-49,
108,
-119,
6,
-1,
-119,
-90,
-104,
8,
18,
2,
-66,
-99,
120,
80,
22,
126,
-27,
13,
-99,
104,
7,
-114,
-108,
-77,
75,
-96,
-100,
3,
-29,
-89,
49,
113,
-49,
-30,
89,
69,
82,
-101,
-126,
-110
] |
The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages for wrongful death. The trial resulted in a judgment for the defendants. Among other rulings the trial court sustained the plaintiff’s motion for a new trial and the defendants appeal.
Our review of the pleadings and the evidence is limited to a statement sufficient to permit consideration of the appellants’ contentions.
The petition alleged that Marshall A. Beecher died as the result of a motor vehicle accident on February 19,1949, and that plaintiff was appointed as administratrix of his estate; that the defendant Stephen Stepanian owned a Chevrolet coupé and on the above date he and the defendant Josephine W. Stepanian as agent of Stephen Stepanian and as the driver of their motor vehicle caused the injuries set forth. Although stated in a verbose manner, the wrongful acts and omissions of Josephine W. Stepanian were alleged to be that she—
(a) drove at a high, dangerous and excessive speed;
(b) failed to give proper warning of the movement of the vehicle driven by her;
(c) failed to keep a lookout ahead and laterally and negligently operated the vehicle under the conditions existing;
(d) wrongfully drove on the wrong side of the highway; ■
(e) negligently drove her vehicle into a collision with the vehicle driven by Beecher; and
(f) failed to exercise due care which would have avoided the collision.
The plaintiff further alleged the collision occurred on U. S. Highway 81, about seven miles north of Belleville, Kan., and was caused by the wrongful acts and omissions of Josephine W. Stepanian. Allegations as to damages need not be set forth.
For present purposes it may be said the answer included a general denial, a plea of contributory negligence and an allegation that what occurred was an unavoidable accident.
Plaintiff’s reply needs no notice.
At the trial the defendants demurred to the plaintiff’s evidence on the grounds it showed no cause of action against the defendants or either of them; that it showed contributory negligence of the plaintiff, or if not, it showed the accident was unavoidable. The demurrer was overruled and defendants offered their evidence and plaintiff offered evidence in rebuttal. The defendants requested the court to instruct the jury to return a verdict in their favor, which request was denied. The jury, under instructions of which no complaint was made, returned a verdict in favor of the defendants, which verdict the court ordered filed without approval. The jury also returned answers to special questions submitted. In due time the plaintiff filed her motion that six of the answers to the special questions be set aside and her motion for a new trial. Upon the hearing of these motions the court set aside four of the answers and allowed the motion for a new trial. In due time the defendants perfected their appeal to this court, specifying error in the particulars hereafter discussed.
Appellants first contend the trial court erred in not sustaining their demurer to the plaintiff’s evidence for the reason that evidence failed to show pleaded negligence of the appellants which was the proximate cause of the accident but did show contributory negligence of Beecher. They direct attention to Kinderknecht v. Hensley, 160 Kan. 637, 164 P. 2d 105, and like cases, holding that the mere fact an accident occurs and injury results is not sufficient but that before a plaintiff may recover in an action predicated on negligence he must both allege and prove the negligence which was the proximate cause of the injury for which recovery is sought; to Miller v. Gabbert, 154 Kan. 260, 118 P. 2d 523, and cases cited therein, holding that negligence must be established and cannot rest on conjecture; and to Glenn v. Montgomery Ward & Co., 160 Kan. 488, 163 P. 2d 427, holding that where the essential elements of a petition are controverted by the pleadings and are not established by the proof, a demurrer to the evidence should be sustained.
Very briefly reviewed, the appellee’s evidence disclosed that on February 19, 1949, at about 8:30 a. m., the decedent, Marshall Beecher, driving his own motor vehicle referred to as a jeep, left Belleville and proceeded north on U. S. Highway 81 at a speed of thirty-five to forty miles per hour to the place of the collision. One Skucius testified that he was driving south on the highway at between thirty and thirty-five miles per hour and that just before the collision two cars going south passed him. When the second car went around him it seemed to be in no hurry to get back on its own side of the road but it pulled back and swerved and then struck the Beecher jeep. His testimony as to distances was not in feet or yards or rods, but that the car passing him travelled on the left side of the highway “the distance between 2 telephone poles” and that as it turned to the right side it went “another telephone length” before the collision. His testimony is subject to the interpretation that the car as it started to turn back to the right side never reached the right side but travelled about the center of the highway. By way of explanation it is noted that appellants sought by cross-examination to develop the fact that Mrs. Stepanian, driver of the vehicle last mentioned, was on a dry pavement until about the time of the collision and that her vehicle skidded into the vehicle driven by Beecher. We need not note at length evidence showing the condition of the highway at times after the collision, nor dwell upon the evidence further for appellants state in their brief, “It is not disputed that the collision occurred in the area of the highway where the Beecher Jeep would ordinarily have a right to be and where the Stepanian car proceeding as it was in a southerly direction ordinarily would have no right to be.”
Appellants direct our attention to Zinn v. Updegraff, 113 Kan. 25, 34, 213 Pac. 816, where a holding that the fact the defendants were on the left-hand side is not negligence as a matter of law, was approved. In the later case of Gardner v. Leighton, 144 Kan. 335, 338, 58 P. 2d 1111, it was said that when a motorist, so far as he can see, has the entire road to himself he may travel on any part of it, in the middle or on either side, Zinn v. Updegraff being cited in support. In the still later case of Gabel v. Hanby, 165 Kan. 116, 128, 193 P. 2d 239, the appellant made a similar contention as to his right to drive on all portions of the highway, citing in support Gardner v. Leighton. The contention was not allowed, this court observing that since Gardner v. Leighton had been decided in 1936, the legislature had enacted the motor vehicle act and the right to drive on all portions of the highway had been restricted, citing what is now G. S. 1947 Supp. 8-537. Reference to that section will show that a vehicle shall be driven upon the right half of the highr way, except in certain circumstances, only one of which, overtaking and passing another vehicle proceeding in the same direction, is applicable here. Under the following sections 8-538 and 8-540 are provisions for overtaking a vehicle on the left, the latter section providing, among other things, that “In every event the overtaking vehicle must return to the right-hand side of the roadway before coming within 100 feet of any vehicle approaching from the opposite direction.”
We recognize that not every violation of a statute convicts the actor of actionable negligence. To convict the actor it must appear that the violation was the proximate and legal cause of the injuries inflicted. See Baker v. Western Cas. & Surety Co., 164 Kan. 376, 385, 190 P. 2d 850. Here, driving on the left-hand or wrong side of the road was alleged, the proof tended to show it and the quotation from appellants’ brief admits it. Under all of the circumstances, it cannot be said that it was not a proximate cause of the accident.
Appellants’ contention that plaintiff’s evidence showed that Beecher was guilty of negligence which contributed to his injuries and death is not expanded in their brief and we are not aware of any specific ground therefor. At the oral argument, it was suggested that Beecher could have gone further to his right, or could have stopped and thus avoided the accident. It is settled however that the operator of a vehicle upon the public highways may assume that others using the highway will observe tire law and that he is not guilty of negligence as a matter of law in acting upon that assumption until he has knowledge to the contrary. See Gabel v. Hanby, supra, Syl. jf 3. There was no such a showing made and the question was for the trier of the fact.
We hold that the allegation of negligence (d) of the petition charged driving on the left-hand or wrong side of the highway, the proof showed that to be the fact and that it was a proximate cause of the collision; that the evidence did not convict the decedent of negligence as a matter of law and that the trial court did not err in ruling on the demurrer. We note that appellants take up and seek to demonstrate that other allegations of negligence were not sustained by the evidence but in view of our holding it is not necessary to discuss the contentions so made.
Appellants’ request for an instructed verdict raises substantially the contentions heretofore discussed and it will not be treated further.
Appellants’ complaint that the trial court erred in setting aside the answers to certain special questions is noted but if the trial court’s order granting a new trial is upheld, the effect is to set aside all of the answers, and the rulings complained of are no longer material. Appellants’ complaint as to the order granting a new trial is twofold. Although recognizing the rule that it is the duty of the trial court to exercise its own independent judgment to determine whether a verdict is to be approved, and if not satisfied to grant a new trial, appellants say that the independent judgment which the trial court must exercise must be based on judicial consideration of the evidence, citing Sovereign Camp v. Thiebaud, 65 Kan. 332, 337, 69 Pac. 348; Ward v. Grant, 138 Kan. 363, 371, 26 P. 2d 279; Walker v. Colgate-Palmolive-Peet Co., 157 Kan. 170, 192, 139 P. 2d 157. Appellants do not point out wherein the trial court failed to give the motion for a new Rial consideration within the rules, unless possibly by their complaint that the newly discovered evidence adduced on the hearing of the motion was not newly discovered evidence as contemplated by the code. As to that evidence, they contend it must be shown that the evidence is not merely cumulaüve in character (Solomon v. Lampl, 135 Kan. 469, 11 P 2d 1028); not merely impeaching evidence (Humphreys v. Commerce Trust Co., 133 Kan. 498, 1 P. 2d 263) and must be so strong that had it been before the jury a different result would have been probable (McVicar v. McVicar, 128 Kan. 394, 400, 278 Pac. 36) and they argue that the evidence received did not meet these tests.
In view of reasons assigned by the trial court in granting a new Rial, we note briefly that during examination of the plainRff she testified to a conversation which she had with Mr. Stepanian concerning liability and that he told her he had liability and collision insurance and she didn’t need to worry. Whether the intrusion of the insurance feature was inadvertant or not need not be discussed. The defendants objected and moved for a mistrial. This motion was denied, the Rial court admonishing the jury. During the course of the trial the appellants, by cross-examinaRon of appellee’s witnesses and direct examinaRon of their own witnesses, sought to show that the highway north of the scene of the collision was free from ice or snow and that just at the scene the highway was icy and that Mrs. Stepanian was suddenly confronted with that situation. It is here noted that at the trial the plaintiff inRoduced no evidence as to the condition of the highway at points north of the accident other than that witness Skucius said it was slippery at one corner on the state line. On the hearing of the motion for a new Rial, it was shown that appellee’s counsel Ward had been in sole charge of the case, had made inquiry of all persons whom he could ascertain had been at the scene of the accident, but had learned only a day or so before the hearing of the motion for a new Rial that one Eickman had come down the highway from the north immediately before the collision and knew of the condition of the highway. Eickman’s testimony disclosed that he lived at Hebron, Neb. (which is on Highway 81 and is about twenty miles north of the scene of the collision) and that he was employed by a gas service company at Belleville; that on the morning in question he was driving south to Belleville from Chester, Neb.
(a town on Highway 81 between Hebron and Belleville) in a pickup truck; that south of Chester the road was slick and the highway was spotted with ice; there would be stretches where it was icy, some of pretty good length and others not so long. He came up to the scene of the collision, stopped, inquired if help had been called and left to go where he knew there was a telephone, and had a doctor called. He did not talk with any of the Beechers, nor Mr. Ward nor his associate counsel nor anyone else about the road conditions “before last Wednesday”. We note also that a considerable amount of the testimony was as to storm and road conditions after the accident had occurred.
The remarks of the trial court in ruling upon the motion for a new trial were taken by the court stenographer and are in the record as abstracted. Among other things the court mentioned the matter of testimony concerning insurance and the ruling made and stated it “entertain (ed) some feeling that that may have prejudiced the jury against Mrs. Beecher.” It also expressed some doubt as to the sufficiency of its instructions to the jury as to due care, but as the instructions are not in the record as abstracted we leave this feature without further discussion. The court also commented on the newly discovered evidence, that no member of the family was present at the scene of the accident and all they had was rumor and hearsay, and that on the point of its being newly discovered evidence it would hold for appellee; and it also expressed doubt as to whether it had rightfully allowed so much evidence as to storm and icé conditions after the accident. In the end it granted a new trial.
It is rather clear the trial court did not make its ruling solely on the ground of newly discovered evidence, but that for a number of reasons it could not and would not approve the verdict. If we should limit the inquiry to the newly discovered evidence, we could not on the showing made hold that the trial court erred in concluding that it was newly discovered; that it was not merely cumulative in character nor merely impeaching evidence; and that it was of such nature that had it been presented to the jury a different result would have been probable.
Taking the whole matter into consideration, the trial court did not err in granting a new trial.
The rulings and judgment of the trial court are affirmed. | [
-14,
104,
-32,
-115,
9,
96,
2,
26,
117,
-111,
102,
83,
-21,
-49,
1,
59,
126,
61,
81,
107,
-11,
-93,
23,
-118,
-77,
19,
-23,
-44,
-78,
-54,
108,
119,
76,
48,
10,
-107,
-25,
-54,
-59,
82,
-114,
-108,
-120,
-12,
-39,
-112,
48,
120,
-42,
15,
113,
-114,
-61,
42,
26,
71,
105,
44,
91,
-71,
-63,
-80,
-120,
5,
95,
18,
51,
4,
-100,
-91,
88,
58,
-40,
-75,
8,
-4,
112,
-90,
-126,
-11,
99,
-103,
12,
102,
99,
-79,
21,
109,
-72,
-100,
46,
54,
13,
-90,
16,
9,
65,
-87,
-74,
61,
115,
112,
4,
122,
-2,
85,
92,
-72,
1,
-54,
-76,
-79,
-81,
118,
-108,
-88,
-21,
-123,
50,
117,
-51,
96,
92,
69,
18,
-101,
-57,
-106
] |
The opinion of the court was delivered by
Parker, J.:
This appeal involves the right of persons to be appointed by the probate court as executors of the will of a decedent.
A narration of the facts giving rise to the controversy, although not required, will facilitate a proper understanding of the decisive issue on which our disposition of the cause depends. For that reason the facts will be detailed as briefly as the state of the record permits.
On January 22, 1929, J. S. Weaver and Rebecca May Weaver, husband and wife, joined in the execution of a will disposing of all their property. By its terms that instrument provided the survivor should serve as executor and in the event of no survivor then William H. Barnes was designated as executor of such will to serve without bond.
J. S. Weaver died on June 18, 1931. Shortly thereafter, on the petition of Rebecca, the will to which we have referred was admitted to probate. The widow was appointed executrix, administered the estate, and took under terms of the will. Some fourteen years later, on September 10, 1945, she executed an instrument entitled “codicil to joint will of J. S. Weaver and Rebecca May Weaver” by the terms of which she ratified all provisions of the joint will with the exception that she named William H. Barnes, J. S. Barnes and Marion T. Barnes, as executors of her estate in lieu of the eighth paragraph of the original joint will wherein William H. Barnes was appointed as sole executor.
Rebecca died on November 26, 1949. Thereafter William H. Barnes, who was an heir and devisee of such decedent, petitioned the probate court of Miami county to admit the joint will to probate and requested that he be appointed executor of such decedent’s estate. In his petition he alleged the probate court had in its possession the instrument, hereinabove referred to as a codicil, and stated that such instrument, insofar as it purported to change the terms of the joint will, was of no force and effect.
December 7, 1949, Marion T. Barnes and J. S. Barnes filed a petition in the probate court asking that the instrument of September 10, 1945, be admitted to probate as a codicil to the last will and testament of Rebecca and requested that letters testamentary be issued to such petitioners, together with William H. Barnes as coexecutors. The individual last named filed an answer to this petition wherein he stated that the last will and testament of Mr. and Mrs. Weaver was a joint and mutual will, made as a result of a contract between them, and that there was nothing for any codicil thereto to operate on for the reason that under the terms thereof he had been designated as, and was entitled to be appointed, executor under her last will and testament.
The issues thus raised were tried by the probate court. Later on appeal, with some additional pleadings not here important, they were tried by the district court. Both courts, although admitting the joint will and the codicil to probate, found in substance that the last will and testament of Rebecca May Weaver was the last joint will of J. S. Weaver and such decedent, that it was made as a result of a contract between the two testators, that the codicil executed by Rebecca was of no force and effect for the reason that all of the decedent’s property was devised and the naming of the executor was provided for by its terms, that such joint will should be enforced as a contract, and that William H. Barnes should be appointed as the sole and only executor of the last will and testament of Rebecca’s estate. Each court rendered judgment, in accordance with the foregoing findings, directing that the joint will be enforced as a contract without regard to the codicil and appointing William H. Barnes as executor of Mrs. Weaver’s estate.
In due time Marion T. Barnes gave notice of his intention to appeal from the district court’s judgment. This notice was directed to Oliver D. Rinehart, attorney of record for William H. Barnes, and Garrett Winkler, military attorney, and was served upon such persons. The record reveals no service of the notice of appeal upon William H. Barnes, executor of the last will and testament of Rebecca May Weaver, deceased, or as executor of her estate, although prior to the taking of the appeal he had been appointed as executor of her last will and testament, had qualified as such and had commenced administration of her estate.
At the outset the record presents a jurisdictional question which must be determined.
G. S. 1935, 60-3306, provides:
“Appeals to the supreme court shall be taken by notice filed with the clerk oí the trial court, stating that the party filing the same appeals from the judgment, ... A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal, and who appeared and took part in the trial, or their attorneys of record; . .
In Hutchinson v. Pihlblad, 157 Kan. 392, 139 P. 2d 835, we had occasion to pass upon the force and effect of G. S. 1937 Supp. 59-2407, relating to the effect of an appeal from probate court to district court. At page 395 of the opinion in that case it is said:
“Appellants first contend that an executor may not publish notice of his appointment after the order of appointment has been appealed. They quote 59-2407, which provides the appeal suspends operation of the order appealed from and argue, in effect, that when the appeal was taken all authority of the executor was withdrawn. That is not what the statute says. The appeal does not revoke the order, it only suspends its operation after appeal is taken and until it is determined.”
In construing the provisions of 60-3306, supra, heretofore quoted, this court has repeatedly held that an adverse party in a civil action on whom notice of appeal to the supreme court must be served, under its terms, is a party to the litigation, to whose interest it is that the judgment of the trial court must be upheld, and who is interested in opposing the relief sought by the appellant. (See White v. Central Mutual Ins. Co., 149 Kan. 610, 88 P. 2d 1041; Protzman v. Palmer, 155 Kan. 240, 124 P. 2d 455, and cases there cited.)
It is apparent from what has been heretofore related, particularly since, as we have seen, an appeal from probate court does not revoke the appointment of an executor but merely suspends its operation, that there are two separate entities interested in the result of the outcome of the instant appeal. One of these entities is William H. Barnes in his capacity as an individual and the other is William H. Barnes in his capacity as the appointed fiduciary of Mrs. Weaver’s estate. As such fiduciary he was a necessary party to the appeal from probate court to district court. Here he is interested in opposing the relief sought by the appellant and in seeing to it that the judgment of the trial court be upheld. The record, as we have heretofore indicated, discloses that William H. Barnes as executor was not served with notice of the appeal. In fact, this is inferentially, if not actually, conceded by appellant who insists that he is not even a party to the appeal in that capacity.
Under the facts and circumstances herein narrated, and the decisions heretofore cited, there can, in our opinion, be no doubt that William H. Barnes as executor of the last will and testament of Rebecca May Weaver was an adverse party within the meaning of the provisions of the appeal statute (60-3306, supra). It follows, since he was not made a party to the instant appeal as such, that this court has no jurisdiction of the cause and hence cannot review the alleged errors of which the appellant complains. Where — as here — a judgment is brought to this court for appellate review and it appears that a modification or reversal of such judgment will adversely affect a litigant who has not been made a party the rule that the appeal must be dismissed is well established (See Loan Co. v. Lumber Co., 53 Kan. 677, 37 Pac. 132; Investment Co. v. National Bank, 56 Kan. 49, 42 Pac. 321; White v. Central Mutual Ins. Co., supra; Protzman v. Palmer, supra; Dean v. Amrine, 155 Kan. 513, 126 P. 2d 213; Stephens College v. Long, 156 Kan. 449, 134 P. 2d 625; Grant v. Reed, 163 Kan. 105, 106, 179 P. 2d 945).
It is so ordered. | [
-112,
108,
-36,
-3,
58,
98,
-117,
-104,
-13,
-31,
37,
87,
-81,
-10,
17,
109,
115,
105,
17,
123,
-25,
-77,
62,
-128,
-5,
-77,
-29,
-34,
-80,
-52,
-73,
87,
76,
32,
10,
-43,
70,
-126,
-59,
81,
-122,
23,
41,
-27,
-39,
-47,
50,
35,
26,
29,
81,
-98,
-13,
42,
61,
-58,
106,
108,
121,
-88,
88,
-88,
-97,
-122,
79,
22,
-77,
-121,
-72,
-125,
88,
107,
8,
21,
-128,
-24,
113,
-74,
30,
84,
79,
57,
8,
114,
39,
33,
-11,
-19,
-72,
-103,
-122,
-22,
-115,
-89,
-70,
25,
58,
0,
-74,
-97,
120,
112,
6,
-10,
-27,
-100,
28,
-20,
8,
-49,
-10,
-79,
63,
-8,
-116,
26,
-22,
75,
-80,
113,
-64,
0,
85,
103,
51,
-37,
-114,
-38
] |
The opinion of the court was delivered by
Smith, J.:
This was an action in peaceable entry and forcible detainer. Judgment was entered for plaintiffs in the city court of Wichita. The defendant attempted to appeal to the district court. There, on motion of the plaintiffs,’ the district court struck the appeal bond from the files and dismissed the appeal. The defendant then asked permission to file an amended bond. This was denied. Defendant has appealed to this court.
The bond filed in the city court was as follows:
“Know All Men By These Presents: That we, Booker T. Daniels, as principal, and Gertrude B. Johnson, as surety, are held and firmly bound unto Thomas Shannon and Pollie Shannon in the sum of $640.00 which represents double the amount of ten months’ rent in the sum of $32.00 per month, payment of which, well and truly to be made, we hereby bind ourselves and our executors and administrators firmly by these presents. Dated this 12th day of December, 1949.
“The condition of the above obligation is such that if judgment is taken in Case No. 93738, appeal to the District court, against this Principal and his Surety in favor of Thomas Shannon and Pollie Shannon in unlawful detainer action for the amount of rent that the above principal and surety will pay in the amount of $32.00 per month on 1100 East Seventeenth Street to the said Thomas Shannon and Pollie Shannon, in as many months as are past due in said amount upon the date of rendering judgment in unlawful detainer;
“That said principal and his surety have executed a stay of execution bond and bond for costs, same having been approved, and stand ready and able to pay all obligations pertaining hereto to satisfy judgment if and when rendered against them.
“Now, Therefore, if the said Booker T. Daniel shall well and truly pay and perform and satisfy tire obligation as set forth herein then the above obligation is to be null and void; otherwise to be and remain in full force and effect.
“Booker T. Daniel, principal, and Gertrude Johnson, surety, being personally known to me have hereunto subscribed their signatures to the above instrument before me a Notary Public in and for the County of .Sedgwick, State of Kansas, this 12th day of December, a. d. 1949.”
The first point argued by defendant is that the court erred in holding the foregoing bond was void and not sufficient to vest the district court with jurisdiction. The statute under which this bond was given is G. S. 1935, 61-1011. That section provides as follows:
“In appeals taken by the defendant in actions for the forcible entry and detention or forcible and unlawful detention of real property, the undertaking on appeal shall be conditioned that the appellant will not commit or suffer waste to be committed on the promises in controversy, and if upon the further trial of the cause judgment be rendered against him he will pay double the value of the use and occupation of the property, from the date of the undertaking until the delivery of the property pursuant to tire judgment, and all damages and costs that may be awarded against him.”
In the first place, it will be noted the bond must be given not to commit waste and there is no limit provided in the statutes as to the amount; second, it must bind the parties if judgment goes against the tenant he will pay double the value of the use and occupation of the premises. Again the limit as to amount and amount recoverable is not the rent fixed in any lease but the value of the use and occupation of the premises.
There is very little to distinguish this case from Auto Trunk Co. v. Hahn, 138 Kan. 36, 23 P. 2d 585. There the appeal bond from the city court was limited in the amount of $500. There was a motion to dismiss the appeal and on the hearing a request for leave to amend the bond. The request was denied and the appeal dismissed. We pointed out that the statute required the bond be given “to secure the costs of the appeal.” We held that since the bond was limited in amount it did not conform to the requirements of the statute “to secure the costs of the appeal.”
On the question whether the trial court erred in denying the appellant leave to amend the bond we held that there had been no attempt to comply with the statute and there was nothing to amend and the trial court was correct in refusing to permit an amendment.
There is much more reason for applying the reasoning of the Hahn case to the bond and statute in this since this bond must be given not to commit waste and to pay double the use and value of the property. This bond did not comply with that statute in any particular. (See, also, Morse v. Schaake, 141 Kan. 473, 41 P. 2d 1009.)
In Owen-Fields v. Allen W. Hinkel D. G. Co., 143 Kan. 184, 53 P. 2d 496, the trial court under similar circumstances, as we have here, permitted a new bond to be filed and proceeded to hear the appeal and enter judgment. We said. “We have concluded that the appeal bond did not comply with the statute and did not confer any jurisdiction on the district court.” We there cited the opinion to which reference has already been made here. (See Ohio Hydrate & S. Co. v. H. W. Underhill C. Co., 141 Kan. 213, 40 P. 2d 337; also Jensen v. City of Chanute, 146 Kan. 162, 68 P. 2d 1080.)
We see no reason to change the rule stated in these opinions. It follows the trial court ruled correctly in dismissing the appeal and denying defendant’s application for permission to file a new bond.
The judgment of the trial court is affirmed. | [
-48,
-31,
-20,
95,
90,
96,
15,
-104,
-109,
-15,
-90,
83,
-31,
-58,
5,
43,
55,
125,
113,
121,
106,
-105,
103,
97,
-48,
-37,
-51,
-43,
-71,
111,
-12,
-36,
72,
48,
-86,
-43,
6,
-54,
-27,
92,
-52,
-127,
-87,
-28,
-45,
35,
48,
57,
18,
71,
-15,
-68,
-13,
40,
24,
66,
-56,
57,
-37,
-87,
-45,
-39,
-87,
-105,
-4,
84,
-127,
-92,
-100,
-123,
120,
38,
-112,
53,
1,
-24,
115,
-106,
-122,
116,
77,
9,
45,
102,
98,
32,
-43,
-23,
-72,
-24,
30,
-106,
-115,
-90,
-77,
88,
65,
77,
-76,
-99,
108,
20,
35,
-2,
119,
20,
-107,
44,
-125,
-50,
-44,
-79,
15,
56,
-114,
-101,
-29,
68,
49,
113,
-49,
-82,
92,
-26,
112,
27,
-113,
-104
] |
The opinion of the court was delivered by
Smith, J.:
This was a claim by two attorneys for fees and by three additional parties for services and expenses incurred in a hearing on the application of an incompetent person to be declared restored.
There were two claims for attorney fees, two claims by doctors and one claim by the Wichita Guidance Center. They were all allowed by the probate court and on appeal by the district court. The guardian has appealed.
There is not much dispute about the facts. Anna C. Holder was adjudged incompetent in the probate court on December 9, 1946. On October 25, 1947, she submitted a petition for restoration to capacity. On December 2 the matter was tried in the probate court and the petition denied. Thereupon an appeal was taken to the district court, where the proceedings were tried before a jury, which rendered a verdict in favor of the incompetent on June 3, 1948. On the 16th of July, 1948, the district court having previously set aside the verdict of the jury rendered a judgment finding the incompetent had not been restored and she still was incapable of managing her property and affairs. An appeal was taken to this court on the question of whether she was entitled to a jury trial as a matter of law or whether the district court had the power to consider the jury’s verdict as being merely advisory. We affirmed the judgment of the district court. (See Holder v. Jochems, 167 Kan. 83, 204 P. 2d 777.) On July 21, 1948, the appellees herein, that is, the two lawyers, the two doctors and the Wichita Guidance Center, filed their petitions in the probate court for allowances for fees and expenses in connection with the restoration case. On the 24th of July the probate court entered an order making the allowances. Thereupon the guardian of the estate of Anna C. Holder appealed to the district court. In the district court the evidence was all stipulated by the parties. That stipulation is, as follows:
“1. The subject matters of these appeals consist of allowances made by the Probate Court of Sedgwick County, .Kansas to be paid out of the estate of the above named Anna C. Holder, an incompetent person, to the following persons in the following amounts:
"P. J. Wamick................................................ $1,500.00
Dr. Ralph L. Drake............................................ 100.00
Dr. Gilbert L. Little........................................... 50.00
Wichita Guidance Center...................................... 20.00
Rogers & Rogers.............................................. 1,000.00
“2. The said allowances to P. J. Warniclc a,nd to Rogers & Rogers were made on petitions filed in the Probate Court of Sedgwick County, Kansas, claiming compensation for services allegedly rendered on behalf of the said Anna C. Holder in connection with proceedings heretofore had in the District Court of Sedgwick County, Kansas, for the restoration of the said Anna C. Holder to legal competency, the said proceedings being entitled ‘In the Matter of the Estate of Anna C. Holder, an Incompetent Person,’ Case No. A-24687.
“3. The said allowances to Dr. Ralph L. Drake, Dr. Gilbert L. Little, and the Wichita Guidance Center, were made on a petition in the Probate Court of Sedgwick County, Kansas, claiming compensation for psychiatric examinations and witness fees for the claimants in connection with the said restoration proceedings in the District Court.
“4. At the time the said claimants purported to have been employed and at all times while the said services purported to have been rendered, the said Anna C. Holder was legally incompetent in accordance with an adjudication previously entered in the Probate Court of Sedgwick County, Kansas, on the 9th day of December, 1946, and during all of said time her business affairs were being handled by her duly appointed, qualified, and acting legal guardian, W. D. Jochems.
‘‘5. The said Guardian of the estate of Anna C. Holder was at no time a party to the purported employment of any one of the said claimants, nor did he at any time acquiesce or approve of the said employment in any manner whatsoever.
“6. If it be adjudged that the Guardian of the estate of the said Anna C. Holder is legally liable for the payment of the said compensation of the claimants, the amounts above set forth for the respective claimants are fair and reasonable amounts for the respective services rendered by them.
“7. There is no evidence that any one of the claimants acted in bad faith either in the filing or in the conducting of the said restoration proceedings in the District Court.
“Thereupon, all parties having rested, the Court heard the arguments of counsel both for and against the allowance of the said claims. Having been duly advised in the premises, the Court found that the said claims should be allowed in the amounts set forth in the said Stipulation, and that the Guardian should be ordered to pay the same out of the funds of the estate of the incompetent. The Court further found that the Court costs herein should be paid by the said Guardian out of the estate of the incompetent.
“It Is So Ordered, Adjudged and Decreed.
“/s/ Clair E. Robb,
Judge.”
The guardian appealed and his specifications are that the trial court erred in allowing the appellees’ claims and adjudging that the guardian should pay the same out of the funds of the estate of the incompetent and also adjudging that the costs should be paid by the guardian out of the estate of the incompetent. He states the questions here to be:
1. Can a person who has been adjudged mentally incompetent enter into a contract enforcible against the guardian of the estate of such incompetent?
2. Can a claimant who alleges the performance of certain service for a person who has been adjudged mentally incompetent^ the claimant having been fully informed of such adjudication before rendering the services, compel payment for the alleged fair and reasonable value of such services by the guardian of the estate of the incompetent in the absence of any authorization from the guardian for such services?
The guardian bases his argument on the provisions of G. S. 1947 Supp. 59-1801, 1804.
G. S. 1947 Supp. 59-1804, reads as follows:
“A guardian shall be subject to the control and direction of the court at all times and in all things. A guardian of the person shall' have charge of the person of the ward. A guardian of the estate shall (1) prosecute and defend for his ward; (2) sell assets of the estate when the interests of the ward and his estate require the sale thereof; (3) pay the reasonable charges for the support, maintenance, and education of the ward in a manner suitable to his station in life and the value of his estate; but nothing herein contained shall release parents from obligations imposed by law as to the support, maintenance and education of their minor children; (4) pay all just and lawful debts of the ward and the reasonable charges incurred for the support, maintenance, and education of his spouse and children; (5) possess and manage the estate, collect all debts and claims in favor of the ward, or with the approyal of the court compromise the same; and (6) invest all funds, except such as may be currently needed for the debts and charges aforesaid and the management of the estate, in such securities as are proper for the investment of trust funds, including securities approved by the comptroller of the currency of the United States for the investment of trust funds by national banks.”
Appellant argues from the above provisions that one declared incompetent does not have power to enter into contracts on his own behalf; He argues the statute does not allow room for any person to render services allegedly for the benefit of the incompetent, but without the authority or approval of the guardian, and to then claim payment for the same from the guardian, that is, as long as the guardianship continues, the only contracts, either express or implied, binding upon the guardian of the estate of his ward are those which the guardian makes in the case of direct contracts and those which • the guardian causes to come into being by his conduct in the case of quasi contracts. Authorities are cited where we have held such to be the law as to direct contracts. The argument of the appellant is that, should it be held these attorneys may be paid from the assets of the estate of the ward, then it will be an invitation for proceedings without merit to be brought by intermeddlers to restore incompetent persons. The argument is that before counsel instituted these proceedings they should have requested the guardian to give them permission to do so and on the refusal of the guardian they should have asked permission of the probate court. This argument is answered in part by the provisions of G. S. 1947 Supp., 59-2268. That section provides as follows:
“Any person who has been adjudged insane or incompetent as herein provided, or his guardian, or any other person interested in him or his estate may petition the court in which he was so adjudicated or to which the venue has been transferred to be restored to capacity: Provided, A petition for the restoration to capacity of a patient committed to a state hospital shall not be filed within six months after the patient’s admission thereto nor oftener than once every six months. Upon the filing of such petition, the court shall fix the time and place for the hearing thereof, notice of which shall be given to the superintendent thereof if the patient is under the control of or has been discharged from a state hospital, and to such other persons and in such manner as the court may direct. Any person may oppose such restoration. Upon hearing of the petition and proof that such person has been restored to' capacity and is capable of managing his person and estate, the court shall adjudge him restored to capacity. If the venue has been transferred no proceedings need be had in the court from which the venue was transferred.”
It is noted that a petition to restore any person who has been adjudged incompetent may be brought by the incompetent person, by his guardian or by any other person interested in him or his estate. The statute thus confers authority on the incompetent person to petition the court to be restored. It also bestows that power on any person interested in him. We cannot say from this record that the two attorneys who made the claim for fees in this case were not interested in Anna C. Holder. There is no doubt about the meaning of the above provisions. If the legislature had intended the proceedings to restore an incompetent could only be brought by the guardian or with the consent of the guardian, then it would not have made the provision that the petition might be brought by any person interested in the incompetent. This provision carries with it by implication that a lawyer who files such a petition and presents it to the probate court may be paid from the estate of the incompetent. That is undoubtedly what the legislature intended when it enacted such broad authority to file such a petition. Should we hold in conformity with the argument of the guardian here, no lawyer could' undertake such a proceeding except on a contingent basis unless he were paid by some person interested .in the incompetent. We cannot read such an intention from the provisions of this statute.
Appellant argues the matter should have been brought to the attention of the probate court and the court’s consent to the proceedings should have been had. If it refused, an appeal could have been taken to the district court. That is not what the statute requires, however. In this matter no question is raised about the value of the services of the counsel. No question is raised about the good faith of the lawyers. They appeared in probate court and on appeal in the district court and in this court. They were recognizéd before all three courts and spoke for the incompetent person. Nothing happened except to permit the ward’s condition to be presented in court. No question of any advantage being taken of an incompetent person was raised.
Sheneman v. Manring, 152 Kan. 780, 107 P. 2d 741, was a case where an action had been brought against a guardian of an incompetent to compel the guardian to contribute to the support of the incompetent person’s indigent daughter. We held that it was proper for the guardian to be compelled to make the contribution. We also said:
“In the case at bar the trial court allowed an attorney’s fee for legal services in behalf of the indigent petitioner. The amount of the fee is not contested, but only its legality. We think it was allowable under analogous precedents.”
The analogous precedents referred to in the above were all cases where we held in an action to construe wills the lawyer who brought the action for the contestant should be paid out of the assets of the estate even though the contest was not successful. There .is an analogy between these authorities and the instant case. The statute provides for proceedings to ascertain whether or not an incompetent has been restored. The counsel in this action simply presented the matter to the three courts, as has been heretofore remarked. Their services were a great deal the same as services performed by the contestant of a will and in which we have held that the lawyer should be paid out of the assets of the estate. (See Weightman’s Estate, 126 Pa. Sup. Ct. Rep. 221, 190 Am. R. 552; In Re Schulte, 231 Iowa 237, 1 N. W. 2d 193; 32 C. J. 738, § 522; and 32 C. J. 741, § 526.)
This is not to say that in every case brought to restore a ward to competency, counsel may be reimbursed out of the assets of the estate. Every case will depend upon its own surrounding facts and circumstances. Here the probate court of Sedgwick county heard the proceedings in the first place, the same court heard the application for allowance of attorney fees and other expenses incident to the restoration hearing and would have been the court to pass upon whether or not the action should have been brought in the first place had the proceeding contended for by the guardian have been followed. The value of the services as well as the good faith of the lawyers is conceded.
The judgment of the lower court is affirmed.
Thiele and Wedell, JJ., dissent. | [
-48,
104,
-19,
-68,
24,
-32,
18,
26,
83,
-95,
37,
83,
-21,
-54,
17,
111,
81,
45,
85,
105,
66,
-77,
82,
-96,
-34,
-6,
-71,
-35,
-77,
93,
-28,
-10,
76,
48,
2,
-43,
102,
-62,
69,
80,
-116,
1,
-119,
-19,
-7,
32,
56,
105,
86,
13,
117,
94,
-13,
42,
61,
119,
104,
56,
123,
-87,
64,
-80,
-114,
5,
75,
23,
32,
6,
-98,
-58,
72,
46,
-108,
57,
-128,
-24,
48,
-74,
2,
84,
7,
-103,
44,
114,
98,
32,
-99,
-1,
-24,
-100,
6,
20,
-65,
-89,
-110,
8,
-54,
101,
-74,
-103,
109,
16,
7,
-4,
-3,
84,
31,
44,
-119,
-117,
-42,
-79,
79,
56,
-116,
27,
-21,
-127,
50,
113,
-103,
-30,
92,
-57,
115,
-69,
-58,
-88
] |
The opinion of the court was delivered by
Smith, J.:
This was an action for a declaratory judgment wherein the plaintiff asked for an interpretation of certain sections of G. S. 1947 Supp. 79-3701 to 79-3711, inclusive, commonly known as the “Kansas Compensating Tax,” and certain related sections of G. S. 1947 Supp. 79-3601 to 79-3625 commonly known as the “Kansas Retailers’ Sales Tax Act.” The trial court interpreted the sections against the contentions of the plaintiff and it was appealed.
The petition, after the formal allegations as to the official positions of defendants and that plaintiff was engaged in the telephone business, stated that the service offered by plaintiff was subject to the Kansas retailers’ sales tax act of two percent upon its gross receipts and that the plaintiff had been complying with the provisions of that statute. The petition then alleged that G. S. 1947 Supp. 79-3703 levied a tax of two percent for the privilege of “using, storing or consuming” within the state any articles of tangible personal property purchased subsequent to June 30, 1945, except such articles as were exempt, as provided in G. S. 1947 Supp. 79-3704; that the above section exempted the use, storage or consumption of tangible property brought into the state by public utility for consumption or movement in interstate commerce, tangible personal property purchased other than at retail, tangible personal property upon which a sales tax or use tax of two percent had already been paid and tangible personal property brought into Kansas, which, if purchased in Kansas, would not have been subject to tax under the provisions of G. S. 1947 Supp. 79-3601 to 79-3625, inclusive; that plaintiff’s telephone system consisted of central office equipment, telephone instruments, booths, pole lines, wire, cable, conduit and private branch exchanges and other related equipment, all neccessary in furnishing intrastate communication service; that in addition plaintiff owned and maintained buildings and purchased stationery, office supplies, typewriters, janitor supplies, furniture and office equipment, vehicles, tools and other work equipment; that plaintiff had in the past and would in the future exercise the privilege of using, storing or consuming within the state all articles of personal property first spoken of above, all of which articles were or would be purchased outside the state and brought into it for the purpose of incorporating them into the integrated telephone system by way of maintenance, construction, reconstruction, replacement or using it in the operation of its integrated telephone system; that defendants had notified plaintiff that it was liable for the compensating tax of two percent in respect to all such articles of personal property brought into Kansas subsequent to January 1, 1948; that the taxable service which plaintiff was furnishing was set out in its general exchange tariff, a copy of which was attached to the petition; that plaintiff was ready and willing to pay all lawful compensating taxes assessed against it, but contended it was not liable for it on all the articles of tangible personal property purchased by it outside the state and brought into the state and actually incorporated into its integrated telephone system and actually used by the telephone users in telephone communications over such integrated telephone system; that the articles, such as central office equipment, telephone instruments, booths, pole lines, wires, cables, conduits and private branch exchange switchboards, were exempt from taxation because they were articles of tangible personal property purchased by plaintiff, engaged in furnishing a taxable service, and were actually used in the production and entered into the processing of, and became an ingredient or component part of the taxable telephone service furnished by plaintiff consisting of the use of plaintiff’s facilities for the purpose of communication. The petition then referred to and quoted from certain provisions of the sales tax act, which will not be set out here, but will be later in this opinion. The prayer was that the court take jurisdiction and determine that the articles of tangible personal property described brought into the state to be used in the manner set forth were not taxable under the Kansas compensating tax act, and defendants had no lawful right to collect a compensating tax from plaintiff by reason of the use, storage or consumption of such property within the state.
The defendants answered admitting the nature of the business of the telephone company; that plaintiff was subject to the retailers’ sales tax act and admitting certain other allegations as to the statutes. The answer denied that the articles mentioned were exempt from the Kansas compensating tax act and alleged that all of such property was purchased outside the state of Kansas and brought into the state, where it was used, stored and consumed by the plaintiff in such a manner as to subject it to the provisions of the Kansas compensating tax act, as set out in G. S. 1947, Supp. 79-3701 to 79-3711, inclusive. The answer denied that the articles in question were used by the telephone users, but alleged that the property was owned by plaintiff and used, stored or consumed by it for the purpose of carrying on a telephone business, and denied that such property entered into the processing of, or became an ingredient or component part of the intangible telephone service furnished by defendant. Defendants prayed that the court determine the articles referred to, brought into the state by plaintiff, 'were taxable under the Kansas compensating tax act.
The trial court heard considerable evidence as to the operation of a telephone system. With such details we are fairly familiar, that is, we all understand that when one makes a call by dialing his phone, it must go to the central switchboard and thereby be switched to the line of the person called and when that person hears his instrument ring he answers and the means of communication is complete. We understand that a great deal of property other than the telephone instruments in question must be used in making such communication possible.
The defendants demurred to the evidence of the plaintiff on the ground that it failed to prove a cause of action in favor of the plaintiff and against the defendants. This was overruled. Defendants introduced no evidence. The court found that an actual controversy existed and that the parties were entitled to an interpretation of the two statutes mentioned.
The final judgment was that the central office equipment, telephone instruments, booths, pole lines, wires, cables, conduits, private branch exchange switchboards, and related equipment purchased outside the state by plaintiff temporarily stored and later incorporated into its integrated telephone system were taxable under the compensating tax act and the assessment of- such a tax by defendants constituted the legal exercise of the powers of the defendants.
The plaintiff filed a motion for a new trial on the grounds of erroneous rulings and that the decision was contrary to the evidence. This motion was overruled, hence this appeal.
The sales tax act was passed in 1937. It was chapter 374 of the Sessions Laws for that year. It is now with some amendments G. S. 1947 Supp. 79-3601 to 79-3625. It levied a tax of two percent upon the privilege of selling tangible personal property at retail in this state or rendering or furnishing certain services therein. The act is framed and has been uniformly construed both by the tax commission and the courts so the transaction taxed is that by which a commodity moves to the ultimate consumer, whoever he may be.
With the enactment of the sales tax act another problem arose. Much property is bought outside the state and brought in for various purposes. Kansas could not tax the privilege of selling property where the sale took place beyond its borders. It could, however, tax the privilege of using property within this state. The result was the enactment of chapter 375 of the Session Laws for 1937, now with some amendments G. S. 1947 Supp. 79-3701 to 79-3711. It is denominated “compensating tax” in the Session Laws. It is sometimes referred to as the “use tax.” These two acts are really complementary and supplemental to each other and are construed together generally. It would not do to make a taxpayer pay two percent tax when he bought property and also two percent tax when he used it. On that account the section following the section which imposed the tax provided certain transactions to which the tax should not apply. Among these is one in respect to the use of property, the sale of which had already been subject to a sales or use tax, in respect to the use of any property brought into or used within the state, if such property would not have been subject to tax under the provisions of the retailers’ sales tax act of this state, if purchased within this state.
The plaintiff in its petition pleaded itself within at least two of the above exemptions. In its brief the plaintiff says “Appellant in this case does not contend that the purchase of the property outside the state has already been subject to a two percent gross receipts tax. Its contention is that the property here involved was purchased other than at retail as defined in The Kansas retailers’ sales tax act and if purchased in the state of Kansas, the sale would not have been subject to the Kansas retailers’ sales tax act.”
This argument takes us to an examination of G. S. 1947 Supp. 79-3601 to 79-3625, inclusive, and more especially 79-3602. That is the section of the sales tax act that deals with definitions. As in so many cases where the legislature enters upon a new field, it was thought wise to provide in this act for the meaning of certain words used. So that for the purpose of the act we are not bound by the dictionary or common meaning to be given a word, but could look to the act itself also.
First, G. S. 1947 Supp. 79-3602 (e) defined “retail sale” as a sale made within the state of tangible personal property for use or consumption and not for resale or furnishing electrical energy, gas, water, service or entertainment, except wholesale sales. At first glance it might appear that the above definition simply stated that a retail sale was any sale except a wholesale sale and we would appear to be in trouble for a definition of “wholesale sale.”
We find that, however, in G. S. 1947 Supp. 79-3602 (fc) that subsection described certain transactions which for the purposes of this act should be deemed wholesale sales. Upon this subsection plaintiff bases its argument. It argues that the transaction it pleaded and proved are such as this subsection provides shall be wholesale sales. The subsection is important and will be set out here, as follows:
“(h) Each sale of tangible personal property or service made to a person engaged in the business of producing, manufacturing or compounding for sale, any article, substance, service or commodity which is actually used in the production, and enters into the processing of, and becomes an ingredient or component part of the article, substance, service or commodity which he manufactures or compounds, produces or furnishes, including the container, label, or shipping case, which container, label, or shipping case is used in the distribution, of-said article, substance or commodity and is not to be returned to the producer, manufacturer or compounder for reuse, shall be deemed a wholesale sale and shall be exempt from taxation under this act; and for the purposes of this act, poultry, dairy and other livestock feed and the component parts thereof, and all seeds or seedlings, are deemed to become component parts of the eggs, milk, meat and other livestock products, plants and plant products, produced for resale; and each sale of such feed or seed shall be deemed a wholesale sale and shall be exempt from taxation under this act. Each purchase of service as defined in section 79-3603, paragraph (b) and (e) of the General Statutes Supplement of 1945, and any amendments thereto, by a person engaged in compounding and selling a service of a like kind, which is subject to tax under section 79-3603, paragraphs (b) and (c) of the General Statutes Supplement of 1945, or any amendments thereto, and actually used in compounding such taxable service shall be deemed a wholesale sale and shall be exempt from taxation under this act.”
Stated succinctly, plaintiff argues that the property in question is used and enters into the processing of and becomes an ingredient of the service it furnishes. In other words, it argues that its instruments, poles, wire and other similar property bears the same relation to its telephone service that a carload of hides would to one engaged in the manufacture of shoes or a carload of flour does to a baker. Plaintiff argues that the words “ingredient” “component part” and “processing” should be given their ordinary or generally accepted meaning and that when we do so we must conclude that the legislature knew the sort of service the telephone company was furnishing and in the process of furnishing this service the property in question became a constituent part of it. We find difficulty in following plaintiff in this argument. It is correct to say that we give words used in an act their ordinary and generally accepted meaning. There is an equally potent rule for statutory construction, however. It is that in construing an act we will examine the entire act with the purpose of ascertaining just what was the legislative intention. (See Natural Gas Pipeline Co. v. Commission of Revenue & Taxation, 163 Kan. 458, 183 P. 2d 234.) There we said:
“In In re Estate of Butler, 159 Kan. 144, 152 P. 2d 815, we said legislative intent is to be determined by construing language employed in the statute under consideration with reference to the particular subject concerning which the words are used. In Clark v. Murray, 141 Kan. 533, 41 P. 2d 1042, we held that when the interpretation of a statute according to the exact and literal import of its words will defeat the manifest purpose of the legislature in its enactment, it should be construed according to its spirit and reason, disregarding, as far as may be necessary, the strict letter of the law. In Kelly v. Lassen Hotel Co., 161 Kan. 444, 168 P. 2d 527, we decided that the provisions of a statute should be construed together and in their entirety in determining the purpose of the legislature in its enactment.”
There is one basic principle about our sales tax act. It is that the ultimate consumer should pay the tax and no article should have to carry more than one sales tax. The intention was that in the various steps between a loaf of bread and the wheat field the person who bought the wheat from the farmer should not pay a sales tax nor the mill that bought it from the elevator man nor the jobber who bought the flour from the mill nor the baker who bought the flour from the jobber. To prevent such a result as nearly as possible, G. S. 1947 Supp. 79-3602 (fc) was enacted. It had to be so. It should be noted that for each step from the wheat field to the bakery the title to the wheat and flour passed. It was bought each time with the idea of the title passing and there being a resale. This is not true of the property in question here. When the telephone company buys a pole and sets it in the ground the pole belongs to it and the title does not pass to anyone of the telephone company’s service. When the baker buys a new oven or the shoemaker a new machine or the shirtmaker a new sewing machine, he pays a sales tax on these purchases because they are the ultimate consumers, the title has come to rest, no further transfer of title is contemplated.
In Natural Gas Pipeline Co. v. Commission of Revenue & Taxation, supra, we considered whether the use, storage and consumption of certain property, such as casings, flanges and couplings and other similar items bought outside the state and stored, used and consumed by the pipeline company in this state were taxable. The items were about such as we are considering here. After we dealt with the interstate commerce feature, we pointed out that the outcome of the case turned on the meaning to be given the word “consumption” as used in G. S. 1947 Supp. 79-3704 (a), the “exemption” section. We then said:
“When the involved statute in its entirety is tested by the foregoing legal principles we are convinced the intent of the legislature in using the word ‘consumption’ as found in G. S. 1945 Supp. 79-3704 (a) was to limit the exemption from payment of the compensating tax to such articles of tangible personal property as were brought into the state by a public utility for use in such manner as to accomplish their direct and immediate consumption in interstate commerce.”
The result was that the use and consumption of the property in question was held not to be exempt from the tax.
The rule is stated in 47 Am. Jur. 225, as follows:
“Thus, under a sales tax statute providing that sales of tangible personalty to persons engaged in the business of manufacturing or compounding for sale, profit, or use any article, substance, or commodity, which personalty enters into the processing of, or becomes an ingredient or component part of, the product manufactured, compounded, or furnished, shall be deemed to be wholesale sales and exempt from taxation under the act, it has been held that the phrase ‘enters into the processing of’ requires that such personalty become a constituent part of the final product in a series of continuous operations and treatments, wholly or partially, either by chemical or by mechanical means.”
Bedford v. Colorado Fuel and Iron Corp., 102 Colo. 538, 81 P. 2d 752, is a case where a company engaged in the manufacture of steel and steel products claimed that its use of certain property, such as hay fed to the mules, refractories used in the furnaces, tools, office supplies, equipment, trucks, chemicals, workmen’s equipment and many other items were exempt from paying the tax under a statute such as we are considering. The court did not agree and said:
“Applying these definitions to the words under consideration it would seem certain they mean that to enter into the processing of an article, substance or commodity, tangible personal property must of necessity become a constituent part of such final product in the series of continuous operations and treatment leading to this result.”
A situation somewhat analogous was dealt with in Warren v. Fink, 146 Kan. 716, 72 P. 2d 968. There Warren, a retail groceryman, maintained that he should not have to pay the tax on the electrical energy he bought to operate his refrigeration system wherein he stored meat, vegetables and other perishable products. He claimed to be exempt under the provisions of the statute we are now considering on the ground he was a processor. We said:
“The argument is that plaintiff is a processor within the meaning of the act. We think the point is not well taken. What is done is to preserve these commodities in substantially the same condition. It is quite different from the use of refrigeration to make ice cream from milk and other ingredients, or from making a new or different article by heat. The electric energy purchased by plaintiff is not resold, but is consumed by him in the conduct of his business, just as he might consume electric energy for lights in his store.
“In the interpretation of this statute the rule common to tax statutes, that one who claims exemption from the tax must bring himself clearly within the exempted provisions, is applicable. It seems clear that plaintiff is unable to do this.”
See, also, People v. Monterey Ice & Dev. Co., 29 Cal. App. 2d 421. There it was held that the tax should be paid on ice that was crushed and used in icing lettuce in carload lots. See, also, National Ice, Etc., Co. v. Pacific F. Exp. Co., 11 Cal. 2d 283, 79 P. 2d 380. In Warren v. Fink, supra, we held that the sale of string, butter, trays and related items to a retail grocer was taxable. See, also, Wiseman v. Ark. Wholesale Grocers’ Ass’n, 192 Ark. 313, 90 S. W. 2d 987; also J. R. Raible Co. v. State Tax Commission, 239 Ala. 41, 194 So. 560. In practically all the cases the test was whether the sale in question is for resale or to be finally consumed by the buyer. Here it seems clear that the property in question is finally used by the plaintiff.
The judgment of the trial court is affirmed. | [
-48,
-38,
-4,
-35,
24,
-32,
34,
-118,
51,
-79,
-89,
83,
105,
66,
-107,
122,
-78,
61,
80,
104,
-61,
-77,
7,
106,
-98,
-69,
-37,
-43,
-71,
91,
-84,
-44,
76,
48,
74,
-107,
102,
-62,
-59,
30,
-34,
0,
-119,
-23,
-7,
0,
36,
104,
-78,
75,
113,
-51,
-1,
44,
24,
-61,
41,
44,
107,
-22,
-63,
-7,
-70,
-107,
125,
23,
51,
4,
-98,
-121,
-40,
10,
-104,
57,
96,
-20,
114,
-74,
2,
124,
47,
-23,
0,
100,
98,
32,
-107,
-17,
-4,
-72,
46,
83,
-99,
-25,
-106,
88,
33,
-83,
-74,
-99,
116,
16,
11,
-2,
-9,
12,
23,
108,
15,
-118,
-74,
-77,
-113,
102,
-126,
27,
-17,
-94,
48,
97,
-33,
-94,
92,
71,
62,
-125,
-49,
-36
] |
The opinion of the court was delivered by
Thiele, J.:
This appeal arises from a proceeding originally started on February 14, 1946, by the filing of a petition in the probate court by the attorney general on behalf of the state of Kansas for the probate of a document bearing the title “Agreement and Testamentary Disposition” and made under date of May 3, 1945, and later set forth herein. For present purposes it may be said the contractural features were between the board of regents of the state of Kansas, hereafter referred to generally as the proponent, and one Ralph Ellis, and the testamentary disposition was by Ralph Ellis, who died December 17, 1945. An answer containing defenses and objections was filed by Irene S. Ellis, the widow of Ralph Ellis, who is hereafter referred to generally as the respondent or as the widow, and a hearing was had which resulted in a judgment that the instrument should not be admitted to probate as a testmentary disposition and that as a contract to make a testmentary disposition it was void and unenforceable. From the above judgment the proponent appealed to the district court, where it filed a reply to the respondent’s answer alleging the widow had consented to the agree ment, as shown by her written consent a copy of which was attached to the petition, and which is hereafter set out in full. Other allegations are not here noted. Thereafter the respondent widow filed an answer in the district court alleging, in substance, that Ralph Ellis was incompetent to make the will or contract; that he acted under duress of the University of Kansas exercised through its board of regents and certain officers and employees of the beneficiary; that at the time of execution a confidential relation existed and that Ralph Ellis did not know and understand the contents of the document executed by him and did not have independent advice with respect to it; that the document signed by the respondent widow- was, for reasons set forth, not freely and understandingly made by her; that the document purporting to be a will was not signed at the end thereof as provided by law, and was not witnessed by two or more competent witnesses as provided by law, and that the witnesses who did sign were incompetent. Other allegations will be noted later if necessary. We need not notice an intervention by the Lawrence National Bank, nor an' application made by the respondent asking the trial court to indulge certain presumptions under rule 52 of the rules of this court. During the course of the trial upon the issues joined the court sustained the respondent’s demurrer to the proponent’s evidence for the probate of the document as a will and the proponent perfected its appeal to this court. The trial proceeded to a conclusion and thereafter the trial court filed its conclusions of fact and of law. The findings go into great detail, cover many matters not of present importance and will not be set forth. Reference is hereafter made to them where necessary. For present purposes it may be said the trial court concluded the contractual features of the agreement were enforceable, but that the respondent widow was not bound by her consent. The motions for a new trial of both the proponent and the respondent were denied with slight exceptions hereafter noted, and each perfected appeals to this court, where the rulings and judgments complained of by the proponent are the order sustaining a demurrer to its evidence that the document was a will, that the consent of the respondent widow was invalid, and the ruling on its motion for a new trial. The rulings and judgment complained of by the respondent widow are that part of the trial court’s judgment holding the agreement constituted a valid contract to make a will, that the court erred in rulings made on her challenge of the conclusions of fact and law, in modifying a conclusion of law respecting the extent of her interest, in admitting the agreement to probate angl in the ruling on her motion for a new trial.
It may here be said that the parties to the appeal have filed a joint abstract of over 300 pages, the proponent has filed a brief of forty pages and the respondent two briefs of 275 pages, in which the evidence is set forth at great length, and the various contentions of the parties treated in great detail, with a multitude of decisions and authorities cited in support thereof. These have all been considered but, in the very nature of the case, not all can be separately noted and commented upon. Decision upon certain features likewise eliminates necessity for discussion of others.
The “Agreement and Testamentary Disposition” which gives rise to the controversy is as follows:
“Whereas, Mr. Ralph Ellis is the owner and possessor of a Natural History library, consisting of a reasonably large number of volumes on the subject, and
“Whereas, Mr. Ralph Ellis desires to locate and deposit said library with the University of Kansas, located in Lawrence, Kansas, because of his special interest in the Museum of Natural History of the University of Kansas, which is now directed by Dr. E. R. Hall, and
“Whereas, the University of Kansas, by the Board of Regents of the State of Kansas, and Chancellor Deane W. Malott of the University, has expressed the desire to receive and house said library.
“Therefore It Is Agreed between Mr. Ralph Ellis hereinafter referred to as party of the first part, and the University of Kansas, acting by the Board of Regents of the State of Kansas, and Chancellor Deane W. Malott, hereinafter referred to as party of the second part, as follows:
“Party of the first part agrees:
“First, that as evidence of his good will and good faith in the matter and indicating his genuine interest in the University of Kansas in general and its museum of Natural History in particular, he hereby gives, bargains, sells, and conveys to the University of Kansas for its Museum of Natural History his collection of tanned skins and mammal skins with their complementary skulls, skeletons, and zinc cases.
“Secondly, to deposit with the University of Kansas his library of Natural History and to leave the same on deposit with the University for a minimum interim period of three years from the date hereof, subject to the conditions hereinafter set forth.
“Thirdly, that the State of Kansas, the University of Kansas, and the Board of Regents shall not be liable for any losses occurring to said library.
“Party of the second part agrees:
“First, to accept the books for deposit and to house the same in suitably prepared quarters, but it is understood that the University shall not be required to house the books in air-conditioned rooms.
“Secondly, to furnish heat, light, janitor service and general maintenance of quarters in which said library is housed.
“Thirdly, ever to use said library as a part of the teaching and research equipment of the University of Kansas located at Lawrence, Kansas.
“It is further understood between the parties hereto as follows:
“(a) Consistent with the statement above made that said library is to consist of ‘a reasonably large number of books on Natural History’ said library is not to' be considered as a fixed number of books but rather as a flexible, changeable library, or living organism. Mr. Ralph Ellis, as the builder and owner of said library, desires to continue the development and improvement of said library, and to give effect to his.purposes, may loan, sell, or otherwise dispose of portions of said library, and make changes by making new additions or substitutions with utmost freedom. And nothing in this agreement shall preclude Mr. Ralph Ellis from making such changes, sales, substitutions, additions or deletions.
“(b) In making changes in said library, Mr. Ralph Ellis shall be free to dispose of any of the books in the open market without first making any offer to dispose of the same to the University of Kansas or any of its departments, and the failure to offer said books to the University of Kansas shall not be deemed to indicate a lack of a cooperative spirit on Mr. Ralph Ellis’ part.
“(c) In view of the special nature of the library in question, use of the items therein shall be subject to the control and permission of either Mr. Ralph Ellis or the Director of the Museum of Natural History at the University of Kansas.
“(d) As a modification of the three-year minimum period mentioned above, Mr. Ralph Ellis may withdraw substantial parts or even all of said library prior to the expiration of the three-year period, but in that event, Mr. Ralph Ellis engaged to reimburse the University of Kansas for any and all expenses incidental to the University’s undertaking in connection herewith.
“(e) Mr. Ralph Ellis is to have perfect freedom about keeping the books insured at his expense and with any type of floater policy, in his discretion.
“(f) At the termination of the three-year interim period, it shall be proper for the parties hereto to enter into a new agreement, but in default of such new agreement, and the books remaining on deposit with the University of Kansas pursuant to the terms of this agreement, the provisions of this contract shall continue to determine the rights of the parties with full force and effect for such periods of time as the books remain on deposit with and under the care of the University of Kansas and the Board of Regents of the State of Kansas.
“(g) For the period covered by this agreement, the title and all property rights in and to said library, save as modified by this agreement, shall remain with Mr. Ralph Ellis during his lifetime.
“In the event of the death of Mr. Ralph Ellis while said library is housed with the University of Kansas, either during the three-year interim period or thereafter, then the ownership of said books shall pass absolutely to the University of Kansas, and the Board of Regents of the State of Kansas for the use of the University of Kansas. It is recognized that this provision is designed to become operative at death and is therefore to be construed as an agreement both to make a testamentary disposition of property, and as a testamentary disposition as such. In the latter respect it requires due witnessing and attestation as required by the statute governing the execution of wills. Mr. Ralph Ellis accordingly makes this disposition of his library to take effect at his death, as a codicil to his will, and revoking any and all former testamentary dispositions of such library.
“In Witness Whereof, on this third day of May, 1945, the Board of Regents of the State of Kansas has caused this agreement to be signed by its Chairman and Secretary and Chancellor Deane W. Malott, and its seal to be affixed hereto, and Mr. Ralph Ellis has signed said contract.
“The Board of Regents of the State of Kansas, by
O. S. Stauffer
Chairman
Hubert Brighton
Secretary
Deane W. Malott
Chancellor, University of Kansas
“Ralph Ellis
Mr. Ralph Ellis
“Personally appeared before me this third day of May, 1945, Ralph Ellis, Deane W. Malott, Oscar S. Stauffer, and Hubert Brighton who signed said instrument and acknowledge the same.
Karl Klooz
Notary Public
My Com. expires Aug. 1, 1946.
“Mr. Ralph Ellis further states that ids signature is also made to effect the bequest of the library and that he hereby publishes, and declares that the clause bequeathing the library in question to the University of Kansas and the Board of Regents of the State of Kansas in the event of his death constitutes a testamentary disposition of his library of Natural History superseding any-and all other testamentary dispositions of the same heretofore made by him. Said declaration, publication and signing is made in the presence of F. J. Moreau, Raymond Nichols, E. R. Hall, who, at his request, in his presence, and in the presence of each other, have hereunto subscribed their names as attesting witnesses.
“E. J. Moreau,
Raymond Nichols,
E. R. Hall
“Dated this third day of May, 1945.”
The “Agreement” giving rise to the contentions that the widow consented, or did not, to the first agreement is as follows:
“This Agreement made this third day of May, 1945, between the University of Kansas, acting by its Board of Regents and Chancellor and Mrs. Ralph (Irene) Ellis, Witnesseth as follows:
“Whereas, Mr. Ralph Ellis, husband of Mrs. Ralph (Irene) Ellis is the owner of a library of natural history consisting of a reasonably large collection of books on that subject, and
“Whereas, Mr- Ralph Ellis proposes to house and deposit said library with the University of Kansas, located at Lawrence, Kansas, and
“Whereas, the said contract provided that in the event of the death of Mr. Ralph Ellis during the time when said library is housed by the University of Kansas, the said library is to pass to the Board of Regents of the State of Kansas and the said University of Kansas absolutely, and
“Whereas, said contract is to operate as a testamentary disposition by Mr. Ralph Ellis of said library to take effect at the death of Mr. Ralph Ellis, and
. “Whereas, Mrs. Ralph (Irene) Ellis was present when the terms of that proposed contract and testamentary disposition were agreed upon, and that Mrs. Ralph (Irene) Ellis is entirely familiar with all the terms of said contract, a copy of which is hereto attached, and made a part hereof.
“Now Therefore it is agreed that in consideration of the above premises and of the undertakings made by the University of Kansas and the Board of Regents of the State of Kansas with reference to the housing of said library pursuant to the terms of the contract above referred to, Mrs. Ralph (Irene) Ellis hereby agrees that she joins with her husband, Mr. Ralph Ellis, in the making of said contract, appoints him as her agent to dispose of any interest that she may have in said library, and approves the testamentary disposition of said library in the event of the death of Mr. Ralph Ellis during such time or times as said library is on deposit with the University of Kansas. Further, Mrs. Ralph (Irene) Ellis agrees that in the event of the passing of said library to the University of Kansas pursuant to the terms of said contract and testamentary disposition by her husband, Mr. Ralph Ellis, she will make no claim therefor and that she hereby expressly waives any and all rights which she may have had to said library under the laws of any state which may be deemed applicable.
“In witness whereof the parties hereto have affixed their signatures and acknowledged the same.
“The University of Kansas, by the Board of Regents of the State of Kansas and the Chancellor of the University.
By 0. S. Stauffer,
Chairman
By Hubert Brighton,
Secretary
By Deane W. Malott, Chancellor.
Mrs. Ralph (Irene) Ellis
Mrs. Ralph (Irene) Ellis
“F. J. Moreau
Raymond Nichols
E. R. Hall
Witnesses
“Personally appeared before me the above Oscar S. Stauffer, Hubert Brighton, Deane W. Malott and Mrs. Ralph (Irene) Ellis, personally known to me, and who signed and executed the above writing in my presence and acknowledge the same. “Karl Klooz,
Notary Public.
“My commission expires August 1, 1946.”
I
We shall first take up the respondent’s contention that the trial court erred in finding that Ralph Ellis was possessed of mental capacity to make the above “Agreement and Testamentary Disposition.” Inasmuch as other contentions later considered require some statement, in reviewing the evidence and the findings of the trial court thereon we shall not limit our statement to matters dealing with Ellis’s competency. However, we shall not dwell on details. The evidence disclosed that Ralph Ellis was born in 1905, was the son of wealthy parents, and that his father had been dead for some years. For years Ellis had been interested in the study of ornithology and had collected a large and valuable library dealing with the subject, its purchase being made largely with funds given him by his mother. He kept this library in California until he brought it to Kansas. Ellis suffered from two diseases, one affecting his white blood corpuscles, the other causing him to have an inordinate desire for liquids, which he satisfied not only by water but to a considerably extent by beer and to a lesser extent with stronger liquors. In 1940 Ellis’s mother filed a complaint in the proper court in California, seeking to have him committed as a mentally ill person, charging that he had threatened to commit suicide, had set fire to his garage and had threatened to set other fires and that he had on numerous occasions thrown bottles through windows of business establishments. As a result he was adjudged mentaly ill but the judgment expressly found he was not an insane person. He was committed to a sanitarium where his restraint was gradually lessened and ultimately he came and left at his pleasure. In the early part of 1943 he met and later in the same year married the respondent. His condition improved for some time thereafter but in 1944 he committed acts of destruction which caused him to be rearrested and returned to the sanitarium. About a week after that return he escaped, and with his wife went to Nevada and then on to New York where he negotiated with two New York institutions for deposit of his library under conditions somewhat similar to those included in the agreement quoted, or to sell it through persons engaged in the sale of libraries. In 1924 Ellis became acquainted with Professor Raymond H. Hall, then a member of the faculty of the University of California at Berkeley. In 1944 Hall became chairman of the department of zoology and director of the museum of natural history at the University of Kansas, and when he came to Kansas he brought with him a mammal collection belonging to Ellis. Ellis had been in communication with Hall about plans to dispose of his library and in October, 1944, Hall suggested that the library be placed in Kansas University. Chancellor Malott of Kansas University was in New York early in 1945 and Hall suggested a meeting between Ellis and Malott and they met for a short period of time and a short discussion was had in which Malott told Ellis the university would be interested in having the library. About this time Ellis sent his wife to California to box the library and ship it to New York. She did so but before the shipment reached there Ellis had it diverted to Lawrence, where the books were received and taken to the university about March 6, 1945. About the same time Ellis and his wife came to Lawrence and conversations were had, principally with Hall who suggested that Ellis procure any attorney, or perhaps C. C. Stewart an attorney of Lawrence, or Dean Moreau of the Law School, Ellis elected to have Moreau act for him. Sometime in March conversations were had about the various matters to be incorporated in the agreement and in the presence of Ellis and his wife, various provisions were talked over and finally dictated to a stenographer, who later gave Moreau a copy and from that Moreau prepared the documents later executed. The meeting of May 3, 1945, was arranged but Mrs. Ellis was not advised. However, she had short notice of that meeting and was in attendance. Others present were Malott, Hall, Ellis and Klooz. The contract was read over paragraph by paragraph and Ellis expressed satisfaction. He was told he could consult an attorney, but answered that the agreement was what he wanted, that he did not need to submit it to anyone and that he was ready to sign. During all of that time Mrs. Ellis sat by her husband and expressed no dissatisfaction with any part of the arrangement. The necessity of a contract on her part being provided in her husband’s agreement, the contract to be signed by her was likewise read. There is no dispute that at that meeting each of the contracts was executed by Ralph Ellis and his wife at the places noted, and that their signatures were witnessed as shown. Later Ellis showed this contract to his attorney in New York and expressed satisfaction with it. That attorney told Ellis he was not familiar with the laws of Kansas and could give him no advice on the testamentary features of the contract. Respondent’s testimony did not dispute the circumstances under which the two contracts were executed. Insofar as Mrs. Ellis was concerned, the principal point made was that at the time she signed her contract and consent, no person had or did then advise her as to her rights under the statutes of Kansas as an heir of her husband if she did not consent to the terms of the will. Insofar as Ellis was concerned there was much testimony that on occasions he was either drunk or otherwise irresponsible, at which times he would throw bottles through windows, destroy property or be otherwise guilty of unseemly conduct, and witnesses who could qualify therefor, testified that in their opinion he was of unsound mind or lacked testamentary capacity. On the other hand, many witnesses for the proponent testified that Ellis, while peculiar in some respects, knew what an asset he had in his library and knew what he wanted to do with it; that generally he knew what he wanted and was quite persistent in getting it and that he was competent. The respondent produced some proof that Ellis was the beneficiary of a trust, which he believed was of much greater value than it actually was worth, and that he believed another trust existed when it did not. Ellis was also shown to have had securities of the value of about $20,000 from which he received a return of about $50 per month. In addition to this he received a monthly allowance from his mother of about $850 per month. This was cut off when Ellis fled from California but was later reinstated in the fall of 1945. Other evidence will be mentioned later when necessary.
Insofar as mental competency is concerned, respondent directs our attention to the rule that for one to be competent to make a will it is necessary for him to be able to understand what his property consists of, who are his relatives and friends and who are the natural objects of his bounty and also that he know what he wants to do with his property, citing Stayton v. Stayton, 148 Kan. 172, 81 P. 2d 1, and other of our cases to like effect. That the test is properly stated need not be debated. Respondent then devotes many pages of her brief to a detailed analysis of the evidence from which she concludes the evidence shows mental incapacity. We think the case may not be so disposed of. The trial court reached a different conclusion from evidence which was in dispute. The very course of dealing whereby Ellis sought to find a depository for his library, including not only the University of Kansas but institutions in New York, shows that he had a keen appreciation of his ownership and the worth of the library, and the purposes for which it was collected and the uses to which it could be put. He also knew he possessed the securities which he had with him in Law rence,- and he knew the return he received therefrom. He knew likewise that he was the beneficiary of a trust, even though he may have been mistaken as to the value of the corpus of it. Likewise he knew he was married and that his wife would be a natural object of his bounty. That the evidence disclosed that Ellis knew what he wanted to do with his library is clear. It is also to be noted that the disposition made by him was not of his entire estate, but of only a particular part, useful generally only for specific purposes. Even though there was evidence that on occasion Ellis was guilty of conduct which, to say the least, was out of the ordinary, there was evidence that on other occasions he was possessed of full capacity. The trial court had the burden of determining whether, on May 3, 1945, Ellis had capacity to make the disposition under consideration, and its conclusion, being supported as we find it was by competent evidence, must end our review of this phase of the controversy.
II
Under two headings respondent contends that it is the duty of the trial court to make special findings on all material issues when requested by either party, and that the findings made are erroneous, sketchy and incomplete, in some instances unsupported by the evidence, and in others that the trial court failed to make findings on vital issues. Many pages of the brief are devoted to a discussion of these contentions in which detailed reference is made to particular findings. The basis for the complaint is substantially the same as was included in respondent’s motion to strike or modify the trial court’s findings, wherein thirty-nine amendments were proposed. This opinion would be unduly extended to take up and discuss each particular item. They have all been examined. In some instances the purpose in the district court on the motion, and in this court on the appeal, is to obtain a finding favorable to the respondent’s view, in others to compel the trial court to accept as true respondent’s evidence and in others to obtain findings on facts which, while perhaps relevant, are immaterial. In some minor instances the complaints, in and of themselves, may have merit but that the refusal of the court to extend its findings was prejudicial does not appear. And it seems to us this is recognized by the respondent who has not only filed a very complete abstract, but has argued the evidence in detail, and in her brief, after directing attention to our power to render final judgment (G. S. 1935, 60-3317) calls our attention to the fact the issues were fully tried in both the probate and district courts, that the evidence is full and complete and that in her opinion there is no necessity for a new trial or further proceedings, other than that, under express mandate of this court the lower court comply with our directions.
Ill
Competency having been determined, we next direct attention to whether or not the instrument in question was a testamentary disposition or will, or was as the trial court seems to have found, only a contract to make a will. The question arises under the ruling of the trial court sustaining respondent’s demurrer to the proponent’s evidence. It seems clear from the record the ruling was made because of a claim the document was not “signed at the end thereof by the party making the same” as is required for the valid execution of a will under G. S. 1947 Supp. 59-606. In support of the trial court’s ruling respondent directs our attention to our decision in In re Estate of Bond, 159 Kan. 249, 153 P. 2d 912, wherein it was held that under the facts of that case there was no signature. It may be conceded that the statute means what it says. Waiving any question of sufficient execution otherwise authority may be found that a will not signed at the end is an entire nullity, or that such a will is good as to all that part which precedes the signature, but we need not enter into such a discussion.
We note respondent’s contention that the document which Ellis signed concluded with a witnessing clause that “Ralph Ellis has signed said contract,” and that from that it is clear he did not sign the document as a will. That contention cannot be sustained. There was only one document, both contractual and testamentary and he signed all, not merely a part, of it.
A mere reading of the last paragraph preceding the witnessing clause of the “Agreement and Testamentary Disposition” shows that Ellis declared, “In the event of the death of Mr. Ralph Ellis . . . then the ownership of said books shall pass absolutely to the University . . . Mr. Ralph Ellis accordingly makes this disposition of his library to take effect at his death . . .” That the above language is testamentary need not be debated. That Ellis signed the document at a place after the above statement must be conceded. Why then was it not signed at the end? It is argued that the attestation clause is testamentary and that he did not sign at the end thereof and therefore the execution did not meet the statutory requirement. We cannot agree. Although verbose, the attestation clause in effect says the testator declared his signature was made to, and that he declared the instrument to be, a testamentary disposition, in the presence of the witnesses who in his presence and in the presence of each other signed their names as witnesses. In substance the clause said no more than the familiar words:
“The foregoing instrument of writing was on the - day of - signed by the above named testator and by him declared to be his last will and testament, in our presence; and we, at his request and in his presence and in the presence of each other, have signed our names as witnesses thereto.”
In our opinion the declaration the document was a will did not make a testamentary disposition — that had been done. At most it was a publication (In re Estate of Koellen, 162 Kan. 395, Syl. ¶ 6, 176 P. 2d 544). The trial court erred in sustaining the demurrer on the ground the will had not been signed at the end thereof.
IV
Respondent further contends that the testamentary disposition was invalid under G. S. 1947 Supp 59-605 (§ 41 of the probate code) where, in substance it is provided that where a will is written or prepared by the sole or principal beneficiary who, at the time of writing or preparing the same, was the confidential agent or advisor of the testator or who occupied at the time any other position of confidence or trust to the testator, the will shall not be held valid unless it shall affirmatively appear the testator read the will and had independent advice thereto, and our attention is directed to many of our decisions where the statute was under consideration. Among these is Flintjer v. Rhem, 120 Kan. 13, 241 Pac. 1087, where it wras said that the statute applies only where the will was written or prepared by the sole or principal beneficiary and who is the confidential agent or legal adviser or who occupies some other position of confidence or trust to the testator and that when those conditions exist the will shall not be held valid unless it be shown that the testator knew or read the will and had independent advice with respect thereto. Respondent makes an involved argument that the board of regents has charge of the University with power to remove executive heads, deans, professors and other employees and that none of them are disassociated from the interests of the donee. With that as a premise she argues that although the evidence disclosed that Ellis read the will, it likewise disclosed that although he was afforded an opportunity to obtain advice from counsel of his own choosing, he did not do so, and had no independent advice. We find it unnecessary to discuss the question in the same manner it is treated by respondent in her brief for the trial court found and the evidence disclosed that Ellis was endeavoring to make, with other institutions, a disposition of his library in manner at least similar to that finally consummated by the agreement and testamentary disposition, and that he corresponded with Hall about it; that after the matter had proceeded for sometime it was suggested that he get some attorney.to represent him in the preparation of the proposed agreement, and that he choose Moreau, dean of the law school, and thereafter a general understanding and agreement was reached from which Moreau prepared the documents finally executed. That Ellis expressed his satisfaction was clearly shown. In so acting Moreau was representing Ellis, and there is no hint in the evidence he did not faithfully do so. Considerable play is made on the fact that Moreau described himself as the scrivener of the will and inferences unfavorable to Moreau and the University are drawn therefrom. Some comment is also made that a draft of the proposed agreement was submitted to the attorney general, but in view of the fact the board of regents was to be a party to the contractual features and he was their advisor, that cannot be given weight as showing that the university caused the testamentary disposition to be written or prepared. We have carefully read the evidence as abstracted, and without repeating any of it we cannot hold as asked by the respondent, that because Moreau was dean of the law school and prepared the instrument and because Hall, a professor, was considerable of a confidant of Ellis, that those facts compel any conclusion either of fact or of law that the testamentary disposition was written or prepared by the principal beneficiary who was the confidential agent or legal advisor of or occupied some other position of confidence or trust to the testator. In our opinion the findings of fact upon the matter as made by the trial court are supported by the evidence and its conclusion of law therefrom was correct. What has been said heretofore is a sufficient answer to a further contention that the findings of fact and of law show a violation of section 41 of the probate code, and that they fail to determine or find upon the material issues on the matter last under consideration.
V
Respondent also argues that the “Agreement and Testamentary Disposition” is not a contract to make a will nor if it were such a contract, is it enforceable. Our holding the testamentary provision is good as a will, makes it unnecessary to discuss this contention.
VI
Consideration of respondent’s contention that the trial court was without power to change its decision can1 only be understood when certain facts are stated.
In its conclusions of fact, the trial court found facts leading to its conclusion of law that the fact respondent signed the agreement of May 3, 1945, approving the testamentary disposition made by her husband, did not conclusively deprive her of an interest in the library and it concluded further that her attitude in the action was tantamount to an election on her part to take under the law of descents and distributions of the state of Kansas, and it then concluded:
“The Court further concludes that the University of Kansas and the respondent Irene S. Ellis are each entitled to a one-half interest in the library in question, subject to the rights of creditors.”
In due time the proponent filed its motion for a new trial and the respondent filed her motion for a new trial, alleging erroneous rulings and that the decision was contrary to the evidence, and her motion to strike or modify the conclusions of fact and of law, included in which was the factual situation of respondent’s execution of the approval and the legal conclusion thereon. For present purposes it may be said these motions were denied on February 9,1948. (We pause here to note that terms of court in Douglas county commence on the first Mondays of February, May and November.) On February 12, 1948, respondent served her notice of appeal to the supreme court. On April 26, 1948, each party submitted a journal entry of judgment, and the trial court at that time struck from its conclusions of law the paragraph quoted above, and thereafter respondent filed another notice of appeal covering the matter.
Respondent directs our attention to 4 C. J. S. 1089 that although jurisdiction remains in the trial court until an appeal is taken, as soon as that is done the jurisdiction of the appellate court attaches and that of the trial court ceases, and to 4 C. J. S. 1091 that unauthorized proceedings in the lower court after jurisdiction has been acquired by the appellate court are generally held to be void, as well as to our decision in Herthel v. Geiman, 160 Kan. 368, 161 P. 2d 518, in which after judgment was rendered and appeal was taken, a petition for a new trial was filed setting up facts which had occurred after the original trial. This court did say that appeal having been taken our review of the judgment could not be affected by subsequent facts which formed no part of the original case.
Under the code of civil procedure (G. S. 1935, 60-3007) the district court is given the power to modify its judgments under the conditions there specified, and that it has general power and control over its judgments during the term in which they are rendered has been repeatedly held as is shown by cases cited in those later mentioned. The fact an appeal has been taken does not take away that power in a proper case. In State v. Langmade, 101 Kan. 814, 168 Pac. 847, it was held:
“During the term at which judgment has been rendered the district court has power to set aside an order denying a motion for a new trial, to set aside the judgment, and to grant a new trial, although an appeal has been taken to the supreme court.” (Syl. ¶ 1.)
That case was followed in State v. Bowser, 154 Kan. 427, 118 P. 2d 1055, where it was held that:
“. . . a district court does not lose jurisdiction to set aside or modify, within the term, its judgments or orders, by the mere fact that appeal therefrom has been taken to the supreme court.” (Syl. ¶ 1.)
Under the rule of these cases the trial court did not err in modifying its conclusions of law. In its judgment the trial court adjudged that the “Agreement and Testamentary Disposition” was entitled to probate and that the library and property mentioned therein became the property of the proponent upon the death of Ralph Ellis “subject to the interest of the said Irene Ellis, respondent, widow.” The trial court had the power to alter its judgment as heretofore set out.
VII
Although the proponent appealed from that part of the judgment holding that Irene S. Ellis had an interest in the library and that her consent to the “Agreement and Testamentary Disposition” was invalid, it suggests the possibility the question of the widow’s consent was not properly before the district court and that it had no jurisdiction. With that suggestion we do not agree. The widow put the matter of her consent in issue by her answer filed in the probate court. After appeal was taken to the district court the proponent, by reply, alleged consent and estoppel, and the widow by a second answer, again answered that the consent was not freely and understandingly executed by her. As we view it, there is no question as to the jurisdiction of the district court to decide the matter next considered.
VIII
There is no contention but that under G. S. 1947 Supp. 59-602, in effect at all times material, or under G. S. 1935, 22-238, which was in effect before July, 1939, neither spouse could will away from the other more than one-half of his property, subject to certain rights not presently involved, unless the other consented thereto in writing executed in the presence of two or more competent witnesses. There is no contention that the document under consideration was not executed in the manner provided, nor, for what it may be worth, that the testamentary disposition, to which consent was given, did not dispose of the entire estate of the testator in the property mentioned. The question is whether the document, admittedly signed and witnessed, constituted a valid consent.
There is little or no dispute in the evidence, a part of which has been stated heretofore and some of which is here repeated. Ellis had been making efforts to dispose of his library and Mrs. Ellis was aware thereof. She had gone to California and looked after getting the library boxed for shipment to New York. She knew that destination had been changed to Lawrence, Kan., and that the books were there when the first conversations were held early in March, 1945, and was present when the preliminary statements as to disposal of the library and her consent thereto were dictated, and she knew the terms of the proposed contract, and knew that Ellis proposed that in the event of his death within the period the library was to remain at the university, the library was to become the absolute property of the university, and by a separately dictated arrangement she agreed that in the event of the death of Ellis, she waived all claim to the library. When the final drafts had been prepared and were ready for execution on May 3, 1945, she was present and the documents were read, paragraph by paragraph, and after her husband had executed his “Agreement and Testamentary Disposition” to which she raised no objection, she then executed the contract prepared for her in which she expressed familiarity with the contract executed by her husband and joined with him in making the disposition of the library, in which she approved the testamentary disposition made by him, and in which she stated that in the event the library passed to the university pursuant to the testamentary disposition she would make no claim to it and that she expressly waived any and all rights she might have under the laws of any state. Mrs. Ellis seeks to avoid the acts deliberately done by saying, after the death of.her husband, that no one advised her of her rights under the laws of Kansas pertaining to descents and distributions.
The question is whether the document executed by Mrs. Ellis was a binding consent under the statute heretofore mentioned, which contains no specification of standards for such consent. It may be noted there is no controversy as to the manner in which it was executed, nor is there any claim of oppression or fraud, and those things, present in some cases, need no consideration here. It will be observed that the document at no place contains the word “consent” but does contain the words “approve” and “waive.” Under our decisions, however, it is not important what precise word or words be used — the ultimate matter for determination is whether the content of the written document indicates an acceptance of the terms of the will and a willingness that the testator make the disposition set out in his will. See Jack v. Hooker, 71 Kan. 652, 81 Pac. 203; Weisner v. Weisner, 89 Kan. 352, 355, 131 Pac. 608; and Moore v. Samuelson, 107 Kan. 744, 748, 193 Pac. 369.
The question of sufficiency of consent by one spouse to the will of the other has been treated in many of our decisions dealing with diverse facts and circumstances, but we deem it unnecessary to take up and analyze each of those decisions. Among them are Jack v. Hooker, supra; Weisner v. Weisner, supra; Chilson v. Rogers, 91 Kan. 426, 137 Pac. 936; White v. White, 103 Kan. 816, 176 Pac. 644; Moore v. Samuelson, supra; Menke v. Duwe, 117 Kan. 207, 230 Pac. 1065; Williams v. Sechler, 127 Kan. 314, 273 Pac. 447; Woodworth v. Gideon, 136 Kan. 116, 12 P. 2d 722; and cases cited therein. The rule deduced from, all of the decisions is that the consent must be given freely and understandingly. It follows as a matter of course that whether that consent was freely and understandingly given is to be determined as of the time the document evidencing consent was executed. For instance, in Pirtle v. Pirtle, 84 Kan. 782, 115 Pac. 543, it was held that a wife could not repudiate her consent because she subsequently discovered that her husband’s estate was larger than she anticipated. In Weisner v. Weisner, supra, it was held that in case of a written consent by a wife that her husband dispose of more than one-half of his estate to parties other than her, it was only essential that she act freely and understandingly. In White v. White, supra, it was noted that the wife knew exactly of what her husband’s possessions consisted, and that the question whether the amount she was to receive under the agreement there in question was fair and equitable could only be determined by considering the situation of the parties at the time the agreement was made, their age, the property possessed by each, and other circumstances there mentioned. In Menke v. Duwe, supra, it was said the wife ought to have sufficient information respecting her rights and the manner in which the will would affect those rights to enable her to act intelligently “unless she should indicate willingness to act unintelligently.” (l. c. 213.)
It may be conceded that in many of our decisions, stress is laid on the fact that the consenting spouse was not advised as to his or her rights under the statutes pertaining to descents and distributions, but in those cases that knowledge, or lack of it, went to the-question whether the consent there involved was freely and understandingly given; but it follows that if a review of the circumstances shows that the consenting spouse was fully aware of the estate of the other, and of the disposition made in the will, knew for some period of time that the particular disposition was tu be made, made no effort to inform herself, made no protest to documents of testamentary disposal and her consent thereto being prepared and without making any effort to ascertain her rights, executed the consent, it must be held either that she acted intelligently or that she was willing to act unintelligently. To recapitulate very briefly, the trial court’s findings, supported by evidence, show that respondent knew of her husband’s efforts to dispose of the library and was willing to do whatever he might want her to do, she had charge of its being packed and shipped from California, she sat by and heard the preliminary draft made providing that if her husband died while the library was at the University, it was bequeathed to the University; that her consent would be required; that about six weeks later final drafts were ready, were read paragraph by paragraph in the presence of her husband and herself; that her husband expressed satisfaction; that she made no protest whatever, and in due time executed the instrument prepared for her, all with the formalities required by statute. The trial court’s finding that respondent did not sign the consent because of any undue pressure is clearly supported by the evidence but that she signed it without adequate knowledge of its purport and eventual effect is not a finding that she did not sign willingly and without regard to purport and eventual effect. The record shows that to be the fact.
As we view the matter the trial court’s conclusion of law that the document should not be held or considered a binding consent cannot be upheld.
IX
In its judgment the trial court taxed the costs to the estate of Ralph Ellis, deceased, and respondent complains that that action constituted an abuse of discretion, contending that she won a substantial victory in the district court and that the costs should have been taxed to the proponent. In her specifications of error this particular one is not included, and in her brief respondent cites no authority in support of her argument. Under our code of civil procedure in actions for the recovery of money only or for the recovery of specific real or personal property, costs are allowed as a matter of course to the prevailing party, but in other cases (and this is one) the court may apportion the costs as in its discretion it may think right and equitable (G. S. 1935, 60-3704, 3705, 3706). In view of the whole record, we are of opinion the judgment as to the costs may not be vacated.
X
From what has been said, it follows that the trial court’s ruling on the respondent’s demurrer to the proponent’s evidence is reversed, and that judgment should be entered by it, admitting the “Agreement and Testamentary Disposition” made by Ralph Ellis under date of May 3,1945, as the last will and testament of the said Ralph Ellis; that the trial court’s judgment that the library in question became the property of the proponent upon the death of Ralph Ellis, subject to the interest of Irene Ellis, respondent, widow, is reversed insofar as it adjudges that said Irene Ellis has any interest, and that judgment should be rendered by the trial court adjudging that the proponent became the absolute owner of said library, and that in all other particulars the judgment of the trial court should be affirmed, and that the cause should be remanded to the trial court for further proceedings consistent herewith. And it is so ordered.
Arn, J., not participating. | [
-80,
109,
-4,
30,
10,
-32,
42,
-104,
113,
-75,
37,
115,
-17,
-54,
1,
123,
114,
45,
80,
107,
-61,
-73,
55,
-127,
82,
-77,
-40,
-35,
-79,
-33,
-12,
-41,
76,
-96,
34,
-107,
-58,
-118,
-63,
20,
-52,
5,
-119,
-15,
-39,
-128,
52,
35,
82,
15,
81,
-66,
-13,
42,
30,
67,
-24,
44,
91,
-88,
64,
-80,
-117,
-107,
125,
23,
-110,
3,
-100,
-83,
88,
47,
16,
49,
1,
-24,
97,
-90,
-106,
-12,
11,
-119,
40,
102,
98,
33,
-19,
-17,
-80,
-120,
78,
50,
13,
-90,
-109,
88,
96,
1,
-108,
-99,
113,
80,
7,
-2,
-17,
20,
30,
-20,
8,
-117,
-42,
-79,
15,
124,
-120,
11,
-21,
-124,
32,
113,
-55,
102,
93,
67,
57,
-109,
-98,
-80
] |
The opinion of the court was delivered by
Thiele, J.:
This was an action by the city of Kingman for a declaratory judgment that the south thirty-five feet of block 13 in Brown’s Addition to the city of Kingman had been dedicated as a public street, and for a judgment enjoining the defendant from interfering with the city’s use. The trial court held that only a portion of the land was a public street and the city appeals.
In a'preliminary way it may be said that Brown’s Addition to the city of Kingman was platted prior to 1887. No copy of the plat nor any sketch is made a part of the abstract, but from the conclusions of fact, later mentioned, we learn that immediately east of Sugar street, which is apparently the western limits of Kingman, are blocks numbered 13 and 14 which are not divided into lots, and which blocks are not intersected by a platted east and west street; that to the east are other blocks, divided into lots, the blocks being separated by north and south streets and by east and west streets. These east and west streets are seventy feet wide, and Avenue G, if extended west, would include the south thirty-five feet of block 13 and the north thirty-five feet of Block 14. Nettie Wagner, who owns block 13, is the defendant. The owner or owners of block 14 were not made parties and their names are not disclosed by the record as abstracted.
In its petition the city alleged that for more than fifteen years Avenue G as extended across the south end of block 13 and the north end of block 14 had been used as a public street and that the predecessors in title of Nettie Wagner had dedicated the south end of Block 13 as a public highway; that such owner of block 13 had constructed his house at a point north of the extended street line and constructed a fence and set out shrubbery recognizing Avenue •G as extended as a public highway, those acts being done over fifteen years ago, and the situation thus created had continued down to the present time, and that the public had accepted and used the highway; that Avenue G constituted a main entrance to the city from the north and west and had been used by the public, and that a rural carrier mail route was established and maintained over it until the street was obstructed by the defendant.
In her answer the defendant denied generally and alleged she bought block 13 in 1932; that there had been travel across the south end of the block; that she had planted shrubbery south of the extended north line of Avenue G in contemplation of making a private parking place for her own convenience. She also pleaded a willingness to have Avenue G extended its full width of seventy feet, if the city would properly proceed by exercise of its power of eminent domain or by purchase, but she refused to extend Avenue G at a width of thirty-five feet all on the south side of block 13. The city’s reply denied new matter, and alleged matter which we need not detail.
The trial court made conclusions of fact and of law. The conclusions of fact cover the statement above made as to the locations involved and also,
“4. For a long number of years, and at least as early as 1904, travel upon Avenue G has continued on west over and across Blocks 13 and 14 to Sugar Street, and more or less travel from Sugar Street has entered upon Avenue G over said 2 blocks, and such travel has given an appearance of extending Avenue G on west to Sugar Street; with, however, no well-defined boundaries of said street.”
“8. While Avenue G as extended across Blocks 13 and 14 has been traveled and used for upwards of 50 years, the travel and use has not covered the entire 70 feet, but has been largely in the center thereof.”
The trial court also found that prior to 1904 a residence facing south and east had been built about the center of block 13; that defendant acquired that block in 1932 and had set out walnut trees and shrubbery on a line about three feet south of the north line of Avenue G extended; that at the time she acquired the property a fence along the west line of block 13 extended possibly twenty feet south of the north line of Avenue G extended; that five or six years ago, and while defendant and her family were gone, the city had done some grading of the strip, the extent not being shown, and that it had dragged the road for a long number of years; that a rural mail route used the road from 1933 to 1949 and defendant had her mail box on the south side of the road; that the defendant did object to the city setting a light pole and laying some water mains in the extended seventy-foot street and the city desisted; that in February, 1949, the defendant caused a fence to be placed across Avenue G stopping travel thereon, and this action was commenced.
“11. The Court finds that a portion of Avenue G, extended west over and across Blocks 13 and 14 of Brown’s Addition to the City of Kingman, has been traveled and used by the public generally, openly and adversely under claim of right, for a period of more than 45 years, and that the portion of such extension so traveled and used is as follows: Commencing at a point on the east line of Block 13 seventeen feet south of the Ablard stake, thence south for a width of twenty-eight feet, and thence west by south twenty-eight feet wide across Blocks 13 and 14 to the east line of Sugar Street, where the north line of said traveled portion is twenty-four feet south of the Ablard stake.” (The Ablard stake is at the southwest corner of Block 12 and marks the north line of Avenue G.)
“12. Defendant has always claimed all of Block 13, and has at times orally denied any right of travel over the same. However, while a witness in this case, defendant expressed a desire for a street 70 feet in width and has offered to donate more than 35 feet off the south end of Block 13 for such a street.
“13. While the City claims there is no controversy with the owner of Block 14 relative to an extension of Avenue G over it, there is some evidence that such owner claims some part of Avenue G extended, and has recently built a home very close to or actually on the south line of Avenue G extended.”
As a matter of law the trial court concluded:
“1. That a street or roadway by prescription exists over and across the south side of Block 13 in Brown’s Addition to the City of Kingman, Kansas, and that said street or roadway is 28 feet wide as described and outlined in the Findings of Fact hereinbefore set forth, and that no part of said Block 13 extends south of said street or roadway.
“2. That a declaratory judgment should be entered declaring that all of such part of said street or roadway as is included within said Block 13 is a public street and roadway by prescription.”
And that defendant should be restrained from interfering with or obstructing the said street or roadway, and that judgment should be entered accordingly.
The city then filed its motion, not set out in the abstract, but apparently asking the trial court to substitute for its conclusions of law, others to the effect there had been a dedication of the street south of the walnut trees and that Nettie Wagner was estopped from contending otherwise, and for a declaratory judgment that all that portion of block 13 south of the row of trees was a public street.
The trial court denied the foregoing motion, and thereafter rendered judgment on the conclusions previously made using a description of the land embraced in the street differing from that used in its conclusion of fact No. 11, but which we suppose covers the same land as no contention to the contrary is made.
The city’s motion for a new trial was denied, and in due time it appealed. Its specifications of error cover three general propositions: (1) That the acts of the predecessors in title of the appellee constituted a dedication of the south end of block 13 as a westward extension of Avenue G; (2) that the conduct of appellee constituted a dedication, or that her acts and conduct after she acquired the title precluded and estopped her from denying that her predecessors in title had made such a dedication; and (3) that even if it be determined there was no dedication, the prescriptive rights of the city arising from user, cover a strip wider than that found by the trial court and to the same extent as that covered by the claimed dedication.
Before discussing the first proposition we note appellant’s statement there is not much uncertainty as to what constitutes a dedication, but that the trial court had followed our decision in Meade v. Topeka, 75 Kan. 61, 88 Pac. 574, which held that under prescriptive right the interest of the public was confined to the tract actually used, and that it is appellant’s purpose to point out that the trial court should have found the public right resulted from dedication which would cover the entire width of the street, and on that basis our attention is directed not only to definitions of dedication but to an extended discussion of the facts stated in such manner as to support appellant’s contention. We are not free to so treat the matter. In its abstract the appellant set forth the findings of fact made, but none of the evidence, and so far as the record discloses, its only complaint in the trial court was that the trial court did not make conclusions of law in its favor. We must accept all of the findings of fact as made by the trial court and not melrely those which might be said show that approximately the south thirty-five feet of block 13 had been dedicated as a street.
I
An extended discussion of what constitutes a dedication and how lands may be dedicated seems unnecessary. On the subject generally see 26 C. J. S. (Dedication), p. 47, et seq., and 16 Am. Jur. (Dedication), p. 345, et seq. For our purposes it may be said that dedication is the devotion of land to a public purpose by the unequivocal act of the owner manifesting the intention that it shall be used for such public purpose, and that his intention may be evidenced by his specific act as where he files a plat, or it may be inferred from his acts and declarations. The dedication may be established in any way by which the intent of the dedicator may be shown, even by estoppel on the part of the owner of the land. See Kansas City v. Burke, 92 Kan. 531, 533, 141 Pac. 562, and cases cited, and Kasper v. Miller, 159 Kan. 488, 498, 156 P. 2d 550, and cases cited.
In the instant case there is no contention there was a dedication by specific act. If there was any dedication it was one to be inferred from acts and conduct of the owner that manifested an intention to devote the land to public use as a street. Insofar as predecessors in title of the appellee are concerned, it is true they built a house facing south and*east, but any inference that they intended any dedication of the land on the south end of the block as a street is outweighed by the fact that on the west their fence extended twenty feet south of the east and west line the city contends marks the north line of the street as extended west. There is no other finding from which dedication by the former owners may be inferred.
II
Insofar as the appellee is concerned, the appellee planted trees and shrubs in what the city contends is the street, she resisted the city’s efforts to improve the street to the width contended for by it, and if there was any evidence from which an inference of dedication may be drawn against her, it is not included in the abstract nor in the findings of fact made by the trial court. Appellant’s contention that appellee is estopped to deny there had been a dedication is predicated on the location of the house; that she set out trees and shrubbery; that the entrance has been from the south and not from the east or west, and from her statement that she would not object if the city opened the street for its full width of seventy feet. The trial court refused to find that those facts estopped appellee from denying there had been a dedication. Without further discussion, we think its refusal to so find was proper.
Ill
Appellant states that in view of our decision in Meade v. Topeka, supra, the trial court felt impelled to limit the width of the street to that part actually traveled, and that it erred in so doing.
In the last cited case may be found an extended statement of facts to which reference is made. On the facts found by the trial court, this court held that the city’s right having been acquired by user, its easement could be no broader and that it acquired no right to any land outside the line actually worked and traveled, and it was held:
“A grant of a tract of land for a public highway will be presumed when it is proved that the public has had the exclusive, uninterrupted possession and use thereof for such purpose for a period of time which would bar an action for the recoveiy of real estate.
“Under such circumstances the burden of showing that the use was permissive is upon the owner of the title.
“Such presumptive' grant cannot be broader than the user; it is therefore confined to the tract actually used.” (Syl. ¶ 1, 2, 3.)
Appellant says that the rule of the above case was materially weakened by our holding in Carlson v. Allen, 90 Kan. 457, 135 Pac. 669. In the last case the plaintiff erected a fence on what he asserted was the line between his land and a public highway. The fence was torn down by the township trustee, and suit followed. The plaintiff contended the road was a certain width by reason of statutory provisions. The defendants relied upon evidence that a former owner had set out and maintained for many years a hedge fence intended to mark the line of the highway. It was held that the evidence was sufficient to support the trial court’s judgment, because it justified a finding that assuming the statutory proceedings had resulted in a road of but forty feet in width, a wider road was created by dedication and acceptance, or prescription. It was held:
“Where the owner of land bordering upon a highway, the legal width of which is forty feet, sets out a hedge, intending to mark the line so as to show a greater width, and the strip so marked is used as a road by the public for fifteen years, a highway of the width indicated results, notwithstanding the hedge is not maintained throughout the entire distance for all of that time.” (Syl. ¶ 2.)
In our opinion the last mentioned case is clearly distinguishable from Meade v. Topeka.
Appellant also directs attention to 13 R. C. L. 58, and to Whitesides v. Green, 13 Utah 341, 57 A. S. R. 740, where there is language supporting a statement that a highway acquired by user is not limited to the width actually used, but carries with it such width as is reasonably necessary for the public easement of travel, and the width must be determined from a consideration of the facts and circumstances peculiar to the case. Even though we accept that as a rule to be applied, we cannot say the trial court erred. It heard the evidence and made findings which are not attacked. The particular road has been used for over forty-five years, and the trial court concluded that the portion “traveled and used” was twenty-eight feet wide. If the trial court in determining that width did not take into consideration the facts and circumstances peculiar to the case, it has not been made to appear.
It has not been made to appear that the trial court erred in its judgment and that judgment is affirmed. | [
112,
127,
-12,
126,
26,
96,
24,
-104,
104,
-80,
-10,
119,
-23,
26,
28,
125,
75,
61,
80,
59,
-27,
-78,
7,
-126,
-78,
-13,
-46,
-43,
-72,
-36,
76,
87,
76,
32,
-54,
23,
70,
-32,
103,
26,
-52,
-107,
-55,
-43,
-39,
96,
52,
123,
64,
79,
-15,
-49,
-9,
41,
25,
-61,
104,
44,
-39,
60,
49,
-7,
45,
-107,
125,
6,
-128,
-94,
-104,
-127,
-24,
26,
-48,
53,
-104,
-24,
87,
-74,
-106,
100,
111,
-101,
12,
-90,
98,
17,
77,
-25,
-22,
-103,
14,
-2,
-123,
-90,
38,
24,
9,
33,
-74,
-111,
109,
4,
2,
126,
70,
29,
24,
108,
13,
-114,
-48,
-79,
-49,
-8,
-128,
-53,
-61,
21,
48,
112,
-53,
-22,
-36,
118,
53,
-37,
11,
-47
] |
The opinion of the court was delivered by
Arn, J.:
This is an appeal from a conviction upon a charge of attempting to commit statutory rape upon a five-year-old girl. Appellant, a man in his middle forties, was first tried on October 14, 1948, but the jury was unable to agree upon a verdict and it was declared to be no trial. At the following term, and on February 16, 1949, appellant was tried and convicted.
Preliminary to the trial of October 14, 1948, appellant was arraigned and pleaded “not guilty" to an information which is now claimed to be defective in that it failed to set forth the overt acts tending to accomplish the commission of an attempt to commit rape. Appellant did not attack the information prior to the trial of October 14, 1948, and now concedes that he thereby waived any such deficiency in that information insofar as the first trial was concerned. Sometime between October 14, 1948, and February 16, 1949, the county attorney filed an amended information which was identical with the original information except that it contained a statement as to the overt acts. The amended information was not filed with leave of court nor pursuant to any court order. The trial of February 16, 1949, was commenced, a jury was empaneled and sworn, the county attorney made his opening statement, and the witnesses were sworn without appellant being arraigned or entering a plea to the amended information, or without it being read to him by the court. The state called its first witness who, in response to two questions by the county attorney, stated her name and address. Thereupon appellant’s counsel asked to present a legal matter and the jury was temporarily retired from the courtroom. Appellant then offered and argued two motions: (1) A motion to quash and strike the amended information from the files for the reasons that defendant was not arrainged, had not had the amended information read to him in open court, and did not enter a plea thereto prior to testimony being taken in the case; and (2) a motion to quash the original information for the reason that it omitted a statement of the overt acts and therefore did not state facts sufficient to constitute a crime. The trial court overruled both motions, but concurrently therewith, granted the state permission to file the amended information and ordered the defendant brought forward for arraignment. The amended information was read to appellant and he was asked to plead. At that point counsel for appellant advised the court that appellant refused to plead for the reason “that he had been put on trial once before and is now in jeopardy a second time and refuses to plead to the amended information as read.” A plea of “not guilty” was then entered on behalf of appellant by the court. The court then ordered the jury to be recalled and resworn, the state’s opening statement to be made again, and the witnesses' resworn — to all of which appellant objected contending that he was being placed in double jeopardy. Counsel for appellant again objected to the trial court’s ruling on his motions to quash and advised that he was then and there appealing from said ruling. When these formalities were concluded the trial continued with the introduction of the state’s evidence. As the trial progressed, appellant objected to the testimony of each state witness and in each instance save one, moved that the testimony of the respective witnesses be stricken. Other than this, appellant did not participate in the trial and offered no evidence in his own defense. After his conviction, appellant filed a motion for new trial which the trial court overruled. The record shows that sentence was pronounced pursuant to G. S. 1935, 21-424 and 21-101, § 2.
Appellant contends that he was in jeopardy when the trial began on February 16, 1949, that is, at the time the jury was empaneled and sworn, the opening statement made by the state, and the first state’s witness was questioned as to her name and address. He argues that at that time there was in fact no amended information because it had not been filed by leave of court and appellant had not then been afforded the opportunity of having it read to him nor of pleading to it. He argues further that the original information was a nullity because of its insufficiency. For these reasons it is urged that both motions to quash should have been sustained by the trial court. Appellant contends that for the trial court to recess the jury, permit the filing of the amended information, arraign the appellant thereon, and then recall the jury and begin all over, placed him in jeopardy a second time. These contentions of appellant require careful analysis.
I. The original information filed prior to October 14, 1948, to which appellant pleaded “not guilty,” charged as follows:
“That on or about the 21st day of August, 1948, at the County of Ellsworth and State of Kansas then and there being, one Ernest Radke, in and upon one Peggy Perez, also known as Pauline Perez, also known as Pauline Galloway, a female person under the age of 18 years, to wit: of the age of 5 years, unlawfully and feloniously did make an assault, and her, the said Peggy Perez, also known as Pauline Perez, also known as Pauline Galloway, then and there intentionally, unlawfully, and feloniously did attempt to carnally know and abuse, contrary to the form of the Statutes in such case made and provided and against the peace and dignity of the State of Kansas.”
The charge as above stated is in the language of the statute (G. S. 1935, 21-424, and in a general way meets the requirements of G. S. 1935, 21-101, by charging the doing of an act toward the commission of the offense — i. e., “attempting to carnally know and abuse”). It was not fatally defective, as contended by appellant, merely because it omitted all of the specific overt acts which may be relied upon to constitute the attempt, although it may have been subject to motion. In State v. Kelly, 125 Kan. 805, 265 Pac. 1109, 88 A. L. R. 351n, it was held that where an information charged that an attempt to rape was accomplished by a forcible assault, it was defective in that it failed to describe the specific acts constituting the assault', but was not fatally defective or prejudicial to the defendant. The case of State v. Russell, 64 Kan. 798, 68 Pac. 615, was reversed in this court because the information did not set forth the specific acts done toward the commission of the offense of assault with attempt to commit rape — but there, the information had been attacked by a motion to quash and it was held the trial court erred in overruling that motion.
Perhaps the information in the instant case was subject to ob jection by defendant’s motion to quash — but when so challenged it could be amended provided any such amendment was made pursuant to G. S. 1935, 62-808. The original information was not challenged at the first trial (which by reason of a hung jury resulted in a mistrial, or no trial) and it was not challenged until after the retrial began on February 16, 1949. It is true the county attorney had sought to amend the information during the interim between October 14, 1948, and February 16, 1949, but having done so after defendant’s arraignment thereon and without leave of court, the requirements of section 62-808, G. S. 1935, were not met and this attempt to amend was a nullity. However, when the original information was challenged by defendant’s motion to quash after the trial had begun, the district court properly permitted the state to amend by setting out the specific overt acts constituting the attempt. The amended information charged:
“That on or about the 21st day of August, 1948, at the County of Ellsworth and State of Kansas then and there being, one Ernest Radke, in and upon one Peggy Perez, also known as Pauline Perez, also known as Pauline Galloway a female person under the age of eighteen years to-wit: of the age of five years unlawfully and feloniously did make an assault, and her, the said Peggy Perez, also known as Pauline Perez, also known as Pauline Galloway, then and there intentionally, unlawfully, and feloniously did attempt to carnally know and abuse, by then and there kissing her, the said Peggy Perez, also known as Pauline Perez, also known as Pauline Galloway, and then and there placing his private parts at, against and upon the private part of her, the said Peggy Perez, also knoim as Pauline Perez, also known as Pauline Galloway, contrary to the form of the Statutes in such case made and provided and against the peace and dignity of the State of Kansas.” (Amended portion in italics.)
This amendment at this stage of the proceedings did not change the charge, nor did it urge any new issues. Such amendments may be made during the trial under G. S. 1935, 62-808, of the criminal code (State v. Wilson, 110 Kan. 131, 202 Pac. 860, and cases cited therein; State v. Stiff, 117 Kan. 243, 250, 234 Pac. 700). It was not error to permit the amendment when appellant could not possibly have been prejudiced thereby (State v. Davis, 106 Kan. 527, 529-30, 188 Pac. 231; State v. Eye, 161 Kan. 69, 70-71, 166 P. 2d 572). In considering the importance of this phase of appellant’s argument from the standpoint of his being prejudiced, it may be noted that an information charging rape need not set out any overt acts — -and that a defendant may be convicted of attempt to rape when tried upon the charge of rape (G. S. 1935, 21-424; State v. Allen, 163 Kan. 374, 375, 183 P. 2d 458, and cases cited). As a further assurance that there could be no prejudice or surprise to appellant, we call attention to the fact that the specific overt acts set out in the amended information were testified to specifically by the state’s witness and referred to in the state’s opening statement in the first trial of October 14, 1948. The amended information being properly filed, and the foregoing proceedings having transpired concurrently with the overruling of defendant’s motions to quash both the original and the amended informations, the trial court’s ruling as to the original information became a moot question and its order overruling the motion to quash the amended information was not erroneous.
II. The information was amended, read to the defendant, and his plea of "not guilty” entered thereto in the absence of the jury. The jury was then called back into the courtroom and resworn. Appellant contends this placed him in jeopardy for the second time in a single day — that his jeopardy attached first when the jury was sworn before the information was amended, and again when the jury was resworn ajter the amended information was filed and he was rearraigned thereon. Just what should a trial court do with respect to the trial proceedings when an amendment to the information is permitted during the trial? In State v. Davis, supra, it was held (Syl. ¶ 5) that after an amendment to the information had been properly made subsequent to empaneling the jury, a rearraignment of the defendant was not required unless demanded by him. Whether or not in the instant case a rearraignment was necessary need not be discussed because appellant was rearraigned. He did not request rearraignment but on the contrary objected to it and to every other step of these proceedings upon the theory that he was being placed twice in jeopardy. But such rearraignment, whether necessary or not, had nothing to do with the status of appellant’s jeopardy. His jeopardy attached when the jury was empaneled and sworn (In re Rockwood, 146 Kan. 386, 388, 69 P. 2d 703; In re Brown, 139 Kan. 614, [Syl. ¶ 3], 32 P. 2d 507; Crebs v. Amrine, 153 Kan. 736, 745, 113 P. 2d 1084; Tines v. Hudspeth, 164 Kan. 471, 474, 190 P. 2d 867). Had this jury been discharged for any reason other than those mentioned in G. S. 1935, 60-2914, there might be merit to appellant’s plea of his being twice in jeopardy in violation of section ten of the bill of rights of our state constitution. But this jury was not discharged — it was merely recessed, and removed from the courtroom while the information was amended and while appellant was rearraigned on the amended information. After those formalities, the same jury was recalled to proceed with the trial. Following the rearraignment, it was not necessary to re-swear the jury and repeat the opening statements of counsel. To do so was a useless gesture which certainly did not have the effect of placing appellant in jeopardy a second time. His first and only jeopardy attached when the jury was first empaneled and sworn on February 16, 1949, and it was that jury which tried and convicted him.
III. Next, appellant contends that he had no opportunity whatsoever to present his defense at the trial on February 16, 1949, because if he had participated in that trial he would have been deemed to have waived all right to complain of being deprived of a fair and impartial trial. In this respect he relies upon the case of State v. Wilson, 42 Kan. 587, 22 Pac. 622. We have some difficulty in following appellant’s argument that in addition to making proper and timely objections, a defendant must abandon every effort toward his defense in order to later complain of error; and we fail to find support for such a theory in the case of State v. Wilson, supra. Appellant’s strategy during the trial was a subject for his own direction, and he cannot be heard to say on appeal that he was denied a fair and impartial trial when his defense failed because the strategy he pursued proved to be improper or ill-advised. And appellant’s argument that such lack of participation in the trial did not waive his right to complain on appeal becomes a moot contention when it is here determined that there was no error below.
IV. It is also urged by appellant that the manner in which the trial court overruled his objections after appellant had expressed his intention to appeal from the decision overruling his motions to quash the informations constituted misconduct on the part of the trial court. A careful examination of the record fails to reveal the slightest support for this argument.
V. Error is also urged in admitting on behalf of the state the testimony of a nine-year-old girl, appellant claiming that she was unqualified and incapable of understanding the meaning of an oath. Appellant cites cases (and there are many others not cited in his brief) to the effect that a person incapable of understanding the meaning of an oath and incapable of receiving just impressions of the facts respecting which he is examined, is an incompetent witness. That principle of law is too well settled for argument, both by our decisions and by statute (G. S. 1935, 60-2805, Second). But whether a witness has the capacity as required by the foregoing rule, and determination of the witness’ competency, is a matter for the sound discretion of the trial court (State v. Gaunt [Syl. ¶ 3], 98 Kan. 186, 189, 157 Pac. 447; Devine v. Heckman [Syl. ¶ 2], 121 Kan. 22, 245 Pac. 1037; State v. Wright, 121 Kan. 507, 247 Pac. 635). Appellant argues that the trial court found this nine-year-old girl to be a competent witness and permitted her to testify at the trial on February 16, 1949, when at the first trial four months earlier-, she was found to be incompetent. If it was true that she had been found to be incompetent on October 14, 1948, it does not necessarily follow that she still must be incompetent on February 16, 1949. However, it is not a fair statement to say that she was found to be incompetent at the time of the first trial. The record of that trial indicates the state had some difficulty in establishing the competency of the child as a witness. She first answered that she didn’t know about the obligation to tell the truth while under oath in court — but later upon examination by the court, she said she did know what it was to take an oath to tell the truth. However, after some colloquy between court and counsel, the state voluntarily withdrew her as a witness and the trial court never actually passed upon her competency to testify on October 14, 1948. Then on February 16, 1949, she was again called as a witness and her answers to preliminary questions pertaining to her qualifications fully satisfied the trial court and she was permitted to testify. It is not contended by appellant that the trial judge abused his discretion in this respect —and indeed, our examination of the record discloses no such abuse.
VI. In this case, the trial court exercised its sound discretion under all the circumstances and the substantial rights of the appellant were not prejudiced by any of the proceedings had herein. A verdict of guilty in a criminal case will not be disturbed unless substantial rights of the defendant have been prejudiced. G. S. 1935, 62-1718, provides:
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
The complete transcribed record of this case is before us, and we have carefully reviewed it. Being unable to find any error prejudicial to the rights of the appellant, the judgment of the trial court is affirmed. | [
-16,
-20,
-3,
-66,
43,
98,
106,
56,
3,
-93,
-73,
83,
-87,
-62,
12,
121,
31,
47,
85,
113,
-34,
-77,
39,
-31,
-74,
-77,
-63,
-43,
-73,
-49,
-18,
-4,
12,
-16,
-54,
-11,
98,
-54,
-59,
86,
-114,
-121,
-69,
-52,
16,
64,
52,
53,
112,
15,
49,
-66,
-29,
46,
30,
-45,
105,
44,
75,
60,
72,
-79,
-70,
29,
-49,
118,
-77,
-108,
-106,
64,
120,
46,
-100,
-79,
0,
-7,
126,
-122,
6,
-12,
107,
-71,
40,
96,
98,
1,
-27,
-25,
-88,
-103,
62,
126,
-67,
-89,
-40,
16,
73,
101,
-65,
-99,
100,
16,
-81,
126,
-3,
-51,
17,
100,
0,
-61,
-112,
-77,
-49,
32,
18,
-111,
-29,
49,
16,
113,
-57,
-12,
76,
86,
58,
-37,
-98,
-74
] |
The opinion of the court was delivered by
Smith, J.:
This was a forcible entry and detainer action. It was instituted in justice court. When the pleadings indicated that the title to real estate was in question, the justice court transferred it to the district court. There the cause was tried and judgment was entered for the defendant. The plaintiff has appealed.
The real estate in question was a tract of about eight and a half acres located west of what the record refers to sometimes as the “eighty rod line” and sometimes the “quarter-quarter line” and south of a railroad right of way, all in the southwest quarter of section 25, township 8, range 18, Jefferson county. The peculiar description is used because a railroad right of way crosses the section near its south border and runs across it from the northwest to the southeast. The portion of the quarter section cut off from the rest of the quarter is narrower at the east end than at its west end. The plaintiff owns the land on the west side of the quarter, the defendant that on the east side, each owning what we refer to as an “eighty.”
The plaintiff in his complaint described the tract as the east eight and one-half acres, more or less, of the west one-half of the south sixty acres of the southwest one-fourth, lying south of the right of way of the K. C. N. W. railroad, of section 25, township 8, range 18, Jefferson county, Kansas. He stated in his complaint that defendant had on August 1,1946, unlawfully entered into possession of the tract and was withholding possession from him and he, the plaintiff, was entitled to immediate possession.
The defendant answered by pleading that he was the owner in fee simple of the tract by reason of a quitclaim deed executed by the Travelers Insurance Company on November 8, 1939, to him as grantee. He alleged further that by reason of the matters pleaded the title to the land was in dispute and the justice court did not have jurisdiction to hear it. The cause was then transferred to the district court.
When it came on to be heard in district court the plaintiff introduced a deed from the Federal Land Bank to him, bearing date of April, 1946. This deed conveyed to him all that part of the west half of the south sixty acres of the southwest quarter lying south of the railroad right of way in section 25, township 8, range 18, Jefferson county, Kansas. He testified that upon that deed he based his contention of ownership of the tract. He testified there were some posts on the “quarter-quarter” line where there had been a fence and another fence about twenty rods west of the “quarter-quarter” line; that the tract in question was between the “quarter-quarter” line and the fence twenty rods to the west; that when he secured the deed from the Federal Land Bank to the fifty-two acres he demanded possession; that there are 49.6 acres south of the railroad which cuts through the south sixty acres referred to in the deed; that according to his theory under his deed he would have twenty-eight acres and the defendant 26.6 acres; that if the fence twenty rods west of the “quarter-quarter” line should be the dividing line, then he would have 22.8 acres and defendant 26.8.
This record does not disclose any chain of title to either party, neither does it disclose that plaintiff’s grantor, the Federal Land Bank, ever received title to or had possession of the tract in question.
It is settled that in an action such as this where the plaintiff seeks to evict one in possession from land to which both parties claim title, he must prevail on the strength of his own title, not the weakness of the defendant’s. (See Intfen v. Hutson, 145 Kan. 389, 65 P. 2d 576; Haseltine v. Nuss, 97 Kan. 228, 155 Pac. 55.) It is clear that the deed relied on by plaintiff did not describe the same tract of land described in his complaint. The two descriptions cannot be reconciled until the eastern boundary of the tract owned by plaintiff is established. That was not done by any evidence offered by him. From the evidence offered by him the trial court would not have been warranted in finding that the tract described in the complaint and the tract described in the deed were one and the same.
When the defendant took the stand the situation became clearer. His deed to the tract in question, upon which he relied, was a quitclaim deed from the Travelers Insurance Company under date of November 8, 1939. It described the tract in question as—
“The East Half of that part of the south sixty (60) acres of the southwest quarter of section twenty-five, township eight, range eighteen, east of the Sixth Principal Meridian lying south of the K. C. W. and N. W. R. R. in Jefferson County, Kansas.”
He went into possession of the tract in question in 1939 under a warranty deed which described the east half of the quarter section subject to the railroad right of way. At that time the fence south of the right of way between his land and that later acquired by plaintiff was west of the eighty rod line, where plaintiff also testified it was. Defendant testified that with the fence there each one of the parties would own about equal parts of the land south of the right of way. The two deeds are identical except that one describes the east half of the land lying south of the railroad and the other the west half. There was testimony from disinterested witnesses that the dividing line of the land south of the railroad had been not on the “quarter-quarter” or “eighty rod” line but about twenty rods west thereof for at least thirty years. As the trial court decided the case there was evidence from which it might be found that each party will own about half of the land south of the railroad. For this to be true it would be necessary for the line to be west of the “eighty rod” line on account of the shape of the entire tract south of the right of way.-
In such a situation where there is nothing to suggest the contrary the word “half” used in connection with a tract of land will be interpreted as meaning half in quantity. (See Gunn v. Brower, 81 Kan. 242, 105 Pac. 702; also 18 C. J. 292, sec. 269; also 6 Thompson on Real Property, § 3351, Permanent Edition.) Here there were no circumstances to indicate that a quantitative one-half was not intended. On the other hand, all the surrounding facts and circum stances indicated that it was the intention of both grantors that each grantee should receive about one-half of the land in the quarter section lying south of the right of way.
The judgment of the trial court is affirmed. | [
-16,
-18,
-12,
126,
-102,
-32,
42,
-119,
99,
-15,
38,
83,
-19,
74,
0,
57,
-30,
61,
85,
121,
-26,
-77,
87,
-29,
-46,
-77,
91,
85,
-69,
89,
-28,
-58,
76,
33,
74,
85,
70,
-56,
-121,
28,
-50,
-123,
-120,
96,
-45,
96,
44,
43,
16,
79,
21,
47,
-13,
42,
57,
-29,
-55,
45,
-21,
-88,
-63,
-8,
-6,
-41,
94,
22,
33,
4,
-34,
7,
72,
-70,
-112,
49,
32,
-88,
115,
38,
-106,
-12,
39,
-101,
40,
-90,
99,
33,
93,
-17,
104,
-104,
14,
-5,
-115,
-25,
-110,
88,
107,
100,
-98,
-103,
125,
64,
-121,
126,
-20,
5,
93,
104,
7,
-53,
-106,
-111,
15,
48,
-128,
3,
-13,
-127,
32,
96,
-63,
-94,
95,
71,
112,
-69,
-113,
-8
] |
The opinion of the court was delivered by
Arn, J.:
Three actions were instituted in the district court by the owner of a building in Junction City to recover under three contracts of fire insurance for damage to his building. There was a separate contract of insurance with each insurance company and the three actions were consolidated for trial in the district court. The only issue was the extent of damage to the building and the jury verdict was for plaintiff. Defendants moved for a new trial which the trial court sustained. Plaintiff appealed from’ the rulings of the trial court (1) overruling plaintiff’s demurrer to defendants’ evidence; (2) overruling plaintiff’s motion for an order to correct the special findings of the jury and render judgment in accordance with those corrected findings; and (3) granting defendants a new trial.
The demurrer to defendants’ evidence was overruled on November 17, 1948, and appealed from on February 9, 1949 — 84 days later. As to the time for appeal from such a ruling, section 60-3314a does not apply because there was no final judgment. The applicable statute is G. S. 1947 Supp., 60-3309, which provides that the appeal must be perfected within two months from the date of the ruling appealed from. The appeal from plaintiff’s demurrer to defendants’ evidence was not taken within time and cannot be considered for review here.
Plaintiff’s appeal from the trial court’s ruling on his motion for an order correcting the special findings and for judgment in accordance therewith was timely, but of no consequence if there was no error in granting the new trial. If a new trial is properly granted, both the general and special verdicts are set aside and any ruling on the motion to correct the special findings becomes moot.
The only question presented by this appeal, therefore, is whether the trial court abused its discretion and committed error in setting aside the jury’s verdict and ordering a new trial. We have so often said that the trial court not only has the authority but the duty to grant a new trial when dissatisfied with the verdict. In this case, the trial court, in a somewhat lengthy memorandum opinion, found fault generally with the general and special verdicts of the jury, set them aside and granted a new trial. No other conclusion can be drawn from the trial court’s opinion except that the trial judge was dissatisfied with the result of the trial. When that is the case, there is no alternative but to grant a new trial. Appellant argues here that “the trial court in effect found there was a fair trial” and granted a new trial because the special findings required it. But we cannot so interpret the trial court’s ruling. In addition to the aforesaid memorandum opinion, the journal entry signed by the court (but not approved by plaintiff’s counsel) recited:
“. . . and that defendants’ Motion for a New Trial should be sustained in that the verdict of the Jury was given under the influence of passion and prejudice; that said Verdict and the Special Findings are in whole or in part contrary to the evidence, and the Court is not satisfied with said Findings and General Verdict.” (Emphasis supplied.)
In Bateman v. Roller, 168 Kan. 111, 211 P. 2d 440, this subject was treated at length and many earlier cases assembled. It is too well settled for further labor, that a trial court should not render a judgment upon a verdict which it cannot approve. We can ascertain no apparent abuse of discretion and we are not at liberty to presume any error in the granting of the new trial.
The judgment is affirmed. | [
-16,
-6,
-12,
-84,
24,
-30,
34,
-8,
65,
-111,
39,
83,
-87,
-53,
68,
125,
-110,
121,
85,
107,
-34,
-93,
7,
66,
-42,
-77,
67,
-59,
-79,
-49,
-10,
95,
76,
48,
-54,
21,
70,
-56,
-123,
22,
-114,
-108,
-88,
101,
-55,
66,
48,
58,
118,
11,
49,
-66,
-29,
42,
25,
-62,
105,
40,
-38,
53,
-47,
-71,
-120,
13,
111,
1,
33,
37,
-98,
-122,
120,
46,
-112,
61,
3,
-24,
114,
-106,
-122,
117,
97,
-101,
8,
102,
98,
32,
69,
-17,
-72,
-84,
54,
47,
-113,
-89,
-110,
8,
43,
13,
-74,
-99,
117,
22,
-89,
126,
-19,
-44,
27,
108,
7,
-49,
-106,
-77,
-113,
96,
58,
-125,
-54,
49,
48,
112,
-115,
-32,
92,
70,
91,
59,
-113,
-100
] |
The opinion of the court was delivered by
Wedell, J.:
This action originated as one to recover the balance due on an account for the sale of chicken feed. Defendants filed an answer and cross petition in which they denied owing the plaintiff and sought damages from plaintiff by reason of alleged false and fraudulent representations concerning the feed in the sum of $7,500.
On the trial defendants stipulated if they were indebted to plaintiff in any amount then the amount sought by it, $2,077.63, was correct. The trial court sustained a demurrer to defendants’ evidence. From that ruling and the order overruling their motion for a new trial defendants appeal. Our concern is, therefore, limited solely to a consideration of defendants’ cross action for damages.
Claude H. Triplett and M. Esther Triplett, doing business as the Triplett Leghorn Farm, appellants, were the purchasers of the feed. The Topeka Mill and Elevator Company, appellee, was the seller of the feed.
In their cross petition appellants, in sustance, alleged: They raised Leghorn chickens for the purpose of producing and selling eggs and breeding Leghorn chickens; they built up their own strain of pedigreed stock under the supervision of the United States government pursuant to which a “record of performance” of each chicken was kept and maintained; prior to June, 1944, they used Purina feed and had a high “record of performance”; in June, 1944, O. J. Halstead, the agent and employee of appellee, represented to them that if they would use feed manufactured and furnished by appellee their production and “record of performance” would be maintained at its high level or increased; in reliance upon the representations they commenced to use appellee’s feed; in December, 1944, the production and “record of performance” of the chickens fell off; they learned appellee was leaving certain ingredients out of the feed; they notified appellee of these facts; Paul Bailey, manager, and Frank Bryan, assistant manager, of áppellee, falsely and fraudulently and with intent to induce appellants to continue use of the feed, represented that if appellants would continue its use the quality of the feed would immediately increase and the results would be as good as they ever had been and as they were when appellants used Purina; the representations were false and known to be so; appellants relied upon the representations but the “record of performance” continued to decrease; they were unable to reproduce chickens from high producing ancestry and hence were unable to sell reproduced chickens at the high price they would have been able to do had the feed been as represented; as a result of the false and fraudulent representations made with the intent to defraud and to cause them to use the inferior feed appellants were damaged in the sum of $7,500.
We come now to the subject of proof. We shall endeavor to state the developments in their chronological order as nearly as the record permits.
The evidence, in substance, was: Appellants’ business, a partnership, is owned by Mr. and Mrs. C. H. Triplett; Mrs. Triplett and a son, Roger, operated the business; Mrs. Triplett had been a poultry breeder for twelve years and since 1941 had carried on a “record of performance” production; O. J. Halstead, a salesman for appellee, was familiar with her record; Halstead first talked to her about changing from Purina to appellee’s feed “Sun Gold” which she could purchase for somewhat less than Purina by getting it at wholesale prices; Halstead first suggested the change to her in June, 1944; he told her the feed could be bought for less than Purina and that appellee guaranteed it to give as good results as Purina; Halstead called on appellants about every week; she did not make the change in June but did make it three or four months later (some testimony indicates the change was made in August, 1944); Mrs. Triplett was the one who determined what feed to buy and to make the change; she finally decided to try the feed; appellants used the feed from August, 1944, to February, 1947, a period of approximately two years and seven months; they obtained good results from it for four to six months; in the summer of 1945 they noticed a change in the color, feel and smell of the feed; Mrs. Triplett complained to Halstead about it in the summer or fall of 1945 and he said the feed had been cheapened, that Jersey Balancer, which was a trade name for a mineral concentrate, had been left out; at the time Halstead so advised her he was no longer an employee of appellee; the feed had a yeasty smell and chickens did not like it; each bag of feed had a tag attached, as required by law, showing an analysis of the feed; Mrs. Triplett had six or eight conferences with representatives of the mill about the change in the feed; she talked to Mr. Bailey, Mr. Bryan and Doctor Alford; Mr. Bailey told her on two or three occasions they expected to improve the feed, that they expected to increase the quality of the feed; this was the extent of the representations he made; Doctor Alford, appellee’s veterinarian, told her appellee’s feed was a balanced ration, the roosters were eating too much of the feed, the hen house was not clean enough, he thought the chickens were wormy, the feed was a balanced feed and they should not feed them buttermilk; appellants continued to feed the chickens buttermilk.
Mrs. Triplett was asked why she continued to use the feed until February, 1947, if she had discovered in the summer of 1945 the feed was not as represented. Her answer was;
“Well, after we had a bill with the feed company we didn’t like to quit their feed as long as we owed them, and then they told us, of course, that the feed would be better and we could go ahead, so we just strung along with them thinking they would hit on something that would bring our flock back up.”
Mrs. Triplett further testified, in substance: Immediately prior to switching back to Purina in February, 1947, they conducted a test with two pens of birds; in one pen they followed the recommendations made by appellee and had no results; in the other pen they fed the chickens Purina and within thirty days’ time the chickens began to pick up and doubled their egg production.
Roger Triplett testified Halstead tried to induce appellants to use “Sun Gold” feed and stated it would do as good a job, or better, than Purina and at less cost. Roger’s testimony was much the same as his mother’s testimony with respect to first noticing the effect on the chickens but he stated that was in the latter part of 1945 and that he overheard a conversation at appellee’s mill between Mr. Bailey, Mr. Bryan and a Mr. Favire which disclosed Jersey Balancer had been left out of the feed in the first part of 1945. On cross-examination he testified appellee stopped using Jersey Balancer in the spring of 1946.
He further testified, in substance: The next major change he noticed in the feed was in the summer of 1946 when he opened some feed and it smelled moldy and old; he returned it to the mill and complained to Mr. Bryan; Mr. Bryan told him the feed was neither old nor moldy, that a yeast enzyme was being put into the feed but it would make no change in its effectiveness; he (Roger) had noticed a change in the color and texture of the feed during the summer, fall and winter of 1946; he had numerous conferences with representa tives of the mill concerning the feed; Mr. Bryan and Doctor Alford came to make an inspection; Doctor Alford stated the hen houses were not clean enough, that buttermilk would throw the quality of “Sun Gold” feed off balance, and he felt the chickens were wormy but had no definite way of knowing they were wormy; he (Roger) examined the chickens for worms and found none but did not examine them for cecal worms which are invisible to the naked eye; as he remembered it they had carried out all of Doctor Alford’s suggestions except the one to stop feeding buttermilk; Doctor Alford said buttermilk was useless and it was throwing the feed out of balance; Doctor Alford did not put any pressure on them to quit using buttermilk; no changes had been made in the method or operation of the hatchery since 1942 except the change in feed; he was unable to discover any cause for the loss of production other than the change in feed.
Roger Triplett also testified concerning the extent of decrease in the production during the time they used appellee’s feed, the increase in production after they returned to the use of Purina and the total amount of damage suffered.
C. H. Triplett, the same as his wife, testified that Halstead guaranteed the feed to get as good results as the feed they had been using previously and that appellee’s feed was cheaper; they bought the feed on appellee’s guarantee; he also stated the production increased when they changed back to Purina and he did not know anything other than the change back to Purina which increased the productivity; he first noticed the change in the feed approximately six or eight months after they started using it.
It appears the cross action of appellants for damages was predicated on the theory of fraud. The trial court concluded the evidence did not support relief on that ground. Appellants do not complain of that ruling. They argued below, and contend here, the allegations of the cross petition were sufficient to state a cause of action on the theory of warranty. The trial court sustained a demurrer to the evidence on that theory. The court did so on the grounds (1) the feed was not a special kind of feed manufactured for appellants but was a general feed sold under the title of “Sun Gold” with a formula of contents attached to each sack of feed; and (2) the statements of Halstead, the sales agent, construed in the light most favorable to the purchaser, were expressions of the agent’s opinion concerning the value of the feed as compared with Purina and did not constitute a warranty.
Counsel for appellants, with commendable frankness, state they are not relying on implied warranty but only on express warranty. They base the contention on the representation of the sales agent that “Sim Gold” was cheaper than Purina and that appellee guaranteed the feed to give as good, or better, results than Purina. It is agreed “Sun Gold” was cheaper than Purina.
On the other hand appellee asserts: (1) The trial court correctly held the statements of the salesman were expressions of his own opinion and not a warranty; (2) Mrs. Triplett, according to the uncontradicted testimony, was the person who made the decision to try the change to “Sun Gold.” The evidence failed to show Mrs. Triplett relied on the statements of the salesman; (3) if she relied on such statements her reliance was entirely unreasonable; (4) if the statements constituted a warranty appellants failed to show its breach; (5) by appellants’ long continued use of the feed after they claimed to have knowledge of the breach of warranty they waived any right they might have had to recoved damages which accrued either before or after they learned of the alleged breach.
Assuming for the moment, without deciding, a warranty existed, we have no hesitancy in concluding damages were not recoverable for the long period the feed was used after appellants claimed to have knowledge the alleged warranty wras breached. (Swift & Co v. Redhead, 147 Ia. 94, 122 N. W. 140.) Under the undisputed evidence Mrs. Triplett was the person who determined what feed appellants would buy. She testified: They started using the feed in the fall of 1944; they had very good results for a period of four to six months; she first noticed the change in the feed in the spring or summer of 1945; she first talked to Mr. Bailey about the change after the spring of 1945; she complained about the feed at different times; the extent of the statements made to her when she complained was that appellee expected to improve the feed, expected to increase its quality. (Our emphasis.)
These latter statements did not constitute a warranty of present quality. Touching her reasons for continuing to use the feed until February, 1947, she stated:
“Well, after we had a bill with the feed company we didn’t like to quit their feed as long as we owed them, and then they told us, of course, that the feed would be better and we could go ahead, so we just strung along with them thinking they would hit on something that would bring our flock back up.”
Thereafter Mrs. Triplett clearly was not relying on a past warranty, if any had been made previously.' She decided to take her chances with appellee “thinking they would hit on something” to bring her flock back up. A seller should not be held for damages flowing from the purchaser’s experiments at his own risk after he has become fully aware of a breach of warranty. (Swift & Co. v. Redhead, supra, p. 104-105.)
Although there may be merit in appellee’s contention appellants also waived any right they might have had to recover damages which accrued prior to their alleged discovery of the breach of warranty we prefer to go directly to some of the more fundamental questions.
What is a warranty? In 55 C. J., Sales, § 667, it is defined thus:
“A warranty is a statement or representation made by the seller of goods, contemporaneously with and as a part of the contract of sale, although collateral to the express object of it, having reference to the character, quality, or title of the goods, and by which he promises or undertakes to insure that certain facts are or shall be as he then represents them. A warranty is express when the seller makes an affirmation with respect to the article to be sold, pending the treaty of sale, upon which it is intended that the buyer shall rely in making the purchase. A warranty is implied when the law derives it by implication or inference from the nature of the transaction, or the relative situation or circumstances of the parties.” (p. 652, 653.) (Our italics.)
As previously stated appellants rely entirely on the theory of express warranty. An express warranty excludes an implied warranty relating to the same subject. (Thresher Co. v. Nelson, 105 Kan. 517, 184 Pac. 982; Lumber Co. v. Kelley, 117 Kan. 285, 231 Pac. 71.) The foregoing definition of express warranty is. in harmony with our own decisions. (Lumber Co. v. Kelley, supra.) No technical or particular words need be used to constitute an express warranty, yet whatever words are used must substantially mean the seller promises or undertakes to insure that certain facts are, or shall be, as he represents them. (55 C. J., Sales, § 667, p. 652; 46 Am. Jur., Sales, § 313.)
Representations of fact as, for example, that a certain quantity of corn existed in a field (Abmeyer v. Bank, 76 Kan. 877, 92 Pac. 1109) or that particular acreage is occupied by a railway right of way (Disney v. Lang, 90 Kan. 309, 133 Pac. 572) or that various particular facts capable of exact determination exist are not mere expressions of opinion but warranties. (Murray v. Davies, 77 Kan. 767, 94 Pac. 283; Foote v. Wilson, 104 Kan. 191, 178 Pac. 430.)
However, a representation that a business in which plaintiffs were induced to buy stock was one of the best businesses in the city of Topeka was held, as á matter of law, to be an expression of opinion upon which people would naturally differ and hence would not sustain a general verdict. (Stock v. Scott, 132 Kan. 300, 295 Pac. 638.) So, too, statements as to the value of real estate by agents endeavoring to sell or exchange the same are ordinarily regarded as expressions of opinion and not representations of fact. (Else v. Freeman, 72 Kan. 666, 83 Pac. 409; Berridge v. O’Flanagan, 122 Kan. 74, 251 Pac. 175.)
Touching matters of opinion or belief the rule is stated thus in 55 C. J., Sales, § 690:
“In order for an express warranty to exist, there must be something positive and unequivocal concerning the thing sold, which the vendee relies upon, and which is understood by the parties, as an absolute assertion concerning the thing sold, and not the mere expression of an opinion; representations which merely express the vendor’s opinion, belief, judgment, or estimate do not constitute a warranty, [p. 688, 689.]
“Dealer’s talk is permissible; and puffing, or praise of the goods by the seller, is no warranty, such representations falling within the maxim simplex commendatio non obligat.” (p. 690, 691.)
To the same effect is 46 Am. Jur., Sales, § 326. See, also, later cases cited in footnotes.
The reason underlying the rule pertaining to dealer’s talk which limits a warranty to representations of facts rather than mere statements of opinion as to the nature or quality of goods sold is that there is nothing on which people are more apt to differ and nothing on which they are less apt to trust each other. (46 Am. Jur., Sales, § 326.) Where, however, opinions are coupled with representations of fact which relate to such matters as are susceptible of exact knowledge they constitute more than a mere opinion and hence are properly regarded as representations of fact. To the extent they are representations of fact they constitute warranties. (Stock v. Scott, supra, p. 305; Gray v. Gurney Seed & Nursery Co., 57 S. D. 280, 231 N. W. 940.)
The line which separates a case of mere puffing and commendation from an affirmation of a fact is sometimes indefinite. It is in such cases that a perplexing problem arises as to the meaning or intention of the seller. In such cases it is ordinarily the province of the jury to determine as a matter of fact whether a warranty was intended. (46 Am. Jur., Sales, § 326.) Ordinarily whether an affirmation or representation constitutes a warranty is a question of the in tention of the seller and the reliance placed thereon by the buyer. (46 Am. Jur., Sales, § 326, p. 507; 55 C. J., Sales, § 684, p. 680.) In order to constitute a warranty the buyer, of course, must be justified in relying on the statement as a statement of fact as distinguished from an opinion of the seller. (55 C. J., Sales, § 692, p. 695.)
In the instant case we are not concerned with an affirmation of any particular fact concerning the chicken feed but only with a general statement of the comparative value of two products. Although the decisions are not in complete harmony relative to the comparative value of an article sold the apparent weight of authority is that such statements, absent all representations as to the particular facts, ordinarily constitute an expression of opinion rather than an express warranty. Some of the cases pertaining to various articles or products are Carver-Shadbolt Co. v. Loch, 87 Wash. 453, 151 Pac. 787; Steen v. Southern California Supply Co., 74 Cal. App. 265, 239 Pac. 1098; Mantle Lamp Company v. Rucker, 202 Ky. 777, 261 S. W. 263; Callaway & Perkins v. Collier, 246 S. W. 966, Gray v. Gurney Seed & Nursery Co., supra; Washburn-Crosby Co. v. Kindervatter, 131 N. Y. S. 871.
This rule also appears to be in harmony with decisions of courts in states which have adopted the uniform sales act. (Gray v. Gurney Seed & Nursery Co., supra; 46 Am. Jur., Sales, § 326; 55 C. J., Sales, § 690, p. 694, § 684, 680.)
Appellants rely on Foote v. Wilson, supra; Swift & Co. v. Redhead, 147 Ia. 94, 122 N. W. 140; Western S. B. Co. v. O’Brien Bros., 49 Cal. App. 707, 194 Pac. 72; Kent v. Halliday Brothers, 23 R. I. 182, 49 A. 700.
The Foote case is a striking example of a dealer’s “deceitful representation” of facts as distinguished from a mere expression of opinion respecting the merchantable character and the amount at which a stock of merchandise would invoice. We have no inclination to retract any criticism therein contained concerning positive, deceitful representation of actual facts where relied upon by a purchaser to his damage. What is there said, however, cannot properly be construed as meaning that every statement of mere opinion by a seller, absent all representations of fact, constitutes an express warranty. This clearly appears in both our earlier and later decisions involving the subject of warranty in which declarations of fact and expressions of opinion are distinguished. A few of them are Else v. Freeman, supra; Parker v. Hutchinson Motor Car Co., 127 Kan. 765, 274 Pac. 1115; Stock v. Scott, supra. A requirement of honest deal ing between a seller and purchaser is in keeping with modern tendency and this court is committed to that doctrine. Its proper application must be governed by the facts of each particular case. The Foote case clearly does not control the instant case.
The Swift & Co. case, supra, was based on representations blood meal would fatten cattle much quicker than cottonseed meal; the former contained eighty-seven percent protein and the latter only thirty-seven percent; on that basis blood meal would be cheaper when used with corn. In that case the court said under the evidence the jury might have found blood meal was not suitable for fattening cattle and was in fact injurious and worthless for that purpose. The court did not hold the representations alone were sufficient to take the case to the jury on the question of warranty. It did hold such evidence was sufficient to make the matter of warranty a jury question when to that evidence was added the circumstance that the seller’s agent was aware the purchaser was without experience in the use of blood meal and that the purchaser was relying on the representations made concerning it. (p. 100.)
The Western S. B. Co. case, supra, was not a comparison warranty case. It involved an express and unqualified assumption that vetch seed when treated with a certain bacterial preparation of the seller, planted and cultivated according to the seller’s directions, upon the buyer’s premises would germinate and grow. The purchaser relied on the warranty. The seed failed to measure up to the warranty and the purchaser recovered for the breach. Nor was the Kent case, supra, a comparison warranty. It involved only the sufficiency of a declaration to state a cause of action for damages for breach of warranty and was held sufficient against demurrer.
Syllabus paragraph 1 reads:
“A declaration, alleged that plaintiff had a crop of growing potatoes; that he purchased of defendants Paris green, which they warranted to be pure and that it would kill the potato-bugs on plaintiff’s crop of potatoes; that he applied said Paris green in a reasonable and proper manner, but that it was impure and of insufficient strength and did not kill the bugs, and that defendants knew at time of sale for what purpose plaintiff intended to use the article.”
Notwithstanding the apparent weight of authority with respect to expressions of opinion concerning the comparative value of different articles or products we are not inclined to say as a matter of law, that such an opinion could under no circumstances be regarded as a warranty even if so intended by the seller and relied upon by the buyer. Whether it was so intended and relied upon may well become a question of intention to be determined by the jury depending on the peculiar facts and circumstances of the particular transaction.
In the instant case, however, the decision to purchase “Sun Gold” was not made by Mr. Triplett, or the son, but by Mrs. Triplett alone. Although it may not be entirely accurate to refer to her as an expert she concededly was a person with twelve years’ experience in a highly technical and productive poultry business. To each bag of “Sun Gold” feed purchased was attached a tag containing a content analysis of the feed. When the yeast enzyme was added the tag disclosed it. We do not find any evidence to show appellants were defrauded by anything the tag disclosed or failed to disclose and fraud, although originally charged, is no longer claimed. Appellee’s sales agent first talked to Mrs. Triplett in June, 1944. She did not purchase the feed at the time of the alleged original warranty but finally decided “to try” the change to the cheaper “Sun Gold” feed in August, or the fall, of 1944. It was her own decision to experiment on the change of feed. Nor did she ever say she bought “Sun Gold” in reliance on the alleged warranty. What reliance her husband or son claimed to have placed on the alleged warranty is not determinative of that issue in this case. Her own decision to use the feed is further disclosed by the fact that even after she discovered in 1945 the feed was not satisfactory to her she continued to experiment with it until February, 1947, in the hope appellee would find something to improve it. Absent the establishment of her reliance upon the alleged warranty no actionable warranty existed.
In view of the foregoing we need not decide whether appellants’ evidence established a breach of an express warranty. It is noteworthy, however, that appellants’ evidence showed appellee believed “Sun Gold” was a balanced feed and warned appellants against using it with buttermilk for the stated reason it would throw the feed out of balance. Notwithstanding such warnings appellants persisted in continuing to use the feed with buttermilk. That, too, was their own decision and it violated appellee’s directions for the use of the feed. This fact alone tended to negative a breach of the alleged warranty. .Aside from any question of breach of warranty this circumstance is further evidence Mrs. Triplett did not rely upon the alleged warranty but, on the contrary, relied upon her own judgment in determining what feed she believed to be best suited for the chickens.
We think appellants’ evidence failed to establish an express warranty and that such a warranty, if made, was relied upon by Mrs. Triplett.
The order sustaining the demurrer is affirmed. | [
-16,
-20,
124,
-115,
14,
96,
40,
-102,
67,
-96,
119,
83,
-23,
-57,
-124,
41,
103,
77,
85,
121,
-59,
-73,
51,
-125,
-46,
-13,
-55,
-59,
-79,
79,
-25,
125,
72,
48,
-118,
93,
-30,
-128,
-61,
92,
-52,
44,
-99,
-59,
-7,
6,
-80,
40,
52,
71,
37,
-114,
-5,
44,
28,
-57,
105,
40,
111,
13,
-128,
-15,
-70,
5,
126,
18,
18,
6,
-102,
69,
-8,
111,
-104,
48,
9,
-56,
123,
-76,
-118,
84,
107,
-103,
8,
38,
98,
1,
-123,
-23,
-40,
12,
47,
-33,
-115,
-90,
-112,
64,
3,
33,
-66,
-99,
52,
86,
23,
124,
-1,
-123,
-35,
-4,
1,
-114,
-100,
-109,
-113,
100,
-102,
-103,
-17,
-89,
17,
113,
-51,
-94,
92,
71,
126,
-97,
-121,
-106
] |
The opinion of the court was delivered by
Harvey, C. J.:
This was an action for damages for personal injuries in which the defendants demurred to plaintiff’s evidence. This was tentatively overruled, with a final hearing upon it reserved. The trial resulted in a verdict for plaintiff for $4,750. Thereafter demurrers were argued and sustained and judgment rendered for defendants. Plaintiff has appealed from the ruling and judgment. The defendant insurer has filed a cross-appeal. We will deal first with plaintiff’s appeal.
The facts disclosed by the record may be summarized as follows: Plaintiff’s petition, filed April 28, 1947, alleged plaintiff is a resident of Douglass, Kan.; that the defendant, C. E. Hawthorne, a resident of Independence, Kan., was engaged in operating a commercial bus line within the state under the firm name and style of Southern Kansas Lines (hereinafter referred to as the bus company) and was operating a commercial bus line between Severy, Kan., and Wichita over U. S. Highways Nos. 96 and 54, intrastate, under a certificate of convenience and necessity issued to it by the Kansas state corporation commission and pursuant thereto; that in conformity with our statute (G. S. 1935, 66-1,128) and with the rules and regulations of the state corporation commission, and as a condition precedent to his right to engage in the business of transporting passengers for hire and as a common carrier of passengers within the state, there was issued to him, on January 22, 1945, to be in effect for one year thereafter, by the defendant, Keystone Mutual Casualty Company, a corporation, a liability insurance policy, which was in full force and effect on the first day of June, 1945, a copy of which insurance policy was attached to the petition and made a part thereof; that on June 1, 1945, plaintiff purchased from the defendant bus company a ticket entitling her to safe transportation on the lines of the bus company from the bus stop at the Yandell filling station on U. S. Highway No. 96, to Augusta, Kan., and boarded one of the bus company’s buses and was received as a passenger thereon; that the bus was being driven by one Clair Y. Moore, the agent, servant and employee of the bus company, and was so negligently, carelessly and improperly managed, operated and driven by said Moore that the bus violently crashed into the side of a bridge on said highway, with such impact and force that the right side of the bus upon which plaintiff was a passenger was ripped and torn open and plaintiff was thrown violently to the floor of the bus and was seriously injured, which injuries were described; that the negligent operation of the bus by Moore “consisted of the operation of said bus, which was wholly within said driver’s control, in such a reckless, negligent and careless manner so as to cause this plaintiff to be injured; that this plaintiff does not know and is unable to state the specific acts or omissions of the defendant bus company and its servant, agent or employee which caused her to be so injured and that because of plaintiff’s lack of knowledge as to the specific items of negligence or omissions she is unable to set them out and describe them herein; that said specific items of negligence or omissions are wholly within the knowledge of the defendant bus company and its agents, servant or employee.”
To this petition defendants filed a motion for an order requiring plaintiff to make her petition more definite and certain by setting out the acts and omissions of defendant, or its agents, servants or employees which plaintiff claims constitute negligence and which are the sole and proximate cause of plaintiff’s injuries. Upon the hearing of this motion, at which plaintiff and defendants were represented by counsel, plaintiff, by her attorney, in open court, announced that she was proceeding upon the doctrine of res ipsa loquitur, whereupon defendants withdrew their motion, and the court gave them fifteen days in which to further plead. The defendant bus company filed a demurrer to the petition, which was overruled, and then filed an answer in which it admitted Hawthorne’s residence and that he was doing business under the name of the Southern Kansas Lines, and denied each and all of the other allegations of plaintiff’s petition and alleged that if plaintiff was injured at the time and place stated in her petition her injuries were not due to any negligent, careless or improper management upon the part of the bus company, its agents, servants or employees.
At the beginning of the trial on March 25, 1948, the defendants respectively moved for judgment in their favor upon the pleadings. These motions were overruled and they objected to the introduction of any evidence, which objection was overruled.
Prior to the taking of testimony it was stipulated by plaintiff and defendants “that Stella Misner was a fare paying passenger on defendant bus company’s bus at the time of the accident on June 1, 1945, and further that defendant C. E. Hawthorne was a resident of Montgomery county, Kansas, and as an individual, did business under the firm name of Southern Kansas Lines; that defendant Hawthorne was acting as a common carrier of passengers and covered by a liability policy at the time issued by defendant Keystone Mutual Casualty Company, a corporation, and that policy was on file with secretary of state of state of Kansas.”
Plaintiff, called as a witness, testified that she was fifty-seven years of age and by occupation a seamstress; that on June 1, 1945, about noon, she and her father-in-law, J. E. Misner, went to the Yandell corner, where there was a bus station of the defendant bus company on U. S. Highway No. 96, paid their fares and boarded a bus of the defendant bus company. The bus was full of passengers, except the rear seat, which was across the full width of the rear of the bus. She sat on the rear full-width seat facing the aisle. The bus was headed west along Highway No. 96 and proceeded to a •point east of Leon Junction, where there were three bridges. The first two bridges were crossed safely, but on the west bridge the bus crashed against the north side of the bridge. The whole north side of the bus was torn out and was crumpled and rolled up against the bridge. Seats were twisted and suitcases scattered. Plaintiff was thrown forward and could not distinguish any particular thing that was going on, except she could hear the shrieking and screaming of the people and the tearing and rapping of the bus. She was “knocked out.” When she came to she was down in the aisle against the middle seat. She received a broken arm and was bruised on the right side from her arm to the instep and suffered chest pains and shock. She could not get off the bus, but did get up. The bus driver did not help her and she had no conversation with him. A nurse and a man finally helped her out of the bus and took her to a doctor’s office. She was asked and answered the following questions:
“Q. During any portion of this drive, or rather ride to this bridge, near this station at the Leon corner, did you have any control, management or direction over the conduct of that driver of that bus? A. Certainly not.
"Q. Do you know what happened that caused the accident there? A. I have no idea what caused the accident. I felt it and heard it and saw after-wards the result.
“Q. You got the result, but you don’t know what caused it? A. No.”
She further testified to the nature of her injuries, employment, occupation and damage and the cross-examination pertaining to those matters.
J. E. Misner, eighty-six years of age, a retired farmer and the father-in-law of plaintiff, testified that he and plaintiff purchased the tickets and got on the bus and sat on the rear seat; that the bus proceeded west to the point of the accident on the bridge; that when the bus struck the bridge everything was done so quickly that he didn’t know much for a second or so. He was cut about the eyes and because of the bleeding he could not see anything. He got off the-bus, washed his face, went back to the bus and noticed the north side of it was torn out. The plaintiff was still on the bus. He helped her off and accompanied her to the doctor’s office.
Ruth Nutter, who lives in Wichita, had boarded the bus at Independence and first met plaintiff that day. Her two children were with her. She testified:
“We were riding along and I think I went to sleep or I was knocked out, I don’t know which. When I came to, I was lying on floor between the two seats on driver’s side about middle of bus. . . . The north side of the bus was all torn out; my children and I went out of bus through the opened side. I heard no conversation between driver and anyone else before the crash but I did after the crash. I heard a lady, whose name I do not know, but she sat on one of the front seats, verbally jump on driver for sleeping along the way. I heard this lady say ‘I told you several times you had better wake up, you were going to have a wreck. You have already run off the road two or three times.’. The driver said he wasn’t asleep, he was side-swiped. Later the driver said to me: T don’t want to add anything; I have already made my remarks.’ ”
The witness went to a telephone to call her parents and then went back to the bus. She looked on the south side of the bus and there were no marks on it that might have resulted from its being sideswiped. This testimony was all objected to by defendants and the objection overruled. There was testimony of two medical witnesses which related to the nature and extent of plaintiff’s injuries.
At the close of plaintiff’s evidence each of the defendants demurred to the evidence “for the reason that it does not prove a cause of action or sustain the burden of proof on the part of the plaintiff.”
The court remarked: “There is a good question in this case. I am going to reserve ruling on it at this time and it may be I will have to sustain this demurrer.”
Defendants called a medical witness who had examined plaintiff thirty-three months after the date of the accident pertaining to the nature of plaintiff’s injuries. The trial proceeded, resulting in a verdict for plaintiff against both defendants for $4,750. Thereafter it appears defendants filed a motion for judgment notwithstanding the general verdict and a motion for a new trial, and there was an argument upon defendants’ demurrer to the evidence.
On January 14, 1949, the matter came on for hearing upon the objection to the introduction of evidence, the motion for judgment on the pleadings, the demurrer to the evidence, and the motion for judgment notwithstanding the general verdict and" the motion for a new trial. The court, having fully considered the matter, ordered and adjudged—
“that the motion for judgment on the pleadings and the objection to the introduction of any evidence dictated into the record by both of the above defendants at the trial 'of this matter on March 25, 1948, should be and the same hereby overruled. . . . that the demurrers to the evidence introduced on behalf of the plaintiff and dictated into the record at the trial of this matter on March 25, 1948, by the above defendants should be and the same are hereby sustained and that defendants and each of them have judgment for their costs taxed at $-. . . . that the motion of the defendants and each of them made in open court for permission to withdraw their motion for judgment notwithstanding the general verdict and the motion for a new trial filed herein should be and the same is hereby sustained and said motions are withdrawn.”
This was the judgment from which the plaintiff has appealed. In support of the judgment of the trial court appellees in their brief argue:
“The demurrers to appellant’s evidence were lodged by appellees ‘for the reason that it does not prove a cause of action or sustain the burden of proof on the part of the plaintiff.’ On this contention appellees argued and submitted to the trial court that the benefit of the doctrine of res ipsa loquitur was not available to appellant because (1) evidence was introduced tending to prove specific acts of negligence, (2) all the instrumentalities causing the injury were not under the exclusive control of the defendant, and (3) that reasonable inferences could be drawn from the evidence other than that defendant was negligent. Bach of these points was presented in appellees’ argument and trial brief. Appellees have insisted and still maintain that in addition to the other grounds their demurrer was good on the third ground. . . .”
Taking these up seriatim, (1) refers to the testimony of the witness Ruth Nutter. That evidence would not' have been sufficient to establish that the driver of the bus was asleep at the time of the accident, or that he had been. All it amounted to was that some unknown passenger in the bus accused him of having been asleep previously. Perhaps the evidence was introduced only for the purpose of showing the statement of the driver of the bus to the effect that “he wasn’t asleep, he was sideswiped,” and his further statement to the witness: “I don’t want to add anything; I have already made my remarks,” and the further fact that the later examination by the witness of the south side of the bus showed no evidence of having been sideswiped. But we are not called upon here to pass upon the correctness of the trial court’s ruling upon defendants’ objection to this testimony. If error at all it was a trial error, and its soundness could be reviewed only upon a motion for a new-trial, which motion, as we have seen, was withdrawn by appellees.
Touching point (2), that all the instrumentalities causing the injury were not under the exclusive control of defendants, appellees contend that what caused plaintiff’s injury was the collision of the bus company’s bus with the bridge, and point out that the defendant bus company was not in control of the bridge. We think this contention is untenable. Appellees cite on this point Stroud v. Sinclair Refining Co., 144 Kan. 74, 76, 58 P. 2d 77; Starks Food Markets, Inc., v. El Dorado Refining Co., 156 Kan. 577, 134 P. 2d 1102; Sipe v. Helgerson, 159 Kan. 290, 153 P. 2d 934; Truhlicka v. Beech Aircraft Corp., 162 Kan. 535, 178 P. 2d 252, and some other authorities. We have examined all of the authorities cited by appellees on this point and find none of them sustains their position.
Touching point (3), that reasonable inferences could be drawn from the evidence other than that defendant bus company was negligent, perhaps it is sufficient to say that the drawing of inferences was for the jury in the first place, and the fact that other inferences might have been drawn is not a ground for a demurrer to the evidence. We observe that the appellees did not afford the jury much of a chance to draw from the evidence any inference other than the negligence of defendant bus company. Defendants offered no evidence, except as to the extent of injuries. In the oral argument it was suggested that there might have been a hole in the floor of the bridge, or something else which caused the bus to collide with the side of the bridge. But there is no hint of such a thing in the evidence. Where in a case to which the doctrine of res ipsa loquitur is applicable, and the facts and circumstances are such that the jury could reasonably draw the inferences of negligence of defendants, the burden of going forward with the evidence to show that something else than had been shown by plaintiff caused or contributed to the injury is upon the defendant. (Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 249 Pac. 599.) Nothing of that kind was done.
More than that, in passing upon a demurrer to the evidence the court had no authority to weigh the evidence, but was bound to consider the evidence most favorable to the plaintiff.
The result is that there is no sound legal basis which justified the court in sustaining the demurrer to plaintiff’s evidence. Its judgment doing so should be reversed.
We now take up the cross-appeal of the bus company’s insurer, made a party-defendant- when the action was brought and joined in the motion to require plaintiff to make the petition more definite and certain, hereinbefore noted.
On August 25, 1947, James F. Malone, Jr., as insurance commissioner of the commonwealth of Pennsylvania, appearing specially for the purpose of the motion only, moved the court for an order dismissing the case as to the defendant insurer for the reason the court no longer had jurisdiction over the defendant insurer. In support of the motion the movant advised the court that he is the duly elected, qualified and acting superintendent of insurance of the commonwealth of Pennsylvania; that the Keystone Mutual Casualty Company, Inc., ceased to exist as a legal entity on the 26th day of June, 1947, by virtue of an order and decree issued by the court of common pleas of Dauphin county, Pennsylvania, in the case of Commonwealth of Pennsylvania, ex rel. T. McKeen Chidsey, Attorney General, v. Keystone Mutual Casualty Company; that by force and effect of the order and decree movant was directed to take possession of the property of the Keystone Mutual Casualty Company in accordance with the laws of the commonwealth of Pennsylvania then in force and effect; that the Keystone Mutual Casualty Company was dissolved, its charter vacated and its corporate existence ended, and all persons were enjoined and restrained from instituting and prosecuting any action at law against the Keystone Mutual Casualty Company. A copy of the orders and decree, duly certified, were attached to the motion as exhibits thereto. Without reciting the instruments in detail it is sufficient to say they show, in substance, that on relation of the insurance commissioner the attorney general, on June 26, 1947, filed a suggestion praying for a rule upon the Keystone Mutual Casualty Company, its agents, officers and employees, enjoining and restraining them from transacting any business for the company, or disposing of any of its property, and enjoining all persons from instituting or prosecuting any action at law or in equity against said company, and directing it to show cause why its business should not be closed and the insurance commissioner of the state'should not take possession of its property and debts and the company be dissolved, its charter vacated, its cor porate existence ended, and its business affairs liquidated under the direction of the insurance commissioner, and for such other relief as the nature of the case and the interest of its policyholders, creditors and the public might require; that prior to the issuance of the rule the Keystone Mutual Casualty Company appeared by its attorney, waived the issuance of the rule, accepted service of the same and consented to the possession of the company by the insurance commissioner; and it further appearing that the company was insolvent and in such condition that its further transaction of business would be hazardous to its policyholders or its creditors or to the public; that on the same date a final decree was issued that the company be dissolved, its charter vacated, its corporate existence ended, and its business affairs liquidated under the direction of the insurance commissioner, and restraining the company, its officers, agents and employees from transacting any business of the company or disposing of any of its property, and restraining all persons from instituting or prosecuting any action at law or in equity against the company, and further ordering all persons having claims against the company to file them with the insurance commissioner not later than June 25, 1948.
On October 1, 1947, this motion was considered by the court and overruled. Thereafter James F. Malone, Jr., as insurance commissioner of the commonwealth of Pennsylvania and statutory liquidator of the Keystone Mutual Casualty Company, filed an answer in which he incorporated his motion upon special appearance to dismiss the action, and in which he demurred to the petition of the plaintiff for the reason that the court no longer had jurisdiction over the defendant Keystone Mutual Casualty Company, a corporation, now dissolved, and further denied each and every and all allegations, averments and statements in said petition, except as specifically admitted. The answer admitted that prior to June 26, 1947, the insurer was a corporation organized under the laws of Pennsylvania and authorized to do business in Kansas, and prior thereto had issued to the bps company a policy of insurance, which was in full force and effect on June 1, 1945, and alleged the proceedings in the Pennsylvania court, hereinbefore referred to, and further averred that if plaintiff was injured at the time and place alleged in her petition such injuries were not due to any negligence, carelessness or improper management’ on the part of the defendant bus company.
James F. Malone, Jr., as insurance commissioner of the commonwealth of Pennsylvania and statutory liquidator of the Keystone Mutual Casualty Company, continued to participate in the trial of the action until the close thereof, and thereafter filed his notice of cross-appeal from the order of the court of November 1, 1947, overruling his motion upon special appearance to dismiss the action of the Keystone Mutual Casualty Company and from the order made' on January 14, 1949, denying his motion for judgment on the pleadings, which was dictated into the record. Counsel for the cross-appellant contends that by virtue of the full faith and credit laws of the federal constitution, art. IV, sec. 1, the judgment and order of June 26, 1947, of the court of common pleas in Dauphin county, Pennsylvania, must be given the same force and effect in Kansas as it would be given in Pennsylvania when properly presented to a Kansas court, and further argues that under that decree the corporation was dead for all purposes. Perhaps that is true as to the corporate entity, but here the insurance commissioner of the commonwealth of Pennsylvania was given authority to liquidate the business and affairs of the corporation. This was to be done as the nature of the case and the interest of its policyholders, creditors and the public might require. In performing that duty he appeared in this state and contested this action upon its merits. When the insurance company was authorized to do business in Kansas it came into the state under the provisions of our statute relating to foreign corporations. Among other sections of our statute applicable to it is G. S. 1935, 17-505, which reads:
“Any corporation organized under the laws of another state, territory, or foreign country, and authorized to do business in this state, shall be subject to the same provisions, judicial control, restrictions, and penalties, except as herein provided, as corporations organized under the laws of this state.”
This section of our statute was not repealed by our general corporation code of 1939 (chap. 152, sec. 154, Laws 1939.) See, also, Keehn v. Stapleton, 161 Kan. 476, 479, 169 P. 2d 811.
And G. S. 1947 Supp. 17-3606, which reads:
“All corporations, whether they expire by their own limitations, or are otherwise dissolved, shall nevertheless for the term of three years from such expiration or dissolution be continued bodies corporate for the following purposes:
“A. Prosecuting and defending suits by or against them, . . .”
We think the points argued by- the cross-appellant are not well sustained and that the court did not err in the rulings complained of.
There is no suggestion in the record, nor contention on the part of the appellee bus company or the cross-appellant, that the verdict of $4,750 in favor of the plaintiff in the action was excessive or should not stand if the court’s ruling sustaining the demurrer to.the evidence should be overruled. The result is that upon plaintiff’s appeal the judgment of the trial court is reversed with directions to reinstate the verdict of $4,750 in favor of the plaintiff and render judgment thereon, and upon the cross-appeal the judgment of the trial court is affirmed. | [
-48,
104,
-11,
-97,
25,
98,
58,
26,
101,
-80,
37,
83,
-87,
-51,
5,
105,
-2,
45,
-12,
107,
-11,
-105,
87,
-94,
-110,
19,
-15,
-60,
-79,
91,
-28,
-9,
77,
48,
10,
21,
38,
74,
71,
-100,
-50,
4,
-87,
-16,
89,
8,
48,
104,
112,
14,
113,
15,
-14,
40,
24,
66,
45,
44,
-21,
-87,
-61,
-80,
-54,
-57,
127,
19,
33,
4,
-98,
3,
80,
11,
-112,
-79,
40,
-20,
115,
-90,
-122,
-12,
111,
-103,
8,
-94,
99,
33,
21,
-27,
-4,
-72,
46,
82,
13,
-89,
52,
24,
49,
33,
-66,
-99,
125,
22,
3,
-38,
-2,
12,
31,
109,
7,
-117,
-74,
-79,
-49,
-96,
-98,
15,
-17,
5,
53,
112,
-56,
-14,
93,
71,
54,
-101,
30,
-108
] |
The opinion of the court was delivered by
JOHNSTON, J.:
The plaintiff, who is the personal representative and brother of Philip Weber, deceased, brought this action in the district court of Atchison county, in behalf of the next of kin, to recover the damages suffered by them in the death of Philip Weber, caused, as plaintiff alleges, by the wrongful act and neglect of the railroad company. The verdict and judgment were in favor of the plaintiff, and the defendant comes here assigning error on several exceptions that were taken during the trial.
It is first contended that the court erred in overruling the motion of defendant for judgment in its favor on the special findings returned by the jury. Upon the trial of the cause the defendant sought to show, among other things, that for several years prior to his death, Philip Weber lived a reckless and dissipated life, and that by reason of the excessive use of intoxicating liquors and other causes, his condition at the time of the alleged injury was such that his survivors suffered no pecuniary loss in his death. The jury, in answer to special •questions submitted to them, found, as will be seen, that none of his next of kin depended upon him for support; that his life was of no pecuniary value to them, and that they sustained no loss by his death.
The claim of counsel for the defendant is, that notwithstanding the death of Weber may have been caused by the wrongful act or omission of the railroad company, yet as there was no actual damage or pecuniary loss sustained by his next of kin, not even nominal damages can be recovered. In this we think counsel are mistaken. The deceased was entitled to his life, and presumably the next of kin had some interest in his existence. A right of action is expressly given by the statute in behalf of the next of kin where the death of one is caused by the wrongful act or omission of another; provided the deceased, if he had lived, might have maintained an action for the injury caused by the same wrongful act or omission. The law infers an injury whenever a legal right has been violated, and every injury imports a damage. As a general rule, where the law gives an action for a wrongful act, the doing of the act itself imports a damage, and even if no actual pecuniary damage may have been shown or suffered, still the legal implication of damage follows the wrongful act, and nominal damages at least may be recovered. Some of the English courts have held that if no actual loss is shown, nominal damages are not recoverable; but the American courts, so far as our observation goes, uniformly hold, under statutes similar to our own, that where a person has met with death caused by the wrongful act, neglect or default of another, whenever there are next of kin, nominal damages at least may be recovered. (Lehman v. City of Brooklyn, 29 Barb. 234; Dickens v. Railroad Co., 1 Abb. Ct. App. 504; Quin v. Moore, 15 N. Y. 432; Ihl v. Forty-second Street &c. Rld. Co., 47 id. 317; Chicago & Alton Rld. Co. v. Shannon, 43 Ill. 338; C. & N. W. Rld. Co. v. Swett, 45 id. 197; City of Chicago v. Scholten, 75 id. 468; Thompson on Negligence, 1293.)
The further point is made by counsel for the railroad company, that the findings and verdict of the jury are not sustained by the evidence. In response to special questions submitted by the court, the following findings of fact were returned by the jury:
“Was he so removed by and under the direction of one of the police officers of the city of Newton? Answer: No.
“Did the city marshal of the city of Newton ascertain that said Philip Weber was at defendant’s station, and did said marshal take charge and control of him immediately after his removal from said car? A. After said Philip Weber had lain on the stone steps of the platform for over one hour in an unconscious state, then the city marshal took charge of said Philip Weber.
“ Did the city marshal of Newton have charge of said Philip Weber from the time he was removed from said car until about two o’clock p. m. of November 1st, 1881, when he was removed to the Howard house? A. After the expiration of one hour or over.
“Is it not a fact that when"the conductor had Weber removed from the train at Newton he placed him in charge of one of the policemen of said city, and told him to do everything he could for him, as he was in such condition that he could not take him on the train? A. No.
“Is it not a fact that Weber was turned over to the city marshal and overseer of the poor at Newton before the train left the depot in that place? A. He was not.
“Did Weber contract any disease or sustain any injury during the time after he was taken from the car and before he was placed under the charge of the city marshal, and if so, how much, and to what extent? A'. Sustained an injury which resulted in his death.”
In these findings the jury seem to have either mistaken or purposely disregarded the testimony upon the facts inquired about. The testimony is, that upon the arrival'of the train at Newton, a special policeman of that city, who was doing duty at the station of the railroad company, with the assistance of others removed Weber, who was then in an unconscious state, from the train. The train remained at the station about ten minutes. Within a few minutes after he was removed, and within ten minutes after the arrival of the train and before its departure, Weber was turned over to and placed in charge of the city marshal and overseer of the poor. Henry Meyer, who was the overseer of the poor, says that he took charge of him. within from eight to ten minutes after the train came in, and immediately sent for a physician, and made effort to find a hotel or boarding house where he could be received and cared for. This is' in effect the testimony of several other witnesses-who were there present, and in an examination of all the testimony in the record nothing is found contradicting it-; Most of these findings are therefore untrue. Their materiality, when the issues and facts of the case are considered, will not be questioned. When Weber was placed upon the train at Hutchinson, his condition was unknown to the employés of the company in charge of the train. He had been in Hutchinson since the day before, suffering from the effects of the excessive use of intoxicating liquors.' He was found by the officers of that city lying on one of the streets in a spasm, and as they state, apparently afflicted with delirium tremens. Shortly after he was placed upon defendant’s train at Hutchinson, he was seized with a fit and fell from his seat upon the floor, where he struggled for some time. While going from Hutchinson to Newton, a distance of thirty-three miles, he had several such attacks. When he was out of these spasms he appeared to be somewhat delirious, and the conductor states that he tried to jump off of the train. In the car he removed his shoes, complaining that they were full of bugs and worms, and conducted himself in such a way as to annoy and frighten his fellow-passengers, so that a number of them left the car and went to other portions of the train. When the train reached Newton he had fallen from his seat, and was lying in the aisle of the coach in an unconscious condition. It is clear that the conduct of the deceased justified the railroad company in removing him from its train.
It is the duty of a railway company carrying passengers, to-provide for their quiet and comfort, and secure them against the annoying and offensive conduct of other passengers; and where the conduct of a passenger is such as to render his presence dangerous to fellow-passengers, and such as- will occasion them serious annoyance and discomfort, it is not only the right but the duty of a railroad company to exclude such passenger from its train. (Vinton v. Middlesex Rld. Co., 11 Allen, 304; Commonwealth v. Power, 7 Metcalf, 596; Jencks v. Colman, 2 Sumner, 221; Lemont v. Washington & Georgetown Rld. Co., 1 Am. & Eng. Rld. Cases, 263; Brown v. Memphis & Charlestown Rld. Co., 5 Fed. Rep. 499; Brown v. Memphis & Charlestown, Rld. Co., 1 Am. & Eng. Rld. Cases, 247; Railroad Co. v. Statham, 42 Miss. 607.)
And under the authorities, it seems that it is equally the duty of the railroad company to remove from the train and leave an unattended passenger, who, after entering upon a journey, becomes sick and unconscious or insane, until he is in a fit condition to resume his journey, or until he shall obtain the proper assistance to take care of him to the end of his journey. In this case, considerations for the fellow-passengers, as well as for the health and comfort of Weber himself, required that the railroad company take him from the train.
In regard to Weber’s condition with respect to completing his journey, the jury made the following findings:
“Was he in a fit condition to travel on defendant’s train without injuring himself? A. Think not.
“Was not Philip Weber, at the time he was removed from the train at .Newton, in such a condition as to render it unsafe for him to continue his journey to Atchison, Kansas, without medical treatment, or anyone to care for him? A. We think it was.
“Could not Philip Weber l’eceive better care from the city authoi’ities of the city of Newton than it was possible for the defendant’s employés to give him on the train? A. Yes.”
Under these facts, the propriety of his removal cannot be doubted. The duty of the railroad company, however, with respect to Weber, did not end with his removal from the train. He was unconscious, and unable to take care of himself. The company could not leave him upon the platform helpless, exposed, and without care or attention. It was its duty to exercise reasonable care and diligence to make temporary provision for his protection and comfort. As was said by the learned court who tried the cause: “ Of course the carrier is not required to. keep hospitals or nurses for sick or insane- passengers, but when a passenger is found by the carrier to be in such a helpless condition, it is the duty of the carrier to exercise the reasonable and necessary offices of humanity toward him until some suitable provision may be made.”
The contention of the railroad company is, that it performed its duty to this passenger when, after taking him from the train, it turned him over to the authorities of a city having four thousand inhabitants, and well supplied with public houses, and especially when it placed him in charge of the overseer of the poor. The statute makes it the duty of an overseer of the poor of any township or city to grant temporary relief to any non-resident who may be found lying sick therein, or in distress, and without friends or money, and the expense of providing such relief is to be paid out of the county treasury. (Comm’rs of Pottawatomie Co. v. Morrall, 19 Kas. 141.) This was the condition of 'Weber; he was in distress, sick, and without friends or money. It became the duty of the overseer, when his attention was properly called to Weber’s condition, to take charge of him, and make provision for his temporary relief. We think that if the railway company carefully and prudently removed him from the train, and promptly placed him in the care of the overseer of the poor, who received and took charge of him, that under the facts of this case it has exercised that reasonable care and diligence in making provision for him that the law requires. And here the materiality of the findings in question arises. The jury found that he lay on the platform of the company’s depot in an exposed condition for over an hour before he was taken charge of by the overseer of the poor, and that during that time he sustained such injuries as resulted in his death; while, as we have seen, the testimony is that he was placed in •charge of the overseer within a few minutes after he was removed from the train. We do not assume to decide whether -or not Weber sustained any injury from exposure during the brief time that elapsed after he was removed from the train and before he was taken in charge by the city authorities, nor whether the railroad company during that time exercised due care toward him, and due diligence in providing for his safety and comfort. But as it appears that these important findings, upon which the general verdict of the jury may have been mainly founded, are untrue, and inasmuch as the jury-allowed more than npminal damages, notwithstanding a special finding that the next of kin. sustained no pecuniary loss by the death of plaintiff’s intestate, the verdict cannot be permitted to stand.
There are other assignments of error, but in view of the conclusion that has been reached, we do not deem it necessary to notice them. .
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
-16,
110,
-40,
-97,
24,
96,
42,
90,
117,
-8,
-91,
115,
-51,
-53,
5,
107,
114,
-71,
81,
106,
-9,
-77,
23,
-95,
-38,
-109,
-16,
-57,
-80,
74,
118,
-49,
77,
112,
74,
-43,
38,
-54,
-63,
-40,
-114,
20,
-120,
-31,
-39,
0,
48,
-2,
84,
30,
113,
30,
-5,
42,
29,
-29,
9,
60,
91,
45,
-127,
-72,
-18,
-115,
127,
18,
-95,
6,
-100,
39,
-40,
40,
-104,
49,
0,
-20,
115,
-74,
-62,
84,
101,
-103,
13,
102,
67,
33,
21,
-17,
-88,
-103,
15,
-114,
31,
-90,
28,
89,
-55,
15,
-73,
-99,
127,
52,
-81,
124,
-4,
28,
77,
-84,
3,
-117,
-76,
-79,
-17,
36,
-98,
-121,
-21,
-95,
36,
112,
-36,
-88,
93,
71,
123,
-101,
-113,
-100
] |
The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, brought by H. G. Bronson, on September 28,1883, in the district court of Greenwood county, against C. J. Hafey, for the recovery of certain real estate. The case was tried by the court without a jury, upon the following agreed facts and evidence:
“At the May 1884 term of said court, said cause came duly on for trial; and thereupon the following was admitted and agreed to by said parties: That the plaintiff is the legal owner of the land described in his said petition, save and except the title claimed by the defendant under and by virtue of a tax deed heretofore issued by Greenwood county to George O. Lovett, defendant claiming under said Lovett.
“ It is further agreed that if said tax deed conveyed title, that defendant is entitled to recover; ■ otherwise judgment should be for the plaintiff; and it is further admitted, that defendant is in actual possession of said premises by virtue of said deed. It is further admitted, that said land wag subject to taxation, was duly assessed, and was properly placed upon the tax-rolls, and the taxes unpaid, and that said land was subject to sale for said unpaid taxes; that said land for said delinquent taxes was sold; that, afterward upon said sale, a tax deed, under which defendant claims, was issued by said county, and that said tax deed was regular upon its face.
“To attack said deed, plaintiff offered in evidence the following notice under which said land was sold, and upon which said sale said deed was issued, said notice being in words and figures as follows, to wit:
‘COUNTY TREASURER’S NOTICE.
State oe Kansas, Greenwood County, ss.
Eureka, Kansas, July 30, 1879.
Notice is hereby given, that I will offer for sale at my office in Eureka, Greenwood county, Kansas, on the first Tuesday in September, 1879, and next succeeding days, so much of each tract of land described below as is necessary to pay the taxes and charges thereon for the year 1878.
W. H. Daum, County Treasurer.’
“ Thereupon, plaintiff admitted that said land was actually sold under said notice at the time and place mentioned in said notice, and at public auction.
“The above and foregoing is all the testimony offered and admissions made iu said cause.”
Upon these agreed facts and evidence, the court below found in favor of the plaintiff and against the defendant, and rendered judgment accordingly, giving the possession of the property to the plaintiff upon his payment to the defendant the sum of $214.11, the amount of the taxes, penalties, costs and interest due on the land and paid by the defendant. The defendant, as plaintiff in error, now brings the case to this court.
It appears that the only irregularity in the tax proceedings was, that the county treasurer did not state in his notice of the tax sale that the property would be sold “ at public auction,” as is required by the statute. (Comp. Lawsof 1879, ch. 107, § 106.) In other words, he omitted the words “at public auction” in his tax-sale notice. It has already been decided by this court that the omission of such words from the tax-sale notice will not of itself, and where everything else has been regular, render the tax sale absolutely void, but at most only voidable. (Belz v. Bird, 31 Kas. 139.) And the question now arises, will such omission render the tax sale and the tax deed founded thereon voidable? We are inclined to think it will; not because it might mislead the owner of the property, but because it might mislead others and persons who might desire to attend the tax sale and purchase the lands offered for sale, provided they were offered “ at public auction.” The statute seems to make these words material, because in express terms it requires that they shall be placed in the tax-sale notice, and we do not think that it would be proper for us to hold that they are immaterial or unnecessary; but to hold as we do that these words are necessary, and 'that Avhere the sale has been made upon a tax-sale notice in which these words have been omitted, the tax sale and the tax deed are voidable, but not void, will not result in any harm or hardship to any person. Considering such to be the law, the original owner of the land must either pay his taxes or lose his land; but he will not lose his land until after he has had ample time within which to redeem the same from the taxes. If this is the law, then the only effect of the aforesaid omission will be to extend the original owner’s right to redeem his land from the taxes for the period of five years after the tax deed is executed and recorded. This, under the circumstances, would seem to be equitable as to all the parties. After such an omission from the tax-sale notice, an omission in direct violation of the express terms of the statute, it would seem that the title to the property should not irrevocably'pass from the original owner to the tax-deed holder until the original owner had ample time within which to redeem his land from the taxes, and the five-years statute of limitations would evidently furnish and be the proper measure of such ample time.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
-12,
-28,
-80,
31,
-70,
-64,
42,
-70,
64,
-95,
-78,
95,
121,
8,
5,
127,
50,
45,
-11,
120,
-58,
-73,
7,
-29,
-46,
-13,
-39,
-52,
-75,
93,
-28,
-58,
12,
49,
-54,
53,
70,
-32,
-59,
88,
-50,
-126,
-85,
84,
-43,
72,
52,
59,
115,
75,
117,
-82,
-6,
43,
29,
67,
73,
44,
-37,
-101,
25,
-8,
-86,
-43,
127,
19,
-127,
36,
-112,
67,
-56,
-82,
-110,
49,
-56,
-8,
127,
-90,
-106,
84,
13,
-117,
40,
54,
102,
97,
29,
-17,
-96,
-104,
14,
-9,
-99,
-26,
-106,
72,
35,
41,
-106,
-103,
93,
16,
6,
118,
-25,
-124,
93,
44,
13,
-50,
-44,
-109,
15,
56,
-110,
67,
-45,
-89,
48,
113,
-115,
-86,
92,
71,
24,
27,
-97,
-16
] |
The opinion of the court was delivered by
VALENTINE, J.:
This was an action of replevin, brought by Robert Kincaid against B. B. Corbin, to recover a flock of about 600 sheep, the plaintiff claiming the same under a chattel mortgage. . A trial was had before the court and a jury, and the jury found in favor of the plaintiff and against the defendant, and found that the value of the property in controversy was $1,487, and that there was still due on the plaintiff's mortgage $861.07; and the court rendered judgment in favor of the plaintiff and against the defendant for a recovery of the possession of the property, or in case a delivery could not be had, then for $861.07, the amount still remaining due on the plaintiff's mortgage. The defendant, as plaintiff in error, now seeks a reversal of such judgment by petition in error in this court.
The facts as claimed by the plaintiff below are substantially as follows: Originally, L. F. Williams owned the sheep, and on September 26, 1881, in accordance with a previous understanding, arrangement and agreement between himself and C. M. Vertrees, his father-in-law, and Robert Kincaid and N. F. Shaw, he sold and delivered the sheep to Shaw for $2,000, on time — Shaw securing the purchase-money by executing notes and mortgages as follows: a mortgage on the sheep and their increase for the year 1882, and the wool clipped therefrom for that year, to Robert Kincaid, to secure two promissory notes for the aggregate sum of $1,018.72, due in one year; and another mortgage on the sheep and their increase for the year 1883, and the wool clipped therefrom for that year, to Ver-trees, to secure a promissory note for the sum of $1,000, due in two years. It was understood by all the parties that the mortgage given to Kincaid should be the first and prior mortgage, and that the one executed to Vertrees should be the second mortgage. The mortgage to Vertrees, however, was executed first, though both were executed on the same day, and on September 26, 1881. Vertrees's mortgage was filed the same day for registration. Kincaid’s mortgage was filed on September 30, 1881. On August 19, 1882, Kincaid filed a renewal affidavit in the office of the register of deeds. Sometime in September, 1882, and prior to the 20th, Vertrees assigned his note to B. B. Corbin, another son-in-law of his. This assignment was made without consideration, and for the purpose of defeating Kincaid’s mortgage. On September 20, 1882, Corbin, with the assistance of Vertrees, took possession of the sheep, and Vertrees thereafter herded them. Kincaid then sought to settle matters with Corbin, but could not do so; and about September 25, and again on September 29, 1882, demanded the sheep from Corbin, but Corbin refused to surrender them, or any part thereof. On September 30, 1882, Kincaid brought this action of replevin against Corbin for the recovery of the sheep.
The defendant disputes many of the foregoing facts. He •claims that it was not the understanding or agreement between Williams, Shaw, Vertrees and Kincaid that Kincaid’s mortgage should be prior to that of Vertrees; and he also claims ■that he was an innocent and bona fide purchaser of the note and mortgage before the same became due, the note being a negotiable instrument. The jury, however, found in favor of the plaintiff and against the defendant upon all the issues; and from the evidence brought to this court we think they found •correctly. Hence the decision of this case must be upon the facts as claimed by the plaintiff. Before passing, however, to the special points made by counsel, we might further say that the evidence showed that Kincaid had received on his notes from the wool clipped for the year 1882 the sum of $374.44; that the expenses for sacks, etc., amounted to $70; and that the actual credit on the notes was $304.44. It would seem, however, that the jury credited the note the full amount of $374.44, and then found that there was still due to Kincaid •on his notes the sum of $861.07.
We shall now proceed to consider the principal points made by counsel.
I. We do not think that the mortgage is void because of any insufficiency in the description of the mortgaged property. Taking the whole of the mortgage together, and it substantially describes the property as a flock of 600 head of sheep, consisting of wethers, ewes, and lambs, and their increase for the year 1882, owed by and in the possession of Nathaniel F. Shaw, in Linn county, Kansas. This is a sufficient description of the property. (Brown v. Holmes, 13 Kas. 482; Shaffer v. Pickrell, 22 id. 619; Muse v. Lehman, 30 id. 514; same case, 1 Pac. Rep. 804.)
II. Nor do we think that the mortgage is void because taken for a sum greater than was due. If it was taken for any sum greater than was due — and this is certainly questionable — it was taken for only a small amount more than was due, and was taken inadvertently and by mere mistake, and was not taken or given with any fraudulent intention on the part of any of the parties to either mortgage. This does not render the mortgage void. (Bush v. T. G. Bush & Co., ante, p. 556; Kalk v. Fielding, 50 Wis. 340.)
III. Nor do we think that the mortgage is void, even as to the increase mentioned therein. (Jones on Chattel Mortgages, §§ 140, 149, and cases there cited.)
IV. Neither do we think that the mortgage was void because it was not filed in the register’s office on the day of its execution, but was filed therein four days thereafter. (McVay v. English, 30 Kas. 368; same case, 1 Pac. Rep. 795; Wilson v. Leslie, 20 Ohio, 161, 166.)
V. Neither do we think that the mortgage was void when this action was brought because of any want of a renewal affidavit under § 11, article 2, of the act relating to mortgages. (Comp. Lawrs of 1879, ch. 68, § 11.) The defendant below had actual knowledge of the plaintiff’s mortgage and of his rights, and took possession of the property with such knowledge, claiming to have the prior right thereto, in violation of the plaintiff’s rights; and all this transpired within less than one year after the execution of the plaintiff’s mortgage, and at a time when no one would claim or even, pretend that any re newal affidavit was necessary. A cause of action in replevin or for conversion then arose in favor of the plaintiff and against the' defendant, and that cause of action was not satisfied, annulled or barred by any failure on the part of the plaintiff to afterward file a renewal affidavit. In support of these propositions, see the following authorities: Frank v. Playter, 73 Mo. 672; Newman v. Tymeson, 12 Wis. 448; Case v. Jewett, 13 id. 498; Lowe v. Wing, 56 id. 31; Meech v. Patchin, 14 N. Y. 71; Edson v. Newell, 14 Minn. 228.
"VI. We think that under the agreement, understanding and arrangement between the parties, and in accordance therewith, Kincaid’s mortgage was prior to that of Vertrees’s, notwithstanding the fact that Vertrees’s mortgage was executed and filed in the register’s office prior to Kincaid’s. The arrangement between the parties was binding. (Chadbourn v. Rahilly, 28 Minn. 394; Freeman v. Schroeder, 43 Barb. 618; Wray v. Fedderke, 43 N. Y. Super. Ct. 335; Matthews v. Everitt, 23 N. J. Eq. 473; Wheeler v. McFarland, 10 Wend. 318; Noyes v. White, 9 Kas. 640.)
And as the two mortgages were given on the same day, by the same person, on the same property, and to carry out one principal intention and transaction, they should be treated very much as one mortgage given to or owned by different individuals, securing notes belonging separately to such individuals, and then, in the absence of any agreement or paramount equity giving priority in the payment of the notes, the note first falling due should be first paid, and should in this respect have priority. (Isett v. Lucas, 17 Iowa, 503; Richardson v. McKim, 20 Kas. 436; Aultman-Taylor Co. v. McGeorge, 31 Kas. 329 ; same case, 2 Pac. Rep. 778; 4 Wait’s Actions and Defenses, 591.)
We perceive no error in the instructions of the court below to the jury, nor any error in the court’s refusal to give the instruction asked by the defendant; indeed, we do not think that any material error was committed in the case, and therefore .the judgment of the court below will be affirmed.
All the Justices concurring. ■ | [
-80,
110,
-104,
47,
0,
96,
40,
-102,
66,
-128,
-77,
123,
-15,
-62,
20,
97,
-58,
105,
101,
106,
-42,
-73,
54,
-128,
-45,
-13,
-109,
-59,
-75,
108,
-26,
-41,
77,
60,
66,
93,
-26,
-94,
-63,
-44,
-82,
-122,
-83,
-19,
-35,
72,
56,
-5,
18,
72,
101,
-38,
-77,
46,
61,
75,
9,
42,
107,
41,
80,
-7,
-81,
-115,
-21,
3,
-111,
119,
-108,
67,
-22,
46,
-104,
51,
1,
-24,
123,
-92,
-122,
84,
99,
-87,
12,
102,
34,
1,
101,
-113,
120,
-120,
44,
-33,
13,
-121,
-109,
88,
11,
98,
-66,
-99,
94,
4,
-89,
116,
-22,
-99,
-99,
100,
6,
-114,
-106,
-93,
-113,
58,
-102,
11,
-29,
-121,
48,
113,
-51,
-88,
93,
5,
114,
-101,
-122,
-1
] |
The opinion of the court was delivered by
VALENTINE, J.:
This was a criminal prosecution under the prohibitory liquor law of 1881. The information was filed in the district court of Allen county, on October 15, 1884, by the county attorney, charging the defendant, Hiram Brooks, in four separate counts, with four separate violations of said law. Each offense was charged as having been committed on the-day of- 1884; and while it is charged that the defendant sold intoxicating liquors in violation of law, yet the kind of intoxicating liquors sold is not stated, nor is the name of the person to whom the liquors were sold given. The information was sworn to positively by J. C. Gilbert, a private citizen, and the county attorney did not verify the same by his own oath. The defendant made several motions, among which were motions to quash the information and to have himself discharged from arrest, which motions were overruled by the court, and the defendant excepted. The defendant was duly arraigned, but refused to plead, and the plea of “not guilty” was entered for him. A trial was had before the court and a jury. Evidence was introduced tending to show that the defendant had sold intoxicating liquors to various persons at various times in violation of law. The state then elected to rely for a conviction under the first count of the information, upon a sale of whisky made by the defendant to Oscar Dwindle, a sale with reference to which the prosecuting witness, J. C. Gilbert, had no-knowledge or notice, and the prosecution also made elections with reference to the other counts. The court instructed the jury, and the defendant duly excepted to the instructions as given. The jury found the defendant guilty under the first count of the information, and not guilty under the other counts. The defendant moved for a new trial upon various grounds, which motion was overruled by the court, and the defendant excepted. The court then sentenced the defendant to be confined in the county jail for thirty days, and to “pay the costs of this proceeding,” and that he stand committed to the county jail until the costs were paid; to which sentence and judgment the defendant excepted, and now appeals to this court.
We think the information is sufficient. It states a cause of action in each count against the defendant, and although it is claimed to be an information, and it is in fact an information, yet in essence and in substance it is also a complaint within the requirements of the prohibitory liquor law. The offenses charged therein are misdemeanors in which the punishment for each offense cannot exceed a fine of $500, or imprisonment ninety days; and it has several times been held by this court that the district court has original and concurrent jurisdiction with justices of the peace to hear and determine cases of misdemeanor in which the punishment for each offense cannot exceed a fine of $500 and imprisonment one year. (The State v. Watson, 30 Kas. 281; Comp. Laws 1879, ch. 83, §1.) In justices’ courts the original pleading may be properly called a complaint, but in the district court it may properly be called an information or indictment; for in the district court criminal prosecutions can be conducted or carried on only upon information filed by the public prosecutor, or upon indictments found by the grand jury. (Crim. Code in general, and articles 6 and 7 especially; see also §§21 and 22 of the Prohibitory Act.) The information sets forth facts sufficient to constitute four separate offenses, and all the facts constituting the offenses are set forth in detail aud in full, except as heretofore stated ; and the information is duly verified by the positive oath of J. C. Gilbert, aud is sufficiently verified within the decision made by this court in the case of The State v. Gleason, 32 Kas. 245.
Under such circumstances, we do not think that it was necessary for the county attorney to also verify the information; nor do we tbink that the failure of the county attorney to state the day and the month when the offenses were committed renders the information insufficient; for it is never necessary in criminal prosecutions to prove the allegations merely setting forth the day or the month when the offenses are alleged to have been committed. All that is necessary to be proved in any case like this is, that the particular offense charged was committed within such a time that the prosecution therefor is not barred by the statute of limitations; or, in other words, all that is necessary to be proved is that the offense was committed within two years next preceding the time of the filing of the information.
The information in the present case stated that the offenses were committed in the year 1884, and, as before stated, this information was filed on October 15, 1884. ' We think the information was sufficient in this particular. Authorities may be found, however, holding that it is necessary in charging criminal offenses to state a particular day and the particular month when the offense was committed; but as all the authorities agree that such allegations need not be proved, and that they answer no material purpose, it would seem that such allegations are wholly unnecessary and immaterial. Neither is it necessary in this state to state the kind of liquor sold, or the name of the person to whom sold; for the statute expressly and specifically provides that these things need not be stated. (Prohib. Liquor Law, § 21.) Of course the information in this case might have been made better than it was, and we think it ought to have been made better; but still we think it was and is sufficient. Taking the facts therein stated and the positive oath of Gilbert, it showed probable cause to believe that the defendant was guilty of the offenses charged against him, and authorized the issue of a warrant for his arrest; and it was not necessary for the clerk or any other person to make a finding that there was such probable cause. The information alone, verified as it was by the positive oath of Gilbert, was sufficient to show probable cause, and to authorize the clerk to issue the warrant. (Crim. Code, § 126.) And when the defendant was arrested and arraigned for trial, we think the information was sufficient to authorize the court to put him upon his trial.
We now come to a more serious question: Can the defendant be convicted of an offense of which the complaining witness, at the time when he verified the information, had no knowledge or notice, and concerning which he had never had a thought? Upon sound legal principles and in all common fairness, it would seem that he should not. If he should be convicted under such circumstances, he would be convicted of an offense not intended to be charged against him, and really not charged. It is true that he would be convicted of an offense of a similar character to the one charged against him, but he would not be convicted of the exact and identical offense charged. When the complaining witness verifies an information, he must do so positively and in such a manner as to indicate that he had actual knowledge of the facts to which he makes oath; and this he does, among other things, for the purpose that a warrant may be issued against the defendant for his arrest. (The State v. Gleason, 32 Kas. 245.) And it must be presumed, in the absence of anything to the contrary, that he has such actual knowledge. It cannot be supposed that he makes oath to an offense of which he has no knowledge or thought. Indeed, it has often been held by courts that where a person makes oath to a thing concerning which he has no knowledge, and where he does not know whether his statements concerning the thing are true, or not, he commits perjury, although his statements may in fact be true. ( 2 Bishop’s Crim. Law, § 1048; 2 Wharton’s Crim. Law, § 1247.) Besides, as the defendant in this class of cases and in this state may be convicted of selling any kind of liquor out of the entire catalogue of intoxicating liquors, although not one of such liquors is specifically mentioned in the information; and may be convicted of selling the same to any living person, although no person’s name is given; and may be convicted of selling the same at any time within two years next preceding the filing of the information, whether any particular time is mentioned in the information, or not, the defendant ought to have some other means of identifying the offense of "which he is charged, and some means for preparing for his defense; and if be cannot feel assured that he is to be tried only for some offense of which the complaining witness has knowledge, and for some offense intended at the time of the filing of the information to be charged against him, then surely he has no such means, nor any reasonable means, of preparing for his defense. In all fairness to him, it would seem that the state should not be allowed to prove any offense except some offense which the complaining witness had in contemplation when he swore to the information. Any other rule would permit a defendant to be charged in a very vague and indefinite manner with the commission of a single offense, to be tried for a hundred, or more, to be required to prepare his defense for all, and be then convicted of an offense of which at the commencement of the trial he had no thought, and for which he had made no preparation for defense, and be convicted of an offense to which he either would have made a successful defense or would have pleaded guilty and have saved all the costs and expenses of the prosecution if he had only had some sufficient or proper notice.
We know of no decided case squarely in point on either side of this question, but there are cases upon, analogous questions which have some ’application. Some of such cases are those which hold that where a grand jury finds an indictment against a defendant, and alleges the offense with reference to some person unknown to the grand jury, the defendant can be convicted only of an offense concerning some person who was in fact unknown to the grand jury and whose name had not been disclosed to them. (1 Bishop’s Crim. Pro., §§ 546 to 553; Wharton’s Crim. Ev., § 97; 2 Wharton’s Crim. Law, § 1511.) The constitution of the state of Kansas provides, among other things, that—
“In all prosecutions, the accused shall be allowed to appear and defend in person or by counsel; to demand the nature and cause of the aeeusation against him; to meet the witness face to face; and to have compulsory process to compel the attendance of witnesses in his behalf.” (Const., Bill of Rights, §10.)
. “And no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the person or property to be seized.” (Const., Bill of Eights, § 15.)
Now if a defendant may be prosecuted for selling intoxicating liquors contrary to law, without setting forth any statement of the kind of intoxicating liquors sold, or when he sold the same, or to whom he sold the same, and for an offense of which the complaining witness had no knowledge or thought when he verified the information by his oath, it would seem that these provisions of the constitution would be of but little benefit. And in cases like the present, where the entire prosecution is based and founded upon the oath of the complaining witness, his knowledge of the offense is more important than the knowledge of prosecuting witnesses usually is. The principles running through the foregoing cases and through all the decided cases that have any application to this case, and the principles embodied in the constitutional bill of rights, are that an accused person must be given a fair notice of the exact offense charged against him ; that when tried, he must be tried for that offense only, and not for some other offense not charged; and that the charge, with its accompanying circumstances, must not be so uncertain and misleading as to beguile him into the belief that he is to be tried for one offense when in fact he may be tried for another.
In the present case, when the complaining witness verified the information, he had in contemplation at least four different offenses, of all of which, presumably, he had knowledge; but the defendant was not convicted of any one of such offenses, but was convicted of still another offense, and of an offense concerning which the complaining witness did not have the slightest thought or information. We think the prosecution should have been confined to the offenses which were in the mind of the complaining witness when he verified the information. If he had only four offenses in contemplation at that time, the state should have been confined to those four — one under each count of the information. If, however, he had in contemplation a larger number, then the state should have been required to elect at the proper time as to which of the offenses and under which counts it would rely for a conviction. If the complaining witness had in contemplation fifty or a hundred or more violations of law, as possibly he had, the prosecution should at the proper time have selected some four of them, and relied upon these four for a conviction, and not have selected some supposed offense of which the complaining witness had no knowledge or thought.
We think the court below erred in permitting the defendant to be convicted of an offense which was not contemplated at the time of the filing of the information. This error pervaded the entire case — the introduction of the evidence, the instructions to the jury, the verdict and sentence, and the order of the court overruling the defendant’s motion for a new trial. Both Gilbert and Dwindle were witnesses in this case; and it was shown beyond all controversy that Gilbert, the complaining witness, had no knowledge or thought at the time of or prior to his verifying the information of the offense of which the defendant was found guilty.
We also think that the court below erred in rendering judgment for costs. On three of the counts of the information the defendant was acquitted; and upon these three counts he .should not have been required to pay costs, but should have-recovered- costs.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
-80,
-30,
-100,
-98,
58,
-32,
42,
-8,
2,
-63,
-14,
115,
-23,
82,
1,
99,
-69,
127,
85,
121,
-64,
-74,
19,
99,
-46,
-45,
-53,
-43,
-75,
75,
-26,
-11,
13,
52,
-54,
-3,
103,
72,
-63,
88,
-118,
5,
57,
-55,
83,
72,
52,
59,
115,
11,
97,
14,
-25,
46,
92,
-61,
41,
40,
-55,
13,
80,
-23,
-104,
-33,
-51,
18,
-77,
102,
-104,
1,
-56,
62,
-104,
49,
64,
-24,
115,
-124,
70,
116,
15,
-119,
13,
102,
39,
33,
29,
-49,
32,
-119,
37,
111,
-99,
-89,
88,
81,
75,
8,
-74,
-99,
116,
80,
-121,
-6,
-29,
-43,
25,
60,
5,
-117,
-74,
-69,
15,
44,
-106,
54,
-53,
-89,
48,
69,
-59,
94,
84,
100,
112,
-101,
-114,
22
] |
The opinion of the court was delivered by
JohnstoN, J.:
One of the disputed points in this case is in regard to the measure of damages for a breach of the covenant of warranty in the conveyance of real estate. The land was purchased from Stebbins by Gottleib Wolf, on November 26,1876, and the consideration agreed to be paid was $375. He held possession of the land from that time until April 1, 1882, when he was evicted by the owner of the paramount title, Elizabeth W. Long. The value of the land at the time of the eviction was $2,300.
Wolf insists that the measure of damages is the value of the land at the time of eviction, while the other party contends that the agreed value of the land at the time it was conveyed is the true r.ule for assessing the damages. The latter theory is substantially the one adopted by the trial court. It was held that the purchaser was entitled to the consideration paid for the land, with interest thereon from the time of conveyance, together with reasonable costs and expenses incurred by the purchaser in defending his title, allowing the vendor credit for such benefits as the purchaser derived from the conveyance, and for which he was not answerable to the owner of the paramount title.
There is some conflict of decision upon the rule for assessing damages in such a case, but the weight of authority supports the theory which the court below adopted. (Rawle on Covenants for Title, 4th ed., p. 242, and cases cited; 3 Washb. on Real Pr., 423; 2 Sutherland on Damages, 280; 1 Sedg-wick on Damages, p. 338, and note.) In this country the value of land fluctuates, and is frequently enhanced to an enormous extent. The construction of a railroad near to, or the building of a town upon the land,, or other adventitious circumstances occurring between the sale and the discovery of the defective title, might enhance its value an hundred fold, and to require the vendor to pay such increased value would be a hardship and an injustice. The rule measuring the damages by the value of the land as agreed upon by the parties at the time of its alienation is more reasonable and just, and while this general rule is subject to modification by circumstances, we think it is applicable to the facts in this case.
The plaintiff in error, W. R. Stebbins, complains of the rulings of the court, first, in allowing Wolf interest on the consideration-money for the whole time from the date of the deed till the eviction; and second, in failing to set off the full benefits which Wolf derived from the tax lien and the moneys paid thereon by Long in the ejectment action, in reduction of damages in this action.
In respect to interest on the purchase-price of the land, it appears that Wolf entered upon and held possession of the land from the time of its purchase down until April 1, 1882, when he was evicted in the suit brought against him by Eliza beth W. Long. In that action he was held to account to Long for the rents and profits of the land from the service of the summons on May 27, 1879. From the time of the sale until the last-named date, the rents and profits arising from his possession and use of the land amounted to $160. He was not required to account to Long for the use of the land during this period, and as interest is given to counterbalance the claim of the true owner for mesne profits, we think Wolf ought not to recover interest on the consideration-money while he had the use of the premises free of expense. The rule in regard to the recovery of interest as an item of damages, has been well stated, as follows:
“ Interest is not recovered when the premises have been occupied by the warrantee, and he has not accounted nor is accountable for the rents and profits. It would be unjust. He who buys a farm or house and lot, agrees to part with the use of the consideration forever, for the use of the farm or house and lot forever. As long as he has the use of the farm, or house and lot, so long should the seller have the use of the consideration. In such case the use and occupation are presumed to be equal to the use of the purchase-money. And if not, the grantee has no ground for complaint while he is undisturbed in the enjoyment of that for which he was content to pay the purchase-money.” (2 Sutherland on Damages, p. 300. See also Combs v. Tarleton’s Adm’rs, 2 Dana, 465; Wead v. Larkin, 49 Ill. 99; Thompson v. Jones, 11 B. Mon. 365; Clark v. Parr, 14 Ohio, 121; Whiting v. Dewey, 15 Pick. 428; 2 Wait’s Actions and Defenses, p.401.)
We think therefore that Wolf ought to be limited in his recovery of damages on account of interest on the purchase-money to that which would accrue after the service of the summons upon him in the ejectment action, during which time he was held to account for mesne profits arising from the use and occupation of the premises, and which amount to $74.67.
Upon the other assignment of error by Stebbins, the agreed facts show that Stebbins held the land under a tax deed. The lands were sold to him for the unpaid taxes of 1871, and he paid the subsequent taxes and charges on the lands down to and including the semi-annual payment of taxes in 1876. After that time the taxes levied against the land were paid by Wolf. In the ejectment action in which the judgment of eviction was rendered, Wolf not only received the benefit of all lasting and valuable improvements made upon the land, but he recovered from Long upon the tax lien against the premises the total sum of $692.90. Of this sum, $563.77 was paid to him by reason of the taxes which Stebbins had paid upon the land, and the liberal interest allowed thereon by the statute of the state.
The court, however, did not allow Stebbins this amount in. reduction of damages for the breach of the warranty, but only credited him with $277.12, being the amount of Stebbins’s tax-title interest in the land at the time of its sale. In this we think there was error. Generally, the warrantor is entitled to all the benefits which the purchaser derives from the defective Conveyance in reduction of the amount of recovery against him for a breach of the warranty. It was solely by reason of the tax title and interest conveyed by Stebbins that Wolf received so large a sum of money from Long. The statute for the recovery of taxes provides that where the holder of a tax deed, or anyone claiming under him by virtue of such deed, is defeated in an action for the recovery of the land sold, the successful party before being let into possession shall be required to pay to the other party not only the amount of the taxes, interest and costs which have accrued up to the date of the tax deed, but also interest thereafter on the total amount at the high rate of twenty per cent, per annum. The tax interest or lien conveyed to Wolf by Stebbins rapidly increased on account of this large rate of interest. It was a benefit which flowed directly from the defective conveyance made to Wolf, and as he is not held to account for this benefit to anyone.else, it should be considered in assessing the damages in a suit upon the covenant of warranty, against the vendor. (King v. Kerr, 5 Ohio, 155; Booker v. Bell, 3 Bibb, 173.) We are therefore of opinion that Stebbins is entitled to a credit by way of reduction of damages, for the taxes paid by him, together with all interest which had accrued thereon up to the time of judgment in the .action wherein these taxes and interest were paid to Wolf.
We are further of the opinion that the item of $194.70, allowed by the trial court to Wolf for costs and expenses, was incurred by him in good faith in defending the ejectment action brought by Long against him, and is a reasonable and proper charge against the defendant in this case.
Measuring the damages, then, by the rules stated, we find, under the agreed statement of facts, that the items of damages chargeable against Stebbins at the time of the eviction of Wolf are as follows:
The purchase-price of the land at the time of sale. §375 00
Interest on the purchase-price from May 27,1879. 74 67
Costs and expenses in defending suit wherein judgment of eviction was rendered. 194 70
Total. §644 37
Deduct amount received by Wolf for taxes paid by Stebbins, and interest thereon. 563 77
Amount due Wolf April 1,1882. §80 60
Wolf is therefore only entitled to a judgment for this balance, together with the interest thereon at seven per cent, until November 12, 1883, the date of judgment in this case, which amounts to $89.66.
The judgment of the district court will therefore be modified by awarding judgment in favor of the plaintiff Wolf for $89.66. The costs in this court will be divided.
Ml the Justices concurring. | [
-14,
126,
-99,
-82,
-118,
96,
10,
-40,
107,
-88,
-76,
91,
-113,
-54,
17,
45,
-26,
105,
-15,
104,
84,
-93,
18,
-29,
-106,
-109,
-45,
-51,
-71,
76,
-12,
-41,
76,
32,
-54,
-107,
-26,
-32,
77,
-108,
-50,
-113,
-87,
109,
-35,
64,
60,
59,
64,
74,
81,
-117,
-29,
44,
29,
83,
9,
40,
-21,
41,
-48,
-8,
-66,
14,
123,
6,
17,
38,
-68,
7,
-56,
28,
-112,
53,
6,
-24,
115,
36,
-122,
116,
77,
-101,
13,
34,
99,
32,
117,
-17,
-14,
-104,
46,
-10,
-115,
-90,
48,
88,
19,
96,
-66,
-99,
116,
70,
71,
126,
-25,
29,
93,
108,
7,
-53,
-106,
-27,
-113,
44,
-126,
3,
-42,
35,
-79,
112,
-50,
-94,
92,
97,
122,
-101,
-113,
-39
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.