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The opinion of the court was delivered by
Marshall, J.:
An opinion reversing the judgment of the trial court in this action was delivered on March 10, 1917. A petition for rehearing was filed. That petition showed that the result reached b3r this .court was based on a misapprehension of the facts disclosed by the evidence. For this reason the opinion was not published and a rehearing was granted.
A number of parties sought to foreclose mechanic’s liens on property owned by F. H. Woodbury. R. H. Agard, one of the defendants, obtained judgment against C. E. Easter for the sum of $863.77, which judgment was declared to be a lien on the premises of F. H. Woodbury. From that judgment Wood-bury appeals.
C. E. Easter, under the name of C. E. Easter & Co., contracted with Woodbury to build a dwelling house on Wood-bury’s property for about $8000, and gave bond for $7250 with C. E. Easter & Co. named as principal and The United States Fidelity & Guaranty Company as.surety, signed by C. E. Easter & Co., C. E. Easter, R. H. Agard, and The United States Fidelity & Guaranty Company. Neither the name C. E. Easter nor the name R. H. Agard appeared in the bond in any way, except in the signatures at the end thereof. The bond contained, among others, the following recitals:
“Whereas, said principal has entered into a certain written contract with the obligee, to construct at his own proper cost and expense, do all the work and furnish all the material for the proper construction and completion of a two story and basement frame residence on a farm owned by F. H. Woodbury, in Osage county. . . .
“Now, therefore, the condition [s] of the foregoing obligation is such that if the said principal shall well and truly indemnify and save harmless the said obligee from any pecuniary loss resulting from the breach of any of the terms, covenants and conditions of the said contract on the part of the said principal, to be performed, then this obligation shall be void.; otherwise to remain in full force and effect in law.”
Agard filed a cross-petition’ for the foreclosure of the mechanic’s lien held by him. To this cross-petition Woodbury answered, and as a defense set up the bond signed by Agard, and alleged that $5700 had been paid on the contract and that claims and mechanic’s liens had been filed amounting to $4077.51, among which was Agard’s lien.
The allegations of Woodbury’s answer were denied by Agard. The sum of $863.77, principal and interest, was due from Easter to Agard for materials furnished by Agard and put into the dwelling house, for which materials Agard filed his mechanic’s lien.
1. Agard contends that he is not liable on the bond for any failure of C. E. Easter to perform the contract, for the reason that Agard was not surety for C. E. Easter, but was surety for C. E. Easter & Co. The evidence disclosed that C. E. Easter contracted under the name of C. E. Easter & Co.; that there was no such company or corporation as C. E. Easter & Co.; and that C. E. Easter was the real party who contracted to build the residence for Woodbury and who gave the bond for the faithful performance of the contract. The purpose for which the bond was given was to secure the performance of the contract made by C. E. Easter under the name of C. E. Easter & Co. That purpose should not be defeated by the use of different names.
2. Agard contends that he is a stranger to the bond because his name does not appear in the body of the instrument, either as principal or as surety, and argues that for that reason he is not liable thereon. Why did Agard sign the bond? He did not sign as a witness. It does not appear that his name was accidentally placed thereon; that his signature was procured by fraud; nor that he signed the bond by mistake. Only one reason can be given for Agard’s signing the bond, and that reason is that he intended to become liable as surety thereon. According to the great weight of authority, it was not necessary that Agard’s name appear in the body of the bond. In section 8, page 51 of 4 R. C. L., the author says:
“It is not necessary, however, that the names of the obligors should appear in the body of the instrument. If the obligors, in witness of their obligation to perform certain covenants and conditions, have affixed their hands and seals to the bond, that is sufficient to bind them.”
A number of cases are there cited which fully support the statement quoted. (See, also, 9 C. J., § 12, p. 11; 5 Cyc. 732; and Note, 6 L. R. A. 278.) Agard cites authorities which support his contentions. They are against the great weight of authority and their reasoning is not convincing.
3. The transcript of the evidence, certified to by the court stenographer, A. D. Justice, but without filing marks, discloses that C. E. Easter & Co. contracted with Woodbury to erect a power house for the sum of $300. The evidence introduced did not disclose the amount of money paid by Woodbury for building the dwelling house nor for building the powerhouse, nor how much of the material furnished by the mechanic’s lien holders went into the construction of each of the buildings.
Copies of receipts for material and labor furnished by Easter in the construction of the dwelling house are set out in Wood- bury’s brief on rehearing. These receipts purport to be signed by C. E. Easter, and aggregate $5708. They were not introduced in evidence on the trial. The judgments on the claims for which mechanic’s liens were filed amount to $4116.05, principal and interest, which, together with the amount for which Woodbury claims to hold receipts, exceeds the contract price for the dwelling house and the power house by more than $1500. Why the receipts were not introduced in evidence does not appear.
Woodbury in his brief on rehearing says:
“We go outside the record to say:
“That this case was tried by Mr. J. H. Stavely, as attorney for Wood-bury at a time when Stavely was suffering' from an illness which ended his life shortly thereafter and that fact together with the fact that no one really questioned but that Woodbury had paid $5700 upon the contract price of that house, and then held and had in the court room Easter’s receipts therefor, probably caused Mr. Stavely to not introduce the receipts which show these payments in evidence and thus meet the technical burden raised by the general denial in Agard’s answer. .It will be appreciated that a general denial to the plea of payment could be overlooked when the real defense was that Agard was not liable on the bond because his name was not written in the body of the bond and because the bond referred to a contract with C. E. Easter & Co. and with C. E. Easter.”
If Woodbury made these payments, and that fact had been shown in the evidence, the judgment in favor of Agard and against Easter should not have been declared a lien on the real property of Woodbury.
Under the express conditions of the bond, the contractor, at his expense, was to construct the house and to furnish all the labor and materials therefor. The bond was given to secure the performance of that contract. If the payments shown by the receipts were made and Agard is permitted to recover, directly or indirectly, against Woodbury, the object of the bond will be defeated, for the reason that the amount which Wood-bury paid, together with the amount of the mechanic’s liens filed, exceeds the contract price for both buildings by more than the amount of Agard’s claim. A similar case is Sanders v. Keller, 18 Idaho, 590. There the court said:
“It is a well-established rule of law that the surety for a contractor on a building contract can not maintain his action for the foreclosure of a lien for materials furnished where. the full contract price has been paid to the contractor.” (p. 594.)
A number of authorities are cited by the supreme court of Idaho to support its conclusion, among which is 2 Brandt on Suretyship and Guaranty, 3d ed., § 754. ‘
Under these circumstances, and to prevent an injustice being done, the judgment of the trial court is reversed and that court is directed to ascertain the amount paid by Woodburyon the dwelling house and the amount paid on the power house; and if it is found that the amounts so paid, together with the amounts of the mechanic’s liens, without interest, exceed the contract price for the dwelling house and the cost of the power house by more than the amount of Agard’s claim, the trial court, is directed to deny Agard a lien'on the property.
. The costs of the trial and of the appeal are assessed against Woodbury. | [
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The opinion of the court was delivered by
MASON, J.:
On October 5, 1915, James T. Nolan brought an action against Ellis county to recover money claimed to be due him by reason of transactions which took place while he was county attorney, in 1899 and 1900. The county, in addition to a general denial, pleaded the statute of limitations and accord and satisfaction by a compromise and settlement made in April, 1913. Trial was had without a jury. Judgment was rendered for the defendant, and the plaintiff appeals. No formal special findings were made, but in rendering the decision the court stated that the settlement made in , 1913 was a bar to any legal claim on the part of the plaintiff. This did not indicate a finding for the plaintiff upon any disputes of fact or inference, and they must be regarded as having been resolved in favor of the defendant so far as necessary to uphold the judgment.
During the plaintiff’s term- as county attorney he had a disagreement with the county commissioners as to whether he was entitled to retain the fees of the prosecuting' officer taxed as costs in prosecutions under the prohibitory liquor law. He brought an action to test the question, and the district court decided that these fees were required to be turned over to the county treasurer. • On an appeal this decision was reversed. (Nolan v. Ellis County, 65 Kan. 57, 68 Pac. 1068.) Pending this litigation, in April, 1901, the county paid the plaintiff $420 in full settlement of all claims except fees in liquor cases then in the hands of the clerk of the district court. The plaintiff asserts that it was at that time agreed that the amount of such fees was $630, and that the county was to pay him this sum if the supreme court should decide the legal question referred to in his favor. The present action is to recover this sum, with interest, less credits for $50 paid in 1903, and $158.47 paid in 1913.
1. The plaintiff brought his action as upon an account stated, and complains of rulings of the trial court requiring him to set out and prove the items of the account. It was not conceded that there had been an agreement as to the amount of the fees in question, and it may be doubted whether the county board could make a binding agreement in this respect otherwise than in accordance with the actual facts, so that the requirement for details seems to have been justified; but in any event it could not have been prejudicial unless error is .shown in the rejection of the plaintiff’s claim in its entirety.
2. To the defense of the statute of limitations the plaintiff responds that the payment of $158.47 in 1913 revived the claim if the statute had then run. A payment of a part of a claim made and accepted as a satisfaction in full would not lift the bar of the statute as to the remainder. (25 Cyc. 1373.)
3. The plaintiff also asserts that the money paid as fees of the county attorney in liquor cases belonged to him all the time, that the county held it as trustee, that the trust was not repudiated until 1913, and therefore that the statute of limitations did not begin to run until then. The soundness of this contention need not be determined, in view of the conclusion reached regarding the effect of the negotiation had at that time.
4. There was evidence to this effect: In 1913 the plaintiff appeared before the board of county commissioners and asked the payment of his claim, which he then placed at $316.94; the commissioners were of .the opinion that the entire demand was outlawed, but after some negotiation agreed with him to pay $158.47, which was to be accepted in satisfaction of all demands on his part against the county; this arrangement was carried out, the plaintiff accepting the money and executing a release in full. The plaintiff contends that the settlement should have been held not to bind him for the following reasons: (1) It was made under a mutual mistake of fact concerning the amount of the fees involved; (2) it was made under a mistake in this respect on his part brought about by the suppression of information on the subject by the commissioners — the concealment of reports and documents relating to the matter; and (3) the agreement to release the county from further liability was without valid consideration because he was entitled to the sum paid him as a matter of absolute right. The first two contentions fail because, assuming that the evidence had a tendency to show either a mistake of fact by both parties or a mistake on the part of one of them induced by the conduct of the other, it did not conclusively prove either condition; the court must be presumed to have found against the plaintiff in this regard, and this decision of fact is not open to review. If it is regarded as established that some of the documents relating to the plaintiff’s fees were missing at the time of the settlement and were later discovered this would not juátify a reversal of the find ing of the trial court on the question of mistake. The third contention also fails because in order for the payment of a part of a claim to be regarded as insufficient to support a. contract discharging the debtor from liability for the remainder, it is not enough that the amount paid should have been legally due; to have that effect the existence of the obligation must have been admitted, or not challenged in good faith. (Odrowski v. Swift & Co., 99 Kan. 163, 166, 162 Pac. 268.) Here the commissioners disputed the entire claim, asserting that it was outlawed. Whether they were right or wrong in this as a matter of law, their view' was entirely plausible in view of the matter having been allowed to slumber for so long a time, and there is no basis for impeaching their good faith in the matter; at least none that is available on review.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Ixi this case the only question to be determined is whether the action of the trial court in refusing to set aside a judgment rendered against the defendant on default was under the circumstances reversible error.
Hortense Patterson, on the 24th of April, 1915, sued the Uncle Sam Oil Company in the district court of Sedgwick county to recover damages alleged to have been sustained through the explosion of kerosene oil in a lamp. The petition alleged that defendant is a corporation with an established place of business in the city of Wichita; that it had been engaged in the wholesale and retail oil business there and kept large quantities of coal oil and gasoline in storage tanks; that its agents and servants mixed and mingled a large quantity of gasoline with a large quantity of coal oil; that defendant, being fully aware that the fluids had been so mixed and mingled, and that the mixture would be used in lamps for illumination, and the merchants and storekeepers would sell it for that purpose, and with full knowledge of the dangerous condition and character of the mixture, sold large quantities thereof to a retail grocer in the city of Wichita, who in turn sold a two-gallon can thereof t'o the plaintiff for a high grade of coal oil. The petition then alleges the explosion of some of this oil in a lamp at the plaintiff’s residence by which she received the injuries complained of. The petition concluded with a prayer for $3000 damages and costs. It appears, also, that her husband brought suit about the same time against the defendant to recover damages for the loss of services of his wife occasioned by the same accident. The answer contained a general denial, to which a reply was filed.
On the 9th of November, 1915, the case came regularly on for trial, notice thereof having been posted in the court room. The counsel then appearing for the defendant had his office in Kansas City, Mo. In his absence the case was called for trial and judgment rendered against the defendant for the sum of $2000 and costs. On the next day the attorney for the defendant, who had prepared the answer and had expected to try the case, learned of the fact of the judgment and within three days of the time the judgment was rendered filed a motion for a new trial on all the statutory grounds, among others, “unavoidable casualty and misfortune preventing the defendant from defending the cause.”
The motion was supported by the affidavit of the attorney reciting the facts as to his want of notice, and stating that he had recently been attorney in a case pending in the same court in which one Jackson sued the defendant, and he had been informed by the clerk of the assignment of the case for trial in sufficient time to enable him to appear; that upon his representation that he had another case set for trial in Oklahoma on the same date the judge of the court had courteously postponed the trial of the Jackson case to a later date in order to accommodate' him. He alleged that in the present instance he relied upon the custom of the court and of the clerk, and expected to be notified of the assignment of this cause in sufficient time to enable him to appear, and that if he had been notified by telegraph or telephone he would have appeared within a few hours after such notice. He further alleged that the plaintiff’s attorneys knew his address, had been in correspondence with him, and had offered to settle this case together with the action brought by plaintiff’s husband for $1000, and that knowing his address had failed to give him any notice or opportunity to appear and defend. The affidavit stated that the defendant has a valid defense to the cause of action and was at all times ready to try the case when notified.
It appears from the record that the stenographer was not asked to take any notes of the evidence, and that the cáse was tried without a jury, and on a very slight showing on the part of the plaintiff. Whether there was any evidence at all to show that the defendant had at any time sold a mixture of coal oil and gasoline as alleged in the petition does not appear from the record.
Affidavits were filed contesting defendant’s right to a new trial and showing that no general custom or rule obtained in the district court of Sedgwick county requiring notice of the assignment of cases for trial to be given to nonresident counsel. The motion for a new trial was filed within three days after the rendition of the judgment. At the hearing of the motion the judge stated that it cost the county $75 a day to keep a jury, and further that he believed he had saved the defendant $1000, inasmuch as he rendered judgment for only $2000, although the sum prayed for as damages was $3000. It appears that the defendant then offered to pay into court $75 to reimburse the county and to pay any costs imposed by the court if a new trial were ordered.
It is very clear that the attorney then representing the defendant was negligent in not having some arrangement through local counsel or with the judge or the clerk by which he would be notified when the case would be set for trial. Ordinarily the negligence and failure of an attorney to look after a cause will be imputed to the party who employs him. On the other hand, it is very clear to our minds that a great injustice has been done the defendant. If this were an action upon a promissory note to which the defendant had no substantial defense or had set up some mere technical defense, the facts might warrant the strict enforcement of court rules. However meritorious the plaintiff’s claim in this case may be, and upon that we express no opinion, the action is one of a class wherein charges are frequently trumped up and relied upon as a basis to recover damages. Of course no reasonable person believes that a reputable business concern like the defendant is guilty of all the things charged in the petition; that it knowingly mixed and mingled kerosene and gasoline and wantonly put it on the market to be sold and used for kerosene, as is repeatedly alleged in the petition. If a similar action had been brought against a business concern located at Wichita, represented by resident counsel, it is conceivable that the same situation might arise. In such a case, if it were shown that defendant’s attorney had been caught unawares and was unavoidably absent when the case was called, that defendant had a meritorious defense, it would seem harsh and unjust to deprive the defendant of a right to a trial on the merits although his attorney was wholly at fault. It is not even suggested that the fact that defendant is a foreign corporation, represented by counsel living in another state, furnishes any ground for a different rule.
Defendant’s counsel should have taken measures, either by the employment of a local attorney to keep informed when the case would be reached for trial, or have made some other arrangements with officers of the court to that effect. It is necessary that the courts should adopt rules for the dispatch of business,-and it rests in the sound judicial discretion of the trial judge when to enforce those rules with strictness and when to waive them in the interest of justice; but it should always be borne in mind that courts are established in the first place to do justice, and not merely to enforce rules of practice and procedure. The terms of court in Sedgwick county, except in the summer months, are close together. A continuance of the case, if it could not have been tried again at the same term, need not have occasioned very great delay; and as against the slight inconvenience to the plaintiff by a continuance, there should have been taken into consideration the great injustice to the defendant from the refusal of another trial. We think that in exercising its discretion the trial court failed to give sufficient weight and consideration to the rights of defendant and the requirements of justice, and, therefore, that a new trial should have been ordered.
The judgment is reversed and the cause remanded with directions to grant a new trial upon terms to be imposed by the court. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to enjoin the issuance of $125,000 worth of bonds by the city of Kansas City for the building of an addition to the city hall. The trial was had upon an agreed statement o'f facts, and from the judgment in defendant’s favor plaintiff appeals.
The action was brought upon the ground that the proposed bonds would cause the city’s indebtedness for general improvements to exceed the statutory limit. The limit is prescribed in section 1 of chapter 126 of the Laws of 1903, as amended by section 6 of chapter 62 of the Laws of 1909. The section"' reads:
“At no time shall the bonded indebtedness of any city of the first class having a population of fifty thousand or more, except for bonds issued for special improvements and for sewers, for which a special tax is levied upon the property improved, exceed five per cent of the assessed value of all the taxable property within said city, as shown by the assessment books of the previous year; and at no time shall the bonded indebtedness of any city of the first class having a population of fifty thousand or m(jre, including bonds issued for special improvements, for which a special tax is levied upon the property improved, exceed ten per cent of the assessed value of all the taxable property within said city, as shown by the assessment books of the previous year: Provided further, That nothing in this act shall be construed to impair or invalidate any bonds already issued, whether for general purposes or for special improvements, or bonds to pay for improvements already legally, petitioned for.” (Gen. Stat. 1915', § 1422.)
The defendant is a city of the first class having a population of more than 50,000. The assessed valuation of the taxable property for the year 1916 is $93,730,145. .Five per cent of that sum is $4,686,507.25. The total bonded indebtedness of the defendant, exclusive of special-improvement bonds, already amounts to $5,547,064, an amount considerably in excess of-the statutory limit. In this total is included $2,177,000 worth of waterworks bonds issued under the provisions of chapter 33 of the Laws of 1908. Section 16 of this act reads as follows:
“None of the restrictions and limitations respecting the amount of city indebtedness contained in any of the statutes of the state of Kansas shall apply to or in any way affect the issuance of the bonds authorized by this act.” (Gen. Stat. 1915, § 1312.)
The indebtedness also includes bonds to the amount of $881,- 500 issued for an electric-light plant, and which it is said were issued under a like limitation.
The city contends that under the provisions quoted relating to limitations the waterworks bonds are not to be counted as a part of the bonded indebtedness of the city, in the issuance of bonds for other purposes. If they were left out of considera-' tion, the proposed issue would be well within the five-per-cent limit provided in the act of'1909. That act, which was an amendment of chapter 126 of the Laws of 1903, is the latest legislation restricting the issuance of bonds by cities of the class named. It is general in its terms and includes all bonded indebtedness of a city, of every kind, with the exceptions expressly named in it; to wit, bonds issued for special improvements and sewers. Bonds for waterworks and electric-light plants are not within the exception and must be considered as a part of the bonded debt of the city, unless they are taken out by the provision in section 16 of the act of 1908 already quoted. That, provision relates to the issuance of bonds under the authority of the. act of which it is a part. Nothing in its terms indicates a legislative purpose to remove the restrictions and limitations respecting the amount of city indebtedness when bonds were issued under other acts and for different purposes. It simply provides that the issuance of bonds under that act should not be limited in amount by the existing restrictions and limitations. The legislature expressly says that none of such restrictions and limitations “shall apply to or in any way affect the issuance of the bonds authorized by this act.” Bonds issued under other acts are not within the scope or meaning of this provision. For its own reasons the legislature said that cities of the class mentioned might issue bonds for the acquisition and maintenance of waterworks, without regard to restrictions and limitations, but it did not attempt to fix a limitation on the issuance of bonds under other statutes nor to prescribe what should be regarded as the bonded indebtedness of a city under general limitations as to the issuance of. bonds under other statutes.
A like provision in an act authorizing the refunding of county bonds was up for consideration in The State, ex rel., v. Wyandotte County, ante, p. 430, 166 Pac. 520, where the county was making the contention that is made here, and it was said:
“The contention of the county in respect to the refunding bonds is not sound. The provision quoted merely applies to the issuance of the refunding bonds themselves. That is to say, they may be issued no matter what the bonded indebtedness of the county may be, and very properly so, because, they are merely exchanged for former bonds or evidences of the same indebtedness. But after being issued they are to be counted in determining the limit of the county’s actual bonded indebtedness.” (p. 432.)
The contention that the waterworks bonds should not be regarded as an indebtedness of the city can not be sustained. It is based on the theory that as water is sold to private consumers and any profit derived from that source is to be devoted to the payment of the bonds they should not be regarded as debts of the city. The act gives the mayor and council the authority to establish water rates to be paid by consumers and to provide a superintendent and such other officers and employees _as are necessary to the operation of the plant, as well as for their compensation. It further provides that the revenue derived from the plant shall be used to pay salaries and wages of officers and employees, interest on bonds, and also to pay for necessary betterments, and the surplus remaining shall be set aside as a sinking fund for the redemption of the bonds. (Laws 1908, ch. 33, §§ 10, 11.) If there are profits derived from the operation of the plant they are to go towards the payment of the bonds, but the legislature treated that result as problematical, and required the city'to provide for the payment of the bonds by general taxation. The mayor and council are required to levy and collect taxes sufficient to pay the interest on the bonds and to provide a sinking fund for their redemption. (§ 12.) The bonds are ordinary negotiable obligations payable by the city, and the holders of them look to the city for their payment and not to consumers of water who may contribute something toward the payment of the bonds. Such obligations are not like special-improvement bonds which are ultimately paid by the abutting property owners, and even as to those, the legislature proceeded on the theory that they come within the term bonded indebtedness, and to exclude them it was necessary to make an express exception of them. As the law stands, the waterworks bonds must be regarded as a part of the bonded indebtedness of the city, and as the existing debt is already in excess of the limit prescribed in the act of 1909, the city is without authority to issue bonds to build an addition to the city hall.
The judgment of the trial court is therefore reversed and the cause remanded with directions to enter judgment in accordance with the prayer of plaintiff’s petition. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a proceeding in which an execution was issued against the person of Bert Rucker, a judgment debtor, and from the order he appeals.
In an action brought by Marion A. Tatlow against W. E. Bacon and Bert Rucker it was found and adjudged that they had conspired together to defraud plaintiff Tatlow of his land by inducing him to. exchange it for a worthless deed, and that judgment was affirmed in this court. (Tatlow v. Bacon, 95 Kan. 695, 149 Pac. 745.) The plaintiff then filed an application accompanied by an affidavit setting forth that .Rucker had fraudulently contracted the debt and incurred the obligation on which the j udgment was rendered, and stating the manner in which the fraud was accomplished; also, that since the rendition of the judgment he fiad assigned and disposed of his property with the intention to defraud his creditors and prevent such property from being taken on execution; and also that he fraudulently concealed his property with the intention to prevent the collection of money due on the judgment. After notice and a hearing in which the defendant-participated the order issuing the execution was made.
There is complaint that the affidavit upon which the application for the execution was based was insufficient. It set forth in detail the fraudulent purpose and acts upon which the judgment rested, and made the evidence and proceedings in the main case a part of the application for the issuance of the execution. The conspiracy and fraud by which the defendant was induced to exchange his land for a worthless instrument having been adj udicated, were no longer open to inquiry. 'This part of the affidavit was specific and of itself sufficient to warrant the issuance of the execution against the person of the defendant. The statements that the defendants had fraudulently concealed their property to prevent the collection of the judgment and had assigned and disposed of it to prevent it being taken on execution were general in character, and did not specifically set forth the facts upon which the charges were based. In this respect the affidavit was defective. The facts relied on as fraudulent should have been specifically stated in the affidavit. (Gillett v. Thiebold, 9 Kan. 427; Bryan v. Congdon, 54 Kan. 109, 37 Pac. 1009.) However, the facts relating to the manner in which the defendant fraudulently incurred the obligation were specifically and fully stated, and this afforded a sufficient basis for the proceeding.
It is contended that the statute under which the proceeding was had is unconstitutional in that it does not provide for a notice to the debtor of a hearing, nor in 'fact for any hearing before the execution is issued. The statute pertinent to the question reads:
“An execution against the person of the debtor, except as prescribed in section 511, can be issued only when the 'same is allowed by the supreme court, the district court, or any judge of either, upon being satisfied, by the affidavit of the judgment creditor or his attorney, and such other evidence as may be presented, of the existence of one or more of the particulars mentioned in section 522.” (Civ. Code, § 509, Gen. Stat. 1915, § 7413.)
According to this provision a judicial hearing is contemplated, as the execution against the person can not issue until a court or judge thereof shall determine upon evidence that the statutory grounds for such an order exist. It is not issued as a matter of course upon an application, but before making such order the supreme court or the district court or a judge of either must be satisfied by the evidence presented in support of the application. The requirement that evidence shall be presented to the satisfaction of a court or judge clearly implies a hearing, and other provisions of the code require notice of applications for an order of this kind. (Civ. Code, §§ 556-560, Gen. Stat. 1915, §§ 7460-7464.) It has already been determined that a statute is not invalid merely by reason of the fact that it does not expressly provide for notice and hearing. It may be implied by the courts unless the language of the statute excludes the theory that notice and hearing are necessary. (Gilmore, County Clerk, v. Hentig, 33 Kan. 156, 5 Pac. 781; Railroad Co. v. Abilene, 78 Kan. 820, 98 Pac. 224.)
In the Abilene case it was said:
“Provision for notice and hearing need not be made in the statute by express words. It may be implied. In reality the courts simply read the provision into the statute in order to uphold taxation schemes against the fourteenth amendment to the constitution of the United States, which forbids any state to deprive any person of property without due process of law. This was done in the case of Gilmore, County Clerk, v. Hentig, 33 Kan. 156, 5 Pac. 781. But the statute must be one which will allow notice and a hearing to be interpolated. If it arbitrarily fixes the steps to be taken in a manner indicating that notice and a hearing upon some subject like benefits are excluded, it must be judged accordingly.” (p. 827.)
Here the statute is not only open to an interpolation of notice and hearing, but its own language carries the plain implication that a hearing is to be had, and the code provision relating to notices applies to a proceeding like the one in question the same as it does to provisions for numerous other orders where there is no special mention that notices are to be given. In this case notice was given, and a protracted hearing was had in which the defendant participated.
It is contended that the statute is invalid because it permits imprisonment for debt contrary to the provisions of the state constitution. While the bill of rights, section 16 (Gen. Stat. 1915, § 120), providés that there may be no imprisonment for debt except for fraud, it in effect authorizes imprisonment in cases where there is fraud; and .as the statute enacted under that provision expressly authorizes imprisonment for fraud the objection must be overruled. (In re Heath, Petitioner, 40 Kan. 333, 19 Pac. 926.)
The defendant argues that the summary proceeding under the statute was not due process of law, and conflicts with the fourteenth amendment of the federal constitution. It had been determined in the original case, which was tried by the jury, that the defendant was guilty of fraud. The fact having been properly put in'issue'and determined by a final judgment in the original action between the parties, it became a fixed fact which was not open to relitigation. (Hentig v. Redden, 46 Kan. 231, 26 Pac. 701; C. K. & W. Rld. Co. v. Comm’rs of Anderson Co., 47 Kan. 766, 29 Pac. 96; Sanford v. Oberlin College, 50 Kan. 342, 31 Pac. 1089.) Proof of the adjudication was sufficient proof of the facts included in the judgment, but of course it is not conclusive as to facts occurring since the judgment was rendered.
Greenwell v. Moffett, 77 Kan. 41, 93 Pac. 609, is somewhat analogous to the present case. In a foreclosure proceeding an issue was adjudicated, and afterwards, upon a motion to set aside a sheriff’s sale made under the judgment, the losing party sought to litigate the same issue, and it was held that, the fact having been tried and determined in the original action, the adjudication was conclusive as between the parties.
In proceedings of this kind it is competent for the legislature to prescribe what the procedure shall be and what evidence shall be received so long as they do not conflict with some provision of the state or federal constitution. (McGehee, Due Process of Law, p. 162; 2 Willoughby on the Constitution, § 462.) It is insisted by the defendant that the statute is bad for the reasons stated and also because it imposes cruel and unusual punishment. It has been held in many cases that such statutes are not violative of the provision prohibiting deprivation of liberty without due process of law or the one forbidding cruel and unusual punishment. (Light v. Canadian County Bank, 2 Okla. 543; 5 C. J. 438.)
A complaint is made that a jury trial was not awarded in the proceeding. No application for a jury trial was made, and perhaps it was for the reason that a jury trial could not have been demanded as a matter of right. The constitutional guaranty that “the right of trial by. jury shall be inviolate” (Bill of Rights, § 5, Gen. Stat. 1915, § 109,) has no application to proceedings of this character and does not extend beyond cases where such right existed at the common law, but only applies to cases that were triable by jury before the constitution was adopted. (Kimball and others v. Connor, Starks and others, 3 Kan. 414; The State v. Cutler, 13 Kan. 131; In re Burrows, Petitioner, 33 Kan. 675, 7 Pac. 148; The State, ex rel., v. Durein, 46 Kan. 695, 27 Pac. 148; Swarz v. Ramala, 63 Kan. 633, 66 Pac. 649; Ex parte Wall, 107 U. S. 265.)
It is further contended that the statute is not enforceable against the defendant because of ambiguity. In section 509 of the civil code it is provided that an execution may issue when evidence is offered showing the existence of one or more of the particulars or grounds mentioned in section 522 of the code. The latter section, however, does not mention any particulars upon which an execution might be based, nor has it any application to executions against the persons of debtors. It is an obvious mistake, as the preceding section, 508, is the one which does prescribe the particulars or grounds which must be shown to exist before the execution shall issue. In the earlier compilations of the statutes the preceding section is correctly named (Gen. Stat. 1868, ch. 80, § 507; Gen. Stat. 1901, § 4984), but wrong numbers were mistakenly used in printing the revised code of 1909. It is manifest from a reading of all the provisions that one number was erroneously used for another, and there is no difficulty in ascertaining the number which the legislature intended'to use.
The rule was well stated in Coney v. City of Topeka, 96 Kan. 46, 149 Pac. 689, where it was said:
“It is familiar law that legislative enactments are not any more thati any other documents to be defeated on account of errors, mistakes or omissions. Where one word or figure has been erroneously used for another or a word omitted, and the context affords the means of correction, the proper word or figure 'will be deemed substituted or supplied. This is only making the naked letter of the statute yield to its obvious intent,” (p. 49.)
(See, also, The State v. Knoll, 69 Kan. 767, 77 Pac. 580; Reese v. Hammond, 94 Kan. 459, 146 Pac. 997.)
Another contention is that the plaintiff should have resorted to the supersedeas bond before obtaining an execution against the person of the defendant. The proceeding, is a statutory one and the conditions upon which the execution may be issued have been definitely prescribed. When these conditions are shown to exist the creditor is entitled to the remedy, although other remedies may be available. Under the statute it is not necessary to allege or prove that no recovery can be had under a supersedeas bond nor that all other remedies have been exhausted. The court would not be warranted in adding to the requirements upon any ground, not even because the proceeding involved the imprisonment of the debtor.
The evidence appears to be sufficient to establish the fraud of the defendant, and upon an examination of the proceedings and the objections of the defendant we find no ground for reversal. The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This defendant, Archibald C. Sweet, was convicted of murder in the first degree for having brought about the death of Nellie J. Byers, a rural-school teacher of Grant county. While this unfortunate young woman was returning from her school to her boarding house on the afternoon of October 22, 1915, she was assaulted on the open prairie, stripped and strangled, ravished and slain.
Sweet was charged with the crime, and arrested and taken to the Dodge City jail for safe-keeping. After some weeks he was taken by night, into the jurisdiction of Grant county to waive his preliminary examination, and then carried back to Dodge City. His counsel procured a change of venue, and he was tried and convicted in Hamilton county.'
The principal errors urged here in his behalf are: (1) Overruling his plea in abatement; (2) overruling his application for a continuance; (3) transferring the place of trial from the county courthouse to the county-seat high-school auditorium; (4) denying his request that the witnesses be excluded from the court room; (5) the exclusion of competent evidence; (6) the admission of incompetent evidence; (7) erroneous instructions given and refused, and (8) that the verdict was not supported by the evidence.
(1) Considering these in order, the plea in abatement was based upon defendant’s contention that he had not voluntarily waived his statutory right to a preliminary examination before an examining magistrate. (Crim. Code, § 69.) His plea alleged the facts of his arrest on October 23, 1915, and of his incarceration at Dodge City on October 24; that on November 22 the sheriff, deputy sheriff and county attorney of Grant county came to the jail at Dodge City, in Ford county (about seventy-five miles from Grant county), and that these officers informed defendant that the people of Grant county were threatening his life and that he would be in danger of personal violence if he were taken back to Grant county for a preliminary examination, and that the county attorney said he' “would hate like hell for three or four or more men to get shot up just for one man.”
“We will take you out on the prairie at night, when there is no one around, and have you waive preliminary, because that is the only thing you can do to save your life; otherwise these people will kill you sure; besides there is no necessity to have a preliminary as the justice will bind you over anyway.”
The plea in abatement continues:
“That with these and other arguments and persuasions upon the part of the Grant county officials, as aforesaid, said defendant was induced to accompany them on the train to Garden City, Kan., thence in an automobile across the country until they arrived within the edge of Lincoln township, Grant county, Kansas; the jurisdiction, as supposed, of said Justice Davis, as aforesaid, and there out upon the bleak, bare, windswept prairie at the dead hour of night, or after the hour of midnight of said date, and by the lights of the automobile, he was informed by said officials of Grant county, as aforesaid, including Justice S. A. Davis, justice of the peace as aforesaid, that Justice S. A. Davis, whom they met out on the prairie after more than one o’clock at night, informed defendant that there were three cars loaded with men out looking for you, and that there was nothing else for defendant to do but to waive preliminary, and do it quick, in order to save his life, and then go back to Dodge City as quick as possible; said justice further ordered that the lights of the automobile be put out because of the fear that some of the men would be out there looking for Sweet, and seeing* the lights would come and take him and lynch him; that it would be impossible to have any preliminary for the reason that the people were angry, aroused as well as armed, and would surely kill him; that he should withdraw all objections to waiving his preliminary examination and promptly waive it, as this was his only recourse to save his life.
“Defendant being thus overpersuaded by the officials of Grant county, as aforesaid, and being in fear of his life and safety and being in mortal fear of mob violence as aforesaid, and being prevented the aid of friends and the advice of counsel, as well as relying upon the statements and representations of said Grant county officials, as aforesaid, believing them to be true, and having confidence that they would not mislead him, and in the .sole hope of saving his life, he thereupon acceded to; their demands and answered ‘yes’ to the question as to whether he wished to waive his preliminary.
“That immediately after he answered ‘yes’ to said question, said proceedings, which did not occupy but a very few minutes, the automobile was driven back to Garden City, Kan., as aforesaid, and from thence defendant was returned to Dodge City, Kan., where he has remained in the county jail to this date.”
The state joined issue on this plea. Evidence was introduced on both sides. On cross-examination the defendant admitted that he “always wanted to be kept out of that [Grant] county until the guilty man was caught.” The state’s evidence tended to show that the extraordinary care taken of the defendant’s person by the Grant county officials was at his own request. When he learned that bloodhounds were to be employed to track the murderer, he spoke to the county attorney: “Mr. Stubbs, if they bring those dogs down here, I want protection.” The state’s evidence also tended to show that when the county officers came to Dodge City to take him back to Grant county for his preliminary examination, he told them he was willing to waive it.
On cross-examination by counsel for defendant the county attorney testified:
“Q. Did Mr. Sweet ever suggest to you that he wanted to waive his preliminary examination? A. He did; yes, sir.
“Q. From whom did the suggestion first come, that he waive his preliminary examination? A. I believe I paved the way for it, but he asked first and suggested it.
“Q. You talked the matter over? A. Yes, sir; shortly before this evening on which we took him out, we talked together about it.
“Q. How did you pave the way, as you call it? A. Well, I just asked him if he wanted to demand ,his preliminary, or if he would like to waive it.
“Q. What did he say to that? A. He said he would just about as soon waive it.
“Q. Did he say anything else? A. Well, he finally said he would waive it, in fact, that he wanted to waive it.
“Q. Now, after you got out to the edge of Grant county, to where this waiver took place, what, if anything, did Mr. Sweet say about waiving it, on account of the fear that he had of mob violence? A. He made no ipention of that whatever.
“Q. Was the question of mob violence, or his fear of mob violence, discussed at the time, or about the time of the waiver, while you were out there in Grant county, and at the place where the justice of the peace met you? A. It was not.”
On redirect examination he testified:
“Q. Was there any conversation between Mr. Sweet and anybody else out there about mob violence? A. There was not, except as I have already related it.”
The undersheriff testified:
“Q. Did he at that time request a preliminary hearing? A. He did not. He always insisted that he wanted to waive it.
“Q. Have you seen him at any time since then, and prior to the last day or two? A. I seen him on the tenth day of January of this year.
“Q. Was the matter of a preliminary hearing mentioned at that time? A. No, sir.”
It will thus be seen that notwithstanding the defendant’s evidence which tended to support his plea in abatement and tended to show that his waiver of a preliminary examination was constrained and not voluntary, the state’s evidence was to the contrary. It tended to show that it was voluntarily agreed to by defendant before he left the Dodge City jail, and it tended to show that his journey into the jurisdiction of Grant county at night was not to have a preliminary examination but merely to go through the formality of waiving it before a Grant county magistrate. The state’s evidence tended to show that the formality of waiving the preliminary examination was carried out just as defendant voluntarily intended before leaving Dodge City. The issue under this plea in abatement and the evidence pro and con concerning it raised a question of fact for the trial court’s determination; and the matter falls within the ordinary rule that a trial court’s decision or finding of fact, when supported by substantial though conflicting testimony, can not be disturbed on appeal. The trial court overruled the plea in abatement, finding that “in this case the evidence shows that the defendant has had a preliminary examination, or rather that he has waived it.”
In The State v. Bohan, 19 Kan. 28, it was said:
“Where the trial court has had the opportunity of hearing the testimony from the witnesses in person, and of seeing them as they uttered' the same, and has thereon rendered a decision, this court will not hold such decision erroneous as to questions of fact, unless it is clearly apparent that the decision or finding is wholly unsupported by evidence.” (p. 56.)
(The State v. Plum, 49 Kan. 679, syl. ¶ 2, 31 Pac. 308; The State v. Hetrick, 84 Kan. 157, 161, 113 Pac. 383. See, also, The State v. Bailey, 32 Kan. 83, 3 Pac. 769; The State v. Myers, 54 Kan. 206, 213, 38 Pac. 296; The State v. Kornstett, 62 Kan. 221, 224, 61 Pac. 805.)
The cases of In re Malison, Petitioner, 36 Kan. 725, 14 Pac. 144, and The State v. Goetz, 65 Kan. 125, 69 Pac. 187, are urged on our attention by counsel for defendant but they are not in point. The Malison case was an original proceeding in this court and consequently this court had to perform the functions of a trial court, and it found the controlling fact to be that the petitioners had waived their preliminary examination through fear of personal violence and not voluntarily. In the Goetz case, supra, there had been no preliminary examination of defendants and no semblance of waiver.
No error is disclosed in overruling defendant’s plea in abatement.
(2) On application of counsel for defendant a change of venue had been granted, and the cause was set down for hearing at Syracuse on May 22, 1916. Prior to that time the only attorney engaged on behalf- of the defense was J. I. Sheppard, esquire, of Fort Scott. As the date for the trial drew nigh, it developed that Mr. Sheppard was in the midst of an important lawsuit in Kansas City and could not reach Syracuse in time for the commencement of the trial of defendant. He therefore engaged other counsel to serve in his stead. After the plea in abatement was overruled, these lawyers so lately called into the case filed a motion for a continuance on account of Mr. Sheppard’s absence and their own unfamiliarity with the case. The trial court denied the motion, giving various good reasons therefor; one being—
“I appreciate the situation Mr. Muir is in, . . . the fact Mr. Sheppard can not be here at this time is very unfortunate, but I want to compliment Mr. Sheppard on one thing — I have had an opportunity to observe you gentlemen for two days now, and I think Mr. Sheppard made no mistake in his assistants who are to represent Mr. Sweet when he selected Senator Martin and Mr. Muir, and I am confident that you gentlemen will be able to defend Mr. Sweet, . . . after having observed you gentlemen for twenty-four hours, and the way you have conducted this case up to the present time, I am fully confident his rights will not be injured or prejudiced in the slightest, and that he will be well and ably defended during this trial.”
It is familiar law that a motion for a continuance is addressed to the sound discretion of the trial court. (Davis v. Wilson, 11 Kan. 74, syl. ¶ 3; Gurney v. Steffens, 56 Kan. 295, 297, 43 Pac. 241.) Here there was no abuse of that discretion; and the zeal, industry, resourcefulness and talents displayed by the lawyers chosen by Mr. Sheppard -until he himself could take charge of the defense is the best of proof that defendant suffered no prejudice through the refusal of a continuance. (9 Cyc. 166, 171.)
. (3) After the plea in abatement and motion for a continuance were overruled, and after the jury were impaneled and .sworn and taken under charge of the bailiff to view the scene of the crime and the surrounding locality (a distance of fifty or sixty miles from the place of trial), on the return of the jury the place of trial was transferred from the county courthouse to the Syracuse (county seat) high-school auditorium. Why this was done the record does not explain. Defendant says it was Over his objection, and he refers us to the record, but the record is silent. The state says it was done without objection. We are, therefore, bound to assume that there was some good reason therefor and that the defendant did not object; and, moreover, no prejudice to his rights is disclosed. (Crim. Code, § 293.)
(4) Defendant’s request that the witnesses be excluded from the court room was denied. This request was made after the state’s first witness had'given his testimony.
[The attorney-general] : “Why, that request is made too late now. 'If they had desired that rule invoked, the request should have been made at the commencement of the trial.
“By the court: I rather think so, too. I think I will have to deny the request at this time.”
A request for. the separation or exclusion of witnesses in a murder trial, if timely made, is seldom denied; but the matter rests almost wholly within the sound judicial discretion of the trial court. (The State v. Davis, 48 Kan. 1, 9, 28 Pac. 701; 38 Cyc. 1369, 1370.) Here there is nothing to indicate that the trial court abused its discretion, whether its ruling be tested on the reason given for it or on the broader ground that even if the request was not too, late it might have been denied with entire judicial propriety. (Saylor v. Crooker, 97 Kan. 624, syl. ¶ 4, 156 Pac. 737.)
(5) Noticing the errors urged on the exclusion of evidence —so far as they merit attention — the defendant was not permitted to answer the question:
“Q. Did you rely on the statements they [the county officials and the justice of the peace] made to you?”
The anáwer sought was a mere self-serving and repetitive avowal of matters already sworn to by the witness.
The defendant sought by cross-examination of the deputy sheriff to develop the fact that the justice of the peace who received defendant’s waiver of examination had filed no bon'd since his last election. The state’s objection was sustained. Besides the obvious objection that such was not the best evidence, it was no more proper to inquire collaterally into the legal qualifications of the justice than it would have been to call for a scrutiny of the trial judge’s certificate of election. Sometimes assiduous counsel overdo their part. When they press many minor quibbles in a court of appeal it gives the reviewing court much needless and burdensome anxiety lest something really grave and meritorious be overlooked in the wilderness of trivialities.
Counsel for defendant, by cross-examination of the state’s witnesses, endeavored to inject something into the record about some “Bill Smith,” who was in the neighborhood the afternoon the murder occurred, and whether or not such a man appeared later elsewhere with scratches on his face and a black eye. No error transpired in its exclusion, since, it was not proper-cross-examination.
Doctor Brownell, a witness for the state, who had examined the body of Miss Byers and had testified as to the indications that she or her dead body had been subjected to ravishment, was cross-examined:
“Q. Did you ever state that this had been sent to the State University, for analysis, and the.report came back that it could not have been male emission?
“To which question plaintiff objects, as question should be more definite, stating- to whom the statement was made, and the time and place.
“Objection sustained by the court.
. “Q. I will ask you, doctor, if in the presence of George Shadle afid of Mr. Woodside, at Moscow, you stated that this substance had been sent to the State University for analysis, and that the report had come back that it could not have been the male emission?
“To which question plaintiff objects as incompetent, irrelevant and immaterial, for the reason that he has testified that he did not send this away, or know anything about it being sent away.
“Objection sustained by the court.”
The reasons for the rulings are sufficiently given in the state’s objection to this line of examination.
Some ill-defined objection is made in defendant’s brief to the evidence of a chemist and analyst from the state university :
“Finally, the dangerous flounder-ings of this ‘expert’ was the magic which ‘smoked out’ the long-sought ‘report,’ the ‘first report,’ ‘his report,’ which was finally discovered to be ‘a report’ made by Prof. L. E. Sayre, instead of being the result of the wonderful mentality of this would-be expert, drawing $5 per, together with expenses and mileagh, who, after denying three different times, finally admitted that he made this second examination on ‘his own account.’ ”
The point to this is shrouded in a cloud of words. Rhetorical effervescence, of which there is a great deal in appellant’s briefs, serves ho purpose on appeal.
Nothing further touching the evidence excluded calls for’ comment.
(6) Touching the errors based on the admission of incompetent evidence, no error can be discerned in the introduction of the bottle containing the epithelial cells and mucous membrane of the victim, nor in submitting to the jury a kodak pic ture of the victim’s dead body, nor in the evidence of the chemist and analyst, nor in the evidence of the doctor who examined the body. All such matters go in merely for what they may be worth in the general total. (Cook v. Railway and Bridge Co., ante, p. 103, syl. ¶ 6, 165 Pac. 803.)
A witness testified that as Miss Byers was accustomed, to pass on her way to or from school the defendant had repeatedly and in the coarsest language expressed a desire to gratify his lust on the school teacher, and that he would do so “if he ever got the chance.”
“To which previous question and answer the defendant 'objects as incompetent, immaterial and irrelevant, and as an attack upon the character of the defendant.
“By the court: What is the purpose of this testimony?
“[The attorney-general]: I think the statements he may have made with, reference to sexual matters, directly connected with Nellie Byers, shows the state of mind that he was in and the way he was thinking about her. The charge in this case is murder committed in the perpetration of a rape, and if we can show that the defendant expressed desires to have intercourse with this girl, and made derogatory remarks about her, I think it tends to show that he was thinking about those things, and his state of mind.
“Objection overruled by the court.”
The case of The State v. Boyland, 24 Kan. 186, is cited as disapproving this evidence. Not so. In that case thé shameful words and acts were spoken and committed after the crime. Here they were spoken before the crime and had some probative value to show that defendant was contemplating criminal violence against the girl.
Complaint is made of the court’s refusal to strike out part of the evidence of the Dodge City jailer, who testified about a conversation which he had held with the defendant while the letter was in jail in Dodge City. The court said:. “I will reserve my ruling for-the present on your motion.” The court has examined this evidence. It recounted defendant’s admission of a disgusting incident of slight, very slight, probative value. But the court should have ruled on the motion one way or the other. In this particular instance it would not have been important which way the motion was decided; but it is seldom good trial practice, especially in a murdeir case, to reserve a ruling on the admissibility of evidence. When the questioned evidence goes in the jurymen at' once begin to interweave it with the fabric of' facts being formed in their minds. A trained judge or lawyer or a trained and discriminating thinker can disassociate irrelevant and incompetent facts from his thinking- processes by the slightest effort of his will. He can do so almost unconsciously. But we all know that the average layman — the average juror — can not do so. It is therefore important that a trial court’s rulings on the admissibility of evidence should be made promptly, even at the risk of an occasional mistake. And where a ruling on evidence is reserved, and when the judge later decides that it is incompetent, he should be sure that the jury fully understands the effect of his ruling — that the facts or matter objected to must not be considered by them in their determination of the facts. But here the court holds that the evidence objected to was competent, and that the defendant was not prejudiced by the court’s reservation of its ruling on it nor by the court’s omission to rule on it later.
Objections to the use of “bloodhound evidence” were made, but the “bloodhound” evidence introduced conformed to the prerequisites and limitations in the use of such evidence as laid down in The State v. Adams, 85 Kan. 435, 116 Pac. 608; The State v. Mooney, 93 Kan. 353, 354, 144 Pac. 228. It is of no consequence . that some other courts do not countenance such evidence. The question is settled in this jurisdiction.
(7) The instructions given and refused are too lengthy for repetition here. They have been examined. Those given were proper, comprehensive, and sufficient. They covered everything which was proper to be covered in those prepared by defendant’s counsel.
(8) Was the verdict supported by the evidence? The record is long. The transcript contains 1,428 pages. Appellant’s first abstract contains 333 pages, his second abstract 146 pages; the state’s counter-abstract has 122 pages. We have had a brief by appellant, a brief by the state, another brief by appellant, a brief by the state touching misstatements contained in appellant’s abstract and brief, and a reply brief of appellant touching misstatements in the state’s final brief. To set out all the facts and circumstances by which the state sought to fasten this revolting crime upon Archibald C. Sweet would merely be to reproduce the transcript. And it would-serve no useful purpose. The state’s evidence tended to show that on the day of the murder the defendant was staying alone in a “dugout” belonging to a family which had been away from home for some days. This “dugout” was near the scene of the crime, out on the open prairie of that sparsely settled portion of the state. Prior thereto, but not too remote to be of probative value, Sweet had repeatedly expressed a lustful passion for Miss Byers, and had declared his criminal purpose to gratify it if he got a chance. Sweet admitted that he saw the girl as she came homeward from her school on the fateful afternoon. Miss Byers usually drove to and from school with a horse and a buggy, accompanied by children. That afternoon she was .on foot and alone. Sweet was out hunting. He admitted that when he saw her, if he had kept on in the direction he was then going and if she had kept on in the direction she was then going, they would have met near the spot where she was murdered. He told a newspaper man that he was some three hundred yards away when the girl was assaulted, and that he could probably have seen the murder perpetrated if he had looked over his left shoulder. This, of course, defendant denied at the trial. While others far away over the prairie heard the screams of a woman in distress, he who was much closer professed to have heard nothing. On the witness ¡stand he said that the day following the murder an acquaintance said to him, “I am the.fellow that done that, but it looks damned bad for you.” Although he knew that he was then under suspicion of the crime, he did not give the public officers any information of this pretended confession of his acquaintance. This story had every earmark of a lie, and doubtless the cross-examination of the defendant on this incident shook the jury’s faith in his protestations of innocence. The fact that he felt that he was under suspicion while the officers and his neighbors were investigating the crime, on the day after the murder, was significant. When mention of bloodhounds coming to take up the murderer’s trail was made, he said, “If they bring those dogs here, I want protection.” The girl’s body indicated that she had been raped at or about the time .of her strangulation. Sweet told the Dodge City jailer that the night of the murder he dreamed that he had had sexual intercourse with a woman. Some other coarse details of this evidence need not be here repeated. They, were slightly probative. The bloodhounds readily took up Sweet’s trail and followed it to the bed in the “dugout” where he had slept. The hounds took his trail up again and followed it to a spot where Sweet had been taken into the officers’ automobile. Sweet was asked by the acting coroner when he had taken a bath. He replied that he did n’t know when, some considerable time before. Yet, although he was, living in a “dugout” and working at ordinary rural labor, and hunting in the dirt and dust of that frontier community, when he stripped for the officers’ inspection he was thoroughly clean. So were his underwear and socks. At the trial Sweet testified that he had taken a bath on the day of the murder and also on the day before. Many incidents like these made up the state’s case against Sweet. It was undoubtedly a case for submission to the jury. We are not unmindful of the strenuous efforts made by defendant’s counsel.to cast, suspicion on other persons as the possible perpetrators of the crime. They displayed much cleverness in that regard. We note also the incident of the teeth marks on Miss Byers’ breast which defendant’s expert witness swore so stoutly could not be the teeth marks of Sweet, but of another person who at one time had been suspected of the crime. We do not fail to notice also that Sweet was not scratched or marked as might be expected in a physical struggle with a woman fighting for her honor and her life. There was a slungshot in the “dugout.” There was a blow on the back of the girl’s head as if made by a slung-shot. Probably the poor victim was stunned by the blow and never had a chance to fight. There was evidence, somewhat unsatisfactory and discredited through skillful cross-examination perhaps, that the footprints of the murderer corresponded with those of Sweet or of the shoes he was wearing. But all these matters were for the jury; they were the triers of the facts. The facts adduced warranted and required the court to submit the case to the jury for its determination, and their verdict may not be disturbed. (The State v. Mullins, 95 Kan. 280, 304, 147 Pac. 828.)
There is no prejudicial error in the record. Archibald C. Sweet had á fair trial. He was ably and zealously defended. The jury upon cpmpetent and sufficient evidence found him guilty. The trial court approved the verdict; and the judgment is therefore affirmed. , | [
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The opinion of the court was delivered by
West, J.:
The defendant was charged with statutory rape on a girl twelve years old. He was convicted of an attempt to commit the offense, and appeals, assigning as errors the rejection of certain evidence, giving and refusing certain instructions, and the denial of a new trial.
The girl testified to the completed offense, and told of certain laceration. Her mother testified to the latter and to blood stains on clothing which was burned. Under the rule already declared by this court, a conviction for an attempt — not assault with intent to commit — could be had under the charge of the full offense without the allegation of any specific act toward its commission. (In re Lloyd, Petitioner, 51 Kan. 501, 33 Pac. 307, and The State v. Guthridge, 88 Kan. 846, 120 Pac. 1143.)
Attention is called to The State v. Mitchell, 54 Kan. 516, 38 Pac. 810. But there the girl was of age and told a preposterous story, entirely uncorroborated, and it was held that a conviction for an attempt only would not be permitted to stand. Here, the story, while remarkable, was not impossible, and there was corroboration, which things, added to the tender age of the child, take this out of the rule of the Mitchell case.
Medical evidence as to the. possibility that the injury was self-inflicted or accidental and as to the possibility of distinguishing between different kinds of blood stáin was rejected, but without error because the one, if expert at all was merely argumentative, and the other was immaterial, as the stained clothing had- not been preserved and no attempt to describe it was made.
To establish the theory that the defendant’s wife had conspired with her sister-in-law, the girl’s mother, to get rid of the husband so that the two women could associate with certain Mexicans, the defendant offered to show by the city marshal that the two associated together and visited certain Mexican quarters and were visited by the Mexicans, and that the defendant’s wife ran away with one of them just before the trial. The girl’s mother testified that her sister-in-law was at her house sick when the offense occurred, and that the defendant ate supper there. The defendant was not permitted to testify that his wife went away with a Mexican. The rejected evidence was not only calculated to bring in a collateral issue, but even if admitted would not have tended materially to show that the girl’s father, who swore to the complaint, was induced or inspired thereunto by his wife thróugh the instigation of the defendant’s wife, and even if he were the defendant’s guilt or innocence would not thereby be established or affected — merely the credibility of the wife, who was not a witness, and the mother, whose impeachment was not attempted.
It was not necessary to instruct concerning an overt act toward the commission of the full offense more definitely than was done. The charge given fairly and correctly gave the law of the case.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The purpose of the proceeding is the disbarment of Leslie L. Anderson, an attorney at law. He was convicted of a misdemeanor before a justice of the peace, and an order .of disbarment is asked on a certified transcript of the docket entries of -the justice of the peace filed here, under section 486, General Statutes of 1915, which reads as follows:
“That in the case of the conviction of an attorney at law, who has been admitted to the bar of this state, of a felony or of a misdemeanor involving moral turpitude, the clerk of the court in which such conviction is had must within thirty days thereafter, transmit to the supreme court a certified copy of the record of conviction, and the supreme court upon receipt of such record, must, enter an order disbarring such attorney. Upon reversal of such conviction, or pardon by the governor, the supreme court shall have the power to vacate such order of disbarment.”
A justice of the peace is a court of inferior and limited jurisdiction, known in this state as a court not of record. He has no clerk, is not his own clerk, and his docket entries do not have the quality of entries on the journal of a court of record. (In re Baum, 61 Kan. 117, 58 Pac. 958.) Therefore the statute does not sustain the proceeding.
The legislature had good reason for confining the operation of the statute to convictions in courts of record. The disbarment provided for is legislative rather than judicial. To the ordinary consequences of conviction is added the prohibition to practice as an attorney, and this court is required to perform the essentially ministerial duty of entering an order of disbarment on receipt of a certified copy of the record of conviction. The result is that conviction virtually accomplishes disbarment. The offense must be a serious one, felony or misdemeanor involving moral turpitude, and the conviction ought to take place in a court of superior jurisdiction and dignity, whose records are formally made up and kept by an officer provided by law for the purpose, and whose records are not merely prima facie evidence, subject to impeachment the same as statements written by a justice of the peace on his docket (In re Baum, supra), but are conclusive.
An order of disbarment is refused. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Charles A. Brown and Alice L. Byram as executors of the estate of Sarah Brown, deceased, made final settlement in the probate court, where an order was made adjudging who were the heirs, devisees and legatees of the deceased. Elizabeth M. Brown, the widow of William F. Brown, a son of the deceased, took an appeal to the district court, where she filed an intervening petition claiming an interest in the estate through her deceased husband. Upon the motion of the executors this petition was stricken from the files and the cause was tried upon the record of the probate court proceedings and upon agreed facts, with judgment resulting in favor of the executors. Elizabeth M. Brown appeals to this court.
In 1906 John P. Brown and his wife, Sarah, executed a joint will in which it was stated that they desired that the estates of both should be kept together -as a whole until final distribution as therein provided. In its first paragraph it was provided that “upon the death of either of us, the estate of the other” should vest in the survivor for life with the right to use the income and to invest, convert or change the estate, and to dispose of any part of it to persons other than the beneficiaries of the will. The second paragraph provided that the survivor should be the executor of the one first dying. In the third paragraph it was provided that “upon the death of the surviving testator, the entire estate of both of us, as then existing, real, personal or mixed, shall vest in the trustees hereinafter provided for, who are hereby nominated and appointed as the executors of this will as the will of the surviving testator” ; that the trustees should invest, convert and change the form of the estate and hold, manage and control the same for fifteen years from the death of the surviving testator, distributing the net income of the estate quarterly to the living children of the testators, pro rata, the heirs of the body of any deceased child to receive the share that would have gone to the parent; and that at the end of the fifteen-year period the estate was to be distributed in the same proportions. The fourth paragraph provided that any deceased child leaving a consort living when the will should take effect should receive five hundred dollars, and that no married consort .should receive any part of the estate except as provided in that paragraph. In the ninth paragraph it was provided that the will should be irrevocable except by their joint consent, and that until and unless the will should be so revoked the property should vest in the beneficiaries according to the terms of the will.
When the will was executed the testator and testatrix had six children living and also the child of a deceased son. These children were living when the testator, John P. Brown, died on August 23, 1909. Thereafter and prior to the death of the testatrix two children died, one of whom was survived by her husband and two children. The other, William F. Brown, was survived only by his wife, Elizabeth M. Brown, the defendant herein. The trial court adjudged that the defendant was not entitled to any interest in the estate except the five hundred dollars mentioned in the fourth paragraph of the will.
The defendant is not claiming as a legatee nor as an heir of the testators, but she insists that her husband, William F. Brown, took a descendible interest in the estate, and she is claiming an interest as the heir of her deceased husband. The action is not one to construe a will but to make final settlement and distribution of - an estate in accordance with the terms of an uncontested will. To make final distribution of the estate it was necessary to look into the will far enough to find whether the defendant was entitled to anything under its provisions. There is little room for a controversy as to the intention of the testators in the disposition of their property, and with one exception the terms of the will may be said to be practically free from doubt. The manifest purpose of the testators was to keep the property of both of them together as a single estate until fifteen years after the death of the survivor and then to distribute it among the living children and the bodily heirs of deceased children in equal parts, the heirs of the body of any deceased child to take the share the parent would have received if he had been living. There was a provision, too, that if a ■child died leaving a husband or wife such spouse was not to take any part of the estate as an heir, but was to receive the specific bequest of five hundred dollars. The plan upon which the property was to be passed to the beneficiaries was that upon the death of a testator the entire property should vest in the survivor with full power of disposition, and that when the survivor died it should vest in the trustees for fifteen years, and during that time the income of the property should be divided among the living children and the heirs of the body of any deceased children- in the proportions named. . It is very manifest that the testators intended that their property should go to blood relatives only, and that neither the defendant nor any spouse of a deceased child should receive any share in the estate except the sum of five hundred dollars. Their declared purpose was that the property should go to the living children or the bodily heirs of deceased children^ and the defendant not being in either class has no interest in the estate except in the specific gift of money. Her husband, William F. Brown, would have been entitled to share in the estate if he had been living when the time of distribution came, but, having died before that time without issue,, the entire estate goes to the surviving heirs named in the will. No controversy appears to have arisen among the living children of the testator or the heirs of deceased children; but if there had, it would have been a matter of no consequence to the defendant, who can not, under any circumstances, take more than the bequest of five hundred dollars.
. Defendant contends that when the testator, John P. Brown, died, her husband, William F. Brown, as well as the other children acquired an interest in his property and the interest so acquired by him descended to her. This claim is largely based upon the expression in the first paragraph of the will heretofore referred to as the only term about which there can be any doubt or dispute. It provided that “upon the death of either of us, the estate of the other, real, personal and mixed, shall vest in tjie survivor” etc. The contention is that this does not mean the estate of the deceased shall vest in the survivor, but refers only to the estate of the survivor and gave her full control of her own estate while the estate of the deceased testator passed at once to his heirs. The quoted sentence, considered apart from other provisions of the will, might be open to some question, but when the whole will is considered together the subject is free from any reasonable doubt. The testators were not making the absurd provision that the estate of each should continue to vest in himself or herself while they were living. A provision of a will was not necessary to give a survivor an estate which he already had. It is obvious that in- the use of the loose expression it was the purpose of the testators to provide for the devolution and vesting of the estate of the deceased 'and not that of the survivor. The estate of the “other” mentioned was evidently the one other than the survivor. This is apparent from other provisions of the will to the effect that the property of both should be kept together until final distribution, and should then pass together. For instance, in the third paragraph it is provided that, “upon the death of the surviving testator, the entire estate of both of us, as then existing, real, personal or mixed, shall vest in the trustees,” etc. A canon of construction to which all other rules are subordinate is that the intention of the testator as gathered from all parts of the will is to be given effect and that a doubtful or inaccurate expression can not be permitted to defeat the obvious intent of the testator. (Ernst v. Foster, 58 Kan. 438, 49 Pac. 527; Blair v. Blair, 82 Kan. 464, 108 Pac. 827.) After the death of John P. Brown the entire estate remained intact, vested in Sarah Brown who had full power of disposition, and when she died the estate vested in the trustees until the expiration of the trust period. During that period the income of the property was to be divided among two classes; namely, living children and the bodily heirs oí deceased children. The beneficiaries acquired no other interest in the property until fifteen years after the surviving testator died, when the estate passed to children then living and the heirs of the body of deceased children. It was competent for the testators to provide that- a vested estate should not pass to the children until a stated time and the rule is that where a gift is made to members of a class to be ascertained at a future time those only take who are in existence at that time. The property of the estate kept as an entirety was ultimately to go to two classes in proportionate shares to be ascertained at the end of the trust, and was not devised to individuals. How much the living children were to receive could not be known until that time. If one of the children died without issue the shares of the living children would be proportionately larger and likewise the shares which the bodily heirs of a deceased child would receive would be increased and, of course, if their children who died left issue the shares taken by each would be the same as if all the children of the testator had lived until the time of distribution. When the time came for the passing and vesting of the estate in the beneficiaries the question then was: How many are there in the class of living children? That is to be ascertained as of the time of distribution. (Brewick v. Anderson, 267 Ill. 169; Baker v. Hibbs, 167 Iowa, 174; Dexter v. Attorney General, 224 Mass. 215.) No part of the estate can be set aside'by reason of the life of William F. Brown as he died before the time of distribution and the death of his mother and he left no "heirs of his body. As no. part of the estate was vested in him none of it descended to his wife, and nothing in the will is clearer than the purpose that the spouse of a deceased child should receive five hundred dollars out of the estate and no more.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
DAWSON, J.:
This action was brought to contest the purported last will and testament of the late Mary A. Baird, of Smith county. The plaintiffs were some of her heirs at law. Some of the defendants were beneficiaries under her alleged will; other defendants were brought in that their rights might be adjudicated.
The will was attacked on the ground that the signature to it was not the genuine signature of Mary A. Baird, but a mere forgery.
A special question of fact was propounded to and answered by the jury which had been called to assist the court: '
“Question: Did Mary A. Baird, now deceased, sign the instrument . . . purporting to be her last will and testament? Answer: No.”
The judgment in part reads:
“The court thereupon adopted the finding of the jury as its own and finds that the instrument purporting to be the last will and testament of Mary A. Baird is not in fact such last will and testament and that it should be and is hereby so decreed.”
There were three witnesses to the will and they all testified positively that Mary A. Baird had signed the will in their presence, and that they signed it as witnesses at her request, in her presence, and in the presence of each other.
The plaintiffs’ evidence discrediting the will was partly that of expert testimony and opinion evidence which tended to prove that the signature to the will was not genuine, that it differed materially from other signatures of Mrs. Baird the authenticity of which was admittedly genuine or sufficiently proved.
Defendants’ first contention is thus stated:
“It is our contention that the testimony of the subscribing- witnesses to a will can not be disregarded by the jury where they swear positively, as all of the witnesses did in this case, that they saw the testator sign the will, unless such witnesses be .impeached. It is also our contention that the positive testimony of the three subscribing witnesses can not be overthrown by mere opinion evidence in the absence of evidence tending to show corruption or dishonesty on the part of such attesting witnesses.”
The testimony of attesting witnesses to a will may be overcome by any competent evidence. (Ginter v. Ginter, 79 Kan. 721, 738, syl. ¶ 5, 101 Pac. 634; 2 Wigmore on Evidence, §§ 886, 1514.) Such evidence may be direct or it may be circumstantial; and expert and opinion evidence is just as competent as any other evidence. Indeed, where the signature to a will is a forgery and where the attesting witnesses have the hardihood to commit perjury, it is difficult to see how the bogus will can be overthrown except by expert and competent opinion evidence 'tending to show that the pretended signature is not that of the testator but spurious. The rule contended "for by appellants would frequently baffle justice and give judicial countenance to many a high-handed fraud. Appellants invoke the rule announced in Healer v. Inkman, 89 Kan. 398, 131 Pac. 611:
“While a jury is at liberty to disbelieve the uncontradicted testimony of a witness which is deemed to be unreasonable and untrue it is never justified in arbitrarily and capriciously disregarding unimpeached evidence.” (Syl. ¶1.)
The rule is sound but inapplicable. Here many circumstances were shown which would justify a court or jury in deciding that this will was spurious, and consequently that the attesting witnesses were untruthful. There was the curious incident that notwithstanding there had been no suggestion of a will by Mrs. Baird until her husband' died, after his death John S. Shaffer, one of the principal beneficiaries, promptly appeared before the probate judge with a pretended will of Mrs. Baird in his custody. His interview with the probate judge was significant. Upon the declaration of the latter that the will “was n’t worth a damn,” Shaffer said, “Maybe I have the wrong will.” The probate judge said: “For God’s sake you have n’t got another one have you ?” Shaffer replied: “Yes, I got one up home and I will go and get it.” That pretended will never afterwards appeared, and the one whose genuineness is in question here is another document. Moreover, Shaffer denied this incident, and swore that the first instrument he presented to the probate judge was the same one which is the subject of this lawsuit. Some time after the date of the will in question, which was October 7, 1918, Mrs. Baird was repeatedly heard to declare that she had made no will, and that she desired to make one. She had gone so far as to advise her banker of her proposed disposition of her property, and planned to make her will on February 16, 1914, two weeks before her death. She invited this banker and others to her abode. This banker testified:
“It was sometime in February possibly about February 16th, 1914, that we were down to see Mrs. Mary A. Baird. When we were there she stated — Mrs. Mary A. Baird said she did not have a will, and had called us down to make her will, that day. . . .
“I had a conversation with Mary A. Baird more than once, in the presence of other parties, with reference to the disposition of her property. '. . . In that conversation she said that she wanted all of her property to go to her two1 grandchildren and her feeble-minded son. I do not know whether she named him at that time or not, but we all khew who she meant. She also said at that time that she wanted — using her words — she said: .‘I want you men to see that it is divided up that way.’ I asked her .particularly if she wanted the property divided equally amongst the three children, and she said, ‘Yes, that is the way I want it.’ I told her if she wanted her property divided that way that she should make some disposition the way she wanted it to go, and unless she did dispose qf her property as she wanted it, that it would not be disposed of as she wanted it to be, or in substance those words; and her reply was: She said she wanted Mr. W. F. Hicks to be present, and that she had sent for him to come, and waited for a while longer for Mr. Hicks. He had to come in from the country. He did not come, and I spoke to her about writing up a will for a disposition of her property; that was what we men were there for that day, and she said that she was so tired; she said, ‘I am so'tired now, I do not want to do it just now; I will wait until I feel better.’ When I asked her about wanting me to write up her will, she told us she would wait until she got better, that she wanted Mr. Hicks present. That she wanted it written up by disinterested persons.”
Mrs. Baird was shown to be a woman of intelligence and business sagacity and conducted her affairs methodically and kept a bank account. She had accumulated considerable property. The estate disposed of by the contested will approximated $30,000 in value. Yet the will upon which appellants rely was drawn by a common laborer who had never had experience in writing wills and who had never seen a will. One of the principal beneficiaries under the pretended will was a woman whom the testatrix disliked so much that she did not want to die in her house. Her dislike and distrust of Shaffer, the other principal beneficiary, were also proved. In addition to much expert and opinion evidence that the signature to the will was not that of Mrs. Baird, there were submitted to the jury photographically enlarged copies of genuine signatures of Mrs. Baird and of the signature to her. purported will. The difference between the admittedly genuine signatures and the signature to the will was so obvious that any juryman — any layman of common intelligence and ordinary capacity for observation — would readily discover it. (Joseph v. National Bank, 17 Kan. 256.) One witness for plaintiffs testified that one of the attesting witnesses told him privately that the will was a “frame up.” These and other circumstances .which the trial court and jury had a right to consider tended as effectually to impeach and discredit the evidence of the attesting witnesses as would the formal presentation of witnesses who would avow that the attésting witnesses had bad reputations for truth and veracity. Impeaching witnesses may themselves .be unworthy of belief, but the array of circumstances marshaled in this case to prove that the will was a forgery served quite as well for purposes of impeachment. All the probative facts and circumstances arrayed by plaintiffs could not readily have been formulated with sufficient cleverness to cause justice to miscarry. The court holds that the plaintiffs sufficiently maintained their cause by competent evidence to warrant the trial court in giving judgment in their behalf; and this, of course, had the effect of impeaching the attesting witnesses, which fully answers appellants’ contention that the evidence of attesting witnesses can not be disregarded unless they are impeached. The contention itself is not altogether correct. (Cobe v. Coughlin, 83 Kan. 522, syl. ¶ 2, 112 Pac. 115.)
One error urged is based upon the evidence of the probate judge who, it is said, was permitted to testify to the ultimate fact. The abstract contains part of this evidence, the counter-abstract contains some more of it;
“It is not her signature, no sir. I have examined the signature to the purported will several times and compared it with the signatures that I saw Mary A. Baird write and in my opinion the signature to the will was not. made by the same person.
“I saw her sign her name there in three different places. I know her signature. ... I have examined the signature to the purported will. I have examined it several times; also compared it with the signatures that I saw Mary A. Baird write, and have formed an opoinion as to whether or not the signature to the purported will wras made by the same person that signed the guardianship petition and bond, and in my opinion the signature to the will was not made by the same person.”
It was improper for the witness to say; “It is not her signature, no sir.” But the additional words of the witness clearly showed that he was merely giving his opinion, and it was shown that he was sufficiently familiar with Mrs. Baird’s authentic signature to qualify as an opinion witness. (See, also, Ort v. Fowler, 31 Kan. 478, 485, 2 Pac. 580; Holmberg v. Johnson, 45 Kan. 197, 199, 25 Pac. 575; Plaster Co. v. Blue Rapids Township, 77 Kan. 580, syl. ¶ 4, 96 Pac. 68; 11 R. C. L. 562, 620; 1 Wigmore on Evidence, § 570.)
It should not be forgotten that the jury in this case served only in an advisory capacity, and, while they might be led astray by a dogmatic assertion of the ultimate fact, the trial judge would not disassociate this statement of the witness from the rest of his evidence. Read in connection with the rest of the witness’s testimony the criticised language was not serious. (Civ. Code, § 581.)
Counsel for defendants quote from many decisions of other courts inveighing against the testimony of expert witnesses. In this jurisdiction, however, such evidence is admissible, and the credence to be given to it is for the discriminating good sense of the triers of the facts to determine. (A. T. & S. F. Rld. Co. v. Thul, 32 Kan. 255, 261, syl. ¶ 3, 4 Pac. 352; Yard v. Gibbons, 95 Kan. 802, 811, 812, 149 Pac. 422.)
Another error assigned is based upon the admission of evidence giving the substance of Mrs. Baird’s conversations before her death to the effect that she had not made a will, and narrating her expressed wishes about the disposition of her property; and the circumstances narrated by the banker who attended her for the purpose of making or witnessing her will. Appellants concede that such statements would be admissible if the attack on the will were based on undue influence. (Mooney v. Olsen, 22 Kan. 69.) No logical difference can be discovered between an issue of undue influence and an issue of fraud or forgery to withhold the aid of such evidence in ascertaining the facts. (Durant v. Ashmore, 2 Rich. Law. [S. C.] 184.) Unless too remote in point of time, such evidence is admissible. (Schnee v. Schnee, 61 Kan. 643, 647, 60 Pac. 738.)
Complaint is made of the trial court’s refusal to give the jury certain instructions touching the consideration to be attached to the evidence of expert witnesses. These requested instructions have been examined; They were prepared upon the theory contended for by defendants here on appeal. They did not accurately state the law. The court correctly and sufficiently instructed the jury on this point, as follows:
“The testimony of an expert witness is to be considered and weighed, not exclusively, but as and with the other evidence like any other testimony and’ should receive just such weight and credit as the jury deem it entitled to when weighed in connection with all the other evidence, including the circumstances; and as to whether or not when so taken and considered in connection with the other evidence it is justly of sufficient weight to establish or disprove any matter, if any, sought to be so established or so disproved is for the jury to determine.”
Nothing approaching prejudicial error is discernible in the record, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
In this action the plaintiffs sought to enjoin the city of Holton and its officers from paving three blocks of Fifth street, the principal thoroughfare extending east and west in that city. Theretofore seven blocks of the street had been paved, and the proposed improvement was an extension of that paving except for a hiatus of one block; that is to say, there were seven blocks of completed paving, one block to remain unpaved for the time being, and the proposed paving of three blocks involved in this suit.
Pursuant .to section 1764 of the General Statutes of 1915 the mayor and commissioners adopted a resolution to pave the three blocks in question. A protest was presented, signed by the resident owners of something less than half the property affected. A protest was also made by the resident owners of the intervening block between the proposed paving and the completed paving. The first protest was disregarded as insufficient, and the second protest was ignored altogether. Before the city officials took further action an ordinance was prepared and presented (under the privilege» of initiative conferred upon electors in cities governed by commission, Gen. Stat. 1915, § 1861) praying that the city commission enact it or submit it to a vote of the people. It provided for paving the three blocks in question “with a one-course concrete pavement not less than six inches thick.” The commission declined' to enact it and submitted it to the electors and it was defeated. Thereupon the city officials took up the work of paving the three blocks at the point where it was interruptéd by the protests and by the initiative and election, and enacted an ordinance for the paving of the three blocks with “vertical fibre brick on fiver-inch concrete base with asphalt filler.”
It was to enjoin proceedings under this ordinance and to enjoin the levy of taxes to pay for this paving that this action was instituted.
The district court made many findings of fact, refused to make certain findings requested by plaintiffs, and gave judgment for defendants.
Plaintiffs complain of the trial court’s finding that a number of resident property owners affected by the paving had petitioned the city commission to pave. The mayor and one of the commissioners testified that such was the fact. The fact itself is not a vital one in this case, since the statute did not require a petition, but made it discretionary with the commission and subject only to a protest of resident owners of more than half the property affected (Gen. Stat. 1915, § 1764); but if this were a vital fact in the case, the trial court’s finding is bound to stand under the familiar rule that the supreme court never disturbs a trial court’s findings when there is some competent evidence to support them.
Plaintiffs next complain of the trial court’s refusal to find that a majority of the resident property owners of the inter vening block between the completed paving and the proposed paving were opposed to the improvement, and that the city-officials knew of their opposition, and that the city officials had it in mind, as soon as the three blocks in question were paved, to pave the intervening block under the power conferred on the city by chapter 123 of the Laws of 1911, without the consent of the residents of that block, thus securing the pavement of the entire length of the street. Even if the trial court had gratified the plaintiffs by making such finding, it would not have affected the result, nor would it have warranted a judgment for plaintiffs. The number of the opposing residents of the intervening block could not be added to the opposing number of residents on the three blocks affected in order to make a majority against the paving. The statute contemplates nothing of the sort.
When the city officials are proceeding according to law, their official work ihay not be interfered with by injunction. It is never unlawful to plan, to do, or to set about the doing of anything which the law permits. Seven blocks of the street were paved. Three blocks of the same street were about to be paved in conformity with the statutes. When this should be accomplished, the one intervening block could be paved without hindrance from obstructionists and regardless of their objections. That is precisely the purpose, or one of the purposes of chapter 123 of the Laws of 1911. Section 1 in part reads:
“And in all cases when two or more portions of any street or alley have ■ been graded, guttered, curbed, paved, or macadamized and intervening portions of said street or alley have not been graded, guttered, curbed, paved, or m'acadamized the mayor and council or board of commissioners, may by resolution cause the intervening portion to be graded, guttered, curbed, paved or macadamized not to exceed two blocks, and levy special assessments to pay for the-same.” (Gen Stat. 1915, § 897.)
It is contended that the paving was unnecessary, and that the action of the city officials was arbitrary. The court found otherwise, and made a finding that the best interests of- the city would be served by paving the three blocks in controversy. That was further than the court needed to go, for that matter was vested in the city and not in the court, and so long as the court failed to find that the city had abused its power, there could be no judicial interference, even if the court itself had thought the paving unnecessary.
Another contention of plaintiffs is that since the people had defeated an ordinance (prepared under the privilege of the initiative) proposing to pave the three blocks, the city had no power to proceed; that the action of the electors settled the proposition. The statute relied on, in part, reads :
“And any ordinance proposed by petition, [the initiative] or which shall be adopted by a vote of the people, can not be repealed or amended except by a vote of the people.” (Gen. Stat. 1915, § 1861.)
Plaintiffs urge that notwithstanding the defeat of this proposed ordinance it is still of sufficient potency to prevent its amendment by a common city ordinance, and that the ordinance providing for the paving of the three blocks “with vertical fibre brick on five inch base with asphalt filler” is a mere amendment to the ordinance initiated and defeated by the electors in which it was proposed to pave the three blocks “with a one-course concrete pavement not less than six inches thick.” We think not. The electors might be perfectly willing to have a first-class pavement, and that contemplated by the city officials might be highly satisfactory, while a one-course pavement might be a worthless waste of money. But the statute can not mean what plaintiffs contend. Read as plaintiffs would read it, the proposed ordinance which was rendered abortive by an adverse vote of the electors would need to be amended by a vote of- the people and could be amended in that manner, and then it would become once more a valid proposed ordinance subject again to a vote of the people. Carrying this a little further, but only to show the absurdity of this contention, if the amendment to the proposed ordinance were lost, it too would need another proposed amendment to the proposed and defeated amendment, to the proposed and defeated ordinance before the project of paving this portion of the street could again be undertaken. Maybe these deductions are not necessary to show the fallacy of plaintiffs’ contentions, but they do show it. The statute merely means that an ordinance proposed by the people, and which is adopted either by the city commission or by the electors, or one proposed by the city commission and submitted to and adopted by the people can only be amended or repealed by the people. An ordinance defeated by the people is dead. It has no longer any effect or conse quence upon the future action of the people or their city officials.
Little more need be said on this subject. Many cases are cited, and many mofe could be cited to the effect that what can not be done directly can not be done indirectly. But the paving of the three blocks was undertaken directly and pursuant to statutory authority. (Gen. Stat. 1915, § 1764.) Nothing indirect or evasive of the law in letter or spirit was attempted. The paving of the intervening block between these three blocks and the seven blocks already paved will not need to be done indirectly, at least that can not be assumed since the act of 1911 (ch. 123) gives express and direct authority therefor.
The judgment was correct, and this renders it unnecessary to notice the interesting question presented in defendant’s motion to dismiss.
Affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
W. N. Rust recovered a judgment against Minnie A. Rutherford and others quieting his title to several city lots, and the defendants appeal.
The property was formerly owned by Sarah A. Ayres. The defendants claim under a deed to them which was signed and acknowledged by her, but which the court found had never been delivered. The plaintiff claims under a deed from the administrator of her estate. No direct evidence was introduced showing that the probate court had made an order respecting the notice to be given of the hearing of the petition on which the order for the sale of the real estate was founded. The questions presented aré, (1) whether the administrator’s deed is prima facie evidence of the making of such an order, and of the regularity of the proceedings in other respects, and (2) whether the finding that the deed to the defendants had never been delivered was supported by the evidence.
1. It is held that a deed made under order of the probate court is not admissible in evidence without proof of the facts on which the right to execute it depends, unless the statute so provides. (Gatton v. Tolley, 22 Kan. 678.) The statutory provision regarding the admission of an administrator’s deed reads:
“The deed of the executor or administrator, made in pursuance of the order of the court, shall be received in all courts as presumptive evidence that the executor or administrator in all respects observed the directions and complied with the requisites of the law, and shall vest the title in the purchaser in like manner as if conveyed by the deceased in his lifetime. . . .” (Gen. State. 1915, § 4617.)
This does not in so many words make the deed itself prima facie evidence that all requirements of the law essential to its validity have been met, and this fact has been commented upon in Graden v. Mais, 77 Kan. 702, 95 Pac. 412. The deed, however, is made presumptive evidence that the administrator has “in all respects observed the directions and complied with the requisites of the law.” The law provides that the administrator shall give notice of the hearing of his petition for an order to sell real estate for such time and in such manner as the court shall require. (Gen. Stat. 1915, § 4602.) A presumption that the administrator in the proceedings, in respect to the issuance of the deed has fully complied with the requisites of the law implies that he has given notice in accordance with the order of the court with respect thereto, since that is required by the statute, and, therefore, also implies that the court has made such an order. We think a liberal construction of the statute to promote its object (Gen. Stat. 1915, § 11829) requires it to be interpreted as meaning that an administrator’s deed is prima facie evidence of the regularity of all the proceedings on which it is based. .
2. In May, 1908, Sarah A. Ayres signed a deed purporting to take effect at her death, and to convey the lots to.the defendants, which she acknowledged before the register of deeds. She retained it in her own possession, however, until about two weeks ,before her death (in May, 1911) when, according to the testimony of the person who drew it for her, who was called as a witness by the plaintiff, she left it in his possession with other papers in a sealed envelope, which she asked him to put in his safe, giving no other instructions whatever, and not informing him as to the contents of the envelope. This evidence was entirely consistent with the theory that the deed was left with the custodian merely for safekeeping — that the grantor retained control of it, and, theréfore, that there was no delivery such as to give it effect. Evidence was introduced by the defendants having some tendency to the contrary, but no special findings were made, and it can not be said that a different conclusion from that reached by the court was required.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
A tenant sued his landlord to recover the value of household goods burned when the dwelling house was destroyed by fire. The action was commenced before a justice of the peace, taken by appeal to the district court, where a demurrer to the plaintiff’s evidence was sustained and judgment rendered against him for costs, from which he appeals.
It was claimed in the bill of particulars that plaintiff rented the house-from one Jules Connelly, the authorized agent of the defendant, and that at the time of the renting plaintiff called the agent’s attention to the condition of the ceiling in the house and the agent promised to repair the same. The bill of particulars alleged that the defendant neglected and failed to make the repairs as was specifically agreed by its agent, and that the chimney of the house was negligently constructed, “by the chimney hole being placed so near to the wooden ceiling and partition of said house; that same was entirely destroyed without the negligence of this plaintiff.”
Quite obviously the demurrer was sustained because of the failure of plaintiff to offer any evidence tending to show that the fire which caused the destruction of the house resulted from any negligent act of the defendant. The only evidence with reference to the fire was that of the plaintiff, who testified as follows:
. “I got home at about 12:30; my wife was there all alone. The house was completely burned down.”
By the aid of liberal inferences, the bill of particulars may be said to set up the claim that there was a condition existing in the house which would be liable.to cause a fire, in case there was a fire in the stoye, but, so far as the record discloses, the fire which destroyed the house and burned the plaintiff’s property might have been the result of. any one of a number of causes wholly foreign to the alleged negligence of the defendant. All the evidence shows is that the house was destroyed by fire, which might have been started by lightning, by sparks from a passing engine, or by spontaneous combustion of refuse in a cellar or garret. Some person may have set the building on fire, or it may have caught fire from the burning of other buildings near by.
In the brief of the plaintiff it is asserted that “there was no answer of any kind filec], and nowhere or at any time was there any denial” of the fact that “a fire resulted because of lack of repair.” It is true that no answer or bill of particulars was filed on behalf of the defendant, and the defendant offered no evidence. It can not be said, however, that the failure to file an answer admitted the allegations of the plaintiff with respect to the cause of the fire. In the absence of any testimony tending in the slightest degree to show a connection between the defendant’s failure to repair and the damages sustained by the plaintiff, there was nothing for the trial court to do but to sustain the demurrer.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action the plaintiffs seek by injunction to compel the defendants to remove an obstruction placed by them across a road alleged by the plaintiffs to be a public highway. Judgment was rendered in favor of the plaintiffs and the defendants appeal.
The road in question runs north from the south line of section 3 in Logan township, Mitchell county, Kansas, along the half-section line to a point thirty feet north of the center of the section. From the early settlement of the country, in 1866, until the improvement of the land in the vicinity of the road, public travel crossed section 3 at several places, going to and from fords across the Solomon river. With the improvement of section 3 the land was plowed, fences were built, and travel was confined to the half-section line, running from the south line of the section to and beyond the center of the section. In 1892 an attempt was made to lay out a public highway along this line. A short time later, in 1892, proceedings for laying out a private road along this half-section line were had before the county commissioners. These proceedings resulted in the county commissioners ordering that a road be there established. This road was traveled by the public from the time the fences were built until in 1915, when the defendants erected a barrier across the road near, the south line of section 3 and ordered the plaintiffs not to use the road. This action was then commenced.
The defendants argue that the court erred in the admission of evidence. The plaintiffs alleged ownership and possession of certain land reached by the road in question. They were permitted to testify that they owned the land. No records or title documents were introduced in evidence. The defendants urge that it was error to permit the plaintiffs to testify that they owned the land. The title to the- land was only incidentally in issue. “When the title to real estate is only collaterally involved, the title deeds need not necessarily be produced, but parol evidence may be received.” (2 Ency. of Ev., 286; Railroad Co. v. Noland, 75 Kan. 691, 90 Pac. 273.) It was necessary for the plaintiffs to show that they had an interest in the road, different from that of the public generally, in order to entitle them to maintain the action. It was not error to permit the plaintiffs to testify that they owned certain lands affected by the road.
The principal contention of the defendants is that there was not sufficient evidence to sustain the judgment. This question was raised by a demurrer to the evidence and by a motion for a new trial, which motion alleged that the judgment of the court was contrary to law and to the evidence. The court made the following finding of fact:
“That at the time of the commencement of this action a public highway existed by prescription and ’adverse use by the public for more than fifteen years prior to the commencement of this action, along and upon that portion of the north and south center line of section 3, in Logan township, in Mitchell county, Kansas, extending from the south side of section 3, northward to a point 30 feet north of the center of said section 3, and of a width of 20 feet, and being and extending ten feet on each side of said portion of said center line, and that the defendants were at the commencement of this action maintaining an obstruction across the south end of said highway.”
Without undertaking to recite the evidence in detail, it is sufficient to say that there was evidence tending to prove that the road from the south line of section 3 along the half-section line to a point thirty feet north of the center of the section had been used by the public in general, continuously and uninterruptedly, with the knowledge of the landowners, for a period of more than twenty years prior to the placing of the obstruction thereon by the defendants. There was also evidence tending, to show that the use of the road by the public was adverse to the rights of the landowners, and under a claim of right by the public to use the road as a public highway, and that this use was not merely permissive on the part of the landowners, but was with their consent that the road be used as a public highway. In 37 Cyc. 21, this language is found:
“To establish a highway by prescription the land in question must have been used by,the public with the actual or implied knowledge of the landowner, adversely under claim or color of right, and not merely by the owner’s permission, and continuously and uninterruptedly, for the period required to bar an action for the recovery of possession of land or otherwise prescribed by statute. When these conditions are present a highway exists by prescription; otherwise not.”
The demurrer to the evidence was properly overruled. There was evidence sufficient to sustain the judgment of the court. The judgment was not contrary to law.
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The opinion of the court was delivered by
MASON, J.:
On Monday, June 29, 1914, a representative of Wallingford Brothers, grain merchants of Wichita, talked by telephone with the manager of an elevator at Attica, owned by J. D. McCray, with reference to the purchase from him of eight thousand bushels of wheat. On the same day the firm mailed to him a letter purporting to confirm a purchase of the wheat on terms which were specifically stated, and which included -“this week shipment.” On the next day the manager of the elevator, on receipt of this letter, called up the firm on the telephone and told them that the contract was for shipment of the wheat in the first half of July. The firm at once (June 30) wrote him another letter in which they insisted that in the first conversation they had refused to pay more than the regular export bid for the first half of July, and that the offer they had made was for “this week shipment.” In an answer written on the next day- (July 1) the manager said that in the conversation about the wheat deal he had refused to make it “this' week shipment” but had said he would ship it as fast as he could after June shipments were over. The wheat was never shipped. On September 24, 1914, the firm sued McCray for damages resulting from his failure to ship it, alleging the making and breach of a contract for shipment “as fast as possible after June shipments were over.” The plaintiffs appeal from a judgment in favor of defendant.
The controversy is almost entirely one of fact, and turns upon the effect of the telephone conversations referred to, and Upon whether a later conversation was had; According to the plaintiffs’ evidence the conversation on June 29 resulted in an agreement for the purchase of the wheat, to be shipped that week; in the conversation of June 30 the defendant’s manager said that the contract was for shipment as soon as his June contracts were filled; this conversation was confirmed by the plaintiffs in writing; and on July 2, after receiving the manager’s letter of the day before, the plaintiffs had a further conversation with the defendant’s manager in which they told him they would let the matter stand as per his letter of the 1st, in which he said “I will ship as fast as I can after. June shipments are over.” 1
According to the defendant’s evidence the conversation of June 29 resulted in a contract for the purchase of the wheat, the defendant to have until the middle of July to make delivery, although his manager said he would "get it out as fast as he could; in the conversation of June 30 the defendant’s manager stated that the contract allowed until July 15 for delivery and he expected the confirmation to be made accordingly, and that unless this was agreed to the deal was off, but that the plaintiffs did not consent to take the wheat on these terms; the conversation testified to by the plaintiffs’ witness as having been had on July 2 never took place; the defendant’s manager never said he would make a contract for delivery as soon as possible; and the plaintiffs never after the conversation on June 29 consented to accept the wheat unless it should be shipped within'the week; after July 1 no further communication was had between the parties until July 7 or 8, when an agent of the plaintiffs called on the defendant’s manager, who told him that because of the plaintiffs’ attitude there was no contract in existence; this was the first notice the defendant had that plaintiffs were expecting the wheat.
The verdict and findings of the jury showed a complete acceptance of the defendant’s version of the transaction, and a complete rejection of the plaintiffs’. Accepting the facts to be as claimed by the defendant, no ground for recovery by the plaintiffs existed. The contract having been made for shipment during the first half of' July, the confirmation sent calling for a shipment by July 4, coupled with the insistence of the plaintiffs upon that date, and their virtual denial 'of liability if shipment were made later, amounted to a refusal to abide by the agreement as.it had been entered into, and justified the defendant in regarding the deal as at an end. “Where one party repudiates in advance his obligations under the contract and refuses to be longer bound thereby, communicating such repudiation to the other party, the latter party is excused from further performance.” (6 R. C. L. 1012.) “Upon election to treat the renunciation of the contract by the other party, whether by declaration or by acts and conduct, as a breach of the contract, the rights of the parties are to be regarded as then culminating, and the contractual relation ceases to exist except for the purpose of maintaining an action for the recovery of damages.” (6 R. C. L. 1026.)
2. Although one of the plaintiffs testified that the conversation of June 30, in which the defendant’s manager was said to have spoken of the contract as one for shipment as soon as his June contracts were filled, was confirmed by them in writing, their letter of that date shows an insistence on shipment within the week, and the first lettefi of a different effect was dated July 21. The plaintiffs having stood upon the proposition that the agreed price was effective only if shipment were made within a week, could not, after that period had expired and the bargain was seen to be a good one even upon the defendant’s interpretation of it, shift their ground and demand a performance of the contract on that basis. The defendant’s manager referred in his testimony to the failure of the plaintiffs to give any extension of the time of shipment. This language might seem to suggest an admission on his part that the contract had originally been made for delivery within a week, but the record as a whole makes it clear that by an “extension” he meant an admission by the plaintiffs that the period named in the confirmation did not control. He used that term having in mind a change of the confirmation.
3. The court gave an instruction in these words:
“If you find from the evidence that the conversation over the telephone on June 29th, is as claimed by defendant, and that on June 30th, 1914, defendant received a confirmation, through the mails, from the plaintiffs for the purchase of the 8000 bushels of wheat in question, and that on June 30th, he called plaintiffs over the telephone stating to them that the confirmation received was not in accordance with their conversation over the telephone on June 29th, and that on the same date he wrote the plaintiffs, advising them of the fact, and that at no subsequent date did the plaintiffs and defendant agree upon a date of delivery of the 8000 bushels of wheat in question, then I instruct you that the minds of the parties did not meet, and that no contract of purchase between buyer and seller was entered into, and you should return a verdict for defendant.”
This instruction is criticised on the ground that if the parties reached an agreement in the telephone conversation, no subsequent dispute as to its terms could alter the fact that their minds had met and that a contract had resulted. The criticisim is chiefly verbal. If the conversation on June 29 is as claimed by the defendant, a contract was made for delivery by July 15. The plaintiffs having refused to abide by that contract must recover, if at all, by virtue of a subsequent agreement, and unless such an agreement were made there was no meeting of the minds of the parties, and no contract for the sale of the wheat, so far as concerns any recovery by the plaintiffs. A further criticism of the instruction is that it makes the verdict turn upon whether there was a subsequent agreement upon a date of “delivery,” whereas the controversy relates to the date of “shipment.” It is of course true, as the plaintiffs suggest, that there is a difference between the date of shipment and the date of delivery, and in some circumstances the distinction might be very important. But here there was no room, for any misapprehension by the jury as to what was intended. Objection is made to an instruction that an acceptance by the plaintiffs of the proposition of the defendant with reference to the time of shipment must have been within a reasonable time to be effective. We regard the instruction as correct and pertinent. If the plaintiffs had signified their willingness to go ahead with the contract according to the terms proposed by the defendant in the conversation of June 30, this would have amounted to a valid acceptance if done within a reasonable time, say on July 2, but not if done after an unreasonable delay, say on July 21. Instructions were asked by the plaintiffs to the effect that if the contract made on June 29 called for a shipment as soon as possible, without a definite limit being 'fixed, the plaintiffs had a right to wait until a reasonable time had elapsed or until the defendant notified them that no shipment would be made. We think the rights of the plaintiffs in this respect were sufficiently protected by the instructions given. Moreover it is quite evident that the jury did not accept the theory on which the rejected instructions were contingent.
4. The plaintiffs contend that the special findings show passion and prejudice and an inconsistency with the evidence and with each other. We do not regard the contention as well founded. The. jury were asked whether on June 29 a deal was made whereby the wheat was sold, all the terms of the, contract being fully agreed upon except the date of shipment. They answered in the negative, and the answer is justifiable on the ground that all the terms were agreed upon without exception. They were asked whether the defendant’s manager wrote on July 1 that he had sold the wheat for shipment as fast as he could after his June shipments were over. They answered in the negative, and we think they were right. As already mentioned, the manager wrote that he had said he would ship as fast as he could, but this was not necessarily inconsistent with his claim that under the contract he was to have until July 15 to make the shipment. The next question, with the answer, reads as follows:
“If you answer the foregoing question in the affirmative, state whether or not plaintiffs, upon receipt of such letter from defendant took any exceptions thereto, or objected to the time of shipment of such wheat as stated by defendant in said letter? A. Yes.”
As the preceding question had not been answered in the affirmative the jury were not required to answer this one at all, but what they obviously meant was that the plaintiffs did take exceptions to the letter which was written by the defendant on July 1. This is manifest from the fact that in response to the next question they said' that the plaintiffs did not advise the defendant by telephone on July 2 that they would let the time of shipment stand according to the letter to them of the day before. The jury returned a negative answer to the question whether the defendant ever notified the plaintiffs that he would not ship the wheat at all, plainly meaning that his refusal to ship the wheat was not absolute, but contingent on the plaintiffs’ insistence that shipment should be made by July 4. An affirmative answer was returned to the question whether by August 24 was a reasonable time within which the defendant might have shipped the wheat. The meaning of this finding or. its bearing upon the controversy is not apparent, but it affords no ground for disturbing the judgment.
5. The plaintiffs were taxed with costs on account of two witnesses from other counties, a proceeding allowed when the court so orders. (Civ. Code, § 326, Gen. Stat. 1915, § 7228.) The plaintiffs complain of the making of this order in their absence, and without notice to them. If error was committed in this regard their remedy was by a motion to retax. (Linton v. Housh, 4 Kan. 535.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The city of Wilson brought this action to enjoin the Wilson Electric Light Company, a partnership composed of Nicholas Weber and John Weber, from the alleged illegal occupation and use of the streets of the city for the distribution of electric light and power. The injunction was granted and the defendants appeal.
In 1901 the city granted a franchise to the defendants, authorizing them to use the streets, alleys and public grounds of the city upon which to erect and place poles and wires for Wilson to .the neighboring city, of Dorrance and are also furnish the same to the people of the city, for a period of fifteen years. A plant was at once built in the city and in 1914 the defendants constructed a transmission line from the city of Wilson to the neighboring city or Dorrance and are also furnishing the inhabitants of that city with light and power. The franchise granted by the city of Wilson expired on December 27, 1916, and the city, having built a municipal light and power plant, did not renew nor extend the franchise of the defendants. No right to continue the occupancy of the streets and alleys of Wilson by the defendants having been granted, and they having refused to remove their poles, wires and fixtures from the streets and alleys, the present action was brought.
It is contended that their plant was built under a legal franchise, and as they are operating in two cities, their system is under the exclusive jurisdiction of the public utilities commission. They claim that no change can be made, in the serv ice or by way of abandonment of service, that has not been authorized by the commission. Wilson is a city of the third class. The mayor and council of cities of that class are authorized to grant franchises for electric, lighting systems for a period of not more than twenty years with restrictions which will protect public and private property. (Gen. Stat. 1915, § 862.) The control of the streets, alleys and public grounds of a city of that class is expressly vested in the mayor and council of the city. (Gen. Stat. 1915, § 869.) Other sections provide that before a person, firm or corporation may enter upon the streets of a city to set up a lighting plant or other utility, such person, firm or corporation must first procure the passing of an ordinance by the city giving the right which shall define fully the terms upon which the right is granted, and if such person, firm or corporation shall, enter upon the streets, alleys or public grounds of the city without having obtained such right from the mayor and council such person, firm or corporation shall be guilty of a misdemeanor and be subject to a fine. (Gen. Stat. 1915, §§ 870, 871.) Defendants contend that these provisions have been superseded and impliedly repealed by the provisions of the public utilities act; that the two acts are irreconcilable; and that the utilities act, being the later one, must prevail. It provides in effect that the commission shall have full power to supervise and control all public utilities within its jurisdiction, and authority is given the commission to require utilities to furnish proper service and facilities to the public and to establish just and reasonable rates. It further provides that if any rates, rules or practices'are found by the commission to be unlawful, unjust, unreasonable or inadequate, other rates, practices and service may be substituted by the commission. (Gen. Stat. 1915, §§ 8337-8347.) Section 20 of the act provides in effect that whenever a common carrier or public utility desires to make a change of rates or of any rule, regulation or practice, such carrier or utility shall file a schedule with the commission showing the changes, and that “no change shall be made in any rate, toll, charge or classification or schedule of charges, joint rates, or in any rule or regulation or practice pertaining to the service or rates of any such public utility or common carrier, without the consent of the commission,” etc. (Gen. Stat. 1915, § 8347.) It is contended that the quoted provision of section 20 supersedes and repeals the provision giving the control of streets to the mayor and council of cities, and that until the commission consents to a vacation of the streets and authorizes a discontinuance of the service under the expired franchise it is continued in force as fully as if a new franchise had been granted by the mayor and council.
The question then is: Did the legislature in the enactment of the public utilities act intend that the control of the streets and the granting of franchises to persons or corporations to operate within the city should be taken from the mayor and council on whom it had been expressly conferred and give it to the public utilities commission?
Nothing in the language of the utilities act indicates such a purpose. That act deals with rates, tolls and charges made by public utilities and common carriers and the service rendered by them to the public, and also the rules, regulations and practices pertaining to the service, giving the commission full power and jurisdiction respecting these matters. It does not profess to deal with the granting or extension of charters, or the granting or renewal of franchises. The commission has the fullest power to regulate the service and rates made and furnished by utilities and public service corporations which have been given a franchise or right to carry on business with a city. It is even authorized by section 31 (Gen. Stat, 1915, § 8359) of the act to inquire into the necessity for an additional public utility or common carrier that may apply for an opportunity to do business in the state; that is, to inquire and determine whether or not. the public convenience would be promoted by the transaction'of business by such added utility or common carrier. But none of these provisions nor anything contained in the act hints at a legislative purpose to give the commission authority to impose a franchise upon the people of a city, whether willing or unwilling, nor to reanimate a franchise that has expired. It can no more grant or renew a franchise than it can create a corporation or vest a foreign corporation with authority to do business in the state. Once a utility is vested with authority to enter upon the streets, alleys and public grounds of a city, and to exercise the privileges conferred upon it, the commission may regulate the service, prescribe the rates and require the continuance of the service at the prescribed rates.
That was held in The State, ex rel., v. Postal Telegraph Co., 96 Kan. 298, 150 Pac. 544, relied upon by the defendants. The telegraph company had been authorized to do business in the state, and under that authority had established its line through the state, including the city of Syracuse, and upon the claim that the service could not be given, except at a loss, it assumed to discontinue the service; but it was held that the company was subject to the control of the commission in the matter of servicé and could not discontinue it without the consent of the commission. There the right had been conferred upon the company to do business in the state and through the city of Syracuse, and it had been giving service under that right. Being under the jurisdiction of the commission it could not change or discontinue the service without the permission of the commission. The case involved a matter of service which the telegraph company had undertaken to perform in Kansas and in pursuance of the granted authority. If the company had entered the state without permission, and the attorney-general or the city authorities had taken steps to oust the interloper, it could hardly have set up the defense that it was already in the state giving service to the public, that the control of the service was in the public utilities commission, and that it could not be ousted or interrupted until the commission had given its consent.
The same may be said of City of Scammon v. Gas Co., 98 Kan. 812, 160 Pac. 316, also cited by defendants. In that case the gas company had been granted a franchise to furnish gas to others, and under the grant it had laid pipes and delivered gas to consumers. It ceased to supply the gas as it was required to do under the franchise and its contract, and it was held that 'the matter of restoring and continuing the service was within the jurisdiction of the public utilities commission. A wholly different controversy would have been presented if the gas company had entered the city without a franchise and the question had arisen whether the mayor and council of the city or the public utilities commission had. the control of the streets of Scammon, or whether the commission could revive a franchise that had expired.
The legislature, of course, might have conferred upon the public utilities commission the power to control the streets, alleys and public grounds of cities and to grant franchises to public utilities to operate within cities, but it chose to place these powers in the municipal authorities. The powers which werp intrusted to the commission and the scheme of control given to it are wholly inconsistent with the control of cities, or of the streets, alleys and public grounds ¡ of cities. The legislature has expressly placed that control in other tribunals and the control of rates, rules, practices and service of utilities, to which a franchise or right has been granted, has been vested in the commission. No express repeal of the statute giving the authority'to cities has been discovered and we think. none is implied. The line of division between the two controls is distinct and clear and there is no occasion and apparently no disposition for one tribunal to trench upon the duties and powers of the other. This control by the cities is not taken way or affected by any of the statutes to which reference has been made by the defendants.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for false representations relating to the quantity of land embraced in a farm which the plaintiff purchased from the defendant. The verdict and judgment were for the defendant, and the plaintiff appeals.
The case is a very simple one. The plaintiff’s claim was that she bargained' for a definitely represented number of acres at a stated price per acre. In payment for the land the plaintiff transferred to the defendant a promissory note which she owned for $15,000, secured by mortgage. The face and the value of the note equaled the price of 150 acres of land, the represented quantity, at $100 per acre, the agreed price. This claim was supported by testimony. The defendant’s claim was that he traded the farm, without regard to acreage or price per acre, for the note and mortgage. This claim was also supported by testimony. With the verdict for the defendant the jury returned special findings of fact in which the essential features of the negotiations were found to be in accordance with the defendant’s claim, and so demolished the foundation for the plaintiff’s lawsuit.
The plaintiff had a daughter, Mrs. Wibkin, who was her adviser and helper in trying to find a farm. Mrs. Wibkin visited the defendant’s land several times, conducted negotiations for it, and otherwise acted for the plaintiff. On one occasion Mrs. Wibkin went with the defendant to see the land. She inquired about the acreage, and the defendant said his deed called for 150 acres. Subsequently the plaintiff, an agent, Boles, who was acting for both the plaintiff and the defendant, Mrs. Wib-kin, and the defendant, all met at the city of Chapman and went from there to look at the farm. Mrs. Wibkin and the defendant rode in the same buggy. She asked if the defendant was sure about the acreage, if he was sure “it was that much,” meaning 150 acres. The defendant replied he did not know, he had never surveyed the place, and had no way of knowing except by the deeds; if she thought the acreage would not hold out, he had spent enough of his time and was willing to drop the deal. After inspecting the farm, the four persons mentioned returned to Chapman and went to the hotel there. The defendant narrated what occurred at the hotel as follows:
“During the time we were there they were talking about acreage, and said it did n’t hardly seem that there was that much land there, and wanted to know if I would be willing to pay for a survey, or half a survey, I don’t remember which. I told them at that time I would not, and if they wanted to survey it they did it at their own risk; it would n’t make any difference in my trade either way; I was simply trading them this farm of mine for the mortgage that they had on property in Junction City.”
In getting a full description of land from the defendant the mutual agent, Boles, asked him how many acres there were. The defendant replied there were supposed to be 150 acres, the deed and abstract called for 150 acres. At the request of Mrs. Wibkin, Boles made an, investigation of the number of acres in the farm, by inquiring of old residents and by telephoning the county clerk. On the trip to the farm from Chapman, Boles rode in the same conveyance with the plaintiff. He narrated the conversation at the hotel in Chapman. The material portion of his testimony follows:
“However, she asked Mr. Thisler about the acreage. She asked Mr. Thisler if he was sure there was 150 acres. He says ‘I don’t know.’ She says: ‘Will you survey it?’ He said: ‘No.’ She said: ‘Will you stand for half of the survey?’ He says: .‘Mrs. Taylor, I will make a trade with you for your mortgage. If you want to survey that land you can do so. It is no difference to me whether the acreage runs over or not. I am simply trading for the mortgage.’ ”
The defendant testified that he did not know and had never attempted to ascertain the number of acres in the farm, that he did not at any time, either to the plaintiff or to Mrs. Wibkin, fix a price on the farm by the acre, and that no acre price was ever mentioned between them.
The plaintiff testified the trade for the $15,000 note and mortgage had been talked about before she went to Chapman. She had no conversation with the defendant prior to the one which occurred at the Chapman hotel. She asked the defendant if he was sure there were 150 acres in the farm, besides the railroad and other abatements, and he said there were. He said there were 150 acres. He gave her his price there at Chapman. He told her the price was $110 per acre, and she agreed to take the land at $110 per acre. There was some talk about a'survey, and the agent said the snow was too deep. She did not see the defendant again until the deed was drawn. Mrs. Wibkin narrated what occurred on that occasion as follows:
“Q. When was the third conversation? A. I think when the deal was made.
“Q. Where was that? A. At my mother’s house.
“Q. Who was present? A. Mr. Thisler and Mr. Boles and myself • and Mr. A. P. Trott.
“Q. What was said at that time? A. She said she would take the land: Mr. Thisler said he would take this mortgage in payment.
“Q. The deal had been made so far.as the terms were concerned and they just met there to draw the deed? A. The deal wasn’t made that night. Mr. Trott was there to witness the signature.
“Q. I say, the deal had been made and the terms agreed upon before that? A. Yes, sir.
“Q. And they just met at that time to, close it up? A. Yes, sir.”
The jury accepted the testimony on behalf of the defendant, and found specially that the defendant offered to sell the land to the plaintiff for the lump sum of $15,000, that he receiyed no consideration other than the $15,000 note and mortgage, that he told the plaintiff she could have the land surveyed, that he would trade it to her, for the mortgage regardless of the number of acres, and that the plaintiff closed the deal without a survey. There were just two versions of the transaction which closed the trade, a positively stated number of acres at a definite price per acre, and a trade of the farm for the mortgage regardless of acreage and price per acre. Both versions could not he true, and there was no basis in the evidence for a, third version. The findings are incompatible with the plaintiff’s version. They are in exact accord with the defendant’s version and in harmony with the general verdict for him. Therefore, the controversy over the nature of the trade is at an end, unless something be discovered to impair the effect of the findings.
There was no instruction to the jury which induced the jury to accept the defendant’s version of the transaction rather than the one proposed by the plaintiff.
There was a finding that the defendant represented the farm to contain “one hundred and fifty acres more or less.” The finding negatives the plaintiff’s claim that the defendant stated positively, in answer to pointed questions, that the farm certainly contained 150 acres. The finding is perfectly consistent with the finding and the evidence that the defendant was trading regardless of acreage. No witness attributed to the defendant the precise words of the finding, and it is clear that the jury intended to indicate the indefiniteness of quantity expressed by the defendant’s statements referred to above, the phrase “more or less” being picked up by the jury from some deeds offered in evidence. The jury found the defendant owned all the land described in the deed to the plaintiff. It is quite immaterial whether the finding be correct or not. Some special questions submitted by the plaintiff were not propounded to the jury. If they were all answered according to their form favorably to the plaintiff it would make no difference in the result.
While the cause was being argued the plaintiff filed a written application to open the case for the admission of some newly discovered evidence, the tenor of which was stated. The application was not verified and was overruled. At the hearing on the motion for a new trial the newly discovered evidence was not produced, by affidavit, deposition, or oral testimony of any witness, as the civil code (§307) requires. (Greer v. Mercantile Co., 86 Kan. 686, 121 Pac. 1121.) Included in the application was a request for cross-examination of the defendant with respect to the newly discovered evidence. Whether or not the case should be opened for the further cross-examination of a witness was a matter within the discretion of the trial court. Since the evidence has not yet been vouched for by affidavit, deposition, or oral testimony of any witness, it can not be said that the court abused its discretion. Furthermore, the tenor of the newly discovered evidence was that the defendant had represented to the county officials that his farm contained 141 acres instead of, 150 acres, and that he had made this representation for the purpose of furnishing data for the assessment and collection of taxes. If the evidence were true, it would make no difference in a lump trade of the land regardless of acreage for a note secured by mortgage.
The deed which the plaintiff accepted was in effect a quitclaim deed, and furnished no contract ground of liability on the part of the defendant for any deficiency in the quantity of land described.
The plaintiff devotes seven pages of the abstract to a “schedule” of rulings adverse to her, relating to the admission and rejection of evidence. Apparently the plaintiff scheduled all rulings adverse to her, without attempting to discriminate between those which were correct and incorrect, material and immaterial, prejudicial and unprejudicial. The court has looked into the matter just far enough to see that no claim of error can be^ made with any degree of sincerity respecting ruling after ruling on page after page, and the court is not inclined to conjecture concerning what the plaintiff relies on.
Some other subjects are presented in the briefs, but it is not necessary to extend this opinion to cover them, because they do not relate to anything which would impair the validity of the findings. The transaction was not of the kind upon which the plaintiff predicated her right to recover. The jury so found upon evidence which it chose to accept in opposition to other evidence. With the nature of the transaction established, the rights of the parties were established.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is the second appeal in this case. (Hodge v. Bishop, 96 Kan. 419, 151 Pac. 1105.) The cause was remanded with directions to the trial court to adjudicate the counterclaim of the defendant, Flora Bishop. Immediately after the cause was remanded the plaintiff asked permission to file an amended answer and cross-petition to the counterclaim of defendant, Flora Bishop. This permission was refused. No additional evidence was introduced. The trial court specifically approved the findings of the jury that had been made before the first appeal. These findings were as follows:
“Q. No. 1. Did defendant pay the rent according to the agreement with the plaintiff? A. No.
“Q. No. 2. How much, if anything, did defendant owe plaintiff for rent at the beginning of this suit? A. $400.00.
“Q. No. 3. Did L. D. Hodge, in January, 1907, say to Warden Bishop that if he found any land in Arkansas that Suited him for a farm, for himself and wife, that he could sell that land in controversy and put the proceeds into Arkansas land? A. No.
“Q. No. 4. Did L. D. Hodge, in February, 1907 say to Warden Bishop and his daughter, Florence Bishop, that if they -would pay him two-fifths of the crop and one hundred dollars per year for two years, and afterwards a less rent, during his natural life, that they could go upon the land in controversy and improve it and make a home for them? A. Yes.
“Q. No. 5-. Did Warden Bishop and Florence Bishop in pursuance of said «proposition go upon said land in controversy, and pay two-fifths of the crop and one hundred dollars per year for two years as rent for said lands? A. Yes.
“Q. No. 6. Did L. D. Hodge, in 1910, say to Warden Bishop and Florence Bishop that he would only require an annual rent for said land in controversy of one-third of the crop raised upon said land? A. Yes.
“Q. No. 7. Did L. D. Hodge, in 1911, say that he would only require' the said Warden Bishop and Florence Bishop to pay as rent for said land the remainder of his life the one-third of the crop raised upon said land in controversy? A. No.
“Q. No. 8. Did Warden Bishop and Florence Bishop go upon the land in controversy in pursuance of the proposition of L. D. Hodge, made in February, ,1907, that if they would pay him two-fifths of the crop raised upon said land and one hundred dollars per year for two years, and afterwards a less rent during his natural life — take possession of the same and make lasting and valuable improvements on said land? A. Yes.
“Q. No. 9. If you answer the last question in the affirmative then what improvements did they make upon said land? A. All with the’ exceptions of the first cost of old dwellings.
“Q. No. 10. Did Warden Bishop agree to pay L. D. Hodge five dollars per acre for all land growing alfalfa? A. No.
“Q. No. 11. Did Warden Bishop deliver to J. W. Brinkerhoff a check for the sum of $102.00 to pay L. D. Hodge for any balance due said Hodge for rent of said land at the time of the giving of said check? A. Yes.
“Q. No. 12. Did Warden Bishop agree to pay L. D. Hodge the sum of $4.00 per acre for all land growing cane? A. No.
“Q. No. 13. Was the check given to said J. W. Brinkerhoff, attorney for L. D. Hodge, sufficient in amount to pay said Hodge all rent due him at the time of the giving of said check? A. No.”
The court made additional findings of fact as follows :
“That it was agreed by the parties that if the defendant desired to move away from said land at any time before the death of the plaintiff, that the plaintiff would pay the defendants for the improvements made by the defendants on said land.
“That the defendants at no time agreed to live on said land until the death of the plaintiff or for any definite time, and they had a right to move off of the land at any time they should choose and collect from the plaintiff full payment for the expenses of their improvements, and the court finds that under the contract the defendants have the right to make such improvements on said farm as are suitable to make it a home for the defendants, and that the defendants have a right to occupy said land for a home throughout the lifetime of the plaintiff, and that they have a right to vacate said farm at any time and collect the cost of their improvements, and that if they occupy the same until the death of the plaintiff that his estate will then be indebted to the defendants for the value of said improvements, said value to be determined as to the date that they were' made, and the defendants having the use of said improvements are not entitled to collect interest.
“This court finds that the plaintiff did not agree or promise that the title of said land should pass to the defendant, Flora Bishop, at plaintiff’s death or at any other time. Any expression by plaintiff of his intentions that said land should be Flora’s did not amount to an agreement that it should be Flora’s and plaintiff was not bound by said statements.”
On these findings of the court and the jury, judgment was rendered as follows:
“That upon the counterclaim of the defendant, Flora Bishop and Warden Bishop, that their equitable rights under their verbal contract with the plaintiff, is held and declared to be a lease for and during the life of the plaintiff, unless, they voluntarily vacate and surrender the possession of the land in controversy. . . . That by the terms of said lease, the defendants are to pay and deliver to the plaintiff, one-third (Vs) of all crops grown upon said land, delivered upon the market. That the defendant shall have the right to use and occupy all of the said premises and the improvements thereon upon the payment of one-third of the crops as rent, until the death of the plaintiff, unless they voluntarily vacate the same. That at the expiration of said lease by the death of the plaintiff or by the vacation of the premises, there shall be due the defendants, Warden Bishop and Flora Bishop, for the improvements upon the said premises, the sum of $1800.00; said sum shall not be augmented by interest or decreased by depreciation of the value of the improvements and the rights of the said defendants, under the said lease are hereby quieted against the claims of the plaintiff, which are contradictory or adverse thereto.”
1. The defendants insist that the court erred in overruling their motion for judgment on the findings of the jury. They contend that judgment should have been rendered in their favor in obedience to tfye judgment of this court on the former appeal. The order of this court was not that judgment be rendered on the findings, nor that any particular kind of judgment be rendered. The order was that the trial court adjudicate the counterclaim of Flora Bishop.
2. All parties to this action complain of the judgment rendered by the trial court. The defendants insist that the district court erred in rendering'judgment that the defendants had only a lease on the land in controversy during the life of the plaintiff, and erred in not rendering judgment that the defendants had an equitable interest in the real property and would have the legal title thereto on the death of the plaintiff. They further complain that the court erred in overruling their motion to set aside the conclusions of law.
The plaintiff contends that no judgment should have been, rendered in favor of the defendants.
The validity of the judgment depends on the findings. These were based on the evidence introduced on the trial, and, except in one particular not material at this time, that evidence has not been abstracted. It is -presumed that the findings of the court were supported by the evidence. The findings are not contradictory, they are consistent with each other. The judgment that was rendered was the only.judgment that could have been rendered under the findings made by the jury and by the court.
3. The plaintiff asks a review of the order denying his application for leave to file an amended answer and cross-petition to the counterclaim of the defendant, Flora Bishop. The plaintiff’s petition was filed September 15, 1913. Warden Bishop’s answer was filed October 17, 1913. In'that answer Warden Bishop set out the interest claimed by Flora Bishop in the land, and asked that she be made a party to the action. The plaintiff replied to the answer of Warden Bishop. Flora Bishop was made a party defendant, and afterward filed her interplea, in which she adopted the allegations of the answer of Warden Bishop, although the interplea was not filed until after the cause had been tried. The plaintiff, by Warden Bishop’s answer, was informed of the claims and interest of Flora Bishop. The issues between the plaintiff and Warden Bishop were such that the facts in regard to those issues could not be ascertained without at the same time showing the interest of Flora Bishop in the land.
Under these circumstances, it was not reversible error for the trial court to refuse to permit the plaintiff to file an amended answer and counterclaim as against the interplea of Flora Bishop.
4. The plaintiff moved the court to set aside the finding of the jury numbered 6, on the ground that there was no evidence to support it. An order denying that motion is assigned as error. The plaintiff abstracted that portion of the evidence which tended to support this finding of the jury. The evidence thus abstracted amply supports the finding. Under that evidence it was not error to deny the motion to set aside the finding.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
J. R. Nothern, who held a second mortgage on property belonging to W. T. Chase, foreclosed the same, bid in the property at sheriff’s sale for $1550, and afterward, on February 10, 1916, offered to assign his interest in the property, under the certificate of purchase, to Chase for $1200, providing the latter acted upon the proposition on or before Saturday, the 12th of February. The following memorandum was made:
“I hereby agree with W. T. Chase to take $1200.00 in cash on or before Saturday night, 2-12-1916, for my second mortgage on S% SW%,, 33-13-3, and release it of record with all expenses paid, and W. T. Chase agrees to either take or reject same on said date. J. R. Nothern, W. T. Chase.”
The next day Chase’s agent, Kell, telephoned an acceptance to Nothern, telling him the money would be ready for him, and arrangements were made at that time for the parties to meet on the following day to close the transaction. Sometime before the next day Chase assigned his rights under this agreement to Albert F. Niesehburg, to whom he also conveyed his equity in the property. On the following day Nothern and Kell met at the office of Nothern’s attorney, who insisted that the proper method-of transferring the certificate was by written assignment, and he accordingly drew up an assignment of the certificate to Niesehburg and the instrument was signed and acknowledged by Nothern and his wife. Due to the fact that it was necessary to take the assignment out in the country for Mrs. Nothern’s signature and the fact that the bank would be closed by the time it was returned, the parties all agreed to postpone the final transfer and payment until the following Monday. On Monday morning Nothern refused to complete the transaction unless he received $1400 for the assignment. On the previous Friday Niesehburg had placed money in the bank for use in fulfilling his contract, but his offer of payment of $1200 was refused.
Niesehburg brought this action to enforce Nothern’s contract, and he alleged that the memorandum made on February 10, through mutual mistake of the parties, failed to show the exact agreement made, and that the contract should be reformed to show that the defendant, in consideration of $1200, agreed to assign the certificate of purchase and his interest in the premises to Chase, and that the “second party agrees that he will on or before said time accept or reject the proposition of first party to accept said sum for said certificate of purchase, and if he so accepts that he will pay to first party at said time said sum of money.” The petition prayed for a specific performance of the contract as reformed. Defendant alleged that he was induced by Chase’s agent, Kell, to make the $1200 offer by false representations that the party who held the first mortgage on thé premises, which was executed by defendant, was about to enforce it against the latter. It was also alleged, that the agreement was without consideration and that the' offer made by defendant was withdrawn before acceptance or performance by plaintiff. The court found in favpr of the plaintiff, ordering the contract to be reformed and decreeing that it be specifically enforced.
The merits of the controversy lie within a very narrow compass. Did the offer made by defendant and accepted by Chase become a binding and valid contract, or was it no more than an offer which defendant was at liberty to withdraw at any time before payment of the consideration was made ? Defendant’s agreement was an offer to sell and transfer his interest, acquired under a certificate of purchase, at a fixed price within a given time. It was subject to revocation until there was a valid acceptance of the offer. Although unilateral at its inception, it became bilateral and absolute when the offer was accepted according to its terms, and thereafter the obligations of the defendant and the vendee were mutual and could be specifically enforced. (Chadsey v. Condley, 62 Kan. 858, 62 Pac. 663.) The acceptance in such a case must, of course, correspond with the offer, and if they accord, the agreement be comes complete and binding from the date of acceptance. (Caldwell v. Frazier, 65 Kan. 24, 68 Pac. 1076.) The reciprocal promises of the parties afforded sufficient consideration. The unequivocal promise of the vendee that the offer was accepted and that payment would be made when the assignment was executed on the following day consummated a valid contract. If the offer had prescribed a particular method of acceptance or had prescribed certain conditions, compliance with such method or conditions would have been essential to a valid acceptance. There was nothing in the defendant’s offer prescribing a method by which the vendee should signify his acceptance, and no question was raised by the defendant as to the sufficiency of the notice or the form of acceptance when they were given and made. The offer did not provide that it should not become binding and effective until payment or tender of payment was made, and if, when the offer was first made, the vendee had then agreed to accept it, the contract would at once have become binding and the parties would have had a reasonable time to execute the assignment and make the payment.
In Breen v. Mayne, 141 Iowa, 399, there was an option to purchase land before a fixed time at an agreed price payable upon the delivery of the deed, and it was held that the vendee might indicate his acceptance within the specified time in any lawful method, and that the making of the deed and the payment of the purchase price were matters' to be performed within a reasonable time and were not essential to the completion of the contract. (See, also, Mansfield v. Hodgdon, 147 Mass. 304; Penna. Mining Co. v. Smith, Appellant, 207 Pa. St. 210; Penna. Mining Co. v. Martin, Appellant, 210 Pa. St. 53; Watson v. Coast, 35 W. Va. 463.)
Here the defendant treated the acceptance as sufficient when it was made, and agreed to complete the transaction and make the transfer on the following Saturday which was within the time fixed in the offer; not only that, but he executed the assignment and procured his wife to join in the execution, and the delivery would have been made and the transaction closed on Saturday but for the agreement of the parties, made for their own convenience, to postpone the completion until the following Monday.
Defendant cites Winders v. Kenan, 161 N. Car. 628, which holds that the acceptance must accord with the terms of the offer, and if they do not accord, the parties are not bound. Some of the language used proceeds on the theory that something more than notice of acceptance is essential to a valid contract. However, the contract in that case was interpreted to mean that payments were essential to the acceptance of the offer, and it was also held that the vendee had never offered to pay the stipulated amount.
Ind. & Ark. Lbr. & Mfg. Co. v. Pharr, 82 Ark. 578, is also cited as opposed to the ruling herein. That case approves the rule that if the optionee elects to accept an offer according to its terms within the time limited and gives notice of acceptance to the owner, the accepted offer becomes a binding contract. There, however, the letter written by the holder of the option was deemed to be insufficient to constitute an acceptance. It did not. say that the defendant accepted the offer, and, besides, the letter showed that the steps which he proposed to take towards acceptance were not to be taken until after the expiration of the option.
There is nothing substantial in the objection that the rights of Chase could not be assigned and transferred to the plaintiff. "When the offer was accepted by Chase it became a valid contract for the sale of the interest held by the defendant, and it was subject to assignment. .When defendant was informed of the assignment no objection was made upon that ground, nor in fact upon any other. The assignment of the certificate which was prepared and which was signed by the defendant was made to the plaintiff, and not to Chase, and by agreement it was left in the custody of defendant’s attorney until the transfer should be completed on the following Monday. Having recognized the validity of the assignment to plaintiff and his rights as assignee, it was too late for him to “mend his hold” when the action was brought by an objection to the assignment to plaintiff.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiffs sued to recover damages for closing up Third street in the city of Wichita across and south along Santa Fe avenue, thereby obstructing their ingress and egress to and from certain real estate owned by them. A demurrer to their evidence was sustained and they appeal.
Santa Fe avenue, formerly Fifth avenue, running north and 'south, is intersected at right angles by Third street. At the southeast corner of this intersection the plaintiffs’ two lots are situated, fronting substantially on Third street on the north and Santa Fe avenue on the west. The allegations contained in the second amended petition and necessary to be noticed are that Third street had for more than thirty years been a public thoroughfare and highway, and had been established and recognized by the city as such; that prior to the first day of March, 1913, the Santa Fe railway had occupied and used most of Fifth avenue for many years as its right of way, and had laid and maintained several tracks thereon; that two plats of certain additions left a small unplatted wedge between the west boundary of plaintiffs’ lots and the east boundary of Santa Fe avenue, and extending north, but that Third street across this strip was used openly and notoriously and adversely, and had been recognized by the city and worked as a street for more than thirty years; that the terminal and Santa Fe companies had taken up Fifth street with an elevated structure or incline leading to the union station several blocks south of the plaintiffs’ property, including a concrete wall about seven feet high on a secure foundation built across Third street on a line with the west line of the plaintiffs’ property,
“thereby leaving to the said plaintiffs the only means they had of reaching the main portion or body of the business portion of the city of Wichita by going east to Mead avenue . . . and thence south along said tracks to Second street or Douglas avenue,”
or through an irregular alley with jogs in it east of their property. It was further alleged that the city, by ordinance, assumed the burden of the damages resultirig from such use of Santa Fe avenue, and by section 16 thereof vacated that portion of Santa Fe avenue crossed by Third street.
The city pleaded, among other things, the failure of the plaintiffs to file a claim for their damages within four months, and the two-year statute of limitations. The Santa Fe answered, among other things, that it owned the right of way it was using upon Santa Fe avenue, and had acquired the same by deed of conveyance, and that its tracks thereon had been constructed and operated continuously for more than twenty years prior to April 23,-1911, by its grantor and itself, and that on the 12th of May, 1911, it had conveyed to the Terminal company certain parts of this right of way, which company had constructed the elevation thereon. It also pleaded the two-year statute of limitations. The Terminal company pleaded, among other things, this statute.
Assuming without deciding that the plaintiffs’ egress and ingress had been so obstructed as to entitle them to damages, if sought in time, and that such egress and ingress were thus obstructed by vacating and elevating Third street, it remains .to be considered whether they are barred by the statute requiring the filing of claims within four months, or by the statute of limitations, so that the court rightly sustained the demurred to their evidence.
Before discussing this it may be said that whatever the fact may be as to the wedge on the west of the plaintiffs’ property, and the claim that their lots were not contiguous to Santa Fe avenue at the intersection with Third street because of the continuation of such wedge north across Third street, we have no difficulty in concluding that all of Third street in that vicinity, including the alleged wedge, if any, on the east side of Santa Fe avenue, was abundantly shown by the evidence to have been for many years used, treated and recognized in all respects as a street, and must be so regarded now.
The plaintiffs insist that the city is estopped to avail itself of their failure to file a notice of their claim for damages, and say that the nature of the injury to the property of the plaintiffs is permanent, and the conditions created under the city’s own act and ordinance have become a permanent monument visible and apparent to the eye of the citizen of to-day; that the city by its own ordinance described the kind of obstruction to be placed in the street and helped to place it there; that it anticipated claims for damages-by providing in its ordinance for a board of appraisers to hear and determine damage claims, and they cite Ritchie v. The City of Wichita, 99 Kan. 663, 163 Pac. 176. There a taxpayer enjoined the city from acting upon an insufficient petition of abutting property owners to let a paving contract, and it was held that the statute in question did not apply to the circumstances of that case. The statute (Gen. Stat. 1915, § 1460) provides that no action can be maintained for damages on account of the injury to person or property unless within four months thereafter the one injured file with the city clerk a written statement “giving the time and place of the happening of the accident or injury received, and the circumstances relating thereto.” It is plain from this language that the object of the statement is to apprise the city of the place and circumstances of the injury. ■ It is difficult to see how the city, which enacted the ordinance and stood sponsor for the work of barricading Santa Fe avenue from approach on the east for the purpose of the important enterprise of building a union station, would have, received information of any possible benefit by any notice or claim which the plaintiffs could have filed except the mere warning that they intended to bring a lawsuit. However, the statute expressly prohibits the maintenance of an action without filing a claim, and such prohibition is not beyond the legislative power, and we are not authorized to nullify its action in this regard. Even in the situation here presented, the timely filing of the claim might have called the city’s attention to demands of which it had no notice and enabled it better to prepare for resisting an action than silence on the part of the property owner would have done. It is but fair to require one intending to sue the municipality in which he lives or owns property to give four months’ notification of any demand which may ripen into an action, and while in this instance the reasons which ordinarily go to make the filing of the statement practically as well as technically necessary are wanting, the prohibitive and jurisdictional nature of the requirement nevertheless remains. It appears that a statement was in fact filed, but not until April 10, 1914. As will be more fully shown herein, this was too late. It is held, therefore, that the plaintiffs can not recover against the city on account of the failure to file the statement as required by the statute referred to.
Of course there can be no recovery in this case unless the action was brought within two years from the time when the cause of action accrued. (Civ. Code, § 17, Gen. Stat. 1915, § 6907.) The pivotal question therefore is, When did the cause of action accrue? Attention is called to the admission of the city that all travel on Third street east of the tracks and west of the tracks was closed about Ocober 1, 1912, and to the testimony of one witness that the entire travel on Third street was obstructed September 9, 1912. All of the defendants argue that as the ordinance not .only provided for a change of grade but vacated a portion of the street and provided for appraisers to fix the damages, the cause of action accrued when the ordinance vacating the street took effect. This was April 4, 1911, and the city contends that the statute began to run on April 5, when the ordinance was accepted. The action was begun September 10, 1914. This ordinance, as already suggested, not only vacated but “vacated and closed, for the use and benefit of said railway company” that portion of Third street forming the intersection with Santa Fe avenue. Upon the enactment and acceptance of the ordinance the intersection was no longer a street, as said in Tomlin v. Railway Co., 141 Iowa, 599:
“And, when a street is properly vacated, it ceases to be a street. . . . And, when a street ceases to be public by reason' of its vacation, it is private property within the meaning of the law, and a road located thereon does not entitle an abutting owner to damages.” (p. 601.)
While there is some dispute in the testimony as to just when the legal barricade constituted by the ordinance and its acceptance was reenforced by an actual physical obstruction, there seems to be no dispute that on September 9, 1912, the actual work was begun and a sign put up and the street marked “Street closed, Ordinance No. 4066.” This was a permanent appropriation and the subsequent completion of the superstructure simply added a physical to the legal barrier. At this point of time, when, the ordinance having been enacted and accepted, the actual work of constructing the barrier was begun and the public were notified by the posting up of a sign that the street was vacated, the plaintiffs’ cause of action accrued. They could not, after this, use the intersection for the purposes of ingress and egress without becoming trespassers, without ignoring the warning sign, or without interfering with the actual work of construction. They were not compelled to wait until the work was completed before asking the court for damages, but they had a right to go on the assumption that the use of the intersection had been permanently denied them. The amount of damages was just as patent and susceptible of proof then as at any subsequent time, and for all legally practical purposes the property in question might as well have been bounded on the north and west by the Grand Canyon. In Hempstead v. The City of Des Moines, 63 Iowa, 36, 18 N. W. 676, it was held that where the grade of a street has been lowered from curb to curb in such a manner that a corresponding change in the level of the sidewalk must inevitably follow, a clear cause of action arises at once in favor of the abutting owners for the full amount of damage; and recovery of damages for change of the grade of a driveway is a bar to any further action on account of the grading of the sidewalk. In the opinion, Rothrock, C. J., said:
“The excavation at the corner oí plaintiff’s lots, at the intersection of Walnut and Tenth streets, was about six feet. This change in the surface of Walnut street made a corresponding change necessary in Tenth street, at the point of intersection. It also required the plaintiff’s sidewalk to be lowered to correspond with the change made in the surface of the street. Either such a change must follow, or travel from Tenth to Walnut street must cease; If Tenth street should be lowered at the point of intersection, plaintiff’s sidewalk must either be lowered, or access to it from the intersection must be by means of a stairway six feet in height. ... In our opinion, the change in the surface of Walnut street to the new grade, and the change of the sidewalk to correspond thereto, were parts of the same act, and that the damages thereto were indivisible, and were all recoverable in one action, although the work was not completed when the former action was brought.” (p. 39.)
In K. P. Rly. Co. v. Mihlman, 17 Kan. 224, it was ruled:
“Though from a completed wrong there afterward results new and unforeseen injury, there does not arise a new cause of action; and if a recovery has been had for the wrong prior to the occurrence of the new injury, no recovery can be had for such injury.” (Syl. ¶ 4.)
The cause was one for damages for trespassing by digging a ditch on the plaintiff’s land. In the opinion the court, speaking through Brewer, J., said:
“True, the trespass has now resulted in greater loss than was then foreseen or estimated in assessment of damages; but an increase in the damages resulting, adds no new cause of action. ... So, for the trespass, the cause of action is complete at the time, 'and an increase in the resulting damages gives no new cause of action. There are cases, it is true, in which the cause of action is based upon the actual occurrence of damage, and dates therefrom, and not upon or from the prior act which resulted in the damagfe; but these are all cases in which the prior act is itself lawful, and furnishes no cause of action, or where- it is considered as a continuing act; as, where one excavates on his own land, and thereby withdraws the lateral support to his neighbor’s soil and buildings, the act is itself lawful, and only becomes the basis of a cause of action for damages when it actually results in injury; and the cause of action dates, not from the time of the excavation, but from the time of the subsidence.”
(p. 228.)
In C. B. U. P. Rld. Co. v. Andrews, 26 Kan. 702, it was held that—
“Where a railroad company obstructs an alley in a city, by building a railroad track through the alley, so as afterwards to make the alley useless as an alley, an abutting lot owner has the right, if he chooses, to consider the obstruction as a permanent taking and appropriation. . . . (Syl. ¶1.)
In Parker v. City of Atchison, 58 Kan. 29, 48 Pac. 631, it was held that where a permanent improvement is made by a city on the bank of a watercourse in such a way as to narrow the channel and injure private property on the opposite bank, an action therefor can be brought only within two years after the erection of such improvement. (Syl. ¶ 4.) In Hubbard v. Power Co., 89 Kan. 446, 131 Pac. 1182, it was held that damages by the erection of a dam, permanent in character, causing overflow to the plaintiff’s land accrued at the time of the .appropriation. In McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899, the action was one to recover for permanent injuries to plaintiff’s land by the pollution of $ creek which ran through it. In the opinion it was said:
“As the sewer system constructed by the city and the refinery constructed by the oil company were permanent in their nature and as the flow of the sewage and refuse from them was designed to continue indefinitely in the future a cause of action for permanent damages arose when the sewage and other impurities were first emptied into the stream.” (p. 48.)
(See, also, Marshall v. Railroad Co., 96 Kan. 470, 152 Pac. 634, and cases cited; Hardesty v. Ball, 43 Kan. 151, 23 Pac. 937; Railroad Co. v. Schwake, 70 Kan. 141, 78 Pac. 431; and Note, 3 A. & E. Ann. Cas. 123.)
It is held, therefore, that for the reasons indicated the action is barred and the order sustaining the demurrer to the plaintiff’s evidence is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The International Harvester Company of America, a creditor of the estate of John D. Kappelman, deceased, appealed to the district court from an order made by the probate court upon the final accounting and settlement of Robert Algie, the administrator of the estate. The court rendered judgment for plaintiff and directed that the matter of the settlement of the estate be remanded to the probate court for further proceedings according to law. Algie appeals.
The defendant was appointed administrator of the estate in April, 1910, and his first report was made to the probate court on March 30, 1911. In this report he stated that he had received from the sale of goods and from collections upon notes and accounts.the sum of $17,383.72, and he asked credits for payments he had made of claims against the estate in the amount of $17,048.07, showing a balance in his hands of $335.65. A second report was made by him on May 14, 1912, in which'he reported that he had collected $3,062.61, and he claimed credits for money paid for the estate in the amount of $2,857.38, leaving a balance on hand of $205.23. No other annual reports appear to have been made by him. The first report was approved by the court, but it does not appear that he secured the approval of the second. On April 20, 1915, he made what he called a final report, from which it appeared that he had sold a farm of 200 acres, that had been owned by the deceased, for $14,000, and that with the balance on hand at the last report and the money since derived from the sale of the farm and other sources he had $14,706.59. He credited himself with $500 to pay for his own services and $100 to pay the fee of an attorney, and these with other items of credit claimed by him amounted to $14,527.42, leaving a balance on hand of $169.17. The report showed that he had uncollected notes and accounts of the face value of $9,913.65, but the actual value of these was not shown.
The plaintiff had two claims against the estate which had been legally allowed and established but never fully paid by the defendant, although he appears to have had funds in his hands to meet them, which were paid out on claims that were not legally allowed and should not have been paid in preference to plaintiff’s claims. In June, 1910, a claim of the plaintiff for $3,306.73 was presented to and allowed by the probate court, and payments were made on this claim from time to time until it was reduced to $1,089.72. There being a long delay, the plaintiff, on March 1, 1913, applied to the probate court to require the payment of this balance at once, and after a hearing, the court ordered the administrator to make payment of the claim, with interest from June 24, 1910, at six per cent, forthwith and not later than March 15, 1913. No appeal was taken from this adjudication, and the only compliance with it consisted of a payment of $500.
The other claim of plaintiff was for new goods purchased by the administrator, who appears to have conducted the hardware business of the deceased for a time for the benefit of the estate. The goods so purchased, with the sanction of the court, to replenish the stock and keep the business running, amounted to $335.40, and the receipts from the sale of these goods were used in paying the indebtedness of the estate. The claim not being paid, application was made by the plaintiff to compel the administrator to pay it at once as part of the operating expenses of the business, but the application was refused. An appeal was taken from this order to the district court, and on March 31', 1914, that court adjudged that the claim was a part of the expenses of administration and ordered that it be paid forthwith. No appeal was taken from this order and it has therefore become final, but it has been ignored by the administrator.
It appears.that he failed to pay these claims when he had funds on hand with which to pay them — funds which he subsequently paid on claims not legally established. He ignored the classifications prescribed by statute, paying claims that were not legally exhibited within one year after he was appointed administrator in preference to those that were presented and allowed during that year. It appears that the only claims presented and allowed during the entire course of the administration were those presented in June and October of 1910. All other claims, regardless of whether or not they, exceeded fifty dollars, were paid without having been legally exhibited and allowed. It also appears that the administrator held two uncollected notes of J. H. Kappelman, one for $750 and another for $1,756.65, and yet it appears that J. H. Kappelman had been paid over $580 upon claims he held against the estate.
From the facts in the case it is clear that the estate was not ripe for final settlement when the order of the probate court was made. Final settlement is not to be made until the estate has been fully administered. (Gen. Stat. 1915, § 4637; In re Moseley’s Estate, 100 Kan. 495, 164 Pac. 1073.) Aside from the fact that there are assets still undisposed of and debts of considerable amount unpaid, it appears that the administrator has paid many claims exceeding in amount fifty dollars which were never allowed, and left unpaid those which were legally established, and which had been expressly ordered by the court to be paid at once. According to his report the estate is insolvent, and yet, as we have seen, he failed to observe the statutory classification and priorities. The plaintiff, whose claims should have been but were not paid, had a right to object to the final settlement of the estate, and it was highly important, too, that it should do so for its own protection. A final settlement is a direct adjudication that the estate is fully administered, that the administrator has completely executed his trust and has accounted for all moneys received, as the law requires; and it is final and conclusive unless appealed from. (Musick v. Beebe, Adm’r, 17 Kan. 47; Smith v. The Eureka Bank, 24 Kan. 528; Proctor v. Dicklow, 57 Kan. 119, 47 Pac. 86.)
Even the classification of a demand has the effect of a judgment which the administrator as well as creditors are bound to observe. (Wolfley v. McPherson, 61 Kan. 492, 59 Pac. 1054.) Plaintiff’s claims were duly presented within a year after letters were granted to the defendant. They were of the fifth class and entitled to precedence over those not presented until after that time. Those not presented until after one year and within two years belong in the sixth class, and those not exhibited within two years are forever barred. (Gen. Stat. 1915, §§ 4564, 4565.) Classification and priority are matters of the highest consequence, especially where the assets of the estate are insufficient to meet the indebtedness against it. In Wolfley v. McPherson, supra, it was said:
“If the estate outside the exemptions will not pay in full, the demands of the later classes must go unpaid, and in such instance it becomes a matter of vital consequence to a creditor that the demands of the others, as well as his own, be properly classified. Nor is the classification one of indifference to the administrator. The allowance of a claim against the estate of a deceased person is a judgment against the administrator in .his trust capacity.” (p. 493.)
The effect of failing to pay established claims according to classification is stated as follows:
.“Where the assets are ample for the adjustment of all claims in full, there can be little occasion for closely observing rules of legal priority; this priority denoting, not the time for payment, but the dignity of the claim. When, however, a deficiency occurs, and the estate is a slender one, the executor or administrator should regard such rules carefully; for, if he pays an inferior claimant in full, and leaves not enough after-wards to settle all the superior claims which may in due time be presented, he can not plead a want of assets, but must respond out of his own estate; and so pro rata as to other claims of equal dignity, for all such should be paid proportionally alike.” (2 Schouler on Wills, Executors and Administrators, 5th ed., § 1425.)
In 2 Woerner’s American Law of Administration, 2d ed., section 364, it is said:
“But as to the personal assets the executor or administrator is bound, at his peril, to observe the order of priority in the payment of the debts of his testator or intestate; for if he pay those of a lower rank first, having notice of the existence of debts of a higher degree, he must, on a deficiency of assets, answer to those of the higher degree out of his own estate.”
We have seen that the greater part of the indebtedness of the estate was paid by the administrator when the claims had not been presented and allowed. These demands could not be classified until they had been legally exhibited. The payment of a debt of more than fifty dollars before it has been allowed is contrary to law and made at the risk of'the administrator. It has been said that— i •
' “The allowance or judgment in favor of a creditor is conclusive as to the validity of the debt; but whether the executor or administrator is entitled to credit for its payment depends upqn the further question of the sufficiency of assets, and if he has paid such a debt or allowance in ad vanee of an order to that effect, he has done so aá the risk of having so much disallowed as may be in excess of the dividend to which the creditor is found to be entitled.” (2 Woerner’s American Law of Administration, 2d ed., § 520.)
If the assets of the estate are sufficient to pay all claims in full, the fact that just demands were paid irregularly would not prevent the court from subsequently ratifying his action and giving him credit for such payments. (Young v. Scott, 59 Kan. 621, 54 Pac. 670.) However, if the assets are insufficient to meet all demands, the lack of presentation may become quite important in the matter of priorities. For instance, if a claim is not exhibited or allowed within a year it will' fall into a lower class than allowed claims of the same general character, and a just claim not exhibited within two years is not enforceable unless the claimant is under disability. In this state claims presented after the end of a year fall into the sixth class, regardless of the class to which they would have been assigned if exhibited before that time, and all exhibited demands of any of the first five classes are entitled to a preference over them.
The claims of the plaintiff were not adjusted and paid in accordance with this and other rules to which reference has, already been made. The admitted facts in the case and those established by the evidence show that the estate was not fully administered and that the administrator had not fully discharged his trust when the so-called final settlement was made.
The judgment of the district court, setting aside the order of the probate court approving the- final report of the administrator and the final settlement of the estate and releasing the administrator and his sureties, is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for the partition of real estate. The contested issue was whether or not certain deeds had been delivered. The plaintiffs prevailed and the defendants appeal.
The real estate belonged to John D. Randall, who died intestate in August, 1904. His wife, Sarah Randall, died intestate in March, 1914. Six children survived their parents: Wallace C. Randall and Harry L..Randall, the plaintiffs; Sam D. Randall, Emma Rudell, Alice Bennett, and Charles E. Randall, the defendants. The facts of the.case and the claims of the litigants are clearly presented in detail by the findings of fact returned by the jury and adopted by the court:
“Did J. D. Randall on the 12th day of August, 1901, make and execute a warranty deed conveying a portion of the real estate described in plaintiffs’ petition to his wife, Sarah Randall? A. Yes.
“If you answer the above question in the affirmative, did J. D. Randall place the said deed in his trunk with his own papers and keep it there until his death? A. Yes.
“Did Sarah Randall ever personally have possession of said deed before the death of J. D. Randall? A. No.
“Did anyone ever have possession of said deed for Sarah Randall during the lifetime of J. D. Randall? A. No.
“Did J. D. Randall ever in his lifetime deliver said deed to his wife directly or to anyone for her, intending'.to convey the title to said property to her? A. No.
“Did J. D. Randall retain possession of and control of the deed to 'Sarah Randall during his lifetime? A. Yes.
“Did Sarah Randall execute deeds to certain of the property involved in this suit to her children, Alice Bennett, Emma Rudell, Charles E. Randall and Harry L. Randall? A. Yes. ^
If you answer the last question in the affirmative, where did she place said deeds after they were executed by her? A. In trunk.
“Did Sarah Randall ever deliver- either of said deeds personally to any of the grantees named in said deeds? A. No.
“Did Alice Bennett personally have possession of the deed to her at any time before the death of Sarah Randall? A. No.
“Did Emma Rudell personally have possession of the deed to her at any time before the death of Sarah Randall? A. No.
“Did Charles Randall personally have possession of the deed to him at any time before the death of Sarah Randall? A. No.
“Were any or either of the deeds made by Sarah Randall delivered to any other person for the grantee named therein before the- death of Sarah Randall? A. No.
“If you answer that Alice Bennett had possession of the deed referred to before the death of Sarah Randall what did she do with it? A. Did not have it.
“If you find that Emma Rudell had possession of the deed to her 'before the death of Sarah Randall, what did-she do with it? A. Did not have it.
“If you find that Charles Randall had possession of the deed to him before the death of Sarah Randall, what did he do with it? A. Did not have it.
“Were the deeds in question in the trunk at the home of Sarah Randall on the day before Sarah Randall’s death? A. Yes.
“Was it the intention of Sarah Randall that said deeds or any of them should be delivered before her death? A. No.
“Did Charles E. Randall have in his possession about the year 1908 the deed which is in evidence, to him from his mother? A. No.
“Did Charles give that deed to S. D. Randall? A. No.
“Did Emma Rudell have in -her possession the deed to her from her mother, which is in evidence, in the year 1910? A. No.
“Did Emma Rudell give that deed to S. D. Randall? A. No.
“Did S. D. Randall have in his possession, during his mother’s lifetime, the deed from his mother to Alice Bennett, which is in evidence? A. No.
“Did S. D. Randall have in his possession during his father’s lifetime, the deed from his father, J. D. Randall, to his mother, Sarah Randall, which is in evidence? A. No.”
It is assigned as error that the court struck out certain testimony. Emma Rudell, a witness in her own behalf, testified on direct examination that before her mother’s death she had in her possession the deed to her from her mother, and that-she gave the deed to her brother, S. D. Randall, known as “Pete,” so her mother could have the use of the property during the mother’s lifetime. On cross-examination she was asked questions which she answered as follows:
“Q. When did Pete give you this deed — how long ago? A. About a year ago.
“Q. He gave you this deed after your mother died, didn’t he? A. No, sir.
“Q. Do you tell this jury and this court that Pete didn’t give you this deed since your mother died? A. Pete gave me that deed since mother died.
“Q. And that is the first time that you ever did have it, isn’t it? A. No, my mother gave it to me.
“Q. That is when you first got it? A. Yes.
“Q. And she gave it to you before you gave it to Pete? A. Yes.”
On motion of the plaintiffs the answer that the witness’ mother gave her the deed was stricken out, because the witness was incompetent to testify to that fact. The cross-examination related to the time when the witness first had possession of her deed. She volunteered the statement that her mother gave it to' her. While the succeeding question would have been in better form if it had been, “And you had the deed before you gave it to Pete?” there was clearly no purpose to call out matter concerning which the witness was not qualified to testify, and the plaintiffs were entitled to have the statement withdrawn from the jury.
S. D. Randall was examined in chief as a witness for the defendants, respecting his possession of the deed to Alice Bennett from her mother. The plaintiffs interposed the following objection:
“If he obtained that instrument directly from his mother, the grantor, in that deed I object, because he is incompetent to testify to that fact under the statute; it is simply a way to avoid the letter of the statute and the decisions of our supreme court; I think the court should ascertain if it comes in that way, that it is incompetent.”
, The objection was overruled, and for the purpose of disclosing the incompetency of the witness the plaintiffs interposed a preliminary question, which was answered as follows:
“Q. Did it come into your possession by your mother handing it to you, or giving it to you? A. It did.”
The objection that the witness was incompetent was renewed, and the answer to the preliminary question was stricken out. The plaintiffs were seeking to keep out incompetent testimony, and not to use a disqualified witness. Therefore, the rule that the incompetency of a witness is waived by cross-examining him in respect to transactions with. a deceased person, as new matter, has no application.
t It is assigned as error that the court admitted improper testimony. The issues were so framed that the defendants assumed the burden of proof. They introduced in evidence the declarations of Sarah Randall respecting the disposition of her property, tending to show delivery of her deeds to her children. The defendants, however, objected to proof of other declarations of the grantor offered by the plaintiffs, very clearly indicating nondelivery of the deeds. The objections were properly overruled. Other evidence which need not be recited was properly admitted over the objection of the defendants.
The defendants debate the effect of the presumption of delivery attending the possession of deeds, in connection with the ■sufficiency of the evidence to sustain the findings. There is nothing to indicate that the court, when it adopted the jury’s findings, did not give due weight to the presumption. Besides this, there was some conflict in the evidence, and different inferences might be drawn from the evidence. The defendants’ theory of the case did not impress either the court or the jury very strongly. Interpreting the evidence, as this court must do, most favorably to the plaintiffs, the presumption was overthrown.
The findings of fact were returned and the jury were discharged on January 20, 1915. On March 3, 1915, but before final judgment was rendered, the defendants moved the court to open the case for further testimony. In support of the motion affidavits were filed indicating what the testimony would be. This showing was met by counter affidavits. The court held the matter under advisement until September 27, 1915, when the motion was overruled. The defendants say the court should not have permitted the plaintiffs to contest the showing made in support of the motion, and that the motion should have been sustained. There were good Reasons for denying the motion without entertaining a counter showing. The subject of opening the case for further testimony was one resting in the discretion-of the court, and if none but the affidavits filed by the defendants were considered it could not be said that the court abused its discretion in denying the motion. It would be a strange rule of procedure which would prohibit a court from enlightening an exercise of its discretion by hearing from both sides, and no such rule exists in this state. Considering the showing of the plaintiffs and the countershowing in connection with the previous proceedings, it is clear the court was abundantly justified in denying the motion.
The defendant, Charles E. Randall, filed his answer and filed a cross-petition on May 16, 1914. The trial closed more than eight months later. The motion to reopen the case was denied more than eight months after the trial closed. More than three months after the motion to reopen the case had been overruled, Charles E. Randall disclosed to the court a different basis of title which he had thought of, and moved for leave to amend his pleading to present the new issue. He asserted that in August, 1901, he made an oral contract with his parents to stay with them and care for them until they died, in consideration of-which he was to receive at their death the land which he claimed. Pursuant to this contract, he had gone into possession \ had made lasting and valuable, improvements; had used all the rents and profits of the land in caring for Jiis parents, and had expended some money besides, relying upon this oral contract, which' he had fully performed on his side. The motion was accompanied by affidavits and was opposed by counter affidavits, some of which went so far as to declare that Charles was the one who had been supported, and not his parents. All that has been said respecting the ruling on the application to reopen the case applies to the ruling denying this motion.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The defendant appeals from adverse decrees touching the foreclosure of certain mortgages. The facts of these cases present a comedy of errors. William Thompson owned in fee simple the land in controversy. The Oakwood Drug Company was chartered under the laws of Missouri “for the purpose of carrying on a general retail drug business in Kansas City, Missouri,” and to that end owning and conducting retail drug stores in different parts of Kansas .City, Mo., for profit. Whether dr not it had any legal authority to deal in real estate, it did on October 25, 1909, purchase of T. Y. Lowe the land involved herein for $6,100 cash, executing to Thompson, who had agreed to sell to Lowe, a mortgage for $3,800, and another to Lowe for $1,300, each recorded on the 16th day of December, 1909, the one at 3:30 p. m., and the other at 9:20 a. m. The parties intended that the Thompson mortgage should be the first and prior lien. The certificate of the officer taking the acknowledgment, instead of reciting that the Oakwood Drug Company or some one on its behalf acknowledged the ’ execution of the instrument, recited that Frank N. Johnson and C. B. Striegel of the Oakwood Drug Company executed it and acknowledged such execution. On January 12, 1910, Lowe, the owner of the $1,300 mortgage, made an affidavit that, the $3,800 mortgage was intended as a first mortgage and the other as a second, and that the recording of the latter first was a mistake and that the larger one should have been filed for record first. To this was attached an ordinary jurat by a notary public but no formal acknowledgment. Thompson sold and assigned his mortgage to the plaintiff Detmer, and the defendant Salinger by assignment became the owner and holder of the Lowe mortgage. On January 22, 1913, she began an action against the Oakwood Drug Company alone, praying foreclosure of her mortgage, and on July 1, 1913, took a decree of .foreclosure, and thereafter the real estate was sold and the property bought in by her and the sale confirmed. After the expiration of the redemption period a deed was executed and delivered to her. Thereafter the plaintiff filed his petition in the cause, alleging that no service had ever been made therein, setting up his own mortgage and its priority and praying that the decree of foreclosure be set aside, that he be made a party defendant and have judgment for the amount due on his claim, and that it be declared a first lien. The court found that at the time of her purchase of the note and mortgage the plaintiff did not know that any other mortgage existed against the land therein described and that none of her prior assignors had any notice or knowledge that a prior mortgage existed before the issuance of the sheriff’s deed to her. The court concluded as matters of law that the certificate of the notary taking the acknowledgment appearing on the Thompson mortgage failed to comply with the requirement of the law and was void, and there being no other proof of its execution, it was not properly receivable in evidence and therefore its admission was denied, and that not being entitled to record and the defendant and her prior assignors having no actual notice of it, her rights were not affected by it.
The plaintiff in case No. 20,987, the holder of the $3,800 mortgage introduced evidence for the purpose of showing that the plaintiff in case No. 21,111 had never made service on the drug company. It seemed from this evidence that no publication service had been made in any newspaper in the county. It was also testified that Johnson, the president of the company, and Striegel, secretary, signed the mortgage. It appears that in case No. 21,111 a summons was issued by the clerk of the district court, directed to the sheriff of Jackson county, Missouri, commanding him to notify J. N. Johnson,-president of the Oakwood Drug Company, in Kansas City, Mo., that he had been sued and must answer the petition on or before the day named or it would be taken as true. The only return on this summons was as follows:
“State of Missouri, Jackson county, ss.:
“Received this writ this 15th day of April, at 9 a. m. o’clock; executed the same in Jackson county, Missouri, on the 22d day of April, A. D. 1913, by delivering a copy of the within writ, duly certified with th§ endorsements thereon in the within entitled cause as furnished to me by the clerk of the district court of Sherman county, Kansas, duly certified by the district clerk of said court, to F. N. Johnson, president; and chief officer of the within named defendant corporation, personally.
Edward Winstanley,
Sheriff of Jackson county, Missouri.
By Gordon Wallace, Deputy.
“State of Missouri, Jackson county, ss.:
“I the undersigned, do solemnly swear that the times and manner of service of the within alias summons as stated in the annexed is true, so help me God. Gordon Wallace.
“Subscribed in my presence and sworn to before me this 28th day of April, a. d. 1913. R. Pearl Sharp,
(Seal.) Notary Public, Jackson county, Missouri.
“My commission expires October 25, 1914.”
Detmer contends that the Salinger decree was void because without service, so that the court had no jurisdiction, and that it could be vacated at any time on motion of any person affected thereby. He also contends that the decree described the wrong land; that the Lowe affidavit was properly recorded under section 2068 of the General Statutes of 1915, which provides that every instrument in writing that conveys real estate or whereby any real estate may be affected, proved, or acknowledged, and certified as therein before described, may be recorded, and that the jurat in this case amounted to a sufficient acknowledgment. Mrs. Salinger argues that as the drúg com pany does not complain of the service in the suit brought by her, and that as the plaintiff was not a party thereto, he is not prejudiced thereby; that the mere fact that the affidavit of service was made before a notary public instead of a clerk of a court of record or some commissioner appointed by the governor of this state, does not render the service void; that the real questions decided were the exclusion of the Thompson mortgage and the effect of the Lowe affidavit; and that the former was improperly acknowledged and the latter. improperly filed for record.
The affidavit, even if it had been acknowledged in the form and manner proper for a deed (Gen. Stat. 1915, §2060), could not change the effect of the record already made of the two mortgages or the priority fixed by the actual order of their registration.
The Thompson mortgage was not executed and acknowledged as required by statute (Gen. Stat. 1915, § 2159), and it was not error to hold the instrument unentitled to registration or admission in evidence as against the Salinger mortgage.
The decree of foreclosure in the Salinger case recited that service of summons had been duly and regularly made by publication as provided by law, and this cures the seeming lack of an affidavit, indicated by the testimony of the newspaper publishers and court officers cohcerning such affidavit. (Bank v. Telephone Co., 88 Kan. 287, 296, syl. ¶ 3, 128 Pac. 357.)
It appears, therefore, that neither the Lowe affidavit nor the Thompson mortgage was sufficient to preclude the plaintiff, Salinger, from foreclosing. Hence, unless the failure of the Missouri deputy sheriff to swear to his return before a clerk of a court of record or other officer holding a seal thereof, or before some commissioner appointed by the governor of this state as required by section 82 of the code of civil procedure (Gen. Stat. 1915, § 6973), renders such proof of service void, the refusal to set aside the decree was not error.
When the code authorized the service to be made by the sheriff only, it was twice held that service by his deputy was void. (Flint v. Noyes, 27 Kan. 351; Kincaid v. Frog, 49 Kan. 766, 31 Pac. 704.) In K. P. Rly. Co. v. Cutter, 19 Kan. 83, the attestation of a foreign record was made by a deputy clerk instead of the clerk of the probate court of Arapahoe county, Colorado, and his authority and the form of his attestation were certified by the probate judge. Of the section of the federal statute involved, it was said:
“That section however authorizes attestation by the clerk, and names no other person. And it seems to be settled that this of itself grants no authority to a deputy clerk.” (p. 86.)
Morris v. Patchin, 24 N. Y. 394, was cited to the effect that as the authority of the attesting officer came from the federal and not from the state statute, the certificate of the judge as to the authority of any person other than the clerk was of no .more force than would be a like certificate as to the effect of -.the judgment. In Flint v. Noyes, supra, it was said:
'“In this case the sheriff of Buchanan county did not make service of the summons; therefore the statute was not complied with, and the defendant was not served at the time of judgment with the process of the court as prescribed by law. The deputy sheriff of Buchanan county had no more authority to make service than any other person acting as a substitute for the sheriff.” (p. 358.)
The Missouri court of appeals in Murdock v. Hillyer, 45 Mo. App. 287, held that the affidavit of service under the Missouri statute must be made before the clerk of the designated court and not before his deputy. The language of the statute there under consideration was as follows:
“Such service may be made by any officer authorized by law to serve process within the state or territory where such service is made, and shall be proved by the affidavit of such officer, stating the time and manner of such service, made before the clerk or judge of the court of which affiant is an officer.” (p. 290.)
It was said that the only authority the deputy clerk in Kansas had to act for his principal was the law of Kansas, but that the power to act was derived from the law of Missouri, which gave authority to the clerk and not to the deputy.
Section 6741 of the General Statutes of 1915 provides:
“The governor may appoint in each of the United States and territories and in the District of Columbia, and in foreign countries one or more commissioners, to continue in office during the pleasure of the governor for the time being; and every such commissioner shall have power to administer oaths, and to take depositions and affidavits to be used in this state, and also to take the acknowledgments of deeds, powers of attorney or other instruments to be recorded in this state.”
In his petition Mr. Detmer sought to foreclose his mortgage as a first lien, alleging that whatever interest Mrs. Salinger had was junior and inferior to his. In his amended reply he alleged that any deed she might have obtained as a result of the foreclosure suit was void and voidable as to his interest—
“For the reason that same is based on a second lien subject to the first mortgage lien of plaintiff without notice to plaintiff, the grantee in the mortgage sued on, of his assignee, over whom, or either of whom the court had no jurisdiction whatever and none of whom were parties to the suit of the defendant Viola Salinger, against said Oakwood Drug Company.”
It will be observed that up to this point there is nothing in the pleadings indicated any reliance upon the insufficiency of the return. In his amended motion to set aside the decree it was alleged, among other things, that no service of summons in any form was made or attempted upon the defendant, that no personal service was ever made or attempted within the state of Nansas, that no service of summons by publication was ever made or attempted to be made, and—
“Fifth. That the only service of summons upon the defendant in this cause ever made or attempted to be made was served upon one Frank Johnson only, and that said service so made, was made in the state of Missouri, and not within the state of Kansas.
“Sixth. That the said summons so issued in this cause and from this court, and served on the said Frank Johnson, was so issued without warrant at law, and without any affidavit for service on the defendant by publication having been filed in this cause.
“Seventh. That the alleged service of summons upon the said Frank Johnson, or upon the defendant, The Oakwood Drug Company, was made or attempted to be made in the state of Missouri, has never been served, nor the alleged service thereof proved- and authenticated as required by the statutes of the state of Kansas.”
Notwithstanding this amendment, the trial court adhered to the decree theretofore rendered, which recites:
“The plaintiff shows to the court, and the court finds, that service of summons has been duly and regularly made upon said defendants, by publication, as provided by law.”
The evidence, save that touching the affidavit for publication, is not brought up and we are not advised as to the evidence on which this recital was based. But at any rate the trial court so found, the land went to sale, the redemption period expired, a sheriff’s deed was executéd and delivered to Mrs. Salinger, and. under the statute it was of itself sufficient evidence of the legality of the sale and of the proceedings therein until the contrary should be proved, and vested in the purchaser as good and perfect an estate in the premises as was vested in the persons against whom the execution was issued. (Gen. Stat. 1915, § 7406; Knox v. Doty, 81 Kan. 138, 143, 105 Pac. 437; Bank v. Carter, 81 Kan. 694, 696, 107 Pac. 234.)
It is clear beyond question that-service was actually made by the proper officer and the return was properly made, the trouble being that it was sworn to before a notary public with power to administer oaths and take depositions instead of a commissioner with such power. In view of sections 141 and 581 of the code of civil procedure, requiring all defects in pleadings or proceedings which did not affect the substantial rights of the adverse party to be disregarded hnd expressly forbidding the reversal of any judgment or order by reason of such defect, and the long line of decisipns in accord therewith (Hamilton v. Railway Co., 95 Kan. 353, 358, 148 Pac. 648, and cases cited), it would seem like a refinement of technicality, disobedience of the legislative mandate, and a departure from our own settled rule, to hold the Salinger decree absolutely void. '
The other points pressed are without merit and the judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
This is an action brought by the plaintiff to recover damages for injuries alleged to have been caused by the wanton carelessness and negligence of the defendant’s agent, a boy fourteen years old, in driving her car, and in running him down at the intersection óf Eleventh and Myrtle streets, in the city of Independence. The court sustained a demurrer to the plaintiff’s evidence, and hence this appeal.
Eleventh street runs north and south and is crossed at right angles by Myrtle street, in the center of which is a street-car track. City ordinances required motor vehicles to keep on the right side of the highway, as near as possible to the curb line, and forbade their turning to the left to enter an intersecting highway before passing the center thereof. The testimony showed that the plaintiff was riding a bicycle west on Myrtle street about half way between the street-car track and the south curb, while the car was approaching the intersection from the south, each going about fifteen miles an hour, but hot speeding, the car being near or a little to the left of the center of Eleventh street. As the plaintiff approached the west side of Eleventh street the car came upon the intersection west of the center of Eleventh street, and south of the center of Myrtle street, veered to the left and struck the plaintiff when about twelve feet from the west curb of Eleventh street. The driver of the car sounded the alarm and had his foot on the clutch and brake, and testified that if he had not turned he would have hit the plaintiff.
While it is clear that each was on the wrong side of the street, and while there is no evidence of wanto'nness, the plaintiff testified that he passed the front of the car and had it kept in a straight line or in the same direction it was going he could have safely passed in front of it.
“T figured if the automobile come straight on I would miss it by going on straight while if I had slacked speed I thought they would run over me.
“Q. After you had concluded that, what did you' do? A. I went on my western course and would have made it all right if the automobile had n’t followed me up.”
The driver of the car testified that as the plaintiff came into Myrtle street he was going west with his head right between the handlebars and did not look up. That the witness began to apply the brakes when about seventy-five feet south of Myrtle street.
“Q. Well, can you explain to the jury then, Donald, why it was necessary for you to turn the car to avoid running into him when you had fifty feet yet to go and he only twenty? A. Well, if I had gone straight on I would have hit him straight.”
An eyewitness testified that he did not think there would have been an accident if the car had gone straight north to the center of Myrtle street, or that theré was anything to prevent its so proceeding. He saw it was going to be a close call.
After testifying that he had no doubt he could have passed in front of the car safely had it continued straight north, the plaintiff on cross-examination answered that from the time he first saw the car he could have stopped his bicycle but did not; that he watched the car approaching all the time and heard the gong and continued on in his course. It is insisted that his own carelessness so contributed to the injury that as a matter of law he is precluded from recovery. While he may have been careless, it is clear that the fourteen-year-old boy who was driving the car was careless, and his turning to the left instead of going straight on seems to have been disastrous.
The circumstances shown by the record are such that as to contributory negligence a question of fact was presented which should have been submitted to the triers of fact, for reasonable men might well differ on that point.
Therefore, the order sustaining the demurrer to the plaintiff’s evidence is reversed, and the cause remanded for further proceedings.
Marshall, J., not sitting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action brought by D. W. Dodson to recover from C. F. Moran the balance of the price of a cement silo which Dodson had built for Moran. The action was begun in the city court, and from the judgment in that court the defendant took an appeal to the district court. An answer was filed by the defendant alleging that the silo built was defective and worthless, and he therefore asked to recover the amount he had already paid upon it. He also alleged that because of defects and the unfitness of the silo the ensilage placed therein was spoiled, and he presented claims for board furnished to plaintiff’s men and for certain other things furnished to plaintiff during the building of the silo. This answer, it appears, was subsequently withdrawn. However, the same defenses were set forth by defendant in his opening statement to the jury, but there was no claim that the plaintiff was not a proper party to bring the action. A verdict and judgment in favor of the plaintiff for $157.50 was given, and the defendant appeals.
Although not mentioned in the answer filed or in the statement of defenses, defendant offered testimony tending to show that before the action was begun Dodson had transferred the claim to a partnership composed of himself and Kent Merry, and the jury returned a special finding to the effect that the plaintiff had transferred the claim against the defendant to the partnership before the commencement of the action.
On this appeal defendant contends that the action was not brought by the real party in interest; that the special finding is fatally inconsistent with the general verdict; and, also, that in returning a verdict the jury utterly disregarded the instructions of the court.
Under the code, actions must be prosecuted in the name of the real party in interest. The objection should have been raised by the defendant in the answer which he filed or in the statement of his defenses. However, testimony on the question was received without objection, and it was treated as an issue in the case. Defect of parties is not a ground of demurrer under the new code, section 93, and hence it does not fall within the waiver provision in section 95 of the code. Whatever might have been the result if a timely objection had been made to testimony concerning the transfer of the claim, the parties with the consent of the court made it an issue in the case and submitted it for the determination of the jury. The matter of waiver is therefore no longer available. The plaintiff cites Ennis v. Nusbaum, Adm’r, 90 Kan. 296, 133 Pac. 537, in support of the judgment, where it was held that if the one not a party had the sole right to maintain the action, the testimony which he had given in the case might be regarded as a virtual assignment of the claim to the plaintiff. Here the testimony of the partner Merry is entirely inconsistent with an assignment. He testified that there was no assignment of the claim to him.
Apart from this consideration, there must be a reversal of the judgment. The court instructed the jury that if they found the claim to have been transferred to the partnership and to have been owned by it when the action was begun, no recovery could be had by plaintiff. In utter disregard of this instruction, the jury, after finding that there had been a transfer, returned a verdict in favor of the plaintiff. ' It was the bounden, duty of the jury to accept and follow the law as expounded to them by the court. Where a jury disregard so plain an instruction as the one in question and become a law unto themselves, who can say that other instructions of the court have not been ignored, or that proper consideration has been given to other questions involved in the case? In Ryan v. Tudor, 31 Kan. 366, 2 Pac. 797, it was said:
“Now whether the court was right or not in its instructions, it was the duty of the jury to accept them as correct, and be guided by them; and upon a failure so to do the verdict should be set aside.” (p. 368.)
(Railway Co. v. Schroll, 76 Kan. 572, 92 Pac. 596; McCullough v. Railway Co., 94 Kan. 349, 353, 146 Pac. 1005.)
The judgment will therefore be reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff has filed a petition for a rehearing. The opinion complained of is found in Miller v. Thayer, ante, p. 355. An additional statement will probably make clearer the conclusion reached by the court.
The defendant on cross-examination testified that he paid Mr. Robinson $100 for going to Salina, and that he had Robinson there one week in his interests to invoice the stock of goods.
“Q. And to examine them? A. I suppose so.
“Q. And inspect them? A. Yes, sir.
“Q. And to protect your interests? A. Yes, sir, to protect my interests.”
The abstract shows that Robinson’s testimony was, in part, as follows:
“Mr. Thayer first spoke to me, probably a week before, at my place of business at Severy. He asked me if I would come and invoice the stock of merchandise for him if he traded for it. I told him I could n’t do it. He rather insisted. Finally I told him I might be able to come. • He said he was coming to look the stock over and if he made the trade he would wire me and I should come at once. I told him I could do him more good now than any other time in the conversation. He said he did n’t need me at that particular time, but that if he traded for the stock he wanted me to invoice it for him.
“I had a talk with Mr. Thayer about these goods at lunch. I told Mr. Thayer I thought he had got hold of a bad bunch; that I did n’t like the idea of taking the stock as it was marked and taking everything as it come. He told me that was his contract. He says, ‘Miller has the best of the contract; he has it all his own way, and you go on and take the goods as they are marked.’ He says, ‘Miller thinks there is about $17,000 of the stock; what do you think of it?’ I said, ‘I believe it is there.’ He says, ‘I don’t think it is there.’ I told him I believed it was there in the first place because Mr. Miller said it was there; he ought to know; in the second place the house was chucked full of merchandise and it looked like it might be there; it could be in a room with such merchandise as that was; there might be that much stock all right. That was within a couple of hours after we commenced to take the invoice. The second or third day of invoicing we came to a halt. I was so dissatisfied with some of the markings of the goods that I asked to see the contract. I presume I asked Mr. Thayer, but he did n’t show it to me. He told me it was n’t necessary to see it, that his contract was that he should take the stock of goods at the wholesale cost and that was to be governed by the marked price of the goods. I had that information before 1 commenced to invoice for Mr. Thayer. I had another talk during the invoicing, asked to see the contract and they showed it to me. I made the statement that I believed we were paying too much for the merchandise; it was marked higher than it originally cost in the presence of Mr. Thayer, probably to Mr. Miller or Mr. Thayer, I don’t know'which. Mr. Thayer gave me the contract, but .did not make any statement that I remember. f \
“Q. Now, to refresh your memory, didn’t you tell Mr. Thayer those goods were rotten? A. I repeated that more than once, evidently.
“Q. Well, did you repeat it more than once? A. Yes, sir; clear through the stock; even in the shoes.
“Q. You applied that term to the shoes, too, did you? A. Yes, sir; especially the shoes that were taken on the bottom ledge behind the front ledges; there were two ledges of shoes, two rows of shelving; this was the back one. You remember the shoes on the back ledge was very bad.
“Q. About how frequently, during the invoice, did you tell Mr. Thayer those goods were rotten? A. I couldn’t tell you.
“Q. Was it more than once? A. Oh, yes; it was more than once.”
Attention is again called to the manner in which the invoice was to be made. That part of the contract which refers to the invoice is found in Miller v. Thayer, ante, pp. 355, 356. Special questions were answered by the jury, some of which were as follows:
*‘2. Was the defendant induced to execute the contract for the exchange of his land by false and fraudulent representations of the plaintiff as to the character and value of the merchandise and the marks thereon? Yes.
“3. Was the defendant induced to execute the note and chattel mortgage sued on by plaintiff by false and fraudulent'representations of the plaintiff as to the character and value of the merchandise and the marks thereon? Yes.
“4. If you answer the two preceding questions in the affirmative when did the defendant acquire actual knowledge of the falsity of the plaintiff’s representations as to the character and value of the merchandise and the marks thereon? Latter part of January, 1914.
“10. As agent of the defendant, were Robinson’s duties solely to see that the invoice was taken according to the written contract? No.
“11. Did the defendant Thayer employ M. M. Robinson to assist him in invoicing the stock of goods in controversy, and to look after his interests in connection therewith? Yes.
“12. Was M. M. Robinson an experienced merchant in the class of goods comprising the stock in question? Yes.
•“13. Did M. M. Robinson learn the character and quality of the goods invoiced during the taking of the invoice? To some extent.
“14. Did M. M. Robinson communicate to Thayer the general character and quality of the goods invoiced before Thayer delivered the. deeds to the land and executed the note and chattel mortgage in question in this ease? No.” • ,
The plaintiff, in his brief, presented the following contentions :
“First: The district court erred in the admission of evidence.
“Second: The district court erred in the rejection of evidence.
, “Third: The district court erred in refusing to give the instructions asked by the plaintiff.
“Fourth: The district court erred in the instructions given to the jury. ,
“Fifth: The district court erred in refusing to enter judgment on the special findings of the jury in favor of the plaintiff and against the defendant.
“Sixth: The district court erred in overruling the motion of the plaintiff for a new trial of said action.”
In the former opinion an attempt was made to answer these contentions.
The plaintiff in his petition for a rehearing says:
“The most material question in the case is, what knowledge did Thayer have at the time he changed the executory into an executed contract? Did he then know that the representations made by Miller were untrue?”
These questions are questions of fact. They were answered by the jury, and those answers were justified by the evidence. With those questions answered against the plaintiff, there remains but one proposition for discussion. Was Robinson’s knowledge attributable to the defendant? The rule is—
“that a principal is affected with constructive knowledge, regardless of his actual knowledge, of all material facts of which his agent receives notice or acquires knowledge while acting in the course of his employment and within the scope of his authority,1 although the agent does not in fact inform his principal thereof.” (2 C. J. 859.)
“The rule that notice to an agent is notice to his principal is not applicable unless the notice has reference to business in which the agent is engaged under authority from the principal, and is pertinent to matters coming within that authority; and hence a principal is not affected with knowledge which the agent acquires while not acting in the course of his employment, or which relates to matters not within the scope of his authority, unless the agent actually communicates his information to the principal.” (2 C. J. 868.)
(See, also, Roach v. Karr, 18 Kan. 529; Topliff v. Shadwell, 68 Kan. 317, 74 Pac. 1120; Despain v. Insurance Co., 81 Kan. 722, 729, 106 Pac. 1027.)
The contract had been signed before Robinson was employed. On its face the contract was a binding and valid obligation. Robinson was not employed to ascertain any facts that might lead to an avoidance or repudiation of the contract. The terms of his employment may be reduced to a few words. He was employed to assist in invoicing the stock in the manner provided by the contract, and to protect the plaintiff’s interests in making the invoice. There was nothing in the contract to show the character of the goods. The false representations were made in conversations preceding the signing of the contract. So far as Robinson’s authority was concerned, the goods might have been of a nonmerchantable character, and he might have ascertained that fact, but, unless he communicated it to the defendant, the latter would not be bound by Robinson’s knowledge.
After the question of notice has been disposed of, the other matters presented by the petition for a rehearing are sufficiently answered in the former opinion.
The petition for a rehearing is denied. | [
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The opinion of the court was delivered by
•Burch, J.:
The action was one to require the owner of real estate to perform a contract of sale made by his agent. Relief was denied, and the plaintiff appeals.
On February 1, 1915, the owner, Gentry, gave the firm of Coons & Jacobs an exclusive agency for the sale of the land for 120 days. In April, Gentry authorized another agent, Edwards, to sell the land after May 1, forgetting that the exclusive agency of Coons & Jacobs extended to June 1. In April Edwards arranged for a sale to the plaintiff after May 1, and on May 3 ,gave the plaintiff the contract which is the basis of the suit. On May 8 Coons & Jacobs sold the land, and the defendant executed a deed and deposited it with an abstract of title in a bank, for delivery on payment of the price. Coons & Jacobs examined the abstract, approved the title, and when ready to take up the deed discovered that suit had been commenced on May 20. They then waited until the suit was decided to pay for the land. While the evidence discloses many details, the foregoing are the essential facts.
The plaintiff’s action ignores the disability which Gentry imposed on himself to empower an agent to make a contract of sale in contravention of the rights of Coons <fe Jacobs. Specific performance is a matter of equity, and not a matter of right. Other things being equal, the prior equity prevails. Coons & Jacobs were as innocent as Edwards and the plaintiff, and because Coons & Jacobs acquired the first and the only authority to sell the land before June 1, the consequences of Gentry’s mistake can not be visited on them.
It appears that Coons <fe Jacobs took, the conveyance themselves. That was a matter between principal and agent. No breach of good faith is suggested, and the plaintiff is not concerned.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff brought this action to recover an amount claimed to be due him under contracts, and to recover damages for the breach of the contracts. At the conclusion of the evidence the court instructed the jury to return a verdict for the defendant. Judgment was rendered for the defendant and the plaintiff appeals.
The plaintiff entered into two contracts with The Western Straw Products Company, a corporation, by which that company constituted the plaintiff its agent for the purchase of waste paper, and agreed to pay him eight dollars per ton therefor. Under the contracts the company became indebted to the plaintiff in the sum of $426.22. The company became insolvent and could not pay the plaintiff, who then ceased delivering paper under the contracts. Those interested in the company, desiring that its business be continued, reorganized it by forming a new corporation, the Hutchinson Box Board and Paper Company, defendant herein. The plan of the reorganization was that creditors and those interested in the Western Straw Products Company should take stock in the new corporation in settlement of* their claims and interests. By signing the following written instrument the plaintiff agreed to take stock for his claim:
“Hutchinson, Kansas, October 14th, 1913.
“I agree to take common or preferred stock at my option in a new company to be organized to take over the property of the Western Straw Products Company in lieu of the sum of $480.28 [$426.22] due and owing me by the Western Straw Products Company for waste paper sold and delivered to them.
“This agreement is conditional on a sufficient number of bondholders and creditors signing a similar agreement to guarantee that the bondholders and creditors are favorable to the taking of such stock for their bonds and claims.”
Stock in the sum of $425 and $1.22 in money were tendered to the plaintiff, but he refused to accept either. Emerson Carey was active in the reorganization of the company. There was evidence that tended to show that during the negotiations between Emerson Carey and the plaintiff concerning stock in the new corporation, Emerson Carey stated that if the plaintiff had a contract with the old company it would be good with the new company — that the new company would take the waste paper under the contracts with the old company. Shortly after the new corporation- was organized Emerson Carey, as president, wrote the following letter:
“Hutchinson, Kan., Dec. 29, 1913.
“Mr. Lee L. Wilson, Co LaPayette Box Board & Paper Co., LaFayette,
Ind.
“Dear Mr. Wilson:
“. . . . I am handing you herewith copy of contract made by' the old company with one I. S. Smith for waste paper. This looks very ridiculous and foolish to me and it would be my idea to terminate this contract under the sixty-day clause immediately. If this meets with your judgment, as soon as you arrive on the ground you might get C. M. Williams, a local attorney who does some business for the company, to draft such notice as he thinks would meet the situation and have it delivered in such manner as he suggests, to Mr. Smith. It occurs to me that these matters should be entirely in the hands of the company. The old contracts are in our files. I advised with our attorney this morning and he said this could be terminated with such notice.
Yours very truly,
Emerson Carey, President.”
A few days after this letter was written the following notice was delivered to the plaintiff:
“Hutchinson, Kan., January 9th, 1914.
“Mr. I. S. Smith, Hutchinson, Kansas.
“Dear Sir:
“This is to notify you that The Hutchinson Box Board 8s Paper Co., successors to 'The Western Straw Products Co., Hutchinson, Kansas, cancels Contract of April 23d, 1913, and supplement thereto, dated April 25th, 1913, to take effect 60 days from date.
Yours very truly,
The Hutchinson Box Board & Paper Co.,
By O. S. Wespe, Seo’ty.”
Before the expiration of the sixty days named in the notice the following letter was written to the plaintiff:
“Hutchinson, Kan., February 26, 1914.
“'Mr. I. S. Smith, Hutchinson, Kansas.
“Dear Sir:
“As your contract with this company on waste paper expires March 9, 1914, under the sixty-day clause, notification sent you January 9, we would suggest that any accumulation of paper that you may have that you want to ship us be delivered prior to that time, as after March 9 all previous quotations are withdrawn, and we will name you our price upon request on shipments after that date.
Yours very truly,
The Hutchinson Box Board & Paper Co.,
By Lee L. Wilson, General Manager.”
After the notice was given the plaintiff delivered a carload of paper to the defendant and received eight dollars per ton therefor. The Western Straw -Products Company is not a party to this action.
The plaintiff alleged that the defendant assumed all the rights, liabilities, and obligations of the old company, but his petition contained no allegation of fraud on the part of the new corporation. ,
1. The first cause of action set out in the plaintiff’s petition was for the recovery of the $426.22 which was due him from the old company, and for which he agreed to take stock in the new one. There was no evidence to show that the defendant had in any way agreed to discharge that debt. The negotiations between the plaintiff and Emerson Carey concerning the contracts for furnishing waste paper were not made a part of the plaintiff’s agreement to take stock in the new corporation. If it is claimed that the adoption of the contracts by the new corporation entered into the plaintiff’s agreement to take the stock, then the evidence to show what was said about the contracts would not be admissible for the reason that it altered or varied the writing signed by the plaintiff. To sustain the plaintiff’s first cause of action the adoption of the contracts must have been collateral to, and independent of, the agreement to take stock. When the stock in the new corporation was tendered to the plaintiff his claim against the old company was canceled. There was not sufficient evidence to sustain the plaintiff’s first cause of action.
2.. In his second and third causes of action the plaintiff sought to recover damages for the breach of the contracts. Emerson Carey’s statements to the plaintiff, concerning the contracts with the Western Straw Products Company, were made by him while promoting the new corporation, but before it was organized.
“The general rule undoubtedly obtains at law that corporations can not be bound by acts done or promises made in their behalf before they come into existence. Until organized, a corporation has no being, franchises, or faculties. Its promoters, or those, engaged in bringing it into being, are in no sense identical with the corporation, nor do they represent it in any relation of agency, and they have no authority to enter into preliminary contracts binding the corporation, unless so authorized by the charter.” (7 R. C. L. 80.)
(See, also, 1 Thompson on Corporations, 2d ed., §91; and 10 Cyc. 262; and the following notes: 13 Am. St. Rep. 28; 17 Am. St. Rep. 161; 26 L. R. A. 544; 4 A. & E. Ann. Cas. 669.)
While Emerson Carey did not have power to bind the new cOhp^ration by any contract or statement made by himself before that corporation was organized, yet it could ratify or adopt any contract made by him for its benefit. This rule is supported by the authorities above cited. (See, also, Electric Co. v. Mining Co., 91 Kan. 116, 136 Pac. 924.) The letters and the notice, as above set out, contained some evidence tending to show that the defendant recognized that the plaintiff’s contracts with the old company were in force with the new one. That evidence should have been submitted to the jury.
3. At the conclusion of the evidence the plaintiff requested the court to instruct the jury to return a verdict in his favor on each of the three causes of action set out in his petition, and the defendant moved the court to instruct the jury to return a verdict in its favor. The defendant’s motion was sustained. The defendant states:
“Both parties to the action having asked the court to instruct the jury to return a verdict on the evidence, it was up to the court to either instruct a verdict as claimed by the plaintiff or to instruct a verdict for the defendant.”
Neither party, by requesting a peremptory instruction in its favor, consented that the court might withdraw the case from the jury or give a peremptory instruction in favor of the other party.
The judgment is reversed and a new trial granted. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff seeks to recover on a promissory note, and to foreclose a mortgage given to secure its payment. The defense was payment. The issues were submitted to a jury, and a verdict was returned in favor of defendant John Wallace. Judgment was rendered in his favor. The plaintiff appeals.
Defendant John Wallace had given his father, Charles Wallace, three separate promissory notes, one for $1200, one for $1700, and one for $2100, each secured by a mortgage on real property. The two smaller notes were paid prior to the death of Charles Wallace. While Charles Wallace was in California,' defendant John Wallace paid $200 on the $2100 note, and indorsed thereon: “Paid on principal, Two Hundred Dollars, Feb. 22, 1913.” Previous to this, six interest payments had been made on the $2100 note, the indorsements of which were all in John. Wallace’s handwriting. After Charles Wallace returned from California, and about May 16, 1913, he and defendant John Wallace went into the bank in which they both did business, and there engaged in conversation and made calculations and memoranda. After this conversation, the indorsement of “two hundred dollars” appeared as an indorsement of “two thousand dollars,” the word “hundred” having been erased and the word “thousand” written in place thereof. The evidence tended to show that the word “hundred” was not erased by defendant' John Wallace.. The evidence did show that the word “thousand” was written by him.
Charles Wallace died December 2,1914. After the conversation in the bank, the note was constantly in his custody or control until his death. On the trial, the controverted questions revolved around the indorsement of $2000. The plaintiff, who was the administratrix of the estate of Charles Wallace, insisted that no payment had been made on the note, and that the indorsements had been wrongfully and unlawfully placed thereon without her knowledge or consent or that of Charles Wallace. Before the commencement of this action, John Wallace tendered to the plaintiff $100 as final payment on the note. There was no interest then due, the interest having been paid as shown by indorsements made subsequent to the $2000 indorsement. Charles Wallace did very little writing, and when convenient had some one write for him.
1. The court gave the following instruction:
“The jury are further instructed that if you believe from the evidence that the indorsements on said note were placed there by the deceased, Charles Wallace, or with the knowledge or consent of the deceased, Charles Wallace, then such indorsements would be evidence of such payments, and defendant would be entitled to credit for the amounts so indorsed.”
Plaintiff argues that this instruction was erroneous, for the reason that it made the indorsements conclusive evidence of payment rather than prima facie evidence thereof. The instruction did not say that the indorsements were prima facie evidence of payment, nor that they were conclusive evidence thereof. The indorsements were evidence of payments, although they were not conclusive and could have been disputed. The court probably should have instructed the jury that the indorsements were prima facie evidence of payments; but the difference between the‘instruction as it should have been given and as it was given was so slight that it can not be-- said that the plaintiff was prejudiced by the instruction given. Other complaints involving the same question are made concerning other instructions given or requested. It is not necessary to .discuss these propositions further.
2. Complaint is made of the following instructions:
“The jury are instructed that the burden is on the plaintiff to prove, by a preponderance of all the evidence, that the defendant erased an indorsement on said note of a smaller amount and wrote in place thereof a larger amount.
“The jury are further instructed that if you believe from the preponderance of the evidence that the defendant, John Wallace, erased an indorsement on said note of a smaller amount and then wrote in place thereof a larger amount, the burden of proof would then be on the defendant to prove, by a preponderance of all the evidence, that said larger amount was the true amount for which defendant was entitled to credit, or that such erasure and change were made by the direction or with the consent of said Charles Wallace.”
These instructions correctly stated the rules concerning the burden of proof.
3. The plaintiff complains that defendant John Wallace was permitted to testify that he and his father had made a settle ment of the note in question. The evidence complained of is as follows:
“Q. Did you at any time have any settlement with your father? A. Yes, sir.”
This evidence was admitted over objection, but was afterward stricken out by the court, and the jury was instructed not to consider it. The argument is made’that the instruction did not cure the error committed in admitting the evidence. The evidence was not of a character that must necesarily have produced such an impression on the minds of the jurors that they could not obey the instruction of the court. This evidence comes within the rule declared in Townsdin v. Nutt, 19 Kan. 282; The State v. Fooks, 29 Kan. 425; The State v. Furbeck, 29 Kan. 532; Whittaker v. Voorhees, Sheriff, 38 Kan. 71, 15 Pac. 874; Woods v. Hamilton, 39 Kan. 69, 17 Pac. 335; City of Kinsley v. Morse, 40 Kan. 577, 20 Pac. 217; The State v. Blakesley, 43 Kan. 250, 252, 23 Pac. 570; Lyons v. Berlau, 67 Kan. 426, 73 Pac. 52; Insurance Co. v. Haskin, 69 Kan. 863, 77 Pac. 106; and Gulliford v. McQuillen, 75 Kan. 454, 89 Pac. 927.
4. The plaintiff complains that defendant John Wallace was permitted to testify, in substance:
“That on February 22, while his father was in California, he paid $200.00 to Mr. Hawk, the banker, and that he, the appellee, at that time, indorsed on the back of the note: ‘paid on principal, two hundred dollars;’ that afterwards, and about the 16th or 18th day of May, following, he and his father were in the bank; that he saw the note at that time in the bank; that he did not erase the word ‘hundred’ from said endorsement, but that of his own knowledge he did know who erased it; that he wrote the word ‘thousand’ in said indorsement where the word ‘hundred’ had been erased, which made the indorsement then read: ‘paid on principal, two thousand dollars;’ that the first time he saw the indorsement so' reading was on said date in the bank; that the only time he saw the note in the absence of his father, was on the 22d of February; and that every time he saw the note after the meeting in the bank this indorsement remained on said note.”
The plaintiff argues that this was testimony of personal transactions had by defendant John Wallace with his father. The testimony objected to probably goes to the limit of that which a competent witness may give; but a close examination of that testimony show's that John Wallace did not testify to any transaction or communication that he had with his father.
5. Complaint is made that defendant John Wallace was permitted to testify to a conversation had with his sister, in which conversation he detailed the transaction had with his father at the time the $200 was indorsed on the note. The sister, as a witness for the plaintiff, testified to the conversation between herself and John Wallace. He afterward testified concerning that conversation, giving the details thereof and contradicting his sister in a number of particulars. The plaintiff insists that the conversation testified to by the sister was a different one from that testified to by defendant John Wallace. An examination of the evidence discloses that both testified to one conversation. There was no error in permitting defendant John Wallace to detail that conversation after his sister had given her version of it. (Harris v. Morrison, 100 Kan. 157, 163 Pac. 1062, and cases there cited.)
6. Edith Wallace, the wife of defendant John Wallace, testified that she overheard a conversation in her home, between her husband and his father, in which she took no part. Pier testimony was, in part, as follows:
“Q.. What did your father-in-law say to your husband? A. He said, ‘John, there is no use in your working so hard,’ he said, ‘you got the places clear, all but ¡¡>100.00.’ ”
This evidence was objected to on the ground that the witness was incompetent to 'testify in respect to any transaction or communication had with Charles Wallace. Edith Wallace was a defendant in the action. The plaintiff asked for judgment against both John Wallace and Edith Wallace, although Edith Wallace had not signed either the note or the mortgage, and was not liable thereon. She did not testify concerning any transaction or conversation had by her with Charles Wallace. The conversation was wholly between her husband and Charles Wallace. The testimony given by her does not come within the prohibition of the statute. (Civ. Code, § 320, Gen. Stat. 1915, § 7222.) Under the rule announced in Sarbach v. Sarbach, 86 Kan. 894, 122 Pac. 1052, that this statute is to be strictly construed, Edith Wallace was competent to testify to the conversation between her husband and Charles Wallace.
7. The plaintiff’s last contention is that the verdict was not sustained by the evidence, but was contrary thereto. The abstract of the evidence has been examined. That abstract shows that the evidence was very conflicting. The abstract also shows that there was evidence sufficient to sustain the verdict of the jury. The trial court approved the verdict and rendered judgment thereon. Under these circumstances, the verdict and judgment will not be set aside by this court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The International Harvester Company brought an action upon a promissory note signed by the Franklin County Hardware Company, a corporation, and by several individuals who were directors thereof. Two of the signers, W. L. Delano and Ella Hanna, defended on the ground that their signatures had been procured by fraud.. Judgment was rendered in their favor, and the plaintiff appeals.
The hardware company handled the plaintiff’s goods under a contract providing that the title should remain in the plaintiff, and that sales should be made only for cash, except in the case of some of the larger and more expensive implements, which might be sold on time, notes for the deferred payments to be taken directly to the plaintiff. In September, 1915, an agent of the plaintiff visited the establishment of the hardware company and found that it had sold goods consigned by the plaintiff to the amount of $1200, and had no cash on hand with which to pay the plaintiff’s claim therefor. The hardware company asked time in which to make payment, and the plaintiff’s agent agreed to accept the company’s note, payable January 1, 1916, provided it should be signed by four persons whom he named, who were directors of the corporation. Such a note was executed, and is that sued upon. The appellees, W. L. Delano and Ella Hanna, pleaded that their signatures were procured by the false representation, made to them by the plaintiff’s agent, that the hardware company had on hand proceeds of sales of the plaintiff’s merchandise, in the form of uncollected notes and accounts, sufficient to meet the $1200 note. The plaintiff denied that such representation had been made. The case was submitted to the jury under such instructions that the verdict implied findings that the plaintiff’s agent made the statement referred to, knowing, it to be false, for the purpose of inducing the appellees to sign the note, and that they believed it and attached their signatures in reliance thereon, having no actual knowledge of the business of the hardware company, not having been actively engaged in its management.
The principal contention of the appellant is that the defense on which the appellees- prevailed was not open to them because, being directors of the hardware company, they were conclusively presumed to know the condition of its business and could not be heard to say that they had been misled by any statements regarding it. In some situations the managing officer of a corporation is held to be chargeable as a matter of law with knowledge of all its transactions. (Savings Bank v. Wulfekuhler, 19 Kan. 60; Merchants’ Bank v. Rudolf, 5 Neb. 527; Tate, Treasurer, v. Bates, 118 N. C. 287; 7 R. C. L., p. 658.) This principle has sometimes been announced in such terms as to give countenance to the idea that it is of universal application. Such expressions must of course be regarded as made with reference to the facts under consideration, without a purpose to forestall the decision of some question other than that involved, arising out of different circumstances. This court has held that the presumption that a director is familiar with all the business transactions of a corporation is not applicable in all relations. (National Bank v. Drake, 29 Kan. 311.) And it has often been said that the presumption is not necessarily conclusive. (Proctor v. Baldwin, 82 Ind. 370; Boddy v. Henry, 113 Iowa, 462; Murray v. Nelson Lumber Co., 143 Mass. 250; Wakeman v. Dalley, 51 N. Y. 27; Converse v. Sharpe, 161 N. Y. 571; Mason v. Moore, 73 Ohio St. 275; Elliott on Private Corporations, 4th ed., § 516; 10 Cyc. 826.) In Snider v. McAtee, 165 Mo. App. 260, the court refused to apply the presumption to defeat an action for fraud. One form in which the rule has been stated is that the director is chargeable with all matters which it is his duty to know. (21 A. & E. Encycl. of L. 896'.) It may well be doubted whether in the situation here presented the appellees owed any duty to the plaintiff to be familiar with the business of the hardware company. But it is not necessary to lay down any general rule as to how the application of the principle of constructive notice is affected by the relations of the parties to the controversy. It is sufficient for present purposes to say that one who has misled another by a fraudulent misrepresentation can not escape the ordinary consequences of his wrong by showing that although his victim in fact knew nothing of the matter, knowledge was to be imputed to him upon some legal theory. “The law of constructive notice can never be so applied as to relieve a party from responsibility for actual misstatements and frauds.” (12 R. C. L., p. 376.)
It was at one time suggested by this court that in view of the statute providing that the record of a deed should “import notice to all persons of the contents thereof,” and that “all subsequent purchasers.....shall be deemed to purchase with notice” (Gen. Stat. 1915, § 2069), “it may be that a subsequent purchaser would not be heard to say that he had no notice of a prior [recorded] deed, or was imposed upon by the false representations of his vendor as to the title.” (Claggett v. Crall, 12 Kan. 393, 397.) But when the question arose in such manner as to require a decision it was held that a fraudulent representation, by one assuming to have personal knowledge, that there was no incumbrance on a tract of land, is actionable, notwithstanding the record showed the contrary. (Carpenter v. Wright, 52 Kan. 221, 34 Pac. 798.)
The plaintiff contends that its demurrer to the evidence of W. L. Delano should have been sustained on the ground that no showing was made that he had been influenced at all by the alleged misstatements of the plaintiff’s agent. Delano was 82 years of age and said that he did not remember all of the conversation ; that he would not have signed the note if he had not believed that the hardware company had notes and accounts arising from the sale of the plaintiff’s goods sufficient to meet it; that the agent said the comany had enough notes and accounts to pay it; and that he (Delano) supposed the notes referred to belonged to the plaintiff; but he did not testify that the agent said that this was the case. His daughter, however, who seemed to be advising him in the matter, testified that the agent made the statement referred to, and we think that there was room to infer that Delano’s belief, was influenced thereby.
Complaint is made of the refusal of an instruction to the effect that the appellees were not entitled to relief on the ground of fraud unless they exercised ordinary prudence and care to protect themselves; that if they were in such a situation that they could have readily ascertained the truth of the matter and made no effort to do so they could not recover. There is a conflict of authority as to the extent to which the credulity of the victim of fraud operates to protect the wrongdoer, concerning which it has been said:
“The policy of the courts is, on' the one hand, to suppress fraud, and, on the other, not to encourage negligence and inattention to one’s own interests. The rule of law is one of policy. Is it better to encourage negligence in the foolish, or fraud in the deceitful? Either course has obvious dangers. But judicial experience exemplifies that the former is the less objectionable, and hampers less the administration of pure justice. The law is not designed to protect the vigilant, or tolerably vigilant, alone, although it rather favors them, but is intended as a protection to even the foolishly credulous, as against the machinations of the designedly wicked. The courts, however, are not entirely in accord as to the circumstances under which fraudulent representations may be relied on, although it cannot perhaps be denied that negligence as a defense in cases of fraud has been in danger of being pushed too far. There would seem to be no doubt that while, in the ordinary business transactions of life, men are expected to exercise reasonable prudence, and not to rely upon others, with whom they deal, to care for and protect their interests, this requirement is not to be carried so far that the law shall ignore or protect positive, intentional fraud successfully practiced upon the simple minded or unwary. . . . According to some decisions, the fact that a party who does not actually know the representations to be false has means of ascertaining their truth or falsity does not preclude him from relying on such representations. Every contracting party, it is declared, has a right to rely on the express statement of an existing fact, the truth of which is known to the opposite party, and, unknown to him as the basis of a mutual engagement; and he is under.no obligation to investigate and verify statements, to the truth of which the other party to the contract, with full means of knowledge, has deliberately pledged his faith. According to others the party to whom a representation is made must exercise reasonable diligence to detect the truth or falsity thereof where the parties stand on an equal footing and the matter is equally open to the inquiries of both parties.” (12 R. C. L. pp. 360, 361.)
“The modern tendency — a wholesome one — is to restrict rather than extend the immunity of one who gains an advantage over another by purposely misleading him.” (Epp. v. Hinton, 91 Kan. 513, 515, 138 Pac. 576; 14 A. & E. Encycl. of L. 122.) “The trend of the decisions of the courts of this and other states is towards the just doctrine, that where a contract is induced by false representations as to material existent facts, which are made with the intent to deceive, and upon which the plaintiff relied, it is no defense to an action for rescission or for damages arising out of the deceit, that the party to whom the representations were made might, with due diligence, have discovered their falsity, and that he made no searching inquiry into facts.” (Speed v. Hollingsworth, 54 Kan. 436, 440, 38 Pac. 496.) We think the present case falls.within the rule which has been thus stated:
“If the fact represented is one which is susceptible of accurate knowledge and the speaker is or may well be presumed to be cognizant thereof while-the other party is ignorant, and the statement is a positive assertion containing nothing so improbable or unreasonable as to put the other party upon further inquiry or give him cau’se to suspect that it is false, and an investigation would be necessary for him to discover the truth, the statement may be relied on. (20 Cyc. 33.)
Complaint is also made of the refusal of a requested instruction to the effect that if the plaintiff’s agent did not in fact make the false statement charged the appellees could not recover, although they may have believed with good reason that he meant to convey that meaning to them. The whole controversy was over the question whether the plaintiff’s agent had made the statement referred to, and the jury believed that he had, or they could not have returned the verdict they did. We do not think the situation required the giving of the instruction requested.
The judgment is affirmed. | [
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The opinion of the court was delivered by
BURCH, J.:
The action was one for alimony. Judgment was rendered for the defendant and the plaintiff appeals.
The action was commenced under section 678 of the civil code, which reads as follows:
“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 divorce, and may, for sufficient cause, obtain a divorce from the wife in such action.” (Gen. Stat. 1915, § 7586.)
The causes of action stated in the petition were extreme cruelty and gross neglect of duty, which compelled the plaintiff to separate from her husband. The plaintiff produced testimony tending to sustain the allegations of the petition. The defendant produced testimony in defense and tending to show that the separation occurred through fault of his wife. Previous to the marriage the parties had entered into a contract relating to property rights in case of separation by death or otherwise. The court stated the following findings of fact and conclusions of law:
“FINDINGS OF FACT.
“I. The plaintiff and defendant were married in Sumner county, Kansas, on the 31st day of January, 1912, and were at the-time of their marriage each possessed in their own right of considerable property, the defendant having property at that time of the value of about $150,000, and the plaintiff having property valued at about $25,000.
“The plaintiff at the time of their marriage was about fifty years old and the defendant sixty-nine years of age; both plaintiff and defendant had been previously married, the husband and wife of each respectively were deceased. Both by such former marriages had children. The plaintiff’s children aged, one fifteen years, one seventeen years, and some others older and married. The defendant’s children aged twenty-six, thirty and thirty-eight respectively, none of whom were living at home.
“II. Prior to this marriage and in contemplation thereof plaintiff and defendant entered into an antenuptial contract wherein each released the other of all rights and claims of interest in the property of the other, and among other things said contract provided that in the event of separation of the plaintiff and defendant by death or otherwise, neither should claim any right or interest in or to any property of the other, and which contract has never been annulled, but is in full force and effect.
“III. At the time of the marriage the plaintiff went to the home of the defendant, taking with her, her two children, a boy of the age of fifteen and a girl of the age of seventeen years.
“IV. The principal controversy between the plaintiff and defendant arose over the fact of the son being provided for by the defendant, and the plaintiff’s claim that the defendant was stingy and did not provide her with the actual necessities of life.
“V. The plaintiff and defendant were each old residents of Sumner county, had known each other for many years, had intimately known each other for two years prior to their marriage, and each knew or had the opportunity to know the temper, habits and peculiarities of the other.
“VI. While the plaintiff and defendant at the time of the execution of the antenuptial contract did not have in mind the idea or thought of a trial marriage, yet each of them were of that age, and with their past experience and having grown children, they were bound to and did realize the extreme probability of being unable to live together harmoniously no matter how much both might strive; and in view of their past experience and modes of life voluntarily and without fraud entered into the said antenuptial contract, each fully understanding its terms.
“VII. While the plaintiff and defendant were living together the defendant furnished to the plaintiff all the actual necessaries, not with that liberality that his ability would warrant, but as much as the plaintiff had been used to furnishing for herself, with ample provisions to provide more prior to her marriage with defendant.
“VIII. The plaintiff and defendant separated on the 1st day of February, 1913, and sometime after separation the plaintiff began an action for divorce and alimony and afterwards amended her petition asking for alimony and separate maintenance only, and ever since said date of separation, the plaintiff has been living separate and apart from the defendant, who has since said date refused to make the plaintiff any allowance whatever.
“IX. The plaintiff’s voluntary abandonment and separation from the defendant was not wholly without fault on her part.
“CONCLUSIONS OF LAW.
“I. There are well-considered cases, by courts of recognized ability, that where a wife lives apart from her husband for. just cause upon her part, but where she has ample means of her own, the husband is not bound for her support. While the weight of authorities seems to be opposed to the above rule, this court is unable to find any case wherein the rule so announced by the majority presented facts so favorably to the former rule as the case at bar.
“II. Under the facts presented in this case the plaintiff is not entitled to recover^ anything from the defendant for separate maintenance.”
The only assignment of error which can be considered is that the court erred in overruling the plaintiff’s motion for a new tidal. The- only grounds of the motion for' a new trial which can be considered are that the decision was contrary to the evidence and contrary to law.
The evidence bearing on all the material issues was conflicting, and much of it was contradictory. The defense was sufficiently sustained by evidence upon which the court presumptively relied, and the findings of fact must stand.
With the facts established, the second conclusion of law was inevitable. There was no extreme cruelty, because none is found, and there was no gross neglect of duty, because none is found. (Shuler v. Lashorn, 67 Kan. 694, syl. ¶ 4, 74 Pac. 264.) The seventh finding administers a gentle tap on the defendant’s wrist for lack of liberality. There may be an implication in the ninth finding that the defendant was partially responsible for the separation, but the finding in terms relates to none but the wife’s conduct, voluntary abandonment of her husband not without fault on her part. Consequently the case is the very simple one of failure to establish the facts advanced in the petition as a basis for relief.
The first conclusion of law touches a matter much debated by counsel for the respective parties, probably because of the debate; but the findings of fact do not present the case of a wife living apart from her husband for just cause. The judg ment rests on the facts found, and if it did not, this court would direct that it be made to conform to the facts found.
In the brief for the plaintiff two questions are propounded: Can a man make an antenuptial property contract which will relieve him from the consequences of his own wrong, and can a man and a woman make an antenuptial contract which will relieve them after marriage from performance of their marital obligations? Neither question is pertinent to the case as it comes to this court.
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The opinion of the court was delivered by
Marshall, J.:
This cause has been reargued and further consideration has been given to the errors committed on the trial of this action, as shown by the former opinion, reported in The State v. McLemore, 99 Kan. 777, 164 Pac. 161. In the judgment of the court, the errors there disclosed, when all are considered, were of such a nature that it can not be said that they did not affect the substantial rights of the defendant; and it can not be said that he had a fair trial. A majority of the court is of the opinion that these errors did affect the substantial rights of the defendant, and did prevent his having a fair trial. For these reasons, the judgment is reversed and a new trial is granted. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff brought these actions (which have been consolidated) to recover on two insurance policies on account of the loss of its stock of merchandise. There were sixteen policies in all, the claims under the others haying been adjusted. Each contained the standard clause against concurrent insurance without agreement indorsed or added. Each also contained the following indorsement: “$30,000 total concurrent insurance permitted.” It was shown that when the two policies were issued, which was in March and April, 1914, respectively, there was in the neighborhood of $11,000 insurance on the property, and that when the loss occurred the total was $34,500. The original petitions contained an allegation that there was a mistake with reference to the concurrent insurance permitted, that the agreement and understanding was that there should be written “additional concurrent insurance permitted.” After the close of all the evidence the plaintiff was given ten days to file amended petitions to conform to the proof and therein alleged that the agreement and understanding was that there should be written in the policy “additional concurrent insurance permitted,” or words of similar import or meaning. That the Reliance agent was told that the plaintiff would desire more insurance and assented thereto and procured an old policy from the plaintiff’s cashier without the knowledge of its president and general manager and wrote in the policy sued on, without any authority, the $30,000 limit. In the case against the Agricultural company the amended petition alleged a mutual mistake and that the policy was a renewal of old insurance written by the father of the agent, who wrote the policy sued on, and was written without the knowledge of the plaintiff’s president and general manager and that the agent copied from the insurance record in his office and wrote in the policy “$30,000 total concurrent insurance permitted,” on his own motion without authority, all unknown to the president and general manager until after the fire. It was alleged that the agent of each company was in possession of all the facts with reference to the concurrent insurance or by the exercise of reasonable diligence should have known the amount thereof before he wrote the’ policy, and that by reason of their acts the companies waived the provision in the policies touching concurrent insurance.' Judgment was rendered for the proportional amount due on each of the policies, and the insurance companies appeal.
As to the policy in the Eeliance company the president and general manager, Mr. Scott, testified that he told the agent he could write him for $2000 insurance.
“He wanted to know if. I carried other insurance and I told him I did, I carried other concurrent insurance.
“Q. Was that all you said to him? A. That is practically all I said to him. He asked me if he could have the policy to get the form, and I told him to go to the office and get a policy, which he did.”
In the Agricultural case the plaintiff in its brief says that the agent did not inquire of Mr. Scott how much, if any, concurrent insurance he desired and that it was the agent’s business to ascertain the amount carried or place no limitation instead of writing on his own motion a limit of $30,000. There is no’ evidence of any notice to the defendants of any concurrent insurance subsequently taken out, and it seems that the $30,000 limit was placed in each policy because the agent in each case found that this amount had been inserted in some previous policy.
• The conversation with the agent in the Eeliance case and the fact that the agent in the Agricultural case inserted the $30,000 limit indicate that each knew and understood that some amount of concurrent insurance was intended by the insured to be carried, but there is no evidence or claim that any specific amount was mentioned or agreed upon.
The defendants rely on Assurance Co. v. Norwood, 57 Kan. 610, 47 Pac. 529, in which case the express limit was $32,500, but the amount carried was $40,000 and the plaintiff sought to hold the company estopped because he advised the agent at the time the policy was issued that he intended to carry $40,000 total insurance. It was held that to permit the plainr tiff to prove this would be to vary the terms of the policy itself by parol testimony, which could not be done.
“It can not be said then, that, at the time the policy was issued, either the Company or its agent, Ormandy, had notice of the existence of so much insurance as would avoid the policy; nor can it be said that at any. subsequent time, Ormandy knew that the condition of the policy had been violated, and received or' even retained the premium paid on it. There is, therefore, no element of estoppel in the case.” (p. 617.)
It had already been pointed out that no .information was given the company or its agent at any time before the fire of the full amount of insurance taken out.
Numerous recent decisions hold insurance companies responsible when their agents wrongfully or without authority write something into a policy or application which the insured did not authorize. (Continental Ins. Co. v. Pearce, 39 Kan. 396, 18 Pac. 291; Insurance Co. v. Gray, 44 Kan. 731, 25 Pac. 197). In Hulen v. Insurance Co., 80 Kan. 127, 102 Pac. 52, the agent was told that a certain amount of other insurance was to be carried on the property but issued the policy without indorsing the consent of the company thereon and it was held that the condition in the concurrent clause like that in the policies under consideration was thereby waived by the company. In Pfiester v. Insurance Co., 85 Kan. 97, 116 Pac. 245, it was decided that an applicant for insurance without knowledge to the contrary may assume that the application and the policy have been written according to agreement although he fails to examine such instruments for errors and omissions, and that when such agreement has been departed from by the agent the beneficiary after the death of the insured may have the contract reformed according thereto. In Cue v. Insurance Co., 89 Kan. 90, 130 Pac. 664, it was held that where a soliciting agent who inspects a risk and takes a written application for insurance upon which a policy is issued knows that gasoline is being used upon the premises, the company is bound by such knowledge and will be presumed to have waived a condition in the policy forbidding such use. In Palin v. Insurance Co., 92 Kan. 401, 140 Pac. 886, the doctrine of Pfiester v. Insurance Co., 85 Kan. 97, 116 Pac. 245, was applied to an action to reform a fire-insurance policy to include permission to take out additional insurance according to oral negotiations between the plaintiff and agent of the defendant. In the opinion an instruction to the effect that—
“If it was the understanding- of the plaintiff and the agent who took the application that the policy would permit the plaintiff to take out additional insurance, the policy was not avoided although it did not include a provision of that kind and additional insurance were taken out” (p. 403)
was approved. In Commercial Assurance Co. v. New Jersey Rubber Co., 61 N. J. Eq. 446, a rider annexed to the policy stated that other concurrent insurance was permitted without notice until requested. It was held that this was not infringed by insurance that covered only some of the items, provided such other insurance was effected on terms which required it to bear proportionally with the primary insurance whatever loss occurred within the range of their common operation. In W.-H. Coffee Co. v. M. Fire Ins. Co., 110 Iowa 423, concurrent insurance was held to mean any insurance running with that of the defendant insurer and sharing its risk and to include policies covering not only a part of defendant’s risk but all of it and more. In' the opinion it was said:
“Here the clause ‘other concurrent insurance permitted’ did no more than wipe out the prohibition of the policy. The hazard of excessive insurance was entirely waived, and, in so far as the risk was concerned, it was immaterial whether the additional insurance was on one or all the items covered by the defendant’s contract.” (p. 431.)
In a note, 49 L. R. A., n. s., page 374, it is stated that when the provision for concurrent insurance is ambiguous it must be construed most strongly against the insurer. In Philadelphia Underwriters Insurance Co. v. Bigelow, 48 Fla. 105, the slip attached to the policy reading “$-total concurrent insurance permitted” was held not to give permission for any additional insurance. But in Medley v. Insurance Co., 55 W. Va. 342, the slip attached read “$-other concurrent insurance permitted” (p. 369), and it was held that it would not be presumed that because the amount was left blank the slip was left on inadvertently, and that the policy was not to be avoided because other insurance was taken out on the property. Joyce, in his work on insurance, in speaking of the modern tendency of the courts to hold that provisions as to notice and consent for other insurance may be waived by the company and in many instances by its agents, says:
“But in order to establish a waiver of a condition against additional insurance, it must appear that the subject m'atter of the waiver and con sent was in the minds of the parties, and that it was consciously and purposely done by the minds of the parties coming together upon the proposition. The fact that the company has actual knowledge of other insurance at the time of issuing the policy, though no formal notice has been given, will prevent it from setting up additional insurance to defeat a recovery.” (8 Joyce on Insurance, § 2487.)
Ostrander on Fire Insurance, second edition, section 248, reads:
“It is a common practice to indorse policies, ‘Other concurrent insurance permitted.’ . . . The contract, before any privileges are added, imports an absolute prohibition of other insurance. By the indorsement referred to, the rigor of the prohibitory clause is softened and modified, but not to the extent of permitting ‘other insurance’ without qualification. It is something less that is granted, something of equal value to the insured, and at the same time something that the insurer nominates and insists upon as a condition on which it consents to become a co-insurer with other companies. This it may do as a right, and, when done, it becomes a part of the contract. It is substituted for the original provision, by which all other insurance was interdicted.”
Ostrander also lays down the rule that—
“When the agent who negotiates the insurance has knowledge of other policies on the risk, the insurer will be forbidden to invoke a forfeiture on account of such prior insurance, although, in contravention of the terms of the policy, there has been a failure to indorse thereon his consent. While the insurer will generally be bound by his knowledge of facts existing when the policy issues, it is not his duty to take notice of subsequent changes, unless brought to his attention in the manner prescribed in the policy.” (§ 258.)
This would doubtless be true if the policy contained nothing to modify the usual clause against concurrent insurance, but when the company or the agent issuing the policy knows that the insured has and will desire to have concurrent insurance and no limit is mentioned or agreed upon and a general clause permitting concurrent insurance is by the agent inserted in the policy the fair construction of such clause is that such concurrent insurance as the insured may desire will be permitted. The insurance company, knowing the general nature of the risk and the amount of concurrent insurance existing, may be willing for an additional amount to be taken out, but if it desire to place a limit it should do so. And its voluntary act in leaving the matter open must be construed as a continuing consent to additional insurance until such consent is withdrawn. In other words, the matter is all in the hands of the insurer to limit the matter of concurrent insurance as may be desired or to leave it without limit. Having chosen the latter course and issued the policy it must be held bound thereby. See Note, 16 L. R. A., n. s., 1238.
In these cases the policies were for $2000 and $1000, respectively, and by reason of proportional liability the amounts are reduced to $623.20 and $311.60, respectively.
It sufficiently appears that the insured and each agent mutually understood that concurrent insurance was desired and was to be permitted, no amount or limit being fixed. About the only way this mutual understanding could be expressed was by a- general clause to that effect. And under all the circumstances it is held that the reformation prayed for should be considered as made. This places the defendants in the position of issuing and leaving their policies in force with this general consent to concurrent insurance, and they are held liable accordingly.
The judgments are affirmed.
Porter, J., dissents. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by T. J. Braniff, G. E. Holmberg and A. Lynn against Henry F. Baier and Charles A. Baier to recover an agent’s commission for procuring a purchaser for defendants’ real estate. Holmberg and Lynn are the assignees of ,C. W. Talmadge’s interest in the commission claimed, who was associated with Braniff in the transaction. Plaintiffs were awarded judgment in the sum of $702, and the defendants appeal.
Defendants engaged the services of Braniff and Talmadge on July 1, 1918, and signed the following memorandum:
“We the undersigned H. F. Baier and C. A. Baier do hereby appoint and constitute C. W. Talmadge and T. J. Braniff, or either of them, as our only agents to sell our forty acres of farm land in Fellsmere, Florida; known as tracts No. 1232, 1233, 1260 and 1261 in township 31, range 37, in St. Lucy county, Florida; and we also hereby agree to accept from the above named agents or either of them, the actual cash we have already paid on the above mentioned contracts, plus $50.00, plus $8.00 for transferring the contracts, as full payment to us for our interest in the above named lands; the purchaser to assume all future payments. The above named contract to remain good until October 1, 1913. Dated July 1, 1913.”
After this appointment was made the agents acted upon the authority by advertising the land, interviewing parties, and writing letters, and they spent considerable time and effort to find a purchaser. As a result of correspondence begun about August 1, 1913, George W. Auber, of Fellsmere, Fla., on August 25 agreed to buy the land, and he sent the following letter enclosing payment:
“Farmers National Bank, Salina, Kansas. Inclosed you will find a check for $950.00 in favor of Henry and Charles Baier for their interest in tracts south range 37, east of the Fellsmere Farms, Fla., of land No. 1232, 1233, 1260 and 126Í, township 31, said check to be given to said Henry and Chas. Baier when contracts or certificates of purchase have been properly transferred and signed by them in favor of me, George W. Auber. You will also find inclosed a check for $750 in favor of C. W. Talmadge and T. J. Braniff when said contracts are properly transferred to me and mailed and registered to my address, being Fells-mere, Florida.”
About ten days before the Auber letter was written the defendants told Braniff that they did not desire to sell the land, and on August 26 they wrote a letter stating that the land was withdrawn from sale and the authority of the agents revoked as of the date of the 'Oral notice. When defendants were informed by the agents that a purchaser had been found in accordance with the terms of their contract deféndants replied that the lands were no longer for sale and that the money sent would not be accepted. The jury found, in effect, that the agents had found a purchaser and had complied with the terms of the written contract, and that the only reasons given by defendants for not complying with the contract was that the land had been withdrawn from sale and that they did not care to sell it at that time.
Defendants contend that the contract of agency was unilateral and subject-to revocation at any time before a purchaser was produced. The employment or agency, it will be observed,' was exclusive and for a fixed time. It is true, as defendants contend, that when the promise of one party is the consideration for the promise of another they must be obligatory upon both parties at the same time or they will not bind. The appointment or promise of defendants was'unilateral when made, but when it was accepted by the agents and they had spent time, effort, and money in carrying out its provisions, there was thereafter no lack of consideration. When the agents accepted the proposal and proceeded to perform the services which the appointment contemplated were to be performed-by them it became a mutual and binding obligation. As soon as the próniises of the parties ripened into a contract Braniff and TalmadgN’beciiñe the soléagents for the sale of the defendants’ land, with the exclusive right to sell it, until October 1, 1913. The defendants could not thereafter, by withdrawing the land from sale or by an attempted revocation, set aside the contract nor escape responsibility for the violation of its conditions.
In a litigation over a contract to find a purchaser for land the question was raised that the contract was unilateral. The testimony showed that after receiving the owner’s proposal the broker proceeded to find a purchaser and to do the things which it was contemplated would be done by him, and it w'as held that such action on his part constituted an acceptance, and that thereafter the contract was a mutual and binding obligation. (John E. DeWolf Co. v. Harvey, 161 Wis. 535.)
In Pullman Co. v. Meyer, 195 Ala. 397, it was said:
“Even though an agreement is, when made, unilateral, if the party-in whose favor the promise is made accepts its performance, or does ‘any act in recognition of its implied or intended, though unexpressed, consideration, this supplies the element of mutuality, and gives a right of action.’ ” (p. 401.)
Other cases of like import are Rowan & Co. v. Hull, 55 W. Va. 335; Lapham v. Flint, 86 Minn. 376; Schoenmann v. Whitt, 136 Wis. 332; Novakovich v. Union Trust Co., 89 Ark. 412; Blumenthal v. Bridges, 91 Ark. 212.
Stensgaard v. Smith, 43 Minn. 11, is out of line with the cited cases in this, that it appears to hold that the posting, advertising of property and the individual soliciting of purchasers did not constitute an acceptance or convert a proposal into a binding contract. That court in the later case of Lapham v. Flint, supra, stated that the only question before the court in the Stensgaard case was whether the contract upon its face, unaided by evidence or allegations in the complaint, expressed a mutuality of obligation, and it was held that it did not because there was nothing in the contract itself to indicate an acceptance of the obligation either in writing or by performance.
The general trend of authorities is that if the agent proceeds in good faith to comply with the terms of a proposal or agreement like the one in question by advertising the property and spending time and effort to find a purchaser these acts amount to an acceptance and thereafter both parties are bound. (Note, 19 L. R. A., n. s., 599.)
It is argued that plaintiffs were not entitled to recover because the offer of the purchaser did not comply with the conditions in the contract, insisting that the tender should have been $998, whereas only $950 was tendered by Auber. «The price, according to the contract, was “the actual cash we have already paid on the above mentioned contracts, plus $50, plus $8 for transferring the contracts.” The amount “already paid” means the payments made at the time the contract was executed, and that was $900. It appears that the defendants had paid $40 additional about August 1, shortly before the sale was effected or the purchaser was found. The offer of $950 was therefore a substantial compliance with the contract as made. The transfer fees of $8 were not payable until the transfer was effected, and these the agents were able and willing to pay when they became due. So far as the $40 payment was concerned, the defendants were given credit for that sum in the award of the jury.
It is also said that the purchaser, in his letter remitting the money, did not offer or agree to assume the balance due upon the land contracts that were to be assigned. This was a stipulation to be included- in the contract transferring the defendants’ interest in the land, and doubtless would have been included if defendants had allowed the contract to be carried out. It was one of the mere details of the transaction, to be written into the transfer, and one which it was unnecessary to mention in the letter. This objection, like that relating to the payment made between the making of the contract and the finding of a purchaser, and the failure to include the transfer fees in the letter, was not the objection that was made when the performance of the contract was demanded. These were objections which the plaintiffs, could easily have met at the time if the defendants had based their refusal upon them. Their objections were that they had taken the land off of the market, and that it was not for sale. There was little occasion for the agents to go through the form of making a tender when the defendants had refused to carry out their contract. • Having put their refusal solely upon the grounds mentioned, they are estopped after the suit is brought to shift their position and defend on grounds not then relied on and which the agents might have supplied, overcome, or corrected if they had been mentioned. (Redinger v. Jones, 68 Kan. 627, 75 Pac. 997; Sandefur v. Hines, 69 Kan. 168, 76 Pac. 444; Stanton v. Barnes, 72 Kan. 541, 84 Pac. 116; Johnson v. Huber, 80 Kan. 591, 103 Pac. 99.)
The view taken by the court sufficiently answers the ob jections made to rulings on requested instructions, arid the objections to those given. In one instruction the court told the jury that the Auber letter did not come up to the terms set forth in the agreement, but as we have seen, the absence of some of the details was not the basis of the defendants’ refusal to complete the contract; and besidés, the special findings of the jury showed the instruction to be without materiality. In the petition it was stated that the name of the purchaser was Piffard, whereas the proof showed that Auber was the purchaser found by the agents. This is not a material objection. No prejudice could have resulted to defendants because of the variance, and, as is often done, the petition may be regarded as amended to conform to the proof.
No material error being found in the record, the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.;
The defendants are the owners of two adjoining city lots, one vacant and the other occupied by a two-storv building. They rented the building (excepting the second story) to the plaintiff by a five-year lease containing a covenant for quiet enjoyment. A year later they were about to erect upon the vacant lot a structure which would cut off the light and air from the basement windows of the building occupied by the plaintiff. He brought an action seeking to enjoin such obstruction on the ground that it would render the basement practically useless to him. A demurrer to his petition was sustained, and he appeals.
By the English common law a conveyance of a part of a tract of land owned by the grantor carried with it by implication the right to the free passage of air and light to the portion conveyed over the remainder, in the absence of any express reference to the subject. This rule at One time obtained some recognition in this country, but is now generally repudiated, although it survives in a modified form in some states. (1C. J. 1227, 1228; 1 R. C. L. 398; 16 R. C. L. 716.) It has long-been settled that the doctrine of “ancient lights” has no place in the law-of Kansas. (Lapere v. Luckey, 23 Kan. 534.) We accept as consistent both with reason and authority these expressions of American courts with respect to the matter of implied covenants:
‘■‘The use and enjoyment of the adjoining lands are certainly no more subordinate to those of the house where both are owned by one man, than where the owners are different. The reasons, upon ■which!it has been held that no grant of a right to air and light can be implied from any length of continuous enjoyment, are equally strong against implying a grant of such a right from the mere conveyance of a house with windows overlooking the land of the grantor. To imply the grant of such a right in either case, without express words, would greatly embarrass the improvement of estates, and, by reason of the very indefinite character of the right asserted, promote litigation. The simplest rule, and that best suited to a country like ours, in which changes are continually taking place in the ownership and the use of lands, is that no right of this character can be acquired without express grant of an interest in, or covenant relating to, the lands over which the right is claimed.” (Keats v. Hugo, 115 Mass. 204, 215.)
“It seems to us that this doctrine of easements in light and air, founded upon sheer necessity and convenience, like the kindred doctrine of ‘ancient windows,! or prescriptive right to light and air by long user,’ is wholly unsuited to our condition, and is not in accordance with the common understanding of the community. Both doctrines are based upon similar reasons and considerations,.and both should stan'd or fall together. They are unsuited to' a country like ours, where real estate is constantly and rapidly appreciating, and being subjected to new and more costly forms of improvement, and where it so frequently changes ownfers as almost to become a matter of merchandise. In cases of cheap and temporary buildings, the application of the doctrine would be attended with great uncertainty, and be a fruitful source of litigation. It would, moreover, in ymany cases, be a perpetual incumbrance upon the servient estate, and operate as a veto upon improvements in our towns and cities. It will be safer, we think, and more likely to subserve the ends of justice and public good, to leave the parties, oil questions of light and air, to the boundary lines they name, and the terms they express in their deeds and contracts.” (Mullen v. Strickler, 19 Ohio St. 135, 143.)
The precise question here presented, however, is whether an easement for light and air may be implied in a lease of one tract by the owner of that adjoining it. In a recent note it is ' said that the decisions slightly predominate in favor of an affirmative answer. (13 L. R. A., n. s., 333.) In the case there annotated (Darnell v. Columbus Show-Case Co., 129 Ga. 62) that view of the question was adopted by an extension of the rule, which had already been confirmed by statute, that—
“When one sells a house, the light necessary for the reasonable enjoyment whereof, is derived from and across adjoining land then belonging to the same owner, the easement of light and air over such vacant lot passes as an incident to the house sold, because necessary to the enjoyment thereof.” (p.336.)
In the opinion it was said that the principle was equally applicable to a lease, and that the reason for it was more cogent in that case because of the tenant’s restricted control of the premises. This decision is the less .persuasive here because made in a jurisdiction where the English rather than the American rule is followed with respect to the effect of conveyances by adjoining owners. This is true also of the first case cited in the note. (Ware v. Chew, 43 N. J. Eq. 493.) The second case cited (Case v. Minot, 158 Mass. 577) affirmed the right of the tenant of a room in an office building to damages by reason of the obstruction of a light-and-air shaft or well by the building of a chimney by another tenant — a situation not entirely analogous to that here presented. The third case (Doyle et al. v. Lord et al., 64 N. Y. 432) was qualified by this statement:
“If the yard [in which the owner'was about to erect a structure which would cut off the light and air from premises occupied by its tenants] had not been part of the lot upon which the building was standing and if it had not been appropriated to use with the building so as to pass as appurtenant thereto, so far as to give easements therein to the, tenants of the building, the plaintiffs could not have complained of the acts of the defendants.” (p. 439.)
In the only other American case cited in the note referred to on this- side of the question (Hazlett v. Powell, 30 Pa. 293) the part of the opinioh bearing upon the matter was a rather casual dictum, apparently made upon the strength of two decisions arising out of sales, not leases. It is clear, therefore, that there is little in the American decisions tending to induce a court which holds that no covenant as to light and air is to be implied in a deed to take a different view in the case of a lease; although it is also true that the specific decisions of a contrary tendency are not numerous. While it is of course possible to make a distinction based upon the difference between -a deed and. a lease, we think the reasons for repudiating the doctrine of ancient lights and the rule by which a covenant as to light and air is implied in a deed apply with sufficient force to the present situation to require us to hold that no right with respect to light and air was created by implication under the facts alleged in the petition, and the demurrer was properly sustained.
The judgment ismffirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This is an action under the workmen’s compensation act. The jury returned a verdict for the plaintiff and special findings to the effect that the plaintiff was injured by an accident arising out of and in the course of his employment, and was thereby totally incapacitated for a' period of 416 weeks. They awarded compensation in the sum of $2,484, which is the amount provided for by the statute based on the wages earned by the plaintiff. The court overruled a motion for a new trial and defendant appeals.
The principal defense urged at the trial was that the plaintiff’s injuries resulted from his negligence in not procuring proper medical attention.
The plaintiff is a foreigner, unable to speak the English language, and his testimony was given through an interpreter. The testimony shows that he was injured on the 6th day of April, 1916. He was at work pulling hams from a barrel by means of a hook held in his right hand. While lifting one of the hams, the hook accidentally struck his left hand, penetrating the skin near the base of the thumb. A fellow workman took a clean rag and wrapped the thumb and the plaintiff continued to work for the few hours that remained that day. He did not consider the injury to be of any consequence, and returned to work the next day, but about four o’clock in the afternoon his hand pained him and he went to the office of Dr. Lewis, who was the physician at the defendant’s plant. The doctor administered treatment, cleaned the wound, put on an antiseptic dressing, and told, him to return the next day. The plaintiff’s testimony was that the doctor told him to put the hand in hot water, and that he followed these directions, but did not return the next day because his hand was paining him so that he was unable to leave his bed; that he had his landlord call for Dr. Lewis by telephone, but failed to get the doctor; then had the druggist in the neighborhood telephone for him. The druggist testified that he called by telephone three times for the doctor’s office, and talked with the timekeeper at the packing house, but failed to reach Dr. Lewis. The plaintiff then called Dr. Smith, a reputable physician, who came to the house and treated him for two days. The plaintiff’s condition became more serious, and on someone’s advice he called another physician, Dr. Brown, also shown to be a reputable physician, who gave him treatment during four days. Some days afterward Dr. Lewis called at the house and had the plaintiff removed to a hospital, where he remained for three weeks and where Dr. Lewis operated upon the arm and hand. Dr. Lewis testified that he first saw the patient on April 7th, at his office; that at that time—
“He had a slight laceration on the palmar surface of the thumb of the left hand. I administered treatment, thoroughly cleansed the wound with bichloride solution and used iodine, put on an antiseptic dressing. The wound was not very deep, just a slight laceration.”
He further testified that when he next saw the plaintiff, about two weeks after the injury, he found an infection of the hand, wrist, and forearm and that the arm was somewhat red and inflamed; that he found no bandages of any sort, on the arm.
“He was just lying there in bed with his arm exposed from the shoulder down, no dressings on it whatever. Iodine had been put on the arm and there was some discoloration due to either iodine or iodo-miller. The ■original wound had entirely healed up.”
He took the plaintiff to the hospital and prepared him for an operation, made several incisions on his arm, wrist, and hand, and drained it.
“I continued to treat him thereafter. He was at the hospital about three weeks.”
' When Dobish first came to him he washed the thumb thoroughly with bichloride solution and sterilized it with tincture of iodine, then put a bichloride of mercury pack on it. The doctor testified there was at that time no infection, and that keeping the hand in hot water would have been a good plan for Dobish to have followed.
As usual in cases involving the question of proper medical treatment, there was some conflict in the testimony of physicians called on behalf of one party and those who testified for the other, but the conflict was very slight, and all the physicians agreed that iodine and antiseptics were properly used at first, and that drainage is usually not resorted to in cases of this kind until after the wound becomes infected.
The errors complained of relate to the instructions. In stating to the jury the issues involved, the court gave this instruction :
“2. The defendant for answer to plaintiff’s petition, denies each and every allegation therein contained.”
• It is claimed this was prejudicial error because the defendant had filed an answer setting up as a special defense that the disability complained of “is not the result of any injury he may have received in the course of his employment, but is the result of his negligence in not procuring and having proper medical attention.” The defendant’s first answer, however, consisted of a general denial, and during the progress of the trial the defendant filed an amended answer setting up the special defense above referred to, which fact was doubtless overlooked by the court in preparing the instructions. The defendant could not have been prejudiced in the slightest, because the court, in instruction No. 5, submitted the special defense raised by the amended answer, and the amended answer did contain a general denial of each and every allegation of the petition.
Complaint is made, however, of the language used in instruction No. 5. In this instruction, the court, after charging that the right to recover under the compensation act is based upon an accident arising out of and in the course of the workman’s employment, further instructed as follows:
“The amount of recovery can not be augmented by a cause separate and independent of the injury, the consequences of which admit of definite ascertainment, and in this case if the jury find from the evidence that the injury which the plaintiff received was of comparatively little importance and from which he would normally have recovered without any serious consequences, but that by reason of his own acts in failing, neglecting or refusing to call proper medical aid, if you find tljat he did so fail, neglect and refuse, said injury became infected and you can determine from the evidence with reasonable certainty how much the injury was augmented by reason of said wound becoming infected, then you are instructed that the plaintiff would only be entitled to recover in this action compensation for the injury which was caused by the" accident, and would not be entitled to recover for any augmentation of said injury occasioned by said infection, but if you find from the evidence that said infection occurred at the time the plaintiff received the injury or that it occurred subsequent to said time, but that the plaintiff in either event used reasonable and ordinary care to obtain competent and proper medical and surgical aid, then you are instructed that he would be entitled to recover full compensation for the results of said injury, although you may believe from the evidence that the injurious results were augmented and caused in great part by its being infected.”
It is complained that the instruction placed the burden of proof upon defendant; that it is ambiguous and its meaning vague and obscure; that even though the jury believed the injury was augmented by reason of plaintiff’s own conduct, yet if they could not determine the extent to which his injury was thus affected, they -Were justified in concluding that his present condition resulted from the original injury.
As applied to the facts disclosed by the evidence, we think it can not be said the instruction prejudiced the defendant. Some of the language used is open to the criticism that it is somewhat ambiguous, but the important issue was kept before the jury, and they were given to understand that plaintiff was not entitled to recover for any augmentation of his injury by reason of the wound becoming infected, if that resulted frpm his neglect to procure proper medical attention. Nor is the instruction open to the objection that it placed the burden of proof upon the defendant. It did not attempt to treat of that question. In another instruction the court properly charged that the burden of proof was upon the plaintiff to prove, by preponderance of the evidence, every material allegation of his petition.
Moreover, we are not disposed to attach importance to the language of the instruction, for the reason that an examination of the record satisfies us that there was no substantial basis in the evidence for the claim that the plaintiff was negligent in procuring proper medical attention. There is no dispute as to what occurred. He went promptly enough to the defendant’s doctor, who gave him all the treatment deemed necessary; when he found himself unable to leave his bed the following day, he certainly used reasonable efforts to procure tjie attendance of Doctor Lewis, and, failing in that, immediately called in a competent physician. When he failed to get relief, he discharged that physician and called another. It would be a strange doctrine to hold that this man, unable to speak our language, is to be held guilty of negligence because doctors called as expert witnesses failed to agree as to what was the proper medical treatment for his injury. The mere fact that Doctor Lewis found him in bed several days after the injury with no dressing or bandage upon his hand and arm does not tend to show that the plaintiff -was negligent in procuring proper medical attention. Three physicians had failed to bring him relief, and it is not strange that in his suffering he was found with no bandages or dressing upon his arm. We conclude that the defendant was not prejudiced by the instructions. There is some complaint that the amount of compensation is excessive, but we are unable to say that it is not supported by some substantial evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for personal injuries sustained by the plaintiff, who was an employee of the defendant. The plaintiff recovered, and the defendant appeals.
The defendant maintains two freight houses in Kansas City, Mo., which extend north and south and are connected by a dock or platform. At the close of "business each day a doorman sees to it that all doors are closed and bolted. About six o’clock in the evening 'a watchman comes in and remains until six o’clock the next morning. The watchman is the only man in charge of the company’s property at night, and his duties are to protect and look after such property in all respects— the lights, fire, water, theft, and if doors be not secured, to secure them. Two registry boxes are installed in each building.' In case of fire, the watchman breaks the box, pulls down a lever, and so gives an alarm. Besides this, the watchman is required to visit each box at stated intervals throughout the night, and by means of the bell indicate to the Western Union telegraph office in the Stock Exchange building, a block and a half from the freight houses, that he is awake and on duty. Frank Holland was the watchman for both buildings. The work was too heavy for one man, and the plaintiff took Holland’s place as watchman of the north building; The plaintiff had been fireman of the heating plant which heated the freight house office. It required but a small amount of work to attend the heating plant, and he continued to do so after he assumed the duties of watchman. One night, as the plaintiff was going his rounds, he saw an open door on the west side and toward the north end of the building. He had passed by the door hourly from 7:05 p. m. to 12:05 a. m. and the door had been closed, but as he came to it at 1:05 a. m. it was open. He carried a lantern at his side in his left hand and a revolver in a holster under his left arm. Upon seeing the open door he reached for his revolver with his right hand, and was immediately shot in the left arm by a man who escaped through the open door.
The plaintiff’s petition does not contain the word “watchman.” He framed his petition and he framed his testimony to make it appear that aside from his duties as fireman his duties consisted in ringing those two bells, installed for the purpose of compelling him to make an hourly record of the fact that he was awake and about his business. He said the registry boxes were for protection against fire, and had to be rung every hour. He had no orders covering anything except his duties as fireman and turning in those registry boxes. He said Holland was a watchman, and had pulled the bells as a part of his duties as watchman. Holland was relieved of all duty in the north building, but the plaintiff said one of Holland’s duties was taken away and given to him, and that was to pull the bells, and he pulled them as fire protection. The plaintiff’s superior officer left the order for him to ring those bells. He had no orders about doors, except the one through which he entered the building. That one he was required to shut, so people could not steal or burn or do any damage, and he locked it behind him to keep anybody from coming in after him. But there his duties in respect to doors ended. True, he said, “while working there I went round some with Holland, and found doors open, and we closed them,” but when he took Holland’s place, and there was no other employee except himself in the building, sometimes he glanced around when going to ring his bells, and sometimes he did not. When not ringing the bells he stayed in the office.
The supposed foundation for the defendant’s legal liability in damages is this: The plaintiff was obliged to pass by the door through which the intruder entered every hour of the night in going from the office to the places where he worked the bell-ringing charm against fire. The door was left unlocked, and no guard was set to prevent desperadoes from making a breach through this weak place in the fortifications behind which the plaintiff rung his bells. These culpable omissions exposed the plaintiff, who was entirely without fault, to great bodily harm, and even to death, and did in fact, through a series of events linked together in natural sequence, proximately cause the plaintiff to be shot.
Testimony which the plaintiff himself produced, and the testimony of witnesses produced by the defendant whom the plaintiff did not undertake to contradict, cut the underpinning from the. fabrication that bell ringing was an independent employment, and not a means of making hourly reports, and established the fact that the plaintiff was watchman of the north building in place of Holland, and succeeded to Holland’s duties there. There are doors and doors of the north freight house, which is 600 feet long and 45 feet wide. A rolling door at the south end opens on the dock between the two buildings, and has bolts in the sides. Another door fastens in that way. The west doors, about thirty in number, are sliding doors, and when closed are fastened by bolts pushed down with the foot into slots. Sometimes it would be discovered that in closing the building in the evening a bolt had not been pressed down, and the proof, coming from the lips of the plaintiff’s own witness as well as the witnesses for the defendant, was that the watchman’s first duty on coming into the building in the evening was to see that doors were closed and fastened. The plaintiff did not dispute this proof, but on rebuttal merely reiterated his claim that he had no instructions regarding doors, and said he was carried on the pay roll as a fireman. The plaintiff had pleaded that he was engaged in interstate commerce, the defendant being an interstate carrier, and the case was submitted to the jury to say whether or not the defendant was negligent in not furnishing the plaintiff a safe place in which to pursue his nocturnal, indoor, interstate commerce pastime of bell ringing..
There was just one fair dispute concerning the facts, and that was whether or not, when the plaintiff became watchman as well as fireman, he was drilled with respect to looking after the doors of the building. There was no rational ground for dispute to be settled by the jury that the plaintiff was watchman, “ringing bells” being a freight-house expression denot ing the duties of watchman, and the court should have instructed the jury to that effect. There was no dispute to be settled by the jury that the first thing for the watchman to do when he came on duty was to see that the doors were secured. A watchman of ordinary capacity might be expected to understand this fact without instruction. The plaintiff admitted he had gone about the building with the watchman, had observed open doors and had closed them. But if the plaintiff needed instruction, the defendant’s negligence consisted, hot in leaving the door unbolted or failing to appoint a watchman to guard its watchman while on guard, but in not telling the plaintiff to see that the door was bolted. This negligence was not relied on as a basis for recovery.
There was evidence that it was generally known there were persons about the freight house at different times of night looking for an opportunity to steal property in the defendant’s care. An unlocked door would facilitate an attempt to steal should one be made. The defendant, however, had taken precaution against theft. Besides providing a man whose instructions were to close and bolt the doors each evening, it provided a watchman, who went through the freight house with a lantern hour by hour throughout the night, and the plaintiff testified there were other watchmen about the freight house and railroad yards. The duty to take precaution to protect the property of shippers from theft was owed to shippers, and not to the plaintiff. That duty was performed, and was performed in part through the agency of the plaintiff himself.
The omission of the doorman to bolt the closed door and the shooting of the plaintiff do not bear to each other the relation' of cause and effect. Omission to bolt the door was fraught with no peril to the plaintiff, active or latent. Bolted or unbolted, the door was not a hazard which plaintiff encountered in his rounds, and omission to bolt it neither supplied nor set in actipn any dangerous instrumentality or agency. It merely created a condition which made entrance to the building less difficult than it otherwise would have been, should any one desire to enter. The injury resulted from the violent and malicious act of a desperate person who' took advantage of the condition to enter the building for some purpose not disclosed. He may have gone there to steal. When surprised he exhibited such conduct as he willed, shot the plaintiff and fled, but conduct which originated with him, and which did not originate with the doorman or the. door the' evening before.
The plaintiff cites the well-known authorities to the effect that if the action of an intervening cause might have been anticipated, the intervening cause will not interrupt the connection between the original cause and the injury. The rule is sound, but it presupposes an original cause of injury which manifests consequences in an injurious result. We all anticipate pocket picking when the circus comes, and housebreaking during fair week, but the circus and the fair are not the causes of such crimes. We know, too, that should a housebreaker be discovered in the act of committing burglary, he might do violence to a person interrupting his depredation. But if, knowing the city to be infested with such characters, we go out for thé evening leaving the back door unlocked and leaving a servant in the house, omission to lock the door is not the cause of the burglary, should one occur, or the cause of injury to the servant who tries to intercept commission of the crime. The cause of injury originates with the burglar, whose entrance into the house was not obstructed by a locked door. On the other hand, when an act or omission has bound up in it perils which, in the natural order of things, are liberated or eventuate through the conduct of a responsible human being which might have been anticipated, and injury results, the original act or omission is proximate cause. Potency to do harm was contained in the act or omission from the beginning, continued to threaten throughout the chain of events, and came to fruition in the ultimate injury, albeit the ultimate injury was promoted or precipitated through the agency of an intervening third person.
The principle involved is well illustrated by the case of Clark v. Powder Co., 94 Kan. 268, 146 Pac. 320, which is cited by the plaintiff. Van Gray, the driller of an oil well, left solidified glycerine lying at the well. McDowell, an employee of the driller, carried the dangerous substance home with him. McDowell’s mother required him to take it away, and he placed it in the fence surrounding an abandoned graveyard, where some boys found it and exploded it. In the opinion of the court, prepared by Mr. Justice Dawson, it was said:
“No new power of doing mischief was communicated to the solidified glycerine by the acts of young McDowell. The power of doing mischief was inherent in the glycerine all the time. That some terrible accident was likely to happen in letting it out of the close custody of some one skilled in its ube was not only natural and probable but almost inevitable.” (p. 276.)
The plaintiff cites the case of Horan v. Watertown, 217 Mass. 185, which is clearly against him. The sewer department of the town kept dynamite in a tool chest, which could be opened without a key, which was not guarded, and which was left on a highway. Boys unlawfully took the dynamite from the box and threw it into a bonfire. The court stated the rule with reference to anticipating the independent act of a third person, and said:
“Tested by this rule, the plaintiff’s case fails. While the dynamite and the other contents of the box were left in such a way that a thief might not find it very difficult to steal them, it can not be said that the defendant was bound to anticipate that this might be done and to guard against the consequences that might follow if a thief should steal the dynamite and so use it as to do injury to others. The general assumption of innocence would be inconsistent with this.” (p. 186.)
Let it be supposed that the court held the action of the boys should have been anticipated. The case would then afford no comfort to the plaintiff. The danger lay in the dynamite from the beginning, which merely waited for some one to explode it to cause injury, as in the powder company case just referred to.
The plaintiff cites the case of Norton v. Chandler & Co., Inc., 221 Mass. 99, which does not sustain his contention. Friction strips on the revolving door of a store were out of order and did not keep the door from spinning. As a woman was entering the store a wing of the door behind her struck her in the back. The door had been set spinning by a customer leaving the store in a hurry. It was held the act of the customer might have been anticipated. Here again the power to do mischief inhered in the defective door, and the wing of the door was the thing which struck the woman, not the customer.
In this case no faculty for harm resided in the door or was imparted to the door by the doorman, which finally functioned upon the plaintiff through the instrumentality of the intruder’s pistol.
The plaintiff cites the case of Filson v. Express Co., 84 Kan. 614, 114 Pac. 863, as a parallel case. The express company left a portable package worth $600, the value of which was plainly marked on the package, in a frame depot at the outskirts of a small town over night. The depot had no police protection or watchman, was used for the deposit of express-matter, freight, and mail received on night trains, and had been burglarized. The doors of the building were locked and-the windows were fastened, but some one broke a window and' carried off the package in the nighttime. The question was-whether or not the bailee used due care to prevent loss of the-property in its custody, considering its tempting character,, the security afforded, and all other circumstances. It was-held the question was one for the jury. The point was made-that the lack of better protection was not the proximate cause of the loss, and it was held that if, under all the circumstances, loss by burglary might have been foreseen, it was the proximate result of the breach of duty complained of.
The difference between the two cases has been indicated by what has already been said. The plaintiff seeks to appropriate a cause of action for breach of duty which did not relate to him. It was the duty of the- defendant to protect the property of shippers from theft.- An unbolted door would make theft easier, and theft of property might be anticipated as a result of not bolting the door, if the property had no other protection. As to the plaintiff, however, the unbolted door was merely a condition, and not a cause of injury. In the case of Railway Co. v. Columbia, 65 Kan, 390, 69 Pac. 338, it was said:
“A prior and remote cause can not be made the basis of an action for the recovery of damages if such remote cause did nothing more'- than furnish the condition, or give rise to the occasion, by which the injury was made possible, if there intervened, between such prior or remote cause and the injury, a distinct, successive, unrelated and efficient cause of the injury.” (Syl. ¶ 2.)
If it could be conceived that because a door was not bolted the plaintiff fell through if into some space and was injured, the unsafe condition of the door would be the cause of his injury. The injury would be the natural, foreseeable, proximate result of the cause. Here the proximate and efficient cause of the plaintiff’s injury was the unrelated and independent act of a reckless ruffian, who used the door to gain admittance to the building. While the plaintiff tried to reduce himself to the status of the inert and inanimate personal property in the building, he was part of the protection afforded to that property. He accepted employment as part of the barricade against theft, and not as a thing to be surrounded by an impregnable barricade. He was a guard over property, and not a thing to be guarded. The bell-ringing theory of his employment broke down. He had no case, and the motion for a directed verdict in favor of the defendant should have been sustained.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff sought to recover on the defendant’s agreement in a deed to pay a mortgage on the property conveyed. Judgment was rendered in favor of the defendant. The plaintiff appeals.
The plaintiff’s evidence established that W. H. Barber executed to The Ramey-Udlock Investment Company a mortgage on certain real property in Colorado, to secure the payment of a $3500 note; that Barber conveyed the land to Clarence W. McCrillus; that McCrillus conveyed the land to the defendant, W. S. Bales, and that the deed from McCrillus to the defendant contained the following provision:
“Except deed of trust recorded in book 150 at page 472, Mesa county recorder, of which $500 has been paid. Balance of $3000 party of second part assumes and agrees to pay with interest from Jan. 1, 1914.” 1914.”
There was no evidence to show that McCrillus had assumed the mortgage or in any way agreed to pay it. The court sustained a demurrer to the plaintiff’s evidence.
1. The first question for consideration is: Did the words contained in the deed to the defendant bind him for the payment of the mortgage debt, in the absence of any showing that McCrillus, Bales’s grantor, was under any legal obligation to pay that debt?
That question has not been answered by this court. In Stephenson v. Elliott, 53 Kan. 550, 36 Pac, 980, Gowans v. Pierce, 57 Kan. 180, 45 Pac. 586, and Hendricks v. Brooks, 80 Kan. 1, 101 Pac. 622, this court said, in substance, that where the grantee, as a part of the consideration for the conveyance of a tract of land, accepts a deed which provides that he assumes and agrees to pay a mortgage indebtedness on the land, he becomes personally liable for the payment of the indebtedness. In each of these cases the grantor in the deed was himself personally liable. In New England Trust Co. v. Nash, 5 Kan. App. 739, 46 Pac. 987, the court of appeals sajd:
“The liability of a grantee who assumes the payment of a mortgage on land conveyed to him, depends upon the personal liability of his immediate grantor. If the grantor is not so liable, the mortgagee can not claim any deficiency from such grantee.” (Syl. ¶ 2.)
A petition was filed in the supreme court to have the judgment of the court of appeals reviewed. That petition was denied. Under the practice as it then existed, that denial was practically an affirmance of the judgment of the court of appeals. (See, also, Morris v. Mix, 4 Kan. App. 654, 46 Pac. 58; Lockrow v. Cline, 4 Kan. App. 716, 724, 46 Pac. 720; Anthony v. Mott, 10 Kan. App. 105, 61 Pac. 509; and 2 Jones on Mortgages, 7th ed., § 760.)
Notes on the question under discussion are found in 8 L. R. A. 315, 22 L. R. A., n. s., 492, and 39 L. R. A., n. s., 151. From these notes the conclusion must be drawn that the- weight of authority is against liability on the part of the grantee in a deed where the grantor therein is not personally liable. In the note found in 22 L. R. A., n. s., 492, the author uses this language:
“In those states which refer the liability of the grantee to the doctrine ■ that the promise is a collateral security which by subrogation inures to the benefit of the mortgagee, the promise is held to render the grantee the principal and the grantor the surety for the debt, the promise being to indemnify the latter in case he has to pay the debt. It necessarily follows that where this theory prevails, if the grantor is not himself liable, no liability can attach to the grantee, and it is so-held in very many cases.”
In Stove Works v. Caswell, 48 Kan. 689, 29 Pac. 1072, this court said:
“Where property is sold, and the purchaser agrees to pay the consideration therefor, or a portion thereof, to a creditor of the vendor, the purchaser, as between himself and the vendor, becomes the principal debtor, and the vendor only a surety.” (Syl.)
(See, also, Bowling v. Garrett, 49 Kan. 504, 520, 31 Pac. 135; Mulvane v. Sedgley, 63 Kan. 105, 64 Pac. 1038; Fisher v. Spillman, 85 Kan. 552, 118 Pac. 65; Bank v. Livermore, 90 Kan. 395, 402, 133 Pac. 734; Morlan v. Loch, 95 Kan. 716, 149 Pac. 431; and McAndrew v. Sowell, 100 Kan. 47, 163 Pac. 653.)
It follows that the question with which this discussion was commenced must be answered in the negative.
2. One of the grounds of the motion for a new trial filed by the plaintiff was: “Newly discovered evidence material for the plaintiff, which he could not, with reasonable diligence, have discovered and produced at_ the trial.” An affidavit of F. P. Evans, the plaintiff’s cashier, was produced at the hearing of the motion. This affidavit showed that when Evans looked through the papers pertaining to this loan, he overlooked the fact that McCrillus had executed an extension agreement. The affidavit further showed that McCrillus had entered into an agreement for the extension of this loan, and in the extension agreement had agreed to pay the mortgage debt with the interest thereon;-that this agreement was made with the plaintiff as agent for the legal holders of the mortgage, and that after j udgment had been rendered Evans again made a search through the papers pertaining to the loan, found the extension agreement, and immediately wrote to plaintiff’s attorney, Howard J'. Hodgson, and sent the extension agreement to him.
The motion for a new trial was denied. Under the decisions of this court above cited, if an extension agreement had been introduced on the trial and that agreement had shown that McCrillus had agreed to pay the mortgage debt, then the assumption of that debt by the defendant, in the deed from McCrillus to him, would have been a valid and binding obligation on the part of Bales, and judgment should have been rendered in favor of the plaintiff.
Under these circumstances, in order to prevent a failure of j ustice, a new trial should have been granted — not, however, without the imposition of terms.
The judgment is reversed, and a new trial is granted on condition that the plaintiff pay all the costs of the action up to and including the hearing of the motion for a new trial. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff, J. É. Gooden, brought this action against the defendant, C..E. Lewis, to vacate a judgment theretofore obtained by Lewis against Gooden.
In this action the petition gives a synopsis of the prior case of Lewis v. Gooden, Which was an action on two promissory notes and for the foreclosure of a chattel mortgage on a threshing outfit, separator, engine, tank, etc. The action was begun September 24, 1915, and an attachment for the mortgaged chattels was issued and they were levied upon by the sheriff. The answer of Gooden was due on October 20, 1915, but he made default. On January 3, 1916, judgment by default was rendered against Gooden, and the chattel mortgage was foreclosed and the property sold to satisfy the mortgage and the attachment. On January 31, 1916, the sheriff sold the property after proper order of sale and publication, and made his return on the day of sale.
The present action was filed on March 29, 1916, under section 596 of the civil code (Gen. Stat. 1915, § 7500) and on the statutory ground of “unavoidable casualty • or misfortune,” which prevented him from defending in the prior case. Gooden pleaded that in August, 1915, he had broken his leg and was confined to a hospital in Hutchinson until October 3, when he returned to his home, but was then unable to walk or attend to his ordinary duties, and remained unable to walk until after judgment was rendered against him on January 3, 1916:
“That on October 20th, 1915, the answer day in said action, this plaintiff came to Greensburg [the county seat] in an automobile, assisted by an- attendant, to see counsel and have answer filed or defense made, but was unable to climb stairways to offices, or to the court house, and on that occasion saw counsel, and understood that counsel would arrange to have said case attended to or have plaintiff notified when to give same further attention. But that counsel so consulted failed to file any answer or to arrange to have same done or to have any notice given to this plaintiff as to what further attention was required of him or when, and that this plaintiff relied upon said counsel attending to said matter for him; that afterward, and on January 3d, when said matter came up for trial, and upon learning df that fact, this plaintiff being unable to attend to the same, had a friend, one Chas. Tanner, phone to said counsel to attend to said cause and procure a continuance till such time as plaintiff, defendant in said action, could be able to attend, and this plaintiff relied upon said request being granted. And further, at said time, January 3d, 1916, the wife of this plaintiff had but the day prior been confined, and plaintiff being unable to procure other help was compelled by the emergency to remain in attendance upon his wife on the 3d day of January, 1916. Thereby and therefore he did not and could not attend in person to said litigation on the 3d day of January, 1916, but relied upon an answer' being filed and said cause continued to some other date for the reasons above set forth.”
Other allegations of Gooden’s petition were, that the chattel mortgage on the threshing outfit was void because his wife had not signed the mortgage and that the property was his means of livelihood; that the facts in Lewis’ affidavit procuring the attachment were false and the evidence supporting the attachment was false and fraudulent; and Gooden’s petition categorically traversed all the statutory grounds under which an attachment might issue.
The defendant, Lewis, demurred to this petition, and the overruling of the demurrer gives rise to this appeal.
The pertinent clauses of the civil code, section 596, under which plaintiff sought to maintain this action-reads:
“The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made. ...
“Fourth, for fraud, practiced by the successful party, in obtaining the judgment or order.
“Seventh, for unavoidable casualty or misfortune preventing the party from prosecuting or defending.”
There is practically no question of fraud in this case. It was not a fraud for Lewis to sue on the note and mortgage. He fairly put them in issue and fairly obtained judgment thereon. (Johnson v. Jones, 58 Kan. 745, 51 Pac. 224; Wagner v. Beadle, 82 Kan. 468, Syl. ¶ 1, 108 Pac. 859.) Gooden might have defeated that action if he had set up and proved the defense now pleaded. A judgment is not fraudulent merely because it might have been avoided by making a defense to it or by making some other defense than the one set up.
“A party may have a good defense to an action, but if he fail to make such defense when the case is called for trial, he will not be permitted to come in weeks afterward and say that the judgment was wrong and ought to be set.,aside, simply because he had a good defense.” (Iliff v. Arnott, 31 Kan. 672, 674, 3 Pac. 525; Vail v. School District, 86 Kan. 808, 811, 122 Pac. 885.)
Neither was the attachment affidavit fraudulent. It might have been untrue. Gooden might have shown its falsity; he might have beaten the attachment if he had assailed it. The validity Of the attachment and the affidavit and other evidence supporting it were in issue and the judgment determined the propriety of the one and the truth of the other. (Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 Pac. 1079; Garrett v. Minard, 82 Kan. 338, 108 Pac. 80; 15 R. C. L., p. 705.) It would be an intolerable annoyance to a litigant diligently prosecuting his cause with the aid of attachment proceedings if a defendant might waive a contest over the regularity of the attachment and waive a contest over the truth of the affidavit, and of the evidence upon which it was sought to be maintained and let judgment be taken against him by default, and later in an independent action be permitted to litigate the very essence of-the matter about which he had already waived all contest. It has often been declared by this and other courts that there are two ends in view in every lawsuit, the first and more important being that it be decided right, but the second, which is only less important than the first, is that it be decided, so that there may be an end of litigation. (Alexander v. Clarkson, 100 Kan. 294, 297, 164 Pac. 294.)
Did the fact that the plaintiff had broken his leg and the other incidents pleaded by him constitute an “unavoidable casualty or misfortune” preventing him from defending the action, under the terms of the statute? A majority of the court hold that they do not. His injuries or his wife’s confinement would have been good ground for asking a' continuance of the action. He might have employed a lawyer to file an answer for him. He did not do so. He says he talked with a lawyer on the day his answer was due, and “understood that counsel would have said case- attended to.” But plaintiff does not frankly allege that he had employed this lawyer to attend to the case for him. Indeed his petition discloses that plaintiff had not employed this lawyer or any other, since later and on the day set for the trial he sought the aid of a friend to telephone to this lawyer to procure a continuance. This would have been unnecessary if he had already employed :a lawyer. It was not shown that he even informed the lawyer as to the nature of his defense or of the facts to be pleaded, or of the indisposition of his wife, or of any other matter which might have been a proper basis for a defense or continuance. It would have been no trouble to have communicated with the trial judge by letter or telephone to ask that the case be postponed. (Knauber v. Watson, 50 Kan. 702, 704, 32 Pac. 349; 23 Cyc. 943-946; 15 R. C. L., p. 709.) Plaintiff never did anything until seventy-six days after the judgment was rendered against him. His own pleadings disclose that he was grossly negligent, both before and after judgment. If plaintiff had bestirred himself, or if he had employed a lawyer, he might have had the judgment set aside within the term by a motion to that effect supported by a proper showing or a satisfactory excuse for- his negligence, for within the term the whole case was still under the control of the trial court and plaintiff’s predicament would still at that time have been redressible at the court’s discretion. (The State, ex rel., v. Sowders, 42 Kan. 312, 22 Pac. 425; Sylvester v. Riebolt, 100 Kan. 245, 164 Pac. 176; Mulcahy v. City of Moline, post p. 532.) But after the term at which the judgment was rendered the court had no’ power to disturb the judgment except in substantial accordance with the provisions of the civil code. (Welling v. Welling, 100 Kan. 139, 163 Pac. 635.)
- Plaintiff’s brief intimates that this proceeding was begun within the term at which the judgment was rendered, but this is an independent action — not a motion in the prior case — and it is not shown that the trial court took any judicial cognizance of any error, injustice or impropriety in the judgment within the term at which that prior judgment was entered. It was not necessary that the trial court should set aside the judgment within the term, but it was necessary that the court make some disposition of it, either by taking it under advisement, continuing it, or making some other appropriate order concerning it. A litigant can not lay the ground work for nullifying a judgment, nor for delaying his successful adversary after judgment, by merely putting something on file which he utterly fails to call to the court’s attention until the term expires.
The rule is settled that a litigant can not invoke the code provision for relief on the ground of “unavoidable casualty or misfortune preventing a defense” where he has been manifestly negligent, guilty of laches, lacking in diligence, careless, hurried, or mistaken in the preparation of his defense, nor on account of the negligence of his attorney. (Daniel Hill v. Elias Williams, 6 Kan. 17; Winsor v. Goddard, 15 Kan. 118; Mehnert v. Thieme, 15 Kan. 368; Welch v. Challen, 31 Kan. 696, 3 Pac. 314; Weems v. McDavitt, 49 Kan. 260, 30 Pac. 481; Holderman v. Jones, 52 Kan. 743, 34 Pac. 352.)
There is not much analogy between the facts pleaded in this case and those in Gheer v. Huber, 32 Kan. 319, 4 Pac. 290.
We note the intimation that the lawyer to whom plaintiff spoke about his case on the day his answer was due and to whom he attempted to send a telephone message through the medium of a friend on the day judgment was taken is one of appellant’s counsel here. This could only have some significance attached to it if the pertinent facts had been pleaded so that they'might have been tested by the demurrer along with the other allegations of his petition.
The demurrer to the petition should have been sustained.
Reversed. | [
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The opinion of the court was delivered by
Marshall, J.:
An opinion in this case is reported in Kelly v. Insurance Co., ante, p. 91, 165 Pac. 806. After that opinion had been rendered a rehearing was granted. The cause has been reargued, and the original abstract and briefs have been reexamined. Additional briefs have been filed, and these briefs have been examined. Every principle of law announced in the former opinion has been reconsidered. The court is satisfied with that opinion and adheres to it.
A new question is now presented. The action was commenced in the district court of Miami county, and, on the application of the defendant, was removed from that court to the federal court. Thereafter certain correspondence took place between the insurance department of this state and the defendant, in which correspondence the department strongly recommended that the removal of the cause from the state courts be abandoned. On that recommendation a stipulation was sighed, on which the federal court remanded the cause to the state court for trial. The defendant contends that the stipulation, on which the action was remanded from the federal court, was obtained by threats and duress, and that the action is still pending in the federal court, and that, therefore, this court is without jurisdiction to hear this appeal. This matter was not presented to the trial court. It. was first brought to the attention of this court by the petition for a rehearing. In that petition the defendant set out the correspondence between it and the insurance department. The petition for the removal of the cause, to the federal court, and the order of that court remanding the cause to the state court for trial, are set out in an additional abstract of the record which has been filed since the cause was set down for rehearing in this court. The correspondence between the defendant and the insurance department does not appear in any abstract. It nowhere appears that the attention of the district court was in any way called to the matter that is now under consideration. This court has often said that it will not consider questions presented for the first time on appeal. (Sleeper v. Bullen & Dustin et al., 6 Kan. 300; Stewart v. Murphy, 95 Kan. 421, 148 Pac. 609; Hennerich v. Snyder, ante, p. 403; and numerous other decisions by this court.) One reason for this rule is that appeals must be determined on the record coming from trial courts. (Root v. Street Railway Co., 96 Kan. 694, 153 Pac. 550; Girten v. Zinc Co., 98 Kan. 405, 408, 158 Pac. 33.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action is one to require the public utilities commission to issue a certificate validating a proposed bond and stock issue of the railway company, which certificate it is alleged the commission arbitrarily withholds.
The railway company was organized to construct and operate an interurban railway from the city of Kansas City, Kan., to the city of Topeka. A construction company was organized to build the road. The stockholders of the two companies were substantially, but not wholly, identical. The two companies entered into a contract whereby the construction company agreed to construct the road for $50,000 per- mile iii bonds and stock of the railway company as follows: first-mortgage bonds, $20,000 per mile; second-mortgage bonds, $12,500 per mile; common stock, $17,500 per mile. The plan of construction contemplated completing the road in three successive sections; the first from Kansas City to Bonner Springs, approximately sixteen miles; the second from Bonner Springs to Lawrence, approximately twenty-three miles; the third from Lawrence to Topeka, approximately twenty-six miles— a total distance of approximately sixty-five miles. When the first section was completed the railway company made application to the commission to certify a bond and stock issue to pay for the construction of the entire road, and such a certificate was issued. Bonds and stock for the first section were to be delivered at once, and for the second and third sections on completion of those sections. While the certificate did not in terms state that the bond and stock issue was certified on the basis of $50,000 per mile, such was the basis of the issue, and the authorized securities apparently fulfilled the contract for construction. When the second section of the road was completed the securities authorized for that section were delivered to the construction company. Some turnouts not included in the original estimate of distances were necessary, a slight change of route was required, and the result was there were 42.314 miles of track between Kansas City and Lawrence instead of 39 miles as originally estimated. The application now under consideration was for a bond and stock issue at the rate of $50,000 per mile for the excess distance.
The statute defining the rights of the railway company and the power of the public utilities commission reads as follows:
“A public utility or common carrier may issue stocks, certificates, bonds, notes or other evidences of indebtedness, payable at periods of more than twelve months after the date thereof, when necessary for the acquisition of property, for the purpose of carrying out its corporate powers, the construction, completion, extension or improvements of its facilities, or for the improvements or maintenance of its service, or for the discharge or lawful refunding of its obligations, or for such other purposes as may be authorized by law; provided, and not otherwise, that there shall have been secured from the commission a certificate stating the amount, character, purposes and terms on which such stocks, certificates, bonds, notes or other evidences of indebtedness are proposed to be issued, as set out in the application for such certificate, and that the statements contained in such application have been ascertained to be true, but this provision shall not apply to any lawful issue of stock, the lawful execution and delivery of any mortgage, or to the lawful issue of any bonds thereunder which shall have been duly approved by the board of railroad commissioners prior to the taking effect of this act. The proceedings for obtaining such certificate from the commission and the conditions of its being issued by said board shall be as follows: ... In case stocks, certificates, bonds, notes, or other evidences of indebtedness are to be issued partly or wholly for property or services or other consideration than money, the public utility or common carrier shall file with the commission a statement, signed and verified by the president or other chief officer having knowledge of the facts, showing (1) the amount and character of the stocks, certificates, bonds, notes or other evidences of indebtedness proposed to be issued; (2) the general purposes for which they are to be issued; (3) a general description and an estimated value of the property or services for which they are to be issued; (4) the terms on which they are to be issued or exchanged; (5) the amount of money, if any, to be received for the .same in addition to such property, services or other consideration; (6) the total assets and liabilities of the public utility or common carrier; and (7) that the capital sought to be secured by the issuance of such stocks, certificates, bonds, notes or other evidences of indebtedness is necessary and required for such purposes and will be used therefor. The commission may also require the public utility or common carrier to furnish such further statements of facts as may be reasonable and pertinent to the inquiry, and shall have full power to ascertain the truth of all statements,made by,such common carrier or public utility. Upon full compliance by the applicant with the provisions of this section the commission shall forthwith issue a certificate stating the amount, character, purposes and terms upon which such stocks, certificates, bonds, notes or other evidences of indebtedness are proposed to be issued, as set out in the application for such certificate, and that the statements contained in such application have been ascertained to be true. Any issue of stocks, certificates, bonds, notes or other evidences of indebtedness not payable within one year, which shall be issued by such public utility or common carrier contrary to the provisions of this act shall be void.” (Gen. Stat. 1915, § 8353.)
The application was in the form prescribed by the commission, covered all the facts required by the statute, and was duly verified. The application came on for hearing on April 27, 1917, and among other proceedings the following colloquy occurred between the commission and Mr. Bigelow, a representative of and witness for the railway company:
“Commissioner Kinkel: Now, is it really necessary for the financial interest of the company that these additional bonds and stocks for this short additional mileage be issued, or is it just simply done for the purpose of carrying out a contract? In other words, have the proceeds of the stocks and bonds already issued paid for the equipment and road?
“Mr. Bigelow: To the construction company?
“Commissioner Kinkel: Yes.
“Mr. Bigelow: Oh, that you could not ascertain until they sell those securities. Of course the first mortgage has not.
“Commissioner Kinkel: The first mortgage was $20,000 a mile, was it not?
“Mr. Bigelow: Yes.
“Commissioner Kinkel: Do you recall how much a mile the road has cost you?
“Mr. Bigelow: No, I could not say, now. Mr. Williamson will be able to testify to the mileage, but he would not know anything about the securities.
“Commissioner Kinkel: Who would know about the cost of the road?
“Mr. Bigelow: Well, I know as much as anybody, but I would have to figure it up. We have not really completed the whole proposition, we will have to figure it up.
“Commissioner Foley: Well, we .will want that information, and we will continue the matter until a later time, when Mr. Williamson can be here, and prepared to furnish the information as to the milage constructed, and the cost.” '
At the second hearing held on May 18, the following took place:
“Commissioner Foley: What was the nature of your contract with the construction company?
“Mr. Bigelow: On the basis of $20,000 a mile for the first mortgage bonds, and $12,500 for the general mortgage, and stock $17,500 per mile.
“Commissioner Foley: Upon what-basis, resting upon the authority given by the commission, did you feel authorized to make that kind of a contract with the construction company?
“Mr. Bigelow: Well, the contract with the construction company was previous to the authorization of the bonds. As a matter of fact, gentlemen, the capitalization perhaps is, as you must know yourselves, very small compared with other roads.
“Chairman Bristow: Well, that is of no consequence, as compared with other roads; as compared with the investment in the property is the only thing to go by.
“Commissioner Foley: Do you know what a railway like that, constructed and built as that is, can be built for?
“Mr. Bigelow: Well, of course it costs more to-day than it did when it was built, as far as that is concerned, but our figures which we have given in the statement show the way the accounts stand at the present time — given in the application, I mean.”
A statement of expenses incurred in constructing the road to Lawrence was produced by the railway company and received in evidence. It reads as follows:
THE KANSAS CITY, KAW VALLEY & WESTERN RY: CO.
ROAD EQUIPMENT ACCOUNTS.
Account. Amount.
No. 501 Engineering and superintendence................ $53,913.95
502 Right of way.................................. 146,072.44
503 Other land used in electric railway operations.... 45,643.30
504 Grading ...................................... 170,520.32
505 Ballast ....................................... 67,772.07
506 Ties.......................................... 99,228.25
507 Rails, rail fastenings and joints................. 184,226.52
508 Special work..............:................... 10,203.82
510 Track and roadway labor....................... 103,468.91
511 Paving ....................................... 11,378.82
512 Roadway machinery and tools................... 10,939.57
515 Bridges, trestles and culverts____'............... 206,431.32
516 Crossings, fences and signs..............,...... 20,001.42
517 Signals and interlocking apparatus.............. 737.3†
518 Telephone and telegraph lines....:...........'... 4,403.85
519 Poles and fixtures..........................t____ 31,785.29
521 Distribution system........................’____ 116,695.57
522 General office buildings.....................,.... 3,348.73
523 Shops and carhouses........................... 13,760.39
524 Stations, miscellaneous buildings and structures... 19,840.36
526 Park and resort property....................... 155.66
527 Cost of road purchased..................;...... 246,404.63
530 Passenger and combination cars................. 80,557.44
531 Freight, express, and mail cars.................. 24,035.14
532 Service equipment............................. 4,119.96
533 Electric equipment of cars...................... 16,915.31
534 Locomotives .................................. 15,673.70
536 Shop equipment............................... 1,509.22
537 Furniture ...........-......................... 1,976.58
538 Miscellaneous equipment ....................... 2,594.34
540 Substation buildings........................... 10,913:45
543 Substation equipment.......................... 32,194.38
544 Transmission system .......................... 5,552.13
546 Law expenditures .......................'...... 16,893.92
547 Interest during construction.................... 189,999.94
548 Injuries and damages.......................... 496.32
549 Taxes ........................................ 102.40
550 Miscellaneous ................................. 227,464.02
May 1, 1917. $2,197,930.81
The following then occurred:
“Commissioner Foley: You have a power plant of your own, have you?
“Mr. Bigelow: No, sir.
“Commissioner Foley: You have no power plant?
. “Mr. Bigelow: We buy our power from the municipal plant at Kansas City, Kansas.
“Commissioner Foley: I believe that is all.
“Chairman Bristow: Now, why should this cost you twice as much to construct that, as other roads that we know have been constructed, that are apparently just as good as that is?
“Mr.,, Bigelow: I can not tell you what other roads have done. You did n’t seem to be interested in the amount other roads have issued in securities, but as a matter of fact, it is a great deal less than others.
“Chairman Bristow: Yes, that has been a scandal for years, but when it comes to investment in these pieces of property, that is a tangible thing. The securities are simply whatever you are disposed, or the commission is disposed to permit to be issued, entirely a different proposition.
“Mr. Bigelow: That is for you gentlemen to determine.”
The commission made a general finding that upon consideration of the application and the evidence a certificate should be denied.
The litigants are far apart in their interpretations of the statute. The commission contends that the certification of securities to bé issued by a public utility is a matter resting in its discretion, to be exercised according to its conception of the public welfare. The railway company contends that the commission hás none but a ministerial duty to perform. Whenever a verified application in due form is presented, and any further pertinent information required by the commission is supplied, it becomes the mandatory duty of the commission to issue the certificate applied for. Neither contention is correct. The commission is not a general guardian over public utilities or the public, and can not, by an exercise of discretion over the issuing of bonds and stocks, control the activities of business enterprise. Business initiative and business sagacity are left free to improve what they deem to be opportunities, and a public utility has the right, under the statute, to issue whatever bonds and stocks may be necessary to carry out corporate powers, acquire property, construct and extend facilities, and maintain and improve service. The commission has no discretion to refuse to certify such securities. On the other hand, proposed securities must be necessary for some purpose designated in the statute, and the commission has full power to ascertain the truth of the statement, indispensable to an application for a certificate, that the capital stock to be secured is necessary and required for such purpose and will be used therefor.
The word “necessary,” as used in the statute, is not to be interpreted from the standpoint of some piratical corporation which might desire to exploit the public, or from the standpoint of some perverse commission which might conceive it to be public service to bait public utilities. “Necessary” means needful under all the conditions attending the enterprise.
Unless the commission see fit to accept the verified application as proving the statements which it contains, the applicant should extend its proof as the commission may indicate. Presentation of a verified application does not cast on the commission the burden of calling witnesses and establishing by adversary procedure the untruthfulness of the statements tendered or the true needs of the applicant.
In this instance the court is satisfied the railway company and the commission understood each other at the final hearing. The contract which the promoters of the railroad made with themselves to build the road for $50,000 per mile in bonds and stock did not create a necessity for issuing the stipulated securities, in the sense of the statute. If so, a necessity for bonds and stock at any improvident rate per mile could be created by simple contract. Possibly the contract which was made was induced by necessity, but if so, the necessity was the underlying fact. Although the previous order authorized securities which would fulfill the contract for the estimated ■number of miles, the order in terms provided for issuing securities in a gross sum to build the road to Lawrence. • If more funds were needed, the necessity was a question of complex fact to be determined at the hearing on the second application. Comparisons between the capitalization of this road and the capitalization of other roads did not tend to elucidate the question of fact. As bearing upon the issue, the commission specifically asked for the cost of the road and adjourned the hearing to give the railway company an opportunity to respond. The reáponse consisted of the general summary printed above, showing that the road, without a power plant, had a bookkeeping cost of more than $51,000 per mile. Nearly twenty per cent of the cost consisted of interest, $189,999.94, and the un explained .item, “miscellaneous,” $227,264.02. Near the close of the first hearing and near the close of the second hearing the actual need for capital additional to that already certified was squarely presented to the representative of the railway company. No information was forthcoming except the con-, struction summary, the fact that the proceeds derived from the first-mortgage bonds were not sufficient to pay for the road, and the fact that the capitalization' was smaller than that of other roads.
The conclusion of the court is that the commission had authority to require proof of need for additional capital beyond the proof afforded by the verified application; that the commission sufficiently indicated its desire for such proof; that substantial proof was not produced; and, consequently, that the certificate applied for was hot arbitrarily refused.
The writ is denied. | [
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The opinion of the court was delivered by
Porter, J.:
In this case the husband sues for a divorce and to cancel deeds by which he had conveyed to his wife 200 acres of land, part of which was their homestead. As grounds for the divorce he alleged extreme cruelty, and claimed that the deeds had been procured by duress and coercion, by threats made by his wife against his person and property. The action was brought within less than a year after he married the defendant. The court granted a divorce, canceled the deeds, and divided the real estate between the parties. The defendant appeals.
Plaintiff’s first wife died in November, 1913. Three sons and two daughters, all married, with families of their own, lived on farms.near him. He was seventy years of age, and had lived in Osborne county for forty-five years. He owned 520 acres of land. In the springtime of 1914 the old gentleman became lonesome'and his fancy was caught by an advertisement of the defendant in a matrimonial journal. He wrote to her, and they had considerable correspondence in which they agreed upon a marriage. She was a widow fifty-two years of age and resided near Louisville, Ky. He went to see her, and they were married July 9, 1914, a few days after they met. She owned a one-third interest in fifteen acres of land fifteen miles from Louisville. The plaintiff furnished $300 to pay the back taxes on her land and paid for a fence and other improvements. He also gave her money for her personal use. Before starting to Kentucky he conveyed 320 acres of his land to his children, reserving to himself a life estate therein. In the correspondence with defendant he represented himself to- be sixty-three years of age; told defendant about his wealth, and explained that his land was only encumbered to the amount of $1500. He also agreed to her request that some separate provision be made for her, and in one letter said he would make a will giving her the 200 acres at his death. In reply she wrote that she had known of a number of instances where wills of that kind had been revoked and wanted something more substantial. He promised to arrange those matters to her entire satisfaction.
•After their marriage they returned to Kansas, and immediately trouble arose between plaintiff’s wife and his children. In December, 1914, he went with his wife to a lawyer’s office and stated he desired to convey the land to his wife. Deeds were drawn according to his request. He handed the deeds to his wife and she gave them to the lawyer, who had them recorded. On March 1, 1915, he .brought this action. The answer denied that the wife was guilty of cruelty and alleged that the deeds were made voluntarily and in accordance with a promise made before the marriage.
The plaintiff testified that he executed the conveyances because of threats of defendant that she would leave him; that she would burn every building on the place; and also that she had threatened to kill some of his children, and that at one time she said that she would kill him if.he did not make the deeds; that she threatened him in every way before he made the deeds so that he had not a minute’s peace or rest.
The testimony upon both of these'issues was conflicting, and the principal error complained of is that there was no evidence to sustain the finding that the deeds were obtained by duress. The testimony as it appears in cold print does not seem very satisfactory upon this issue, but the trial court, after seeing and hearing the witnesses, deemed it sufficient, and the general rule that this court is bound thereby applies. However, we regard that question as of little consequence. There was sufficient evidence to justify the decree of divorce, and without canceling the deeds the court undoubtedly had the power to make an equitable division of the property between the parties. The wife was awarded eighty acres of the land upon which there are two sets of improvements, and the plaintiff was given 120 acres upon which there are no improvements. The testimony shows that the land awarded her is substantially of the same value as that awarded the husband. The court also gave to the wife her own property in Kentucky upon which plaintiff had advanced money for improvements and taxes, and she was given in addition some personal property, the válue of which is not stated.
It can not be doubted that the court had the power to divide the property between the parties, regardless of how the title stood, so long as it belonged to one or the other, or both, and it has been repeatedly declared that this court will not interfere with a division made by the trial court, unless it appears that’ there has been an abuse of discretion, and that the division is so unj ust and unfair that it should not be permitted to stand. (Miller v. Miller, 97 Kan. 704, 156 Pac. 695, and authorities cited in the opinion.)
Upon the facts and circumstances shown in the present case we do not think,the defendant has any just cause to complain of the division made by the trial court, and the judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued to recover $100 damages for failure to satisfy a mortgage, for cancellation, to quiet title, and to recover attorney’s fee, all arising out of an alleged failure to satisfy a deed taken as security for a $525 loan which the plaintiff claimed had been paid. The defendant denied payment, and on his crossr-petition recovered judgment for the full amount of the loan. The plaintiff appeals.
The case was tried by the court, the evidence was conflicting, and there was enough to support the findings of fact and conclusions of law, which were against the plaintiff. The chief complaint is of the refusal to grant a new trial for newly discovered evidence. The plaintiff testified that he got the money from his father to repay the loan and paid it to the defendant between seven and eight o’clock in the evening; that he went down with his wife to pay him; that the defendant, his father-in-law, procured the money to make the loan frotó August Ovine, who was paid on the day the defendant was paid. That when the payment was made himself and wife, defendant and wife and Ovine were all in the house; that he paid the $500 in twenty-dollar bills, interest in a ten-dollar and a one-dollar bill. The plaintiff’s* father testified that he loaned the son $500 on the 22d day of December, all the family being present. Two brothers testified that they saw the father hand $500 to the son. The defendant swore that the money belonging to the plaintiff was borrowed partly from Ovine and partly from a brother; that he paid Ovine in two two-hundred-dollar payments and had receipts therefor, which he produced. He denied any payment by the plaintiff. Plaintiff’s wife testified that she never sáw him give her father any money, and that she was not living with her husband at the time of the trial. The defendant’s wife denied the payment and testified to knowing that her husband paid back the money to Ovine, and that the money they paid Ovine came from the sale of cattle, $188.99, and the work of three men; that the cattle were sold in 1913 to Mr. Beltram, and that they sold stock and pigs to him.
On a motion for new trial an affidavit of Mr. Beltram was, offered to the effect that the only sum ever paid him by defendant or his wife in the year 1913 was $35 for one black cow. Mrs. Beltram made an affidavit covering the same matter, and also told of an attempt of defendant’s wife to try to induce Mr. Beltram to say that he had paid' her about $40 for produce. This affidavit of two witnesses was tendered to the effect that in the spring of 1914 they were visiting at the home of the plaintiff when his wife, in speaking of the home, said it was very nice, “but we owe old Mr. Lagneau, Felix’s father, $500 borrowed money,” or that in substance. The theory of the plaintiff seems to be that his wife became alienated from him and undertook to help her parents swear the case through for them.
The affidavits present nothing which would necessarily work a different result with another jury, and nothing which is more than to some extent impeaching. They were presented to the trial court, which had full cognizance of the entire situation and deemed them insufficient to require a new trial,, and it can not be held that its ruling in this respect was an abuse of discretion. (See Pittman Co. v. Hayes, 98 Kan. 273, 157 Pac. 1193, and cases cited on page 278, and Pasho v. Blitz, 99 Kan. 421, 162 Pac. 1161.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff sued the defendant for damages for the death of W. F. Norman, a freight conductor, who was killed by the explosion of torpedoes which some unknown miscreant had placed upon the railroad track in the defendant’s freight yards in Chanute. At the time Norman met his death he was checking the initials and numbers of freight cars of a train which he had just taken charge of. The cars were moving, and when they came in contact with the torpedoes the latter exploded, and a fragment struck him in the eye, penetrating his brain and causing his death.
Plaintiff’s petition alleged the dangerous character of the torpedoes; that the defendant had a large number of them in a storeroom in the railroad yards near by; that the torpedoes were negligently and carelessly stored therein; that call boys and other employees had easy access to the key to the storeroom, and that the key was accessible to any one who wanted to use it. One paragraph of the petition reads:
“8. Plaintiff further alleges that by reason of the acts of negligence alleged in paragraph 7 herein, some person, unknown to this plaintiff, had access to said defendant’s supply of said torpedoes and placed the same upon the track where they were exploded by the cars approaching said W. F. Norman while he was engaged in the duty of taking the numbers of his train; . . . that it was a duty which said defendant owed to W. F. Norman as one of its employees to have stopped said dangerous practice and to have made it impossible for said improper and dangerous practice to have grown up or continued; that by reason of said improper and dangerous practice said W. F. Norman was caused to be killed.”
Certain allegations of plaintiff’s petition were stricken out by order of court. They read:
“Plaintiff further alleges that a custom and practice had grown up in the yards of said defendant at Chanute, Kansas, of taking torpedoes from said storeroom and placing them upon the rails of said company’s tracks in said yards for the purpose of having them exploded by cars moving over them in order to perpetrate a practical joke on the other employees or persons about said yards who might be scared thereby; that said custom and practice had existed in said yards for a long time prior to said 25th day of December, 1914; that said yardmaster knew, or by the exercise of ordinary care and caution, could, would and should have known of the existence of said practice; that said practice was a highly dangerous and improper practice; that said practice was in violation of the rules and regulations of said company relative to the use of said torpedoes; that said improper use and dangerous practice was not generally known to the trainmen of said defendant company operating trains in and out of said company’s yards at said city of Chanute. . . .
“That by reason of said dangerous and improper practice of playing practical jokes by the use of said torpedoes, as hereinabove alleged, said W. F. Norman was caused to be killed.”
At the trial, when plaintiff’s evidence was concluded, a demurrer thereto was sustained and the jury discharged.
The errors assigned by plaintiff relate to the matter stricken out of her petition, and to the sustaining of the demurrer to the evidence.
Defendant challenges the court’s jurisdiction to review the question presented touching the matter stricken from the petition for the reason that more than six months elapsed after the ruling of the trial court before an appeal was taken. The code gives an appeal from any order of the district court “that involves the merits of an action, or some part thereof.” (Civ. Code, § 565.) An order to strike out certain parts of a petition is equivalent to sustaining a demurrer thereto. If the matter strickén out involved the merits of the action or some part thereof, the order to strike out was certainly an in termediate appealable order. (Whitlaw v. Insurance Co., 86 Kan. 826, 122 Pac. 1039.) The plaintiff’s petition without the matter stricken out either did or did not state a cause of action! If without the stricken matter the petition did not state a cause of action, the plaintiff should have appealed within six months, for the all-important reason that this court’s jurisdiction is limited to appeals taken within that time. (Civ. Code, § 572.)
In White v. Railway Co., 74 Kan. 778, 88 Pac. 54, it was said:
“Upon this phase of the matter this court is committed to the proposition that whenever a year [six months under new code] elapses after the making of an intermediate appealable order without a petition in error being filed the right is lost to review such order, either by a separate proceeding directed against that very ruling or in the course of an effort to procure the reversal of the final judgment. [Citing cases.] In other respects we prefer to follow the rule that seems to have the support of the majority of the courts that have passed upon the question, and to hold that upon proceedings in error brought to reverse a final judgment this court may inquire into the correctness of a prior ruling which would have supported an independent appeal, provided the petition in error is filed within one year from the time of the making of such ruling.” (p. 782.)
(See, also, Slimmer v. Rice, 99 Kan. 99, 100, 160 Pac. 984.)
Plaintiff contends that since the defendant did not file a motion to dismiss this phase of the appeal, as it was privileged to do under the rules of this court, it can not now question the right to have the order reviewed. That contention is not new. In Tucker v. Tucker, 97 Kan. 61, 154 Pac. 269, it was said:
“It is urged that the plaintiff should not he heard on his motion or suggestion in his brief that the appeal be dismissed for the reason that he should have called the attention of the court to the matter in proper time and by proper motion under rule 10, hut the statute leaves this court without jurisdiction unless the appeal be taken within six months from the rendition of the judgment or order appealed from. (Laws 1913, ch. 241, § 1.)
“This jurisdictions vested by statute only, and no estoppel, laches or informality of a party can confer it. Neither does failure to raise the question relieve us of the duty to decline, even of our own motion, the exercise of jurisdiction which we do not possess.” [Citing cases.] (p. 62.)
Passing to the question of the propriety of the demurrer to the evidence, plaintiff’s witnesses established the fact of Norman’s death by the explosion of some half dozen torpedoes in rapid succession on the defendant’s tracks while he was engaged in taking the numbers of freight cars moving past him. Certain witnesses testified about making an examination of the storeroom where the defendant kept its torpedoes; that the door was locked, but a window was not latched and could be opened from the outside. One witness, an ex-employee, had once gone into the storeroom through the window. The key to the storeroom hung in the yardmaster’s office beside a clerk’s desk, and sometimes employees entrusted with the key would forget to return it and would carry it home over night. Some torpedoes unexploded were found by the rails where the accident occurred. They and the fragments of the exploded torpedoes were of the same make as those kept in the defendant’s storeroom.
There was no other evidence showing or tending to show that the torpedo which killed Norman belonged to defendant. There was no evidence of any dereliction on the part of the defendant unless it was the failure to latch the window of the storeroom so that it could not be pried open from the outside: The storeroom was in the railroad yards, where no one but the company’s employees had a right to be. No evidence was produced that the defendant had tolerated trespassers who might have broken into the storeroom or that the company had knowledge of such misdeeds of trespassers. The probabilities are that the torpedo which killed Norman belonged to defendant; that some miscreant went into its storeroom and stole the torpedoes and set them on the track. But probabilities and plausible conjectures alone are not evidence. The rule in Clark v. Powder Co., 94 Kan. 268, 146 Pac. 320, touching the high responsibility resting upon owners of dangerous explosives to keep them in close custody is invoked. To that rule we still adhere; but here the facts, the proof, the causal connection between negligence and the consequences of negligence are wholly wanting. The torpedo which killed Norman might have belonged to the defendant; it might have belonged to any other railroad company; it might have belonged to anybody else. The evidence was clearly insufficient to charge the defendant with responsibility for the unfortunate death of Norman, and the judgment on the demurrer to the evidence must be affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action to compel the specific performance of a contract for the sale of real property. Judgment was rendered in favor of the plaintiff and the defendants appeal.
The defendants contracted to sell their hdmestead to the plaintiff for $6000, to be paid in installments. Time was made an essential ingredient of the contract, which also provided that on the failure of the plaintiff to comply with its terms the contract should at once cease and become null and void, and the plaintiff should retain all moneys that had been paid; and that all rights under the contract should be forfeited. The contract also provided that possession of the property should be delivered to the plaintiff when $3000 had been paid as follows: $200 cash, $800 on November 1, 1915, $1000 on January 1, 1916, and $1000 on May 1, Í916. One payment of $300 was made before it was due. Default was made in other payments. The jury made, among others, the following special findings of fact:
“Was the plaintiff or her husband.in her presence, told by the defendant, Emma A. Snyder, at the conference on Jan. 4, 1916, that all payments of purchase money for the real estate in question thereafter falling due must be promptly paid when due, or words to that effect? Ans. No.
“Did Emma Á. Snyder, at any time previous to the commencement of this action ever notify Dr. or Ivamae Hennerich that she declared the contract forfeited? Ans. No, not according to law.
“Did Emma A. Snyder at any time previous to the commencement of this suit notify Dr. Hennerich or Ivamae Hennerich that unless payments were made promptly she would declare the contract forfeited? Ans. No.
“Did Emma A. Snyder ever accept money on said contract before the same was due and then agree with Dr. Hennerieh 'that she would extend the time of payment if necessary as a consideration of the advance payment of the contract? Ans. Yes.
“From any conversation Dr. Hennerieh had with Emma A. Snyder was Dr. Hennerieh and Ivamae Hennerieh led to believe by Emma A: Snyder that she would not insist bn the strict terms of the contract? Ans. Yes, according to previous actions they were led to believe that Mrs. Snyder would not insist on the strict terms of the contract.
“Did Dr. Snyder or Emma A. Snyder at any time previous to the commencement of this action ever take any steps for the cancellation of the contract? Ans. No.”
1. Defendant George B. Snyder contends that he did not consent to a waiver of any of the terms of the written contract, and that he is not bound by any waiver made by his wife, defendant Emma A. Snyder. A number of authorities are cited which hold that contracts affecting homestead rights' can not be altered without the consent of both husband and wife. These authorities are immaterial for the reason that there was evidence which showed that defendant George A. Snyder consented to all that his wife did in connection with the sale of the homestead. He took part in the negotiations concerning the defaulted payments and acted for his wife in a number of matters connected with the sale. There was evidence that fairly tended to show that all negotiations, communications, and transactions had subsequent to the signing of the contract were partifipated in by both defendants. The evidence does not show that George A. Snyder gave any written consent to payments being postponed, but it does show that he knew all about their postponement and took part in the negotiations therefor. It is therefore not necessary to determine the question presented by the defendants.
2. The defendants contend that the seventh and eighth findings of fact were not supported by evidence. There was ample evidence to support these findings, although there was evidence that was contradictory thereto. No good purpose will be served by setting out the evidence that supported these findings.
3. The evidence shows that the defendants defaulted on part of the payment due November 1, 1915, and on all of the payment due January 1, 1916. On January 4, the remainder' of the installment due November 1 was paid, part of the Jan uary installment was paid, and an agreement was reached by which it was arranged that a post-dated check Should be given for part of that installment. The check was not paid. The defendants contend that “a waiver of the right to enforce a forfeiture of contract for default of payment of one installment of the purchase price of land does not constitute a waiver of‘ such right as to subsequent installments,” and that “the acceptance of the post-dated checks did not waive the right of forfeiture.”
The jury found,.in substance, that the time element of the contract was waived. That finding makes it unnecessary to determine these propositions.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued for the death of her husband, caused by the caving in of a lateral sewer, in which he was at work. The plaintiff recovered and the defendant appeals.
Some point is sought to be made touching the failure of the deceased to use certain safeguards, but the only material question concerns the applicability of the workmen’s compensation act to the defendant city in this case. A lateral sewer to be paid for entirely by property owners, and in no part by the city at large, was to' be built, and the work was let to certain men, who employed the deceased. The specifications contained many provisions to the effect that the work was to be done under the supervision of the city engineer or such assistants as might be placed in charge of the work by the mayor and council. Incompetent persons engaged upon the work were to be discharged upon the written requisition of the engineer, and in various ways not necessary to recount the construction of the sewer was to progress under his supervision.
It is claimed by the city that in constructing this sewer at the sole expense of the property owners it was not engaged in trade or business, but in á purely health measure carried on under the governmental side of its activities. On the other hand, it is urged that the city is within the act because it was engaged in its municipal business, and although it had let the work out to contractors, it was still sufficiently in charge thereof to be within the purview of the statute. This is a companion case of Gray v. Sedgwick County, just decided, ante, p. 195, a somewhat different question, however, being involved.
Was the city engaged in its trade or business within the meaning of section 5900 of the General Statutes of 1915? That the rule applying to cities is quite different from that affecting counties and other quasi municipalities is indicated in the decision referred to and authorities therein cited. In Freeman v. Chanute, 63 Kan. 573, 66 Pac. 647, in distinguishing between the different powers of a city it was said:
“In the exercise of its gium-private or corporate power a municipality is like a private corporation, and is liable for a failure to use its power well or for an injury caused by using it negligently. In building its water-works, gas, electric-light plants, sewers, and other internal improvements which are for the exclusive benefit of the corporation, it is in the exercise of its gw<m-private power and is liable to the same extent as are private corporations.” (p. 577.)
In Bowden v. Kansas City, 69 Kan. 587, 77 Pac. 573, the following expression from Johnston v. District of Columbia, 118 U. S. 19, was quoted with approval:
“But the construction and repair of sewers according to the general plan so adopted are simply ministerial duties; and for any negligence in so constructing a sewer, or keeping it in a repair, the municipality which has constructed and owns the sewer may be sued by a person whose property is thereby injured.” (p. 593.)
In the- opinion itself it was said:
“When a municipal corporation assumes the performance of a public duty which was permissive only and enters upon the discharge of such duty, and through the negligent performance thereof by its authorized agents one is injured either in person or property, the corporation can not escape liability by saying that the performance of this duty was not imperative.” (p. 594.)
In Fisher v. Township, 87 Kan. 674, 125 Pac. 94, numerous authorities were cited touching the different sorts of liability attaching to cities and merely quasi corporations, and it was said:
“While the soundness of this distinction has been questioned it is too firmly fixed in the jurisprudence of this state, following the weight of authority elsewhere, to be overturned except by legislative action.” (p. 679.)
In Butler v. Kansas City, 97 Kan. 239, 155 Pac. 12, Hibbard v. City of Wichita, 98 Kan. 498, 159 Pac. 399, and Frost v. City of Topeka, 98 Kan. 636, 161 Pac. 936, a pesthouse, a public park and a detention hospital, respectively, were involved, and held to concern only the governmental action of a city:
Under the rulings referred to distinguishing between a city’s governmental and proprietary powers, the building of the lateral sewer in question doubtless comes within the latter rather than the former. But, as pointed out in the Gray case, in order to bring the city within the statute this proprietary work must have been in the nature of a business or trade involving the idea of profit or gain. Certainly the construction of a lateral sewer to be paid for by the property owners of a given sewer district is not trade or business in -the sense of profit, or in any commercial sense.
The question of subcontractor is discussed by counsel, but section 4-of the act (Gen. Stat. 1915, § 5898) imposes on the principal only such liability as would rest on him had he employed the workman himself. Hence the question is not one requiring further discussion.
If the legislature intended to bring cities and counties within the operation of the act it is remarkable that no apt or clear language indicating such intention was used. On the contrary, section 2 of chapter 218 of the Laws of'1911 — the original act — provided for an election in certain cases involving “the individual negligence ... of the directors or of any managing officer or managing agent of such employer if a corporation, or of any of the partners if such employer is a partnership.”- The term “managing agent” does not naturally or ordinarily apply to cities. Section 16 (Gen. Stat. 1915, § 5910) provides that, “Employers affected by this act shall report annually to the state commission and factory inspector,” certain things, including particulars as to all releases of liability; the penalty for failure to report being the invalidation of such releases. Can it fairly be said, that the legislature intended to require these reports from cities and other municipalities ?
The statute must be liberally construed, but the courts can not go beyond the legislature and add what was omitted, or change the character and manifest object, purpose and limitations of the enactment. There being an utter absence of all elements of business or trade in the usual sense and meaning of the words, and no possibility of gain to the city by way of profit out of the work it was doing or having done, it must be held that the compensation act does not apply.
The judgment is therefore reversed.
Johnston, C. J., dissents. | [
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The opinion of the court was delivered by
Mason, J.:
Tillie Anderson held a certificate in the Knights and Ladies of Security, a fraternal beneficiary association. She died in November, 1913, and her husband, the beneficiary named in the certificate, brought an action upon it. Payment was resisted on the ground that the dues for September and October, 1913, had not been paid, such omission effecting an automatic suspension from membership. The plaintiff relied upon facts claimed to constitute an excuse for nonpayment. A jury returned a verdict for the defendant, upon which judgment was rendered: The plaintiff appeals.
It was shown that an organization existed, formed by about fifteen per cent of the members of the local council (lodge), called the “Séeurity Club,” its purpose being, upon certain conditions, to pay the association dues of any of its members who, through inadvertence or from any other cause, should omit to make payment themselves. It is not contended that the association dues for September and October were paid, but the plaintiff asserts that his wife, from the course of conduct in the past, had a right to rely upon the payment being made by the Security Club, and that the relations between the club and the association were such that the misfeasance of the former in this regard was chargeable to the latter. The jury evidently decided against the plaintiff on both propositions, for in answer to special questions they found that Mrs. Anderson did not have reason to believe and did not believe that her dues would be paid by the Security Club, and that the association had nothing to do with the organization of the club. Either of these findings is sufficient to require an affirmance of the judgment, unless it is shown to have been affected by some material error.
1. While considerable testimony was given directly to the contrary, there was some evidence tending to show these facts, which must therefore be regarded as established: The by-laws of the Security Club, which were frequently read at its meetings, provided that where one month’s dues of a member should be paid by the clüb, he should not be entitled to further benefit until he should repay the amount, with a reinstatement fee, although his dues for a second month might be paid by the club, but only on request. These rules were uniformly adhered to in practice. Mrs. Anderson failed to pay her dues for May, 1913, and the club paid them for her. She did not reimburse it for the payment, nor did she request that the club pay anything more on her account. She planned to make the September payment herself, but failed to do so. A part of the evidence might have justified a finding that the club by treating its members more liberally than the by-laws required —by making payments for members who were more than one month in default — had established a course of conduct justifying them, as far as it was concerned, in relying upon payments being made for more than one month. But the special findings were to the effect that no more than two payments had ever been made for any member in arrears, and this was consistent with the by-laws, where a request was made for the second payment.
2. The judgment might therefore be affirmed, even if it should be assumed that the association was responsible for the action of the Security Club. But the plaintiff contends that the verdict and findings show such a disregard of a part of the instructions as to require a new trial, on the ground that they prove the jury could not have given proper consideration to the case, within the rule" applied in Dodson v. Moran, ante, p. 592, decided at this session. Two of the instructions, taken by themselves, seem to indicate that (1) if the association or its officers recognized the Security Club, and affirmed its methods, this would effect a waiver of the by-law providing for automatic suspension for nonpayment of dues, and require notice to be given, and (2) that if officers of the association knew of the operations of the club and participated in them, and Mrs. Anderson relied in good faith upon the club to pay her dues for September and October, no suspension resulted. If construed in this way these instructions would doubtless have required a different result, and, although they may have been too favorable to the plaintiff, he has a right to insist that the jury should observe the rules laid down by the court. But the jury doubtless sought to harmonize this part of the charge with the rest of it, as they were bound to do, and concluded, upon proper grounds, that the language referred to was explained and modified by that else where used. In other paragraphs of the instructions the jury were told, in effect, that if the Security Club was voluntarily formed by a part of the members of the local council, its acts would not be binding on the association; that to avail anything to the plaintiff the association must have looked to the club for the payment of dues; and that if the club was formed, under rules made by its members, simply to enable them to assist one another in paying their assessments, and was not connected with the local council or the association, then its acts could not effect a waiver of the by-law requiring the prompt payment of dues. We think these instructions so explain and modify the others as to avoid any conflict with the verdict or findings.
3. These explanatory instructions are attacked as presenting an erroneous view of the law. We think, however, that they are essentially sound. They amount to a declaration that where a part of the members of a local lodge of a mutual beneficiary association voluntarily form a club for the purpose of protecting one another against suspension for nonpayment of dues, reliance on the action of the club will not excuse the default of a member in the payment of his assessments, where the club is really a separate and independent organization, notwithstanding it has been maintained with the knowledge and encouragement of officers of the association. The purpose of such an organization is obvious and readily understood. It seems unobjectionable'in itself and not readily open to abuse. Where it is optional with members of the lodge to avail themselves of its benefits, or to disregard it altogether, the rule that they should rely upon its performance of its obligations at their own risk seems neither harsh nor unnatural.
4. Complaint is made that the various findings were in conflict with each other. On the one hand, the jury found that the association did not authorize the formation of the club, and that neither the association nor the local council had anything to do with its organization; and on the other hand, that the officers and agents of the association assisted in organizing it, and knew its purpose and workings. The findings are, of course, to be so interpreted as to be consistent with each other if that is possible, and we think there is no necessary conflict here. The net effect of the jury’s report seems to be that the club was a distinct arid independent union of a part of the members of the council for their mutual benefit, formed with the knowledge and encouragement of officers of the association, but not “authorized” by it in the sense of being in any way under its control or authority.
The judgment is affirmed. | [
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The opinion of the court was delivered by
BURCH,
J.: The proceeding was one for the enforcement of an attorney’s lien on funds in the hands of the clerk of the district court, recovered by the defendant in the case of Stramel v. Hawes, 97 Kan. 120, 154 Pac. 232. After a hearing the lien was sustained. A motion for a new trial was filed, and because it was suggested that the district judge was prejudiced, the motion for a new trial was heard by a judge pro tem. The matter was practically retried, and the motion for a new trial was overruled. The chief contention of the appellant is that the employment was covered by a written contract in which the lien claimant’s compensation was fixed. The evidence, which need not be recited, failed to. sustain the contention. There is nothing else in the case, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
On March 7,1916, L. B. Davis filed a petition in the district court of Rush county against M. E. Heynes, asking a judgment for $41,736.88. An attachment was levied upon real estate, and upon an affidavit of the plaintiff that the defendant was a nonresident of the state service by publication was made. The defendant appeared specially and moved to set aside the service upon the ground that he was a resident of Barton county, Kansas, and had been since a time prior to the filing of the petition. A hearing was had upon evidence, which was largely oral, and the court sustained the motion. The plaintiff appeals.
The contention of the plaintiff is that the trial court erred in deciding that the defendant was a resident of Kansas. The defendant testified that he was unmarried; that he had lived in California from January, 1911, until March, 1916, with his mother and sister, in a home which he still owned, and in which they remained; that he came to Barton county on March 4, 1916, and occupied a rented room in a house where he boarded; that one of his purposes in coming at that time was to attend the trial of an action brought against him in the district court of Barton county by the plaintiff, but that he came with the intention of making that county his permanent residence, and that this purpose was formed before he left California. If the defendant came to Kansas with the intention of accomplishing an immediate change of residence, he was a resident of this state when the new petition was filed. It was not essential to that condition that he should own, rent or occupy a house. The character of the place in which he lodged and ate for the time being was of importance only as throwing light upon his future plans. The plaintiff urges that the admitted facts are inconsistent with the establishment of a residence in this state by the defendant. This,' however, is a mere challenge of the veracity of a witness. The trial court found that the defendant told the truth when he said that he came to Barton county intending thereby to establish a permanent residence, and that decision is not subject to review by this court. The plaintiff relies largely upon the case of Keith v. Stetter, 25 Kan. 100, where the judgment of the district court on a question of intention as affecting residence was reversed, it being said in the opinion that “actions speak louder than words.” (p. 103.) There, however, the evidence was wholly in writing, and the reviewing court had the same opportunity to judge of the veracity of the witness as the trial court, neither of them having seen him. Another somewhat similar case upon which reliance is placed is Garlinghouse v. Mulvane, 40 Kan. 428, 19 Pac. 798, but there the trial court made specific findings of fact, the legal effect of which was the question in controversy.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
At the general election in November, 1916, a large majority of the voters of Wyandotte county voted in favor of the erection of a courthouse to cost $400,000, and to raise this sum by the issuance of bonds. The board of county commissioners had taken all the preliminary steps and was about to issue the bonds of the county to build the courthouse when the state, on the relation of the attorney-general, brought this action to enjoin the issuance of the bonds. The district court found in favor of the contention of the state, that Wyandotte county had already exceeded the one per cent limit of bonded indebtedness fixed by the statutes. From this judgment the county has appealed.
The defendant admits that the assessed valuation of all property in Wyandotte county for purposes of taxation as fixed and determined by the board of equalization for the year 1916 is $117,487,097, and, therefore, the limit of the county’s indebtedness is $1,174,870.97. The answer also admits that the total bonded indebtedness of the county is $2,626,467.13, but it is contended that in estimating the limit of its indebtedness certain refunding bonds and also certain bridge bonds should not be counted.
1. As to the refunding bonds the contention is that the several acts under which they were issued contain provisions excluding them from the estimate. For instance, the county is still indebted on refunding bonds to the amount of $342,000, issued to take up outstanding warrants under the provisions of chapter 150 of the Laws of 1911, section 5 of which contains this provision:
“None of . the restrictions and limitations contained in any of the statutes of the state of Kansas, heretofore enacted, shall apply to or in any way affect the issuance of the bonds under this act or of any bonds so issued.” (Gen. Stat. 1915, §2879.)
The contention of the county in respect to the refunding bonds is not sound. The provision quoted merely applies to the issuance of the refunding bonds themselves. That is to say, they may be issued no matter what the bonded indebtedness of the county may be, and very properly so, because they are merely exchanged for former bonds or evidences of the same indebtedness. But after being issued they are to be counted in determining the limit of the county’s actual bonded indebtedness.
If the county by merely refunding its indebtedness could thereby eliminate that part of its indebtedness from consideration in ascertaining its power to issue subsequent bonds, there would be no limit to the amount of indebtedness the county might incur. We deem it wholly unnecessary to attempt to reconcile the apparent conflict in decisions cited from other states, some of which depend upon constitutional provisions and others upon statutes worded differently from ours.
Section 2 of chapter 62 of the Laws of 1909 provides for the compromise of existing indebtedness by refunding bonds, with this express declaration:
“And provided further, That except for the refunding of outstanding debt, including outstanding bonds and matured coupons thereof, or judgment thereon, no bonds of any class or description shall hereafter be issued where the total bonded indebtedness of such county or township would thereby exceed one per cent of tlve assessment for- taxation,” (Gen. Stat. 1915, § 644.)
The defendant argues that this was intended to except all refunding bonds from the provision prohibiting the issuance of bonds beyond one per cent of the total bonded indebtedness; but we think the provision simply reaffirms the intention of the legislature that whenever the issuance of bonds is authorized for the purpose of refunding outstanding debt, whether represented by outstanding bonds, matured coupons thereof, or judgment thereon, the general prohibition against issuing bonds in excess of the one per cent limit shall not apply.
Another argument advanced is that when the- refunding act was first amended in 1891 (Laws óf 1891, ch. 163, § 2) by the provision that no bonded indebtedness shall be refunded except such as have been issued and outstanding at least two years at the time of such refunding, the legislature created the only limitation upon the issuance of refunding bonds. We think the legislature had another purpose in enacting this provision. Prior to its enactment it was not uncommon for bonds to be issued by counties, cities and townships, which were of doubtful validity, and immediately after they were issued cut off all defenses to them by refunding the debt at a lower rate of interest or by an extension of the time of payment. The evident purpose of the amendment of 1891, which has been carried through all subsequent amendments to the refunding acts, was to require a period of two years to elapse from the time the debt was first created before it .could be refunded and thereby preserve the right to raise any defenses that might be urged against the-original indebtedness.
We see no room for any distinction between the refunding bonds issued by the defendant under the general refunding acts and those issued under chapter 150 of the Laws of 1911. Notwithstanding the latter was a special act applying only to counties with more than 90,000 population, and authorized the issuance of bonds to refund outstanding warrants in existence prior to January 9, 1911, we can not concur in the contention that the language of section 5 (Gen. Stat. 1915, § 2879) shows a manifest purpose to set these particular bonds apart by themselves and to leave them uncontrolled and unrestricted by any other statute. As already observed, the language of section 5 was intended merely to affect the issuance and validity of the refunding bonds. If the legislature had intended to exclude them from future estimate of the total bonded indebtedness of the county, doubtless it would have declared its intention in unmistakable terms.
2. A different question, however, arises with respect to bridge bonds issued by Wyandotte county, amounting to $1,-547,500. They were issued under the provisions of chapter 64 of the Laws of 1909, section 1 of which declares that the bonds shall be “subject only to the limitations contained in this act. The amount of bonds so authorized to be issued shall not exceed the actual cost of such improvements.” (Gen. Stat. 1915, § 750.) The defendant’s contention is that this provision was intended to exclude the amount of such bridge bonds from the estimate in determining the limit of the county’s indebtedness in the future. It is, we think, at least a matter of grave doubt whether the language just quoted is of itself sufficient to authorize the exclusion of the bridge bonds from consideration in future estimates of the county’s indebtedness. There is force in the contention that this language is in effect the same as the provision noted in the refunding acts, isupra, .and that it should be construed merely as intended to legalize the bridge bonds themselves. However, the question need not be decided for the reason that we find another statutory prowision (not referred to by either of the parties to this action) which, in our judgment, expressly excludes these particular bridge bonds from the estimate in ascertaining the limit of 'Wyandotte county’s indebtedness as affecting the validity of bonds issued thereafter. The bridge bonds were issued under an obligation imposed upon Wyandotte county by chapter 64 of the Laws of 1909, “An act relating to public bridges.” It applied to counties having an- assessed valuation for taxation purposes of over ninety million dollars, and to certain conditions existing at that time in Wyandotte county alone. Section 1 of the act reads:
“Whenever in any county having an assessed valuation for taxation purposes of over ninety million dollars the board of directors of any drainage district organized under the laws of this state, under the powers vested in them, shall prescribe, regulate or fix the height of any public bridge located within said district or the length of spans and the location of piers or abutments of any such bridge, or shall locate harbor lines for or establish the channel of any stream'within such district, and shall notify and réquest, in writing, the board of county commissioners to change, alter or reconstruct any such bridge or bridges to conform to such harbor lines, chánnel or requirements; or whenever in any county the secretary of war of the United States, or any other competent authority, shall request, order or direct, in writing, the reconstruction, raising or lengthening of any public bridge, or the spans thereof, over any navigable stream, or shall request, order or direct the reconstruction or relocation of the piers ox abutments of any public bridge over a navigable stream, or shall establish harbor lines or otherwise designate the channel for any navigable stream, and shall request, order or direct the reconstruction of bridges to conform thereto; the board of county commissioners of the county wherein such public bridge is located is hereby authorized and empowered to reconstruct such bridges and approaches thereto,.raise, lengthen and repair such bridges, and to reconstruct, remove and relocate the abutments and piers thereof, and to improve such bridges in any other respect required, and to do any and all acts necessary to conform to such requirements, in the manner hereinafter provided, and for the purpose of paying for such improvements may issue bonds of such county without the same being authorized by any election, and subject only to the limitations contained in this act. The amount of bonds so authorized to be issued shall not exceed the actual cost of such improvements.” (Gen. Stat. 1915, § 750.)
For the purpose of paying for these alterations and improvements the board of county commissioners was empowered to issue the bonds without being authorized to do so by an election. The act was passed because of the peculiar conditions in Wyandotte county following the disastrous and unprecedented flood of 1903. The county, at enormous expense, had erected a number of bridges destroyed by the flood, and across that part of the Kansas river which is within the control of the war department of the United States government. Subsequently, and while the bridges were in excellent state of repair, it was found necessary to reconstruct and lengthen them under orders issued by the war department and by the Kaw Valley drainage board. As suggested in the defendant’s brief, the “bonds were not issued by the board of county commissioners of its own volition or upon a vote of the people.” If the question of their issuance had been submitted to a vote of the people it might not have carried; but the legislature recognized that an emergency existed and directed that the bonds be issued to meet the requirements of the drainage board and the orders of the war department. The act authorizing the issuance of the bridge bonds was passed March 11, 1909. At the same session of the legislature, and only six days prior thereto, the act fixing the limit of the indebtedness in counties, cities and school districts, upon which the state relies in this action, was passed. This is chapter 62 of the Laws of 1909, to which we have already referred. We have not examined the legislative history of the two acts, but the act authorizing the bridge bonds was a substitute for senate bill No. 301. Chapter 62, limiting the creation of indebtedness, was senate bill No. 586. It is apparent that both acts were pending at the same time because section 1 of chapter 62 contains an express provision eliminating these bridge bonds from consideration in estimating the bonded indebtedness of the county. By section 1 the county is empowered to issue its bonds “in any sum not greater than one per cent, inclusive of all other bonded indebtedness, of the taxable property of such county, city or township, for the purpose of building or purchasing bridges, free or otherwise, and exclusive of any bonds issued for the raising, lengthening, reconstructing or otherwise altering of any bridges over navigable streams to meet the requirements of the war department of the United States, or of any drainage district organized under the laws of the state(Gen. Stat. 1915, § 623.)
Of course the two acts must be construed together. They harmonize perfectly. The legislative purpose was that the provisions of chapter 62 limiting the bonded indebtedness of the county to one per cent of its indebtedness should not apply to these bridge bonds which chapter 64 then pending directed and compelled the county to issue.
When it imposed the great -burden of these bridge bonds upon the taxpayers of Wyandotte county the legislature had no intention that the county should thereby exhaust for a long period of years its power to incur further indebtedness in providing for other necessary improvements.
It follows that, while the bridge bonds are not to be counted in estimating the bonded indebtedness of Wyandotte county as affecting the validity of bonds issued subsequently, the judgment must be affirmed on the ground that the issuance of $400,000 courthouse .bonds would bring the total bonded indebtedness above the statutory limit.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff brought this action to recover upon a surety bond signed by defendant. The jury returned a verdict for defendant. A motion for a new trial was overruled and judgment entered on,the verdict, from which plaintiff appeals.
The sole question is whether a new trial should have been granted. The petition set forth a written contract between plaintiff and one W. J. Mercer, by which he was employed as a sales agent for plaintiff in certain counties in Texas, and by which it was made his duty to collect and remit to plaintiff the proceeds of the sales made by him. It alleged that his employment terminated July 1, 1910; that he failed to remit all cash received by him for plaintiff, as provided in the contract, “in that, on March 24, 1910, he sent plaintiff a personal check for $128.25, this being on account of cash received by said W. J. Mercer for plaintiff, which check was dishonored and not paid.” Thirteen other sums were alleged to have been collected by him on behalf of plaintiff which he had'refused to account for. The aggregate amount of cash collections, including the $128.25 item, was alleged to be $585. The petition also charged that he received a number of scales, the value of which was $471, and had failed to account for or deliver these to the plaintiff, and prayed for judgment for the sum of $1000, the amount named in the bond.
The evidence at the trial was not preserved and is not before us. The appellant’s contention is that upon the allegations of the petition and an admission contained in defendant’s answer it is entitled to a judgment for $128.25, and that it was error not to grant a new trial.
The answer contains a general denial and a special defense stated in the following language:
“That on or about March 24, 1910, the plaintiff knew and was fully aware of the fact that one W. J. Mercer, the person named and mentioned in the bond sued upon in this action, was a defaulter and had misappropriated its money in the sum of $128.25, but that said plaintiff fraudulently failed to notify this defendant, or any of the other sureties upon said bond of such fact, but that said plaintiff with full knowledge of the said action on the part of said W. J. Mercer continued said W. J. Mercer in its employment whereby he received and collected money for the said plaintiff. Said defendant further alleges that if said W. J. Mercer misappropriated any money or property of the said plaintiff as alleged in its petition, it was so misappropriated after said plaintiff was aware and had knowledge of his said misappropriation of the said sum of $128.25 on March 24, 1910.”
The defendant directs attention to the contract of employment by the terms of which W. J. Mercer was appointed a' salesman for plaintiff in certain prescribed territory, outside of which, it is urged, he had no a-uthority to act, and defendant’s contention is, that in the absence of a showing that there was testimony establishing the place where the $128.25 was misappropriated and that it occurred within the specific territory where W. J. Mercer was authorized to act as salesman or collector for plaintiff, the judgment must be presumed to be correct and supported either by some testimony offered by the defendant or by the failure of plaintiff to establish that this particular sum was misappropriated within the territory mentioned in the contract.
In the opinion of the majority the contention of defendant is well founded, and it is held that the admission in the answer to the effect that on the date alleged in the petition W. J. Mercer misappropriated $128.25 cash belonging to plaintiff is not an admission that the misappropriation occurred within the territory where he was authorized to'act as agent for plaintiff, or under the terms of his contract of employment, and that, in the absence of any showing as to what the evidence disclosed in respect to those essential matters, it can not be said there was error in refusing to grant a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendants appeal from a judgment in favor of the plaintiff against defendant, John Q. Myers, as administrator with the will annexed of the estate of Eelix C. Duffy, deceased.
Felix C. Duffy was a priest of the Catholic church, and the plaintiff was his housekeeper. They had business transactions which resulted in a large indebtedness from Duffy to the plaintiff. On February 2, 1912, they signed a contract of settlement as follows:
“This instrument made in duplicate this 2nd day of February, 1912, by and between F. C. Duffy and Katherine Ryan.
“WITNESSETH:
“That the parties hereto have this day had an accounting of and concerning all items of indebtedness of whatsoever nature existing in favor of each party against the other; upon which accounting it is mutually agreed that the balance owing by said F. C. Duffy to said Katherine Ryan is twenty thousand dollars ($20,000).
“In settlement whereof said F. C. Duffy has this day executed and delivered to said Katherine Ryan two promissory notes each for the principal sum of ten thousand dollars ($10,000) and payable to the order of Katherine Ryan in two and three years after this date, respectively, with interest at the rate of five per cent per annum.
“F. C. Duffy.
“Katherine Ryan.
“Executed in the presence of Charles Hayden.”
The plaintiff owned certain real property in Danville, 111. This she had acquired from Felix C. Duffy by deed executed and delivered to her, but which she did not have recorded. November 9, 1911, Felix C. Duffy, acting for himself and without the knowledge of the plaintiff, sold this property to parties in Danville for $15,000, received $1000 as the first installment of the payment therefor, and continued to receive payments on the contract of sale until the time of his death. After the death of Duffy, John Q. Myers, the administrator, received other payments.
This action was brought to recover the amount of money that had been received on the contract of sale by Felix C. Duffy and by the administrator, and to have the contract declared to have been made for the plaintiff’s use and benefit. The defendants pleaded the settlement as a bar to the action. Judg ment was rendered for $4572, in favor of the plaintiff, for those payments received by Duffy after making the settlement and for the payments received by John Q. Myers as administrator. It was also adjudged that the plaintiff was the owner of the contract for the sale of the land.
1. The defendants objected to the introduction of evidence under the petition and .demurred to the plaintiff’s evidence. They contend that the settlement bars the plaintiff from any right to recover on account of the contract for the sale of the Danville property. The defendants requested instructions to the effect that the settlement barred the plaintiff from recovering. The court' instructed the jury, in substance, that the settlement included all payments that had been made before the 2d day of February, 1912, but did not include any payments made thereafter. By its terms the settlement included all items of indebtedness owing by Felix C. Duffy to the plaintiff on February 2, 1912, but by implication excluded all such items which might become owing from Duffy to the plaintiff after that date. The court rightly construed the contract of settlement. (Henley v. Myers, 76 Kan. 723, 93 Pac. 168.)
2. Prior to the commencement of this action, the plaintiff filed with the probate court claims against the estate of Felix C. Duffy. These were allowed in part. At the time the claims were filed, the plaintiff had knowledge that Duffy had sold the Danville property and had received payments thereon. The defendants claim that this knowledge on the part of the plaintiff precludes her from recovering in this action. This question was raised by a demurrer to the plaintiff’s evidence, on the ground that the evidence failed to prove a cause of action in her favor. The evidence did prove a cause of action, and the plaintiff’s knowledge of the fact that the property had been sold by Duffy does not preclude her from recovering in this action. The defendants cite Kiler v. Wohletz, 79 Kan. 716, 101 Pac. 474, in support of their contention. The opinion in that case has no application to the present action.
The judgment is affirmed.
Dawson, J., not sitting. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to enjoin the issuance of bonds voted by a rural high-school district to enable it to construct a rural high-school building. A temporary injunction was dissolved, and the plaintiff appeals.
The district was organized under the rural high-school district act, chapter 311, Laws of 1915 (Gen. Stat. 1915, §§ 9347-, 9357a), but the organization proceedings did not extend to the voting of bonds or the selecting of a site for -a building. For a year or more a rural high school was conducted in. a rented building. In February, 1917, a petition for an ejection to vote bonds for the construction of a building was presented to the rural high-school board. The board called the election, the election was held, and the result was favorable to the'issuance of bonds. The plaintiff contends the election was void because the petition was not presented to the board of county commissioners and the election was not called by that body.
Section 1 of the act authorizes electors residing in certain territory to form a rural high-school district. Section 2 reads, in part, as follows:
“Whenever a petition, signed by two-fifths of the legal electors residing in the territory of the proposed rural high-school district, to be determined by an enumeration taken for this purpose, shall be presented to the board of county commissioners of the county in which lies the greatest' portion of territory comprising said district, reciting the boundaries of said proposed district and requesting said board of county commissioners to call a special election to vote on establishing and locating a. rural high school and to vote bonds for the construction of a high-school building, the proposed location and the amount of the bonds proposed to be stated, in the petition, it shall be the duty of the board of county commissioners forthwith to call a special election in said proposed district to vote on establishing and locating a .rural high school and to vote bonds therefor.” "(Gen. Stat. 1915, § 9348.)
Section 3 provides, among other things, that if the territory of the proposed district embrace an incorporated city of more than 300 population, the vote in city and country must be taken and, counted separately,, and the proposition to form a rural high-school district must carry in both city and country. Section 4 relates to canvass of the vote, report of the result, and election and term of office of rural high-school district officers. Section 5 relates to district meetings, board meetings, and the levy and collection of taxes. Section 6 reads as follows: ' '
" “The rural high-school board shall have the care and control of all property belonging to the high-school district and, except as herein pro vided, shall have the powers prescribed by law for school-district boards. The rural high-school board is hereby authorized to secure a site, selected as provided in section 2 of this act, either by donation or purchase; or such site may be condemned in the manner provided in chapter 86, Session Laws of 1909, for the condemnation of property for school sites in cities and school districts.” (Gen. Stat. 1915, § 9852.)
Other provisions of the act cover the subjects of taxation when the district lies in two or more counties, supervision by the county superintendent, course of study, admission of pupils, and annexation of adjacent territory.
Considering the entire act in the light of the purpose to be accomplished, the legislative intention is clear enough. To facilitate not merely the institution but the speedy institution of rural high schools, authority was given to organize a district, select a site, and vote bpnds for the construction of a building, all at one election. Electors are not obliged, however, to avail themselves of all their privileges at once. They may organize a district, and the district may then elect officers, maintain a school, levy taxes, and otherwise fulfill the general purpose of the act. In the beginning, whether full advantage of the act be taken or not, it is necessary that some competent authority pass on the petition, call the election, canvass the returns, and declare the result. The board of county commissioners was chosen as the proper body to do this for a “proposed” district. After a district has been organized, there is no reason why it should not conduct a bond election and select the site for a high-school building without outside assistance or supervision, as well as conduct other elections, construct the building, maintain the school, levy taxes, and perform other corporate functions.
The plaintiff argues that the provisions of section 6 relating to selection of a site are inconsistent with the view just stated. Those provisions of section 6 were intended as a grant and not as a limitation of power. If in the initial proceeding a site has been selected, the district board may acquire that site by donation, by purchase, or by condemnation. If no site were selected when the district was organized, then the board has the power prescribed by law for school-district boards (Gen. Stat. 1915, § 8972), as well as the power of condemnation.
The district contains the city of Grainfield, an incorporated city of more than 300 inhabitants. The plaintiff says a separate vote of electors of town and country was not taken, as pre- ^ scribed by section 3 of the act. Section 3 was designed to pre-' vent the electors of an incorporated city from forming a rural high-school district which includes outside territory without the consent of a, majority of the electors of the outside territory voting at the election. Bonds for the construction of a building are not mentioned. It is not necessary to decide whether or not the town and country vote on the proposition to issue bonds at an election called under section 2 should be taken and counted separately. The provision for a separate vote does not apply to an election held after a district has been organized.
A matter of practice is presented. A temporary injunction was granted after notice and a hearing. Afterwards a motion to dissolve the temporary injunction was filed. Notice of hearing was given, and after a full hearing the motion was sustained. The appeal is from the order dissolving the tern-. porary injunction. Section 262 of the. civil code contains this provision:
“If the injunction be granted without 'notice, the defendant, at any time before the trial, may apply, upon notice, to the court in which the action is brought, or any judge thereof, to vacate or modify the same”’ (Gen. Stat. 1915, § 7160.)
The plaintiff says he ought not to have been put to the trouble and expense of a rehearing of the case before the time for trial on the merits arrived. That was a matter to be considered by the district court. Section 262 of the civil code does not forbid a reexamination of the grounds for restraint, and the vexation or injustice occasioned by a temporary order may quite outweigh the inconvenience and expense attending a hearing on a motion to dissolve.
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The opinion of the court was delivered by
Allen, J.:
This was an action to set aside and cancel an instrument designated “Oil and Gas Conveyance” conveying to Landowners Oil Association, its successors and assigns, all of the oil, gas and mineral rights in and under a one-half section of land in Graham county for a period of twenty years or as long thereafter as oil or gas was produced therefrom or development operations conducted thereon. The defendant was engaged in operating a pool, the general nature of which has been heretofore considered by this court. (Moos v. Landowners Oil Ass’n, 136 Kan. 424, 15 P. 2d 1073; Westhusin v. Landowners Oil Ass’n, 143 Kan. 404, 55 P. 2d 406.)
The trial court sustained a demurrer to plaintiff’s amended petition, and plaintiff appeals.
The petition alleges the existence and residence of the defendants, that plaintiff is the owner of certain described land in Graham county and is now in quiet, peaceable possession thereof; that on the second day of July, 1928, plaintiff executed a pretended mineral conveyance transferring all the oil, gas and mineral rights in and under the described land to the defendant, Landowners Oil Ass’n, a corporation, for a term of twenty years from date and as long thereafter as any oil or gas, or casinghead gas, or any mineral is produced therefrom, or the premises are being developed or operated by the grantee, its successors or assigns; that by the terms of the instrument, plaintiff received as consideration a purported interest in certain mineral rights belonging to the defendant, the interest being an interest in a royalty pool known as Pool 1, which consists of more than 25,000 acres and not exceeding 500,000 acres; that the interest being an ownership in the pool in the same proportion that the number of acres described above bears to the actual number of acres comprising the royalty pool; that the conveyance was filed for record on the 18th day of July, 1928, and that the conveyance is null and void and of no effect and should be canceled for the following reasons, to wit:
1. That the instrument is void on its face as being unfair and unconscionable.
2. That without waiving the reason set out in the preceding paragraph, plaintiff alleges that the defendant Landowners Oil Ass’n, a corporation, is not a drilling company and does not attempt to develop any oil or mineral rights on any land; that the defendant has during all of the times mentioned herein been selling and disposing of portions, or interests of the property comprised in Pool 1; that plaintiff is unable to set out a list of such conveyances, but alleges that they are within the knowledge and a part of the records of the defendant Landowners Oil Ass’n, and that since the aforesaid conveyance plaintiff has been paid by defendant, or its trustee, the sum of $62.27. (At the oral argument it was conceded the payments amounted to $209.67.) That during such time, defendant Landowners Oil Ass’n, and defendant Sinclair Prairie Oil Co., have collected $1,600 in delay rentals from an oil and gas lease that has been placed on the land. The exact proportion that has been collected by each of the defendants is unknown to plaintiff, but alleges that defendant Landowners Oil Ass’n has collected more than $800 thereof, and that because of the unfair terms of the conveyance, together with the manner of the operation thereof as herein related, makes the transaction void as being unconscionable.
It was further alleged that defendant Sinclair Prairie Oil Company claims some interest in the property by virtue of an assignment of an interest in the conveyance, and that the defendant and all other defendants herein claim some other interest or estate in the land, the nature of which is unknown to this plaintiff, but which plaintiff alleges is wholly void and without foundation in law or equity, but exists as a cloud upon the title of this plaintiff; that plaintiff disclaims any interest in the Landowners Oil Ass’n, a corporation, or in Pool 1 described herein, or in any portion held in trust or owned by the corporation.
The prayer is for judgment for $1,600, less amounts paid plaintiff, that the conveyance be decreed null and void and canceled of record, and that defendants and each of them and all persons claiming under them be forever barred and enjoined from claiming any right, title or interest in and to the land.
The petition alleges that defendant has during all of the times mentioned herein been selling and disposing of portions or interests of the property comprised in Pool 1, and that since the conveyance plaintiff has been paid by the defendant and/or its trustee, the sum of $62.27; that defendants collected $1,600 in delay rentals from an oil and gas lease that was placed on the land, and that because of the unfair terms of the conveyance, together with the manner of the operation thereof, the transaction is void as being unconscionable.
It will be noted there is no allegation that the sale of interests as alleged is without authority or fraudulent in any respect, or was not made for full value. There is no allegation that the collection of $1,600 in delay rentals and the payments to plaintiff on the dates set out, was not in strict accordance with the terms of the pooling agreement or that the amount so paid was not all the plaintiff was entitled to.
The contention of plaintiff is that the transaction is void as being-unconscionable. An attempt is made to distinguish this transaction from the one considered in Moos v. Landowners Oil Ass’n, supra, in which this court held the conveyance not to be invalid as unconscionable or intrinsically fraudulent, on the basis that here all of the oil, gas and mineral rights of the landowners are conveyed.
The argument that the pooling of the entire royalty interest as distinguished from the one-half interest considered in Moos v. Landowners Oil Ass’n, supra, and Westhusin v. Landowners Oil Ass’n, supra, makes this conveyance unconscionable, is not impressive.
In the Moos case it was held:
“In an action by a landowner who had leased his land for oil and gas purposes, to cancel a conveyance whereby he pooled one-half of his royalty, it is held: (1) The conveyance was not invalid as unconscionable or intrinsically fraudulent.”
We fail to discern how a larger participation in the pool with provision for the same proportionate returns is more objectionable than a lesser one. If the investment itself is not unconscionable, and we have held it is not, then the amount of participation cannot make it so.
The arguments and authorities cited are similar-to those heretofore considered in Moos v. Landowners Oil Ass’n, supra; Westhusin v. Landowners Oil Ass’n, supra; Beltz v. Griggs, 137 Kan. 429, 20 P. 2d 510. It would serve no good purpose to reconsider them in this case.
Other questions presented become immaterial in view of the decision we have reached.
The judgment of the trial court, sustaining the demurrer to plaintiff’s amended petition, is affirmed.
DawsoN, C. J., not participating. | [
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• The opinion of the court was delivered by
Horton, C. J.:
On the 10th day of April, 1889, F. L. Martin obtained judgment against W. S. Grouch for $427, and for a sale of certain lots in Wichita, which had been attached at the commencement of the action. The only service had in the case was by publication. Grouch filed no pleading and made no appearance. Judgment was taken upon default. The affidavit filed for the publication was wholly insufficient. It did not state that the plaintiff was unable to make service of the summons upon the defendant, or that the case was one of those mentioned in § 72 of the civil code. (Civil Code, § 73; Shields v. Miller, 9 Kas. 390; Harris v. Claflin, 36 id. 543.)
The judgment of the district court must be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, brought in the district court of Miami county on April 12,1887, by William Gano against the Missouri Pacific Railway Company, to recover the possession of a small strip of land in the southeast corner of out-lot No. 7, in Snyder’s addition to the city of Paola, which strip of land was and is used by the railway company as a portion of its right-of-way. The defendant answered, setting forth in substance — first, a general denial; second, that in 1879 the St. Louis, Kansas & Arizona Railway Company was engaged in the construction of its line of railway through the city of Paola, and westerly; that with the full knowledge and consent of the plaintiff, and with the honest belief on the part of the railway company that it had the right to do so, it took the possession of the strip of land in controversy and constructed its line of railway over the same; that after so constructing its railway, and in 1880, it was consolidated with other railway companies and became a part of the Missouri Pacific Railway Company, and that ever since the construction of the railway in 1879 the railway has been used and operated by the two railway companies in succession, first, by the St. Louis, Kansas & Arizona Railway Company, and second, by its successor in interest, the Missouri Pacific Railway Compány, with the full knowledge of the plaintiff and with a full recognition on his part of the right of each of such companies to do so. The plaintiff replied to this answer by filing a general denial. The case was tried upon these pleadings before the court and a jury, and the jury rendered a general verdict in favor of the plaintiff and against the defendant, and also made special findings of fact; and upon this verdict and these findings the court below rendered judgment in favor of the plaintiff and against the defendant, for the eviction of the defendant from the premises; and the defendant, as plaintiff in error, brings the case to this court for review.
It appears that the plaintiff was the original owner of the property in controversy; that in 1879 he entered into a parol contract with the right-of-way agent of the St. Louis, Kansas & Arizona Railway Company to permit it to occupy the premises as and for a right-of-way, and to construct its railway over the same, and the company was to pay him as a consideration therefor $75. Afterward, with the consent of the plaintiff, the railway company took the possession of the property in controversy, constructed its railway over the same, and then refused to pay the plaintiff the $75 which it had agreed to pay him, but offered to-pay him at first $10, and afterward $15, if he would give to it a quitclaim deed for the premises. This he refused to do, and no settlement has yet taken place. In 1880, the Missouri Pacific Railway Company, by the aforesaid consolidation, became the successor in interest of the St. Louis, Kansas & Arizona Railway Company, and the Missouri Pacific Railway Company, with the knowledge of the plaintiff and without any objection from him, has operated the railway across his premises ever since. The plaintiff never demanded of either railway company the property in controversy until he did so by commencing this action, but always claimed the $75; but he has never received the same nor any part thereof, nor any consideration for his property.
. We think the plaintiff has mistaken his remedy. After permitting and inviting the railway company to take the possession of his property and to construct its railway across the same, he cannot now maintain ejectment to evict the railway company from the premises, and to prevent it from using its railway. (2 Woods, Rly. Law, 792; McAulay v. W. Vt. Rld. Co., 33 Vt. 311; Goodin v. Canal Co., 18 Ohio St. 169; Harlow v. M. H. & O. Rly. Co., 41 Mich. 336; Baker v. C. R. I. & P. Rly. Co., 57 Mo. 265; Buchanan v. L. C. & S. W. Rly. Co., 71 Ind. 265; Lane v. Miller, 27 id. 534; L. & O. Rld. Co. v. Ormsby, 7 Dana, 276; Pettibone v. L. C. & M. Rld. Co., 14 Wis. 443.) His action should be for the recovery of the $75 which the railway company agreed to pay him, with interest and costs, and he could enforce the judgment by a sale of any of the company’s property, or perhaps by injunction to prevent the company from operating its railway across his premises until it should pay the amount recovered; or, if both parties have abandoned the original parol contract, which we do not think they have, then the plaintiff could recover his damages by an ordinary condemnation proceeding, or by a regular action having the effect of such a proceeding, instituted for that purpose.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The material facts are, that for years prior to September, 1886, H. W. Laing resided on a farm in Chautauqua county, his family consisting of a daughter, intermarried with J. G. Teney, and a son named Thomas E. Laing. In April, 1886, four months before his death, the son married the defendant in error, and brought her to his father’s house, where they lived together until the death of Thomas E. Laing. During all this time, and long before the marriage of Thomas E. Laing, there was a firm doing business — buying, selling and shipping cattle and hogs — under the firm-name of Teney & Laing, with headquarters at the residence of H. W. Laing. After the death of Thomas E. Laing, his widow, Mary, this defendant in error, in consideration of $750, made a deed to an undivided half interest in a tract of land to Jacob G. Teney, this land being subject to a mortgage of $1,500; and it seems, from the evidence, that the land conveyed was the tract upon which the residence of all these parties was situated. After the conveyance, Mary Laing, the widow, resided in the state of Colorado for about 18 months, and then returned to Kansas and took out letters of administration on the estate of her deceased husband. Thomas ‘E. Laing died on the 5th day of August, 1886, and letters of administration were granted to his widow on the 5th day of March, 1888. She caused an inventory and appraisement to be made of his personal estate, as well as the partnership estate of Teney & Laing, the firm that had been engaged for years in the cattle business, on the theory or claim that her deceased husband was a member of that firm. This appraisement was made on the 29th day of March, 1888. On the 2d day of April, 1888, she made complaint and an application for citation to the probate court as follows:
“Now comes Mary Laing, administratrix of the estate of Thomas E. Laing, deceased, and makes complaint against said defendants, and says: That said defendants, Jacob Teney and H. W. Laing, have concealed and conveyed away and still conceal certain moneys, goods, chattels, effects, rights and credits of the said Thomas E. Laing, deceased, and have refused and still refuse to deliver the same to said administratrix, and she therefore asks that a citation issue to said defendants to appear forthwith before this court to be examined on oath touching the money, goods, chattels, property and effects of said Thomas E. Laing, deceased, in their hands or concealed, conveyed away by them, or within their knowledge.
Mary Laing,
Administratrix of the estate of Thomas E. Laing, deceased.
“By L. C. Whitney, and McBrian & Pile,
Her Attorneys.”
ja cuauon was issued to Jacob G. Teney and H. W. Laing, and personally served on them by the sheriff on the 3d day of April, 1888, requiring them to appear in the probate court on the 5th day of April, 1888, to be examined on oath touching the moneys, property, goods and chattels conveyed away by them, belonging to the estate of Thomas E. Laing, deceased. On the 30th day of April, 1888, a notice was served on J. G. Teney and H. W. Laing that on the 10th day of May, 1888, at 10 o’clock a.m., the administratrix would apply to the probate court for an order requiring them to turn over to her the money and property in their hands belonging to said estate. On the 10th day of May the administratrix filed a written motion asking the probate court to make such an order. On that day the probate court heard the motion and overruled it, and to this order notice of appeal was given in open court, and affidavit for appeal filed, and a transcript of these proceedings was filed in the district court.
These proceedings were instituted under the first five paragraphs of article 10 of the act respecting executors and administrators. (Gen. Stat. of 1889, pp. 876, 877.) The transcript of the proceedings of the probate court filed in the district court, and made a part of the record in this court, does not show that ¶2984 was complied with, that requires “all such examinations, including as well questions and answers, shall be reduced to writing, and the answers shall be signed by the party examined, and filed in the court before which the same is taken.” It does not show that either of the persons who were cited, or any other person, was ever examined as a witness. It does not show that the probate court ever passed upon the question of the guilt of the persons cited of either having concealed, embezzled or conveyed away any moneys, goods, chattels, things in action or effects of the deceased, or that there was ever any hearing upon that question. The only question ever passed upon by the probate court was the refusal to make an order requiring Teney and Laing to turn over any property belonging to the estate. The complaint itself does not charge them with the embezzlement or conveying away of any of the partnership estate; it is confined by its phraseology to the personal estate of Thomas E. Laing.
In the district court these plaintiffs in error moved to dismiss the proceeding because the court had no jurisdiction of the subject-matter of the proceeding, and because it had no jurisdiction of the parties defendant. This motion was overruled, and exceptions taken. The case was then tried by a jury, the question in issue being whether H. W. Laing or the deceased, Thomas E. Laing, was a member of the firm of Teney & Laing. The jury returned a verdict in the words and figures following, to wit:
“We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find for the plaintiff, and find the property concealed to consist of 25 cows, 11 two-year-old steers, 25 yearlings, 32 two-year-old steers and heifers, 10 horses and 8 mules, 2 colts, 20 hogs, 1 wagon, 1 pleasure carriage, 3 cultivators, 2 plows, 2 sets leather harness, 1 set chain harness, and $500 worth of notes given to Thomas E. Laing for cattle sold in Missouri.” (Signed by the foreman.)
A motion for a new trial was made and overruled. A motion in arrest of judgment was filed and overruled. The court ordered the plaintiffs in error to turn over the property enumerated in the verdict of the defendant in error, and' upon their failure ordered them committed to the jail of the county until said order was complied with. The plaintiffs in error filed a motion for a stay of execution until the cause could be reviewed in the supreme court, and tendered a bond with good and sufficient sureties to stay execution pending proceedings for review. The court overruled the application for a stay of execution, and refused to accept the bond on the ground that no stay of execution is permitted in cases of this kind. Numerous errors are assigned by counsel for plaintiffs in error, but it will be necessary for us to notice but few of them.
Under the administration laws of this state, as declared by the statutes upon executors and administrators, and as these statutes have been interpreted by this court, the primary right to settle the affairs of a partnership consisting of two persons, when one of the members of the firm dies, rests with the surviving partner; but if the surviving partner, after having been duly cited for that purpose, neglects or refuses to give the bond required, the administrator of the personal estate of the deceased partner may execute the bond 'required by ¶ 2820, General Statutes of 1889, and take the whole partnership property into possession, collect the debts due the late firm, pay those due from the late firm, and pay over to the surviving partner his proportion of the excess, if any there be. In this case the record does not show that Jacob G. Teney was ever cited to give the bond required from a surviving partner, nor does the record show that Mary Laing, as adminstratrix of the estate of Thomas E. Laing, ever executed the further bond required by ¶ 2820, General Statutes of 1889, that is necessary to authorize her to take possession of and administer the partnership estate. Both sides and all parties concede that Jacob G. Teney was a member of the firm of Teney & Laing; the controversy was whether H. W. Laing or Thomas E. Laing was the other member. As surviving partner, Jacob G. Teney had the undoubted legal right to the possession of all the partnership property at the death of Thomas E. Laing, if he was a member of the firm, until he had been cited to give bond and refused, and until the administratrix of Thomas E. Laing had given a bond that would protect his interests in the partnership estate. If H. W. Laing was the partner of Teney, of course the administratrix of Thomas E. Laing had no possible control over or interest in the partnership assets. If these proceedings were valid, and complied with the law in all respects, no such order as was made in this case could be rightfully made against H. W. Laing without some positive evidence that he was withholding, concealing or conveying away this partnership estate, or some portion thereof. We have read this record carefully to find some active or even passive action or declaration, movement or transaction of H. W. Laing tending to show either possession, control or disposition of any of this partnership estate. Jacob G. Teney claims that H. W. Laing was and is his partner. H. W. Laing himself was not permitted to testify in his own behalf on the trial of the cause. This court, in the case of Blaker v. Sands, 29 Kas. 551, upon the question of the right of possession of the surviving partner, uses this language:
“Upon the death of a partner the survivor becomes a trustee for all concerned. He holds the legal title to all the personal property, choses in action and other assets of the firm, and his control of all the partnership assets, real and personal, legal and equitable, is absolute and indefeasible, limited only by the purposes for which it is granted to him, and the provisions of the statute concerning partnership estates. Until the plaintiff was cited under the provisions of § 35, chapter 37, Comp. Laws of 1879, to give bond as a surviving partner, he had the right to the possession of the partnership property. [Citing Carr v. Catlin, 13 Kas. 393.] The citation was a matter personal to the surviving partner, and it was an act required to be done to divest him of his right to control and dispose of the property. Unless he was cited or voluntarily appeared in court and refused to give the statutory bond, or in some other way declined to take charge of the partnership property,-so as to waive a citation, he was never divested of his control over said property.”
In the case cited, that of Carr v. Catlin, this court says:
“The citation is jurisdictional in the sense a summons is. It brings the party into court. But when a party voluntarily appears in court, it is unnecessary to inquire what, if any, process has been served upon him.”
It is also said in this case that the surviving partner may insist on his possession of the partnership property until after citation, and a refusal or neglect to give a statutory bond. This was the doctrine of the common law. It has been repeatedly held that, upon the dissolution of a firm by the death of one of the members, the survivor has the legal right to the possession and disposition of all the partnership effects for the purpose of paying the debts of the firm and distributing the residue to those entitled. (1 Woerner, Adm’n., §124, and authorities cited in foot-note No. 6.) By the language of ¶ 2819 of the General Statutes of 1889, it is expressly provided that in case the surviving partner, having been duly cited for that purpose, shall neglect or refuse to give the bond required by this article, the executor or administrator of the estate of such deceased partner, on giving a bond as provided in the next section, shall forthwith take the whole partnership estate, etc., into possession. Paragraph 2820 prescribes the condition of such a bond. It seems that the giving of the further bond required by this statute is a condition precedent to the taking possession of the partnership estate by the administrator of the deceased partner. The supreme court of the state of Missouri, in the cases of Bredlow v. Savings Association, 28 Mo. 181, recognized in Savings Association v. Enslin, 37 id. 453; Holman v. Nance, 84 id. 674; Easton v. Courtwright, 84 id. 27; and the court of appeals, in Weise v. Moore, 22 Mo. App. 530, hold that the surviving partner is not divested of his common-law powers to wind up the partnership until the administrator of the deceased partner has given bond authorizing him to take charge of the partnership effects, on the survivor’s refusal to do so. Now, in this case, it is not shown by the record that the surviving partner was cited, or that the administratrix of the estate of the deceased partner had given the further bond required by our statute, before this proceeding was commenced in the probate court. This proceeding was therefore instituted in violation of plain statutory command and repeated judicial direction, and cannot be maintained, and the district court erred in overruling the motion to dismiss. We might stop here, but cannot refrain from the suggestion that if Jacob G. Teney is the surviving partner, and Thomas E. Laing was the deceased partner of the firm of Teney & Laing, ¶¶ 2821 and 2822 are the law that ought to have been invoked by the administratrix, if she had herself complied with the other provisions of the statute.
We recommend that the judgment be reversed, and the cause remanded, with instructions to the district court to dismiss the proceedings.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
From December 8, 1887, to March 23,. 1889, F. J. Mottin and Ferd. Mottin, partners as Mottin Bros., were engaged in the general merchandise business at Clyde, in Cloud county, in this state. At the time of commencing business the Mottin Bros, were worth from $15,000 to $21,000. About midnight of Friday, March 22, 1889, being insolvent, they made a general assignment to C. W. Van DeMarb. The assignment was dated March 23, 1889. It included their stock of goods, etc., furniture, fixtures, real estate and equities of both partners, not exempt by law. The sworn schedule of liabilities showed a firm or partnership indebtedness of $12,524.94. At the time, F. J. Mottin had debts secured by mortgages upon bis individual estate of $6,884. • On March 21, 1889, they executed to the Van De Mark Bros, a chattel mortgage of $584.70 upon their stock of goods. On March 22, 1889, they also gave another chattel mortgage for $500 to the Van DeMark Bros, covering their entire stock. This was given to secure a note for attorney fees. On April 8 and 9, 1889, various creditors of the Mottin Bros, commenced actions against them for large sums" of money alleged to be due, and attachments were also issued in all of these actions against the property of the defendants. Their stock, furniture, fixtures, etc., were attached, and appraised at $9,991.51. All of the foregoing cases involve the same questions, and therefore are considered together.
The affidavits for attachments alleged, among other things, that—
“Said defendants, F. J. Mottin and Ferd. Mottin, partners as Mottin Bros., were about to assign, remove and dispose of their property, or a part thereof, with the intent to defraud, hinder and delay their creditors, and had assigned, removed and disposed of their property, or a part thereof, with the intent to defraud, hinder and delay their "creditors, and fraudulently contracted the debt and incurred the liability and obligation for which the actions were brought.”
The Mottin Bros, filed their motion to vacate and dismiss the attachment proceedings, principally for the reason that the grounds for the attachments alleged in the affidavits were not true. The motion to vacate and dismiss the attachment proceedings was heard at the April term of the court for 1889, and, after hearing the evidence and arguments in the cases, the motion was sustained, and all of the attachments were vacated and dismissed. The plaintiffs below excepted, and complain of the rulings of the court below.
Various errors are alleged, but we need refer to one only. The chattel mortgage dated March 22, 1889, for $500, was not executed until the Mottin Bros, had determined to make an assignment of their property, and was executed at about the same time. The Van DeMark Bros, agreed to secure Theodore Laing, as the attorney for the Mottin Bros., and they agreed to become responsible to him for his advice, services, etc., as the attorney for them. Ferd. Mottin stated, among other things, as follows:
■ “That. Laing was employed by the Van DeMark Bros, as attorney for him and his brother; that he thought he would need legal advice before he got through the assignment.”
C. W. Van DeMark testified as follows:
“Q,ues. For what was the note and mortgage of $500 given by Mottin Bros, to Van DeMark Bros.? Ans. Well, I can explain the whole thing. I don’t like to answer in any other way.
“ Q,. Go on. A. Mottin Bros, came to me and spoke about their difficulties — bills coming due and trade being slack; and they didn’t see how they were going to meet their bills; didn’t see what they were going to do, and thought they would probably have trouble with some of their creditors when their bills came due; and was consulting me frequently about it. I told them that I didn’t feel competent to give them advice about it; that they had better see some attorney that could advise them. better than I could in the matter, and they said they wasn’t acquainted with any, and I mentioned the names of several parties in Concordia, attorneys, and I mentioned Mr. Laing’s name, and they wanted I should go and see Mr. Laing for them and employ him as counsel in these matters, or in any other matters that might come up. I went to Concordia and saw Mr. Laing and told him what they wanted, and told him about their condition so far as I knew that they were in; that they hadn’t got any money at that time. Mr. Laing told me that if Van DeMark Bros, would guarantee the fee it would be all right; told me how much he would want as their attorney in' any matters that might come up in relation to their business.
“Q,. What sum did he name? A. $500. I then went back and told Mr. Mottin what Mr. Laing had said, and that I would guarantee this providing that they would give Van DeMark Bros, a mortgage for security, but that we wouldn’t guarantee it without some security, and the note and mortgage were given for that purpose.
“Q,. Did you notify Mr. Laing of the result and let him know that he was employed under those circumstances? A. I did.”
Theodore Laing testified that “the fee was taken in full payment' of all their services to Mottin Bros, in all of the business they had, and anything that might come up in which they were affected.” It therefore clearly appears from the evidence that the mortgage of $500 which was given for attorney’s fee was partly for future services; that is, the mortgage was for services part of which, and most of which, according to the evidence, were to be rendered in the future. Therefore, while the Mottin Bros, were in an insolvent condition, they created, or attempted to create, a new debt for something to be performed in the future, and tried to pay it with property which should have been devoted to the payment of their debts then existing. This mortgage therefore cannot be sustained, and the making of this mortgage furnished ground for the issuance of the attachments. It.would be . _ _, . . 1 a fraud upon creditors to permit an insolvent u r debtor to place his property beyond their reach by transferring or conveying it to an attorney, or to some one for the benefit of the attorney, for future legal services, to be rendered in whatever litigation the debtor might thereafter be engaged. (National Bank v. Croco, 46 Kas. 629; Crain v. Gould, 46 Ill. 294; Hill v. Agnew, 12 Fed. Rep. 230; Nichols v. McEwen, 17 N. Y. 22.) The mortgagors and the mortgagees were fully acquainted with the purpose of the mortgage, and were involved, as well as the attorney, in the scheme to contract for future legal services and to transfer sufficient property from the Mottin Bros., just about the time of the making of the assignment, to pay for such future services. There were no innocent parties in this transaction. The assignee, C. W. Van DeMark, did not join in the motion to' vacate the attachments, or ask for the discharge of the stock, etc., from the attachments; therefore, all that is before us for decision is the error of the court in vacating the attachments against the Mottin Bros. The orders vacating and setting aside the attachments in all of the above cases will be reversed, and the cases will be remanded, with direction to the district court to reinstate the cases and to overrule the several motions to vacate and dismiss.
All the Justices concurring. | [
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Opinion by
Strang, C.:
Action for damages. The petition alleges that in June, 1886, John Wand was a druggist, with a stock of goods, in possession of the store rooms on lot 213 on Kansas avenue, Topeka, as the tenant of Allen Sells, owner of the Windsor hotel building, said store rooms being a part of said building; that at the same time the plaintiffs, Hill Brothers, as partners, were in possession of the Windsor hotel under a five-year lease from said Allen Sells; that the plaintiffs represented to the defendant, John Wand, that they also had a lease of the store rooms occupied by him, covering the period of the last three years of their hotel lease, and thus induced said Wand to take a lease of said store rooms of them for the period of three years, at the monthly rental of $150; that, after giving Wand said lease, the plaintiffs- sold their furniture and assigned their lease of said hotel to Passmore & Wiggins; that after Passmore & Wiggins obtained possession of said hotel, they notified the defendant that their predecessors, Hill Bros., never had any lease from Sells for the store rooms occupied by him, and that he must either surrender the possession of said rooms to them, or pay them a much higher rent; that he saw Mr. Sells and learned from him that, while he thought he had leased said store room to the Hills, he had ascertained that he had only contracted to lease it to them, and had not leased it; and that said Wand, learning, as he believed, that the Hills had no lease of said store rooms, and no authority to lease the same to him, and believing that his lease from them did not protect him, as he alleges it did not, was compelled, rather than to move out, to take a lease from Pass- more & Wiggins and pay a much larger monthly rental, to wit, the sum of $175 per month, whereby he was damaged in the sum of $25 per month for three years, or in the aggregate $900. The defendants below answered by a general denial. When the case was reached for trial and the plaintiff had introduced his evidence, the defendants demurred thereto, for the reason that it failed to establish a cause of action, which demurrer was overruled.
The first question to be discussed here is a question of practice raised by the defendant in error, who contends that there is no case here for review; that the case-made does not show that the motion for a new trial was filed in the court below within the statutory time, and that, therefore, under the decisions of this court, the case should be dismissed. Whether this contention is correct or not depends upon the construction of the word “thereupon,” appearing in connection with the allegation of the filing of the motion for a new trial. The case-made recites that, “after hearing the arguments of counsel, and being duly instructed by the court, the jury, after due deliberation, returned to the court its general verdict and its special findings upon particular questions of fact stated by the defendants, which verdict and findings are in the words and figures following, to wit.” Then follow the verdict and special answers, immediately at the end of which, and in close connection therewith, the following declaration appears: “Thereupon the defendants filed in writing their motion for a new trial, of which the following is a copy.” Then follows a copy of the motion for new trial and the reasons therefor.
By reference to Webster’s, Worcester’s, and other dictionaries, we find the word “thereupon” defined as follows: “Thereupon — 1st, upon that or this; 2d, on account of that; in consequence of that.” In Anderson’s Dictionary of Law it is thus defined: “Thereupon — without delay or lapse of time.” From these authorities it will be seen that the word “thereupon” is employed to express a cause or condition, or is used as expressive of time. The record in this case shows the different stages of the trial, each succeeding the other in regu lar order, down to and including the return of the verdict of the jury. It then proceeds as follows: “Thereupon the defendants filed their motion in writing for a new trial.” As employed here and in this connection, we do not think the word “ thereupon ” refers to a cause or condition precedent, but that it is used as an adverb of time, and means, , ' f m the language of Anderson’s work, above referred to, “without delay or lapse of time;” and that, with the balance of the sentence which it introduces, it means that immediately upon the return of the verdict of the jury the defendants filed their motion for a new trial. With this construction upon the word “thereupon,” it follows that the motion for new trial was filed in time, and the case is properly here for review.
The second contention of the plaintiffs in error is that the court erred in overruling their demurrer to the evidence of the plaintiff below. Lid the evidence of the plaintiff below establish a prima fade case against the defendants in the trial court? If it did not, then the court erred in its ruling; otherwise the ruling of the court was correct. The proper answer to this question must determine whether or not the plaintiff below had such a lease of the store rooms occupied by him in the Windsor hotel building, from Hill Brothers, as would protect him in such occupancy. If his lease from the Hills was sufficient to protect him in his rights therein stipulated, then he had no cause of action against them under the evidence, notwithstanding the fact that, ignorant of his rights under the law, he was induced by Passmore & Wiggins to take a new lease of them for the same premises at a higher rental; and the demurrer to the evidence should have been sustained. The Hills had a proper lease of the hotel building, except the store rooms occupied at the time by Wand, from the owner, Allen Sells, for a period running three years yet from the ensuing 1st of November, 1886. Said lease also contained the following clause:
“ Said Allen Sells agrees to lease said store room, or rooms, to said Horace P. Hill upon reasonable notice by said Hill, at a monthly rent of $125 in advance, provided always that said Allen Sells can get peaceable possession of the same from the present occupant, and will connect said drug store with the hotel by a door or other opening.”
Wand was in possession of said store room as tenant of Allen Sells, the owner, and his term would expire on the 1st day of November, 1886. In June, 1886, Wand and the Hills had made the connection between the drug store and hotel spoken of in the clause of the lease from Sells to the Hills, above recited, and were in some trouble about the amount to be paid by Wand to the Hills for the privilege of said opening, he wishing said passage-way kept open to enable him to sell cigars to the guests of the hotel. Pending the discussion of said difficulty and attempts to settle the same by Wand and the Hills, Allen Sells, the owner of all the property, and landlord of both Wand and the Hills, appears and advises Wand to settle the passage-way matter with the Hills. He said to Wand that he (Sells) had leased the store rooms to the Hills from the 1st of November following, and that if he (Wand) did not settle with the Hills, they would put him out at that time. Sells left Wand, and after a short time returned and told him that the Hills would settle the archway matter for $25 per month and give him a lease of the store-room from November 1 at $150 per month and the free use of the archway, and that he (Sells) would advise Wand to do that. Sells said he had leased to the Hills, and they could sub-lease to him. Wand concluded to do as Sells advised him, and settled up the archway dispute, and took a lease of the store rooms of the Hills for the remaining three years of their lease of the hotel, to wit, three years from November 1, 1886.
Afterward, sometime, the Hills sold out to Passmore & Wiggins, and assigned to them the hotel lease. Sometime after Passmore & Wiggins got possession of the hotel, they obtained from Sells a lease of the store rooms occupied by Wand. They then notified Wand to quit and surrender to them the rooms he occupied, and when Wand objected and informed them of his lease, they told him it was not valid be cause the Hills never had a leáse of said rooms from Sells and no authority to rent them to him. Passmore & Wiggins, however, offered to rent the rooms to Wand, but at a much higher rental per month. Wand, believing his lease not good, finally rented of Passmore & Wiggins at a rental of $25 per month in advance of the amount he was to pay under his lease from the Hills. Would the lease from the Hills to Wand for the store rooms, under all the circumstances under which it was made, have protected him in the possession thereof? We think it would. The lease from the Hills to Wand was a proper lease in writing for the premises occupied and to be occupied by Wand. The Hills actually had in writing, at the least, an agreement on the part of Sells to lease to them the rooms occupied by Wand for a stipulated rental, upon reasonable notice, provided he could get peaceable possession of the same from Wand. The evidence shows that he either had notice or it was waived. The peaceable possession of the premises was surrendered to him by Wand, and the opening between the drug store and hotel had been made; so that all the conditions upon which Sells was to lease the premises occupied by Wand to the Hills were executed. At this juncture Sells, who has agreed in writing to lease to the Hills, appears and informs Mr. Wand that he has leased to the Hills, and advises and, in the language of Wand, begs him to take a lease from the Hills, saying they have authority to sub-let. In pursuance of Sells’s advice and importunities, Wand does take a lease from the Hills and remains in possession thereunder. After all that had transpired, could Mr. Sells have come forward and demanded and obtained possession of said rooms from Wand during the life-time of Wand’s lease from the Hills, upon the ground that the Hills had no authority to make the lease to Wand? We think not. Mr. Sells would be fully estopped from denying the authority on the part of the Hills to make the lease in question, and such lease would amply protect Mr. Wand in his rights thereunder, as against Mr. Sells. Having told Wand that he had leased the rooms to the Hills, that they had au ■thority to sub-let, and thus induced Wand to lease of the Hills, he (Sells) could never be heard to say that the Hills did not ■have authority to make the lease to him. The law will not tolerate such conduct, and declares whoever indulges in it forever estopped from denying the authority he has affirmed to •exist.
“In accordance with this case it is now a well-established principle, that where the true owner of property, for however ■short a time, holds out another or allows another to appear .as the owner of or as having full power of disposition over ■the property, the same being in the latter’s actual possession, and innocent third parties are thus led into dealing with such apparent owner, they will be protected. . . . Such rights do not depend upon the actual title or right or authority of the party with whom they have directly dealt, but are derived from the conduct of the real owner, which precludes him from disputing against them the existence of the title or right or power which he caused or allowed to appear to be vested in the party making the sale.” (Bigelow, Estop. 560.)
“Where the owner of property confers upon another an apparent title to or power of disposition over it, he is estopped from asserting his title as against an innocent third party, who has dealt with the apparent owner in reference thereto without knowledge of the claims of the true owner. The rights of such third party do not depend upon the actual title or authority of the one with whom he dealt, but upon the act of the owner, which precludes him from disputing the title or ■authority he has apparently conferred.” (McNeil v. National Bank, 46 N. Y. 325.)
These two authorities which are so near alike, the one from Bigelow on Estoppel and the other from a decided case in the New York courts, seem to be in point in this case. These authorities hold, that where the owner of property holds out another as having power of disposition or authority over the same for any purpose, he is estopped from denying the existence of such power of disposition or authority over the property as against the rights of a person who has innocently dealt with him who is thus given such apparent power of disposition or authority. Allen Sells not only told Wand that he had leased the store rooms to the Hills, but told him they had power to sub-let, and “begged” Wand to take a lease of the Hills. In this he not only held the Hills out to Wand as having full power of disposition of the rooms by lease, but advised Wand to take a lease from the Hills under the power of disposition he declared they possessed. Wand dealt with the Hills, believing, from the representations of Sells, that they had full power of disposition over the rooms he desired. Can it be that Sells could afterwards be heard to deny, as against Wand, that the Hills had full power of disposition over the store rooms leased by him from them? We think not. If he could not deny the existence of such power in the Hills by word, could he, by any act of his, destroy, set aside or annul the apparent power of disposition over said rooms existing in the Hills? Again we say no. “The rights of such third party do not depend upon the actual authority of the one with whom he dealt, but upon the act of the owner, which precludes him from disputing the authority he has apparently conferred.” (46 N. Y. 325, supra.) So, in this case, the rights of Wand, under the lease from the Hills, did not depend upon any actual authority or power of disposition over the rooms leased in the Hills, but upon the apparent ■ power of disposition thereof conferred upon them by Sells, holding them out to Wand as rightfully possessed of such power. That is, it mattered not, so far as Wand’s rights under his lease from the Hills were concerned, whether the Hills had a lease from Sells or not; after Sells had represented them to Wand as having one, with power to sublet, he could not deny that they did have one containing such authority. This being true, a subsequent lease from Sells to Passmore & Wiggins conferred upon them no greater rights as against Wand than Sells had, and no more power to deny the authority of the Hills to make the lease to Wand than Sells himself possessed. The Hills did not at any time dispute their power to lease to Wand, but all the time affirmed that their lease to Wand was a good one, and that it fully protected him in the enjoyment of his rights stipulated therein. As neither Sells, nor Passmore & Wiggins, could dispute the validity of Wand’s lease from the Hills, we take it that such lease would have protected him in the enjoyment of the rights in said lease stipulated against all the world. Anderson v. Armstead, 69 Ill. 452, holds with the two authorities above cited, and says the third party will be .protected.
“ If one whose name is signed by another to a deed so far acknowledges the deed as to induce third persons to act on it as his, he may, without evidence in writing of an estoppel, be held precluded from subsequently denying the deed.” (Goodell v. Bates, 14 R. I. 65.)
“ Where the owner or the person having an interest in property represents another as the owner, or permits him to appear as such, or as having authority over it, he will be estopped, to deny such ownership or authority against persons who, relying on his representations or silence, have purchased or acquired interests in the property.” (7 Am. & Eng. Encyc. of Law, 18.)
“Privies are bound by or may take advantage of an estoppel in pais.” (E. A. Rld. Co. v. T. & C. R. Rld. Co., 78 Ala. 274; Karnes v. Wingate, 94 Ind. 594; Timon v. Whitehead, 58 Tex. 290; Wood v. Seely, 32 N. Y. 105.)
“Where a person is estopped, his creditors attaching the property in question are estopped also.” (Parker v. Crittenden, 37 Conn. 148.)
A point is made that the special findings of fact are not sustained by the evidence, but that the jury in making them ignored all the evidence in the case relating to the questions to which their findings are answers. The findings are not only not supported by any evidence, but are directly against all the evidence relating thereto. With our view of the law of this case, this is all we care to say about the findings. We- think the lease from the Hills to Wand protected Wand in the enjoyment of all the rights he stipulated for therein. It follows, then, that if Wand, having a lease that would protect him in his rights, allowed Passmore & Wiggins, or anyone else except the Hills, to persuade him to take a subsequent lease at a higher rental, that the Hills were not to blame, - and having done so and paid a higher rental, he had no cause of action against the Hills therefor, and the demurrer to the evidence should have been sustained.
It is recommended that the judgment of the district court be reversed, and the case remanded for new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The assignments of error in this case are as follows:
“1. The said court erred in the instructions given to the jury on the trial of the said action.
“2. The court erred in admitting evidence in the trial of said action.
“3. The verdict was contrary to the evidence.
“4. The said judgment was given for the said S. W. Spurry when it ought to have been given for these plaintiffs.”
It will be seen that nothing is said in the assignments of error with regard to a motion for a new trial. There was a motion for a new trial, however, made and filed in the court below on April 7, 1888, and overruled on April 20, 1888. The grounds for the motion are as follows:
“1. The verdict is contrary to and against the evidence.
“2. The verdict is contrary to and against the law.
“3. Error upon the part of the court in the admission of testimony, to which the plaintiff excepted at the time.”
Nothing is said in this motion with respect to the instructions of the court to the jury. Instructions, however, were given; and while we have 17 pages of them in the record, yet the record does not show that it contains all. On the same day on which the motion for the new trial was overruled, j udgment was rendered in favor of the defendant, S. W. Spurry, and against the plaintiffs, W. H. Cogshall and George W. Pye, partners as W. H. Cogshall & Co., for costs of suit; and on April 16, 1889, the plaintiffs, as plaintiffs in error, brought the case to this court for review.
On October 8, 1891, the plaintiffs in error asked leave of this court to amend their petition in error so as to make it allege for error the overruling of their motion for a new trial, but the court overruled the motion, and then the case was submitted to the court for final decision upon its merits upon the petition in error as it was and the record and the briefs of counsel. The motion of the plaintiffs in error for leave to amend their petition in error was overruled upon the ground that it was made too late. Under the statutes of this state, (Civil Code, § 556,) no proceeding in error can be commenced in the supreme court unless it is commenced within one year after the rendition of the judgment or the making of the order complained of, except where the plaintiff in error is an infant, or of unsound mind, or imprisoned. The motion to amend in the present case was not made until more than three years had elapsed after the ruling of the court below complained of had occurred. Of course a petition in error may be amended more than one year after the ruling complained of has taken place, if the amendment is only to make good a defective, informal or incomplete allegation of error already contained in the petition in error; but when the proposed amendment sets forth an absolutely new and distinct assignment of error or cause for reversal, it cannot be made after that time. Such has been the uniform ruling of this court, and such ruling has been once at least embodied in a written opinion and reported. (Crawford v. K. C. Ft. S. & G. Rld. Co., 45 Kas. 474, 476.)
■ The defendant in error objects to the consideration of this case for various reasons, among which are the following: The record does not show that it contains all the instructions of the court below to the jury; the motion for a new trial does not present any question with regard to the instructions, and the petition in error does not assign for error the overruling of the motion for a new trial. We think the contention of the defendant in error must be sustained, especially upon the last ground. (Struthers v. Fuller, 45 Kas. 735; Duigenan v. Claus, 46 id. 275, 276; same case, 26 Pac. Rep. 699, 700, and cases there cited.) It will be observed that the only errors assigned are such as occurred during the trial, and in the case last cited it was decided as follows:
“Errors occurring during the trial cannot be considered by the supreme court unless a motion for a new trial, founded upon and including such errors, has been made by the complaining party, and acted upon by the trial court, and its rulings excepted to, and afterwards assigned for error in the supreme court.” (Syllabus.)
See, also, the case of Dryden v. C. K. & N. Rly. Co., just decided.
No available error having been assigned by the plaintiffs in error, the judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Strang, C.:
Action of replevin to recover the possession of a hotel ’bus. The plaintiff filed the usual petition in replevin, to which the defendant answered by a general denial; and also answered that the’bus was taken by, the defendant, a constable, on an execution issued on a judgment against the defendant. No reply was filed to the answer. The defendant moved for a judgment on the pleadings, which motion was overruled. The cause was then tried by the court without a jury, upon an agreement that if the court found the ’bus was exempt, the judgment should be for the plaintiff; otherwise it should be for the defendant. The court found for the plaintiff. The defendant filed a motion for new trial, which was overruled.
The plaintiff in error contends that he was entitled to j udgment on the pleadings. We think not. This was an action of replevin, and the only pleadings necessary were the petition of the plaintiff and an answer containing simply a general denial. Any defense the defendant may have had could have been given in evidence under the general denial. (Bailey v. Bayne, 20 Kas. 657; Yandle v. Crane, 13 id. 344; Kennett v. Fickel, 41 id. 211.) All of his answer, therefore, except his general dénial, was wholly unnecessary, and being unnecessary required no reply. If the defendant under the general denial could have shown that he took the property as an officer under legal process, the plaintiff could, without a reply, rebut the effect of such proof by showing that the property taken was exempt. We have noticed the cases cited by the plaintiff in error, Babcock v. Farmers’ Bank, 46 Kas. 548, and Scott v. Morning, 18 id. 459, and others. None of these cases were replevin cases, and as the same rule does not prevail in the class of cases cited as iu replevin cases, they are not in point.
The plaintiff in error also contends that the court erred in its finding that the property was exempt, and in rendering judgment thereon for the plaintiff below. We see no reason why the business of hotel keeping is not within the third subdivision of § 4 of the exemption statute, and the trial court having found, under the evidence relating thereto, that the ’bus was a necessary adjunct to the hotel business of the plaintiff below, we think it must be held to be within the description in said statute of tools and implements used and kept by the debtor for the purpose of carrying on his business. (Wilhite v. Williams, 41 Kas. 288; and Davidson v. Sechrist, 28 id. 324.) In Richards v. Hubbard, 59 N. H. 158, it is held “that a physician’s wagon and harness, used by him in riding to visit his patients, and reasonably necessary for his practice of his profession, are ‘tools of his occupation,’ within* the meaning of General Laws, chapter 224, section 2, exempting property from attachment.”
It is said that it does not appear that the plaintiff below was a resident of the state of Kansas when this suit was begun. On page 10 of the record he testified, “I reside at Junction City, Davis [Geary] county, Kansas,” and we think the remainder of the evidence shows him residing there at the commencement of the suit. It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered;
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
A controversy arose between the parties to this proceeding with reference to the ownership of the southwest quarter of section 10, township 18 south, of range 10 east, situated in Lyon county, Kansas. Each of the parties had obtained a judgment upon constructive service quieting the title to the real estate in himself, but these judgments were vacated by stipulation, and the question as to who was the actual owner of the real estate as between them was submitted to the trial court without pleadings, and upon an agreed statement of facts, under the provisions of § 525 of the civil code. From the stipulated facts it appears that the land in controversy was purchased at the United States land office at Lecompton on October 6, 1859, by one Wesley Wells, by the location of a land warrant upon it, issued under the act of Congress of March 3, 1855. On the day of the location Wesley Wells executed to T. H. Walker a mortgage on the same tract of land, to secure the payment of a promissory note given by him to Walker for the sum of $175.70, being the purchase-money for the land so purchased. The mortgage was recorded on October 7, 1859. On November 25, 1859, Wesley Wells made a written assignment of the certificate of location issued to him by the land office, and delivered the same to Morris Cohn, and authorized the assignee to receive the patent for the land, and on May 4, 1878, the United States issued to Morris Cohn, as the assignee of Wesley Wells, the patent for the land in controversy. This assignment of the certificate of location was never recorded nor brought to the notice of either Walker or Kimball until after each had procured his title. On August 10, 1863, Walker instituted a foreclosure proceeding against Wesley Wells alone, and endeavored to obtain constructive service upon him. The affidavit made and filed for the purpose of obtaining a constructive service stated, among other things, “that the service of a summons cannot be made on the said Wesley Wells within the state of Kansas; that this is an action brought for the recovery of real property under a mortgage, situated in said county of Lyon.” The notice published pursuant to the affidavit reads as follows:
“Wesley Wells, in parts unknown, will take notice that Thaddeus H. Walker, of the county of Washington, state of New York, did, on or about the 10th of August, 1863, file his petition in the district court of the fifth judicial district of the state of Kansas, within and for the county of Lyon, in said state, against Wesley Wells, setting forth that the said Wesley Wells gave a mortgage to the said Thaddeus H. Walker, on the southwest quarter Q-), of section ten (10), township eighteen (18), range ten (10), situated in said county of Lyon, to secure the payment of one hundred and seventy five dollars and seventy hundredths ($175.70), according to the terms of a certain note referred to in said mortgage, and dated October 6, 1859, payable 12 months after date, with interest from the date until paid at the rate of 4 per cent, per month. The said Wesley Wells is further notified that he is required to appear and demur to or answer said petition on or before the 23d day of October, 1863, or the same will be taken as confessed, and judgment rendered accordingly.”
At the October term, 1863, a judgment was rendered in fa- • vor of T. H. Walker, decreeing a foreclosure and sale of the land described in the mortgage, and upon an order of sale is sued on the judgment a sale of the real estate was made by the sheriff of Lyon county on March 3, 1866, to T. H. Walker, which sale was confirmed by the court, and the sheriff executed and delivered to Walker a deed for the premises. On July 24, 1877, the sheriff of Lyon county, in pursuance of a judgment theretofore rendered by the district court against T. H. Walker, and a sale on said judgment, duly made, executed and delivered to A. S.. Kimball a sheriff’s deed, purporting to convey the land in controversy to A. S. Kimball; and it is agreed that Kimball by the deed received a conveyance of any and all interest which Walker ever had or obtained in the land in controversy. On May 4, 1878, Morris Cohn, who obtained the patent for the land as the assignee of Wesley Wells, conveyed and transferred all the title and interest which he acquired in the land to Joseph Shippen, the plaintiff in error, and he founds his title to the real estate upon this transfer and conveyance. The land in controversy has always been vacant, unoccupied, and unimproved, and at the time when the foreclosure proceeding of Walker against Wells was commenced in the district court of Lyon county, and ever since, Wells has been absent from the state of Kansas, and service of summons could not be had upon him within the state. . Upon these facts the trial court determined that the equity of the case was with Kimball, and that he was the owner and entitled to the possession of the land in controversy. Shippen excepted, and comes here asking a reversal.
It is conceded that when Wesley Wells purchased the land in controversy from the United States, on October 6,1859, he became the absolute owner thereof with the entire' title thereto, except the bare, naked legal title, which still remained in the United States, and would remain in the United States until the patent for the land should be issued. It is also conceded that Wells then had the right to mortgage the property to Walker as he did, or to any one else, or to dispose of the same as he might see fit; and it must be held, under the authorities, that the service of summons in the foreclosure suit of Thad deus H. Walker against Wesley Wells, made by publication, cannot i'1 this collateral proceeding be held to be void, but must be held to be valid, although the affidavit for service by publication is to some extent defective. (Ogden v. Walters, 12 Kas. 282; Claypoole v. Houston, 12 id. 324; Pierce v. Butters, 21 id. 124; Gillespie v. Thomas, 23 id. 138; Rowe v. Palmer, 29 id. 337; Harris v. Claflin, 36 id. 543, 551; Bogle v. Gordon, 39 id. 31.) It is also conceded that, except for the title of Walker and Kim-ball to the property in controversy, the title of Shippen would be good, and he would be the owner of the property. All the transactions and proceedings had in the present case, giving to Walker his title, were had under the registry laws of 1859, chapter 30; while all the transactions and proceedings had giving to Kimball his title and transferring Walker’s title to Kimball, were had under the registry laws of 1868, (Gen. Stat. of 1868, ch. 22,) which laws, with some amendments, are still in force. (Gen. Stat. of 1889, ch. 22.) And all the transactions and proceedings had which give to Shippen his title were had under the registry laws of 1859, up to October 31, 1868, when they were afterward had under the registry laws of 1868. We think the questions involved in this case are governed and settled principally by the registry laws.
Both Kimball and Shippen claim title to the property in controversy under the same original owner, Wesley Wells, who was the original purchaser of the land from the United States. Walker furnished the purchase-money; Wells purchased the property, received the certificate of purchase, and then mortgaged the property to Walker to secure the purchase-money, and this niortgage was immediately placed upon record. Afterward Wells assigned his certificate of purchase to Cohn; but it does not appear that this assignment was ever proved or acknowledged or filed for record, as it r , ’ have been under the provisions of the registry laws; and hence the assignment was void under the registry laws of 1859 as to all subsequent purchasers for a valuable consideration without notice; (Act of 1859 relating to Conveyances, § 13;) and void under the registry laws of 1868 as to all persons except such as had actual notice thereof. (Act of 1868 relating to Conveyances, §§ 19, 21.) Afterward, Walker foreclosed his mortgage against Wells and obtained a sheriff’s deed for the property; and afterward, and on July 24, 1877, Kimball procured Walker’s interest by virtue of another sheriff’s deed, executed under a judgment against Walker. Afterward, the patent for the land was issued by the United States to Cohn as the assignee of Wells, and afterward Shippen succeeded to the interest of Cohn. In our opinion Kimball’s interest in the land, as found by the trial court, is superior and paramount to that of Shippen. The assignment of the certificate of purchase by Wells to Cohn was, under the registry laws of both 1859 and 1868, void as to Walker and Kimball as purchasers, and, under the registry laws of 1868, was void as to them in all respects and as to every other person except such as had actual notice of the assignment. If it (the assignment) did not affect real estate at all, then of course it was void as to all persons; but if it did affect the real estate in controversy, then it was void as aforesaid for the reason that it had never been proved, or acknowledged, or filed for record, within the requirements of the registry laws. Neither Walker, as the purchaser of the land at the foreclosure sale, nor Kimball, the purchaser of the land at the sheriff’s sale on the judgment against Walker, nor anyone else, at that time not having actual notice of Cohn’s interest, was bound to take notice thereof, for the reason, as before stated, that such interest was not known by them nor shown by any record, and was void as to them. It was a mere secret equity, undiscoverable from any record, and void as aforesaid under the registry laws. No one not having actual notice is bound to take notice of what the statutes say is a nullity. At the time of the sale of the property to Walker, Cohn had no interest therein under the registry laws as against Walker, and at the time of the sale of the property to Kim-ball, Cohn had no interest therein under the registry laws as against Kimball, or as against anyone else not having actual
notice of Cohn’s interest. Under the registry laws, and as to Walker, Wells was the absolute and entire owner of the property at the time of the first sale, and Cohn had no interest therein; and under the registry laws, and as to Kimball, Walker was the absolute and entire owner of the property, and Cohn had no interest therein, and both Walker and Kimball obtained a clear title to the , , property by their purchases. Besides, how could Walker know that he should make Cohn a party to his foreclosure suit when he did not know, and had no reasonable means of knowing, that Cohn had any interest in the land? On the other hand, as Cohn’s and Shippen’s claims were wholly under Wells, they were bound, after the mortgage from Wells to Walker was recorded, to take notice of the recorded mortgage, and bound to take notice of the records of the register’s office and of the district court as to what became of the mortgage, or what was done with reference to it, until they themselves made it known by the records, or in some other way, that Wells had been completely divested of his interest in the property, and that they had succeeded to his rights. The equities of the case are certainly much stronger in favor of Kimball than of Shippen. Kimball’s rights are prior in time, going back to the original purchase of the property from the government and the mortgage to Walker, and are founded upon a claim for the purchase-money, and are also largely founded upon or evidenced by records, and so much so that Shippen was bound to take notice of them; while Shippen’s claims are not founded upon or evidenced by records at all, but are secret, hidden, and practically undiscovable equities.
The judgment of-the court below will be affirmed.
Horton, C. J., concurring.
Johnston, J.:
While I agree with the decision made upon the first point in the case, that the affidavit which formed the basis of jurisdiction was not so defective as to render a judg ment based thereon absolutely void, I am unable to agree with the second and third propositions that have been decided, or with the judgment of affirmance which has been rendered. It seems to me that the foreclosure and proceedings against Wells were a nullity for the reason that Wells had parted with his interest in the land before the foreclosure proceeding was begun, and that Cohn, who had before that time' obtained the interest of Wells, was not made a party to the action. Wells entered the land and became the owner of all except the naked legal title, which, as has been stated, remained in the United States until May 4, 1878, long after the action of foreclosure was ended. It is true that Wells had authority to execute the mortgage to Walker, and also that the mortgage was duly recorded before Wells transferred his interest in the land to Cohn; and it is also true that, when Walker brought the action against Wells, he was the only person who by the record appeared to have any interest in the land. Notwithstanding this, I am of opinion that the foreclosure proceedings were absolutely null and void, for the reason that the assignee of the mortgagor, the only person who had any estate in the land, was not made a party. Wells sold the land to Cohn on November 25, 1859, shortly after the mortgage was executed, and thus Cohn acquired the entire interest held by Wells long before the foreclosure action was begun. It would hardly seem that the owner of the equitable title could be divested of his interest by a proceeding to which he was not a party and of which he had no notice. It is true that he did not place on record the assignment which had been made on the certificate of location, but I do not regard either the certificate or the assignment thereon as a conveyance or an instrument affecting real estate which under the statutes could have been recorded; and no record could be properly made by him until the patent was obtained from the United States. Walker acquired no estate in the land by the execution of the mortgage, and could not maintain ejectment against the mortgagor, or any one claiming under him, even after condition broken, until there had been a foreclosure and sale of the mortgaged premises. The purpose of a foreclosure is to divest the land of the equity of redemption or the right of the holder of the legal title; but where the mortgagor has transferred his interest and the equity of redemption to another, who is not a party to the proceeding, what interest is affeetéd by such a proceeding, and whose interest can be transferred by a sale under such a proceeding? Certainly the interest of one who is not before the court is not affected; and as the mortgagor, who was made a party, had no interest, there was nothing for the jurisdiction of the court to take hold upon, and therefore the judgment rendered is absolutely void.
It must be remembered that Wells had no personal notice, and therefore a personal judgment could not be given against him for the debt secured by the mortgage; and, as he had parted With all his interest in the land, he was neither a necessary nor a proper party in a foreclosure proceeding where only constructive service was had. He was the only party brought into court, and he had no estate or interest to be affected by the proceedings. The patent to the land was issued directly to Cohn, so that he now holds the complete legal title. The record does not show that the sheriff’s deed to Walker, or the one subsequently made to Kimball, was ever placed on record, and at this time Shippen has a perfect title, so far as the record shows. While there are some equities on the side of the defendant in error, it is difficult to understand how there can be any validity in a judgment given in a case in which there was no defendant who had any interest whatever in the subject-matter of the suit, and, as' was said in Shields v. Miller, 9 Kas. 397, “the judgment cannot be void and the sale made under it legal and valid. If the judgment is illegal and void, the sale must also necessarily be illegal- and void.” If it is granted that by this proceeding against the mortgagor alone, and the sale made thereunder, Kimball acquired the interest and was subrogated to the rights of Walker, the mortgagee, still he would only have a lien against the premises, and could not divest the same of the equity of redemption except by bringing Cohn, or whoever owned the same, into court in some proper • proceeding for that purpose. He could have no greater interest in the land than was held by Walker, and it was ruled in an early case that a mortgage “ is a mere security, although in the form of a conditional conveyance, creating a lien upon the property, but vesting no estate whatever, either before or after condition broken. It gives no right of possession, and does not limit the mortgagor’s right to control it, except that the security shall not be impaired. He may sell it, and the title would pass by his conveyance, subject, of course, to the lien of the mortgagee.” (Chick v. Willetts, 2 Kas. 391.)
From these considerations I am led to the opinion that Cohn was not divested of his interest by the foreclosure proceeding, and that Shippen, who holds under him, has the paramount title to the land. As sustaining this view, I cite Britton v. Hunt, 9 Kas. 228; Lenox v. Reed, 12 id. 223; Richards v. Thompson, 43 id. 213; Curtis v. Gooding, 99 Ind. 45; Watson v. Spence, 20 Wend. 260 ; 2 Jones, Mortg., §§1404-6.
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The opinion of the court was delivered by
DawsoN, C. J.:
This is an appeal from a judgment of the district court which sustained an order of the probate court admitting a will to probate over the objections of the heir at law.
The pertinent facts were these: The late Mrs. Olive B. Swisher, of Wichita, a widow whose sole heir was her only brother, William S. McMain, of North Kansas City, Mo., employed the law firm of Dempster 0. Potts and Dallas M. Potts, father and son, to draw her will, which is the subject of this lawsuit. Its principal terms read:
.“I, Olive B. Swisher, of Wichita, Sedgwick county, Kansas, being of lawful age and sound mind and memory, do hereby make, publish and declare this my last will and testament; hereby revoking any and all former wills, testaments and codicils that I may at any time have made.
• • • • • • • ... i.- 1.1
“Second
“I will, devise and bequeath to my brother Will McMains the sum of two thousand five hundred dollars ($2,500).
“Third
“I will, devise and bequeath to my friend Dorothy Greenamyer the sum of five hundred dollars ($500).
“Fourth
“I will, devise and bequeath to my friend Mrs. G. G. Greenamyer the sum of five hundred dollars ($500), and all articles of household furniture, including linens, silverware and pictures.
“Fifth
“I will, devise and bequeath to my step-son Joel Swisher all of the remainder of my property, whether real, personal or mixed, of every kind and character whatsoever, and whatever [wherever] the same may be situated.
“Sixth
“I designate and appoint Dallas M. Potts, of Wichita, Kansas, as executor of this my last will and testament.”
Dated, signed and witnessed December 10,1937.
Mrs. Swisher left this will in the custody of the attorneys who drew it, and died in less than two months thereafter, on February 2, 1938.
Instead of offering for probate this will which was in his possession and without giving the probate court any intimation of its existence, on February 8, 1938, Dallas M. Potts filed for probate a purported “joint last will and testament” of Charles R. Swisher and Olive B. Swisher, husband and wife, dated April 7, 1920, and signed by-Charles R. Swisher and Olive B. Swisher, and witnessed on April 9, 1920, by Dempster 0. Potts and another. By its terms, if Olive B. Swisher should survive her husband, his estate was devised to her without restrictions, but providing that—
“If there shall remain in her hands any of the estate coming to her under this will, including rents, profits and increase', we mutually will and bequeath the same to the said Joel Swisher, to have and hold the same to his exclusive use and benefit.”
Charles R. Swisher died on June 21,1926, but the foregoing will of 1920 was never offered for probate in the administration of his estate. It had been in the possession and control of Olive B. Swisher and her stepson for a number of years (for more than three years next prior to February 2, 1938).
On the petition of Dallas M. Potts, this instrument of 1920 was admitted to probate as the last will of Olive B. Swisher, and its proponent was appointed and qualified as administrator of her estate, with the purported will of 1920 annexed. This appellant William S'. McMain, brother and sole heir at law of Olive B. Swisher, was unaware of the existence of the will which his sister had made a few weeks before her death. Two of the beneficiaries of that will, however, Dorothy Greenamyer and Mrs. G. G. Green-amyer, had been informed by Mrs. Swisher herself that she had made her will and had bequests in it in their behalf. This feature of the case will be further developed later in this opinion.
The estate in controversy consisted of a house and parcel of ground in Toronto, Kan., valued at $1,000, and about $9,000 in government bonds, cash, and insurance policies. Dallas M. Potts gave a bond in the sum of $2,000 for his faithful administration of the estate. Shortly thereafter Mrs. Greenamyer inquired of him about the bequests Mrs. Swisher had made for her and her daughter. She testified by deposition that Potts told her that it (the will he had drawn in December, 1937) “wasn’t any good, it wouldn’t stand.” Mrs. Greenamyer asked to see that will, but he refused to show it to her. Her deposition continued:
“My husband came home one day and said that Dallas (Potts) told him if he would sign this [receipt] for a thousand dollars for services for taking care of her, that that wouldn’t — that we would get the money that was intended for us just the same whether it was in the will or not.
“Q. And you got the $1,000 for it? A. Yes. That is the only reason we signed it — I will be frank. That is the only reason. I signed. Of course, he told me I wouldn’t get any money anyway unless I did take that.”
Dorothy Greenamyer testified that she went to Dallas Potts’ office with her mother (Mrs. G. G. Greenamyer) and asked to see the will of December, 1937, and that he refused to show it to her.
About the time Mrs. Greenamyer and her daughter were inquiring about the will of December, 1937, in which Mrs. Swisher had made bequests in their behalf and about which the testatrix had informed them, Mr. Greenamyer filed a demand against the estate of Mrs. Swisher for an “amount agreed upon and the wish of the deceased, . . . in payment of services rendered’ deceased by claimant, in nursing and general care during last illness of deceased, $1,000.” The date when this claim was presented is not shown, but it was verified on February 12, 1938, and endorsed thereon are the following :
“I consent that $1,000 be allowed on claim.
(Signed) Dallar M. Potts, Administrator.
“One thousand dollars allowed on this 17th day of March, 1938.
“Filed March 17, 1938. (Signed) Clyde M. Hudson, Probate Judge.”
This was followed on April 25, 1938, with a formal order of the probate court reciting that — “The court after investigating the records and being fully advised in the matter, finds that the demand of the said G. G. Greenamyer against said estate in the sum of one thousand dollars was heard and allowed on the 17th day of March, 1938,” and directing that the $1,000 be paid. Potts, the administrator, had already taken receipts from G. G. Greenamyer and his wife and daughter for the payment of this claim and for any and all other claims of the Greenamyer family against Mrs. Swisher’s estate. These read:
“Release
“For and in consideration of one thousand dollars, the receipt of which is hereby acknowledged, we, the undersigned, hereby release the estate of Olive B. Swisher from any and all claims that we may now have or may have had against said estate. (Signed) Mbs. G. G. Greenamyer,
(Signed) G. G. Greenamyer.”
[Dated and verified by both signatories April 6,1938.]
“Release
“For and in consideration of one thousand dollars, the receipt of which is hereby acknowledged, I, Dorothy Greenamyer, the undersigned, hereby release the estate of Olive B. Swisher from any and all claims I may now have or may have had against said estate. (Signed) Dorothy Greenamyer.”
[Dated and verified April 9, 1938.]
Some time later, date not shown, an action in the district court of Sedgwick county arose between William S. McMain as plaintiff, and Dallas M. Potts, administrator, and Joel C. Swisher as defendants, setting up a copy of the purported will of 1920 under which the-estate was being administered, and alleging its invalidity and praying for a construction thereof, and for an adjudication of plaintiff's interest in the estate as sole heir at law.
Dallas M. Potts as administrator and Joel C. Swisher, by their attorney, Dempster 0. Potts, joined issues by answer and claimed for Joel C. Swisher the entire estate under the will of 1920, alleging that such will had been duly filed and probated by the probate judge of Sedgwick county. The trial court gave judgment in favor of plaintiff, William S. McMain, holding that since the will of 1920 had been in the power and control of Mrs. Olive B. Swisher and her stepson Joel Swisher for more than three years and had not been offered for probate within that time after the death of Charles R. Swisher (who died in 1926), it was altogether inoperative (under G. S. 1935, 22-233) either as to Mrs. Swisher or to Joel C. Swisher, and that no legal effect could be given to the instrument as a will of Olive B. Swisher, and that Joel C. Swisher took nothing under its terms. This judgment was rendered on May 9, 1939, and was not appealed.
On. July 11, 1939, Dallas M.'Potts appeared in the probate court of Sedgwick county and offered for probate the will of Olive B. Swisher, dated December 10, 1937, set out above. On the same day that court ordered that said will should be administered under the probate law as it existed prior to July 1, 1939. On the same day, Dallas M. Potts filed a petition to probate Mrs. Swisher’s will, and later on July 25, 1939, a lengthy amended petition, reciting various matters of fact narrated above, and seeking to excuse himself and Joel C. Swisher for the suppression of the belatedly proffered will on the ground that he considered the will of Charles R. Swisher and Olive B. Swisher of 1920 to be contractual and legal, and that the subsequent will of Olive B. Swisher (which he himself had drawn and of which he had the custody) “while valid in it'self, would not convey any property,” and that Joel C. Swisher “did not have any knowledge whatever that said will had not been filed, and did not know that the same was being withheld.” The petitioner alleged that the “filing, probating and administration of the will” was not feasible, and would work an injustice if not governed by the probate law as it had existed 'prior to the enactment of the Probate Code which took effect on July 1,1939.
Objections to the admission of the will to probate were filed by William S. McMain, in which he narrated at length the probate of the will of 1920, which Dallas M. Potts had received from the custody of Joel C. Swisher and had probated as the last will and testament of Mrs. Olive B. Swisher, and that the said Potts had entered upon the administration of Mrs. Swisher’s estate with the will of 1920 annexed, and that thereafter he, McMain, had filed an action in the district court against Dallas M. Potts and Joel C. Swisher, for a construction of the will of 1920; and that Dallas M. Potts as administrator and Joel C. Swisher, and Dempster 0. Potts as their attorney had defended against that action, and had endeavored therein—
“To get the court to construe and interpret said will [of 1920] so that the said Joel C. Swisher would get the whole of the said Olive B. Swisher’s estate and that they failed in such an attempt, the court holding as hereinbefore stated, that Joel C. Swisher take nothing under the will of Olive B. Swisher, and that the will was ineffective to pass title to Joel C. Swisher.”
McMain further alleged that without his knowledge or consent Dallas M. Potts had taken charge and control of the estate of Olive B. Swisher, and was appointed to administer it; and that he, McMain, the sole heir at law, had no knowledge of the affairs, property or possessions of his deceased sister except what could be gleaned from the pleadings and instruments filed by Dallas M. Potts, and that he relied upon their truthfulness, and that it was to obtain a proper construction of the purported will of 1920 that he brought the action which he had successfully prosecuted to final judgment in the district court;, and that the defendants Dallas M. Potts and Joel C. Swisher having thus failed to obtain the whole of his deceased sister’s estate under the will of 1920, were now attempting to evade the consequence of the judgment of the district court; and that it was in his (McMain’s) reliance on the pleadings and instruments filed by Dallas M. Potts that he incurred costs and expense of time and effort to maintain his action for a construction of the purported will of 1920. McMain further alleged that the aforesaid doings of Dallas M. Potts and Joel C. Swisher were done for the purpose of defrauding William S. McMain and other in terested parties, and were committed for the purpose of deceiving and misleading the court and getting it to probate the will of 1920, “while said parties were withholding, and had in their care, custody and control” the will of Mrs. Swisher of subsequent date.
In an amendment to his objections to the petition to file Mrs. Swisher’s will of December, 1937, McMain further objected—
“1. That Dempster O. Potts and Dallas M. Potts were the attorneys and agents of said Joel C. Swisher at all times subsequent to the death of Olive B. Swisher, and at the time the action was filed in the district court of Sedgwick county, Kansas, entitled William, S. McMain v. Dallas M. Potts, Administrator of Will Annexed, and Joel C. Swisher, ...
“2. That the will dated December 10, 1937, was not offered for probate within one year after the death of the testator as required by R. S. 59-617 (1939 Supp. Statutes of Kansas) and is therefore not entitled to probate.”
In view of these objections, much summarized, McMain prayed that Dallas M. Potts and Joel C. Swisher be adjudged estopped to probate the will of Mrs. Swisher.
Mrs. G. G. Greenamyer and Dorothy Greenamyer were impleaded and filed an answer to McMain’s objections to the belated petition to probate Mrs. Swisher’s will of December, 1937, and asserting their respective interests by the bequests made therein to them.
McMain filed a lengthy reply to the answer of Mrs. Greenamyer and her daughter, and alleged that they did know of the will of December, 1937, and that the same was being withheld from probate and that administration was being made of Mrs. Swisher’s estate under a will which they knew was not the last will and testament of Mrs. Swisher, and that they had made a settlement with Dallas M. Potts, administrator, of any and all rights they had against her estate, as evidenced by the releases they had executed and verified and which were on file in the probate court; and that pursuant to such releases and settlement they had received $1,000, and that they allowed William S. McMain to incur costs and expenses to obtain a construction of the will of 1920 without revealing to him the existence of the will of 1937. McMain further replied that while the litigation over the construction of the will of 1920 was pending he did not know—
“That Dorothy Greenamyer and Mrs. G. G. Greenamyer had made a settlement with Dallas M. Potts, administrator with will annexed, of the estate of Olive B. Swisher, deceased, . . . and by reason of the foregoing, said Dorothy Greenamyer and Mrs. G. G. Greenamyer are now estopped from having said will dated December 10, 1937, admitted to probate and from taking the legacies or bequests provided for them in said will.”
Upon these issues and evidence thereon, the probate court held that the will of December, 1937, should be admitted to probate; that Dallas M. Potts should give bond as executor in the sum of $11,000; that he as administrator under his appointment of February 8, 1938, should turn over to himself as executor under Mrs. Swisher’s will of December 10, 1937, all the remaining assets of the estate; and that there should be struck from the records and files the releases Mr. and Mrs. Greenamyer and their daughter had executed and verified for the $1,000 paid to them by Dallas M. Potts according to the recitals thereof.
From this judgment the cause was taken on appeal to the district court where the complicated matters set out above were again developed at length — by record evidence, by depositions, and by oral testimony and admissions of counsel. At the conclusion of the trial a demurrer on behalf of Joel. C. Swisher, Dallas M. Potts, executor, Mrs. G. G. Greenamyer and Dorothy Greenamyer was interposed to the evidence of McMain, appellant. This demurrer was sustained and judgment was rendered accordingly.
Hence this appeal.
Under his formal assignment of errors, appellant presses three main points to justify and require a reversal of the judgment: (1) Mrs. Swisher’s will of December 10, 1937, was ineffectual to pass her estate because no application was made to probate it within one year after her death; (2) the imposition of burden of proof on the appellant which properly rested on appellees; and (3) the proponent of the will and the other appellees were estopped by their conduct as shown by the antecedent proceedings, and by their concealment from the probate court and from the appellant of the existence of Mrs. Swisher’s will during the long period (from February 8,1938, until July 11,1939) when her estate was being administered in accordance with the worthless will of 1920 and while appellant was being put to expense of time and effort to secure an adjudication of its nullity.
Manifestly the legal and equitable questions involved, in the third point urged against the judgment justify our giving them our first consideration.
The defendant Dallas M. Potts had in his possession the will which he or his father, Dempster O. Potts, his associate in the law firm of Potts and Potts, had drawn for Mrs. Swisher on December 10, 1937. He knew he was named as executor of that will. Demp ster 0. Potts and Dallas M. Potts were the attorneys for Joel C. Swisher in all matters pertaining to his stepmother’s estate. By their procurement of its administration under the long neglected joint will of Charles Swisher and wife of 1920, their client Joel C. Swisher would obtain the entire estate of Mrs. Swisher, whereas if her will executed about two months before her death was probated their client’s interest in her estate would be diminished by the $2,500 bequest in favor of her brother, William S. McMain, and by bequests of $500 each to Mrs. G. G. Greenamyer and her daughter.
Hence the suppression of the bona fide will of Mrs. Swisher. It would serve no purpose to use mordacious adjectives or adverbs to characterize such a course of conduct towards the probate court, and towards William S. McMain and Mrs. G. G. Greenamyer and her daughter, who were beneficiaries under the will. The wrong thus done towards McMain was further aggravated by putting him to the expenses of a lawsuit to get rid of the worthless instrument of 1920 under which Joel C. Swisher’s attorneys strove to secure the entire estate for him.
Now the question is whether Joel C. Swisher is estopped to have his stepmother’s will probated and to succeed to the estate thereunder.
The law is entirely clear that on principle and on precedent a client is bound by the acts and conduct of his attorneys except where he takes timely steps to repudiate them by showing their want of authority to act in his behalf. In our early case of Esley v. People of Illinois, 23 Kan. 510, it was held:
“Where an attorney at law makes an appearance in a court to prosecute or defend a party, it will be presumed, in the absence of anything to the contrary, that he has full right, power and authority to make such appearance.” (Syl. 113.)
In one of the notable Overlander cases which cluttered the dockets of this court for years, where a litigant sought to avoid the binding force of the same rule, it was said:
“When a party appears in an action by his attorney who conducts proceedings in his behalf, his authority to act in behalf of his client is presumed, in the absence of any showing to the contrary, and his acts bind his client. (Lamme v. Schilling, 25 Kan. 92; Kerr v. Reece, 27 Kan. 469; O’Flanagan v. Case, 41 Kan. 183, 21 Pac. 96.) If the acts of his attorney in .the taking of the order were unauthorized, then does it not seem ridiculous that . . . [such client] . . . would now have the same attorney appearing for him in this action?” (Overlander v. Overlander, 129 Kan. 709, 712, 284 Pac. 614.)
In Hale v. Wheeler, 264 Mass. 592, 163 N. E. 178, 179, it was said:
“It is manifest that no tribunal, where parties appear by attorney at law, could proceed safely or conveniently under any practice which permitted the party to disavow what has been done in his behalf in open court. The attorney may be liable to his client if he has acted to his prejudice without authority; but the orders of the court and the rights of the other parties cannot be affected.” (p. 593.)
See, also, 6 C. J. 637-638; 7 C. J. S. 898-899.
It may be remarked that if the rule just stated were ignored there would seldom be any assurance of finality in litigation. All the losing litigant would need to do would be to change attorneys, repudiate what they had done in his behalf, shift his ground of action or defense and continue to vex his adversary with further litigation.
When Joel C. Swisher was defeated in the litigation over the construction of the will of 1920 under which his attorneys, Potts and Potts, sought to procure for him the whole of his stepmother’s estate, and where they, acting in his behalf, concealed from the court and from their adversary, William S. McMain, the existence of and their possession of the bona fide will of Mrs. Swisher, Joel C. Swisher was thereby estopped to have the later will probated or to claim any rights under it. Thus in Conzet v. Hibben, 272 Ill. 508, 112 N. E. 305, Ann. Cas. 1918A, 1197, it was held that the heirs and beneficiaries in proceedings for the probate of a will were estopped to ask for the probate of a later will, without a showing that their consent to the prior proceedings was procured by mistake or fraud. In the same case it was also held that any steps to probate the later will, if otherwise maintainable, would have to be taken by supplementary proceedings in' the original case and not by independent proceedings in another action.
This rule of equitable estoppel is one of general application. In Lillard v. Johnson County, 102 Kan. 822, 172 Pac. 518, a county warrant was drawn to pay condemnation money for land taken for a public road. Instead of demanding its delivery, the landowner submitted to the county board the question whether he or his vendee of the land was entitled to such warrant, stating that he felt “sure that when the facts are known by you, that no better tribunal can be found to decide our relative rights than your Honorable Body.” Thereafter the vendee appeared before the board, and upon his showing the warrant was delivered to him. Later the vendor sued the board to recover the amount and value of the warrant. This court affirmed the trial court’s judgment that the vendor was estopped, saying:
“Under the circumstances shown, the [vendor] estopped himself by his own conduct to acquire the relief which the executors demand in this case. One who submits a matter to . . . [an] arbitrator, and takes the chances of a favorable decision, cannot, after the award, raise the question of incompetency . . . The doctrine of estoppel requires consistency of conduct . . . (Stark v. Meriwether, 99 Kan. 650, 657, 163 Pac. 152.)” (p. 825.)
In Hutchings v. Railway Co., 98 Kan. 225, 158 Pac. 62, the action was to recover moneys advanced by plaintiff on certain bills of lading issued by the defendant railroad company. From an adverse ruling on the pleadings in the trial court the railway company appealed and procured a reversal of the judgment. In further proceedings in the district court, plaintiff filed a reply and general denial to the railway company’s answer. The railway company’s demurrer was sustained, and back came the case to this court and we reversed that ruling. On its second return to the district court, the railway company raised a new question — that the case was governed by federal law, whereas in the earlier steps of the litigation it had contended that the bills of lading which were made in Missouri were governed by Missouri law. On the third appearance of the case in this court, we said:
“Having been defeated on the theory of the litigation which it proposed and which it induced this court to accept, the defendant is in no position to ask this court to adopt a new theory according to which the propriety of the judgment shall be tested. It is estopped by its pleading and by the adjudications of this court in its favor based on that pleading.” (p. 227.)
In Roseman v. Nienaber, 100 Kan. 174, 166 Pac. 491; id., 101 Kan. 260, 166 Pac. 491, plaintiff’s action was for the recovery of a $2,500 bequest in her father’s will and involved certain details of a family compact. From an adverse ruling below the court ordered judgment in favor of plaintiff. Defendant filed a motion for a rehearing and presented certain new facts not theretofore in the record, which prompted this court to say:
“The facts were all known to the defendant at the time the action was commenced, and were not presented to the district court by pleading, evidence, or other means. It is now too late to shift the grounds of defense.
'The defendant was afforded full opportunity for a fair trial, and should have disclosed to the district court, by way of answer, his true situation. He cannot be permitted to take a sporting chance at beating the plaintiff at her own game, sit by until the case has been finally disposed of by this court, and then spring a defense which would necessitate amending the answer and beginning all over again.” (101 Kan. 260.)
The same rule applies not only in successive steps in the same lawsuit, but in a series of litigation involving the same general subject matter. (Winkler v. Korzuszkiewicz (Shusky), 117 Kan. 261, 231 Pac. 46; Royal Ins. Co. v. Stewart, 190 Ind. 444, 129 N. E. 853; Burch v. Grace Street Bldg. Corp., 168 Va. 329, 191 S. E. 672 and citations; Lyric Theatre Corp. v. Vaughan, 168 Va. 595, 191 S. E. 600.)
The court holds that under the circumstances disclosed, the withholding of Mrs. Swisher’s will of December, 1937, and the concealment of its existence while the attempt was made to get the whole of her estate through the abortive will of 1920, the principal defendant, Joel C. Swisher, and Dallas M. Potts, administrator, were barred and estopped to have Mrs. Swisher’s will of December, 1937, probated; and the objections of William S. McMahin, heir at law, to its probate were good and should have been sustained in the probate court and in the district court.
Turning next to the contention of Mrs. Greenamyer and her daughter that they, at least, were entitled to have Mrs. Swisher’s will of December, 1937, probated, since they were named beneficiaries under its terms. But both Mrs. Greenamyer and her daughter executed releases to all claims they had against Mrs. Swisher’s estate, and they both swore to the truth of the matters recited in those releases, and those releases were filed in the probate court. Moreover, Mrs. Greenamyer testified about the arrangement made with the administrator whereby her husband was to file a groundless claim against the estate of Mrs. Swisher for |1,000, as the equivalent of the! aggregate of the monetary bequests in the suppressed will in behalf of herself and daughter, and the absurd form of claim made pursuant thereto — “Amount agreed upon and the wish of the deceased,” $1,000 — and the administrator’s ready consent to its allowance, as well as its complacent allowance by the probate court -without evidence or inquiry, these facts were evi-dentiary incidents of potent significance corroborating the testimony of Mrs. Greenamyer. True, some weeks after the $1,000 claim was allowed by the probate court, and some two weeks after the ad ministrator had paid the money and had the Greenamyer family’s verified receipts therefor, the court made an order dated April 25, 1938, that “after investigating the records and being fully advised” [the court] finds that it had heard and allowed the claim on March 17, 1938! Mrs. Greenamyer’s testimony was given by deposition, and thus it becomes this court’s own responsibility to adjudge the credence which should be given to it. Our usual rule of giving deference to the credence given in the trial court to oral testimony does not apply. (Lytle v. Wade, 129 Kan. 671, 284 Pac. 411; Protheroe v. Davies, 149 Kan. 720, 732, 89 P. 2d 890.) We do not overlook'the fact that the court struck the verified releases of Mrs. Greenamyer and her daughter from the files, but that order was ill-advised, and the ground given for the order was wholly untenable. It read:
“That from examination of the records and files in this cause and the evidence adduced the motion of the movants, Dorothy Greenamyer and Mrs. G. G. Greenamyer, should be, and the same is hereby approved. . . . [and] . . . should be allowed; that said release executed by Dorothy Greenamyer . . . and filed herein . . . and the release executed by Mrs. G. G. Greenamyer and G. G. Greenamyer . . . and filed herein ... be set aside and held for naught insofar as said releases in any manner release said parties from any claim that they may or now have as legatees under the last will and testament of Olive B. Swisher, deceased, dated December 10, 1937.”
In our opinion the only proper order justifiable by the “records and files and evidence” was one overruling the motion of the Greena-myers, with its unavoidable consequence that they no longer have any claim against the estate of Mrs. Swisher by virtue of her suppressed will or otherwise.
In view of the foregoing conclusions which we have been impelled to reach it is unnecessary to pass on the question whether Mrs. Swisher’s will would have been entitled to probate if no question of equitable estoppel had been involved, seeing that it was not offered for probate, within one year after the death of Mrs. Swisher (G. S. 1939 Supp. 59-617), as provided by the new probate code, approved March 25, 1939, and effective July 1, 1939 (Laws 1939, ch. 180; G. S. 1939 Supp., ch. 59).
The judgment of the district court is reversed and the cause remanded to the district court with instructions to order the probate court to set aside its order probating the will of Mrs. Olive B. Swisher of the date of December 10, 1937, and to deny the probate thereof. It is so ordered. | [
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The opinion of the court was delivered by
Hoch, J.:
This was an action on a life insurance policy to recover the double indemnity, payable in case of accidental death. A demurrer was interposed at the close of plaintiff’s evidence, was taken under advisement until the close of defendant’s evidence, and then sustained. From that order plaintiff appeals.
On September 25, 1934, at about four-thirty in the afternoon, Dr. Henry S. McKenzie was found dead, lying on the floor of his office in Kansas City, Kan. He had been dead for many hours. For a number of years he had held a policy of insurance issued by the New York Life Insurance Company, the appellee, which provided for payment of $5,000 in case of natural death and $10,000 for ac cidental death. Claim for $5,000, together with proof of natural death, was made on October 2,1934, by Lydia McKenzie, the widow and beneficiary. Submitted as proof of death was a statement by Dr. E. D. Williams, coroner, who had conducted a post-mortem examination, in which statement immediate cause of death was given as “acute dilatation of heart; acute myocarditis.” To the question as to how long, in his opinion, the deceased had suffered from the disease, Doctor Williams replied: “Unknown.” And to the question, “If death was due to accident give full particulars and date,” he answered: “No.” Within a few days after proofs were furnished the company sent the beneficiary a check which she cashed for $5,224.25. This amount included incidental benefits in no way connected with “accidental death.” The check carried the notation on its face “in full settlement of all claims” under the policy.
About four months later, on February 8, 1935, an attorney representing the beneficiary wrote to the company stating that “a short time ago the true facts were revealed to Mrs. McKenzie and she learned for the first time that Doctor McKenzie had died as a result of an accidental injury.” The letter asked that forms upon which to make proof of accidental death be furnished. On February 18 the attorney wrote to the company more at length. At the moment we need only note that in this letter the contention was made that the insured had died as a result of taking “a barbital solution” as a sedative to his nerves, and that examination would reveal that he had “died of what in law is known as accidental injury rather than natural death.” To the letter of February 8 the company replied that the proof of death had clearly established that death was due to acute myocarditis, that the coroner, who had known the deceased for twenty-four years, had made affidavit that death was not due to accident, and that the company had no printed forms for making proof of accidental death.
Sixteen months later, on June 30, 1936, action was begun for the recovery of the additional $5,000' — which amount was subsequently reduced to $3,000 — in which it was alleged that when the deceased was found he had an unusual pallor; that he had a bump from a recent bruise on his head; “that there was a- small water glass on the floor close to his right hand stained with the remains of a brown colored fluid, which plaintiff at this time is informed is a derivative of a medicine called barbital”; and that “the death of the insured was caused by an accidental overdose of this solution” (Italics ours.)
About ten months later, on April 23, 1937, an amended petition was filed in which there was no allegation that death had resulted from an overdose of barbital or other medicine, but in which it was alleged that the insured “sustained . . . bodily injuries the exact cause of which is not known to plaintiff and for that reason not set out herein, but effected solely through external, violent and accidental means.”
Two years and a half thereafter, on October 17, 1939, appellant filed a second amended petition in which the cause of death was alleged, for the first time, to have been an accidental overdose of “a medicine commonly called bromides.” (Italics ours.)
In addition to general denial, the answer denied that the claimant had submitted proof that death “resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means”; denied that death had resulted from an accidental dose of “.bromides,” but alleged that if death was so caused, it resulted from the taking of “poison” within the meaning of the policy; and that claimant had executed a full and valid release from any further liability on the policy by the insurer. In reply the claimant denied that she had failed to submit proof of accidental death, and alleged that by its declaration that the insured had died from acute heart trouble, and its denial of any further liability on the policy, the company had waived the furnishing of further proof of loss under the double indemnity provision that the purported release was signed under a mutual mistake of fact as to the cause of death, that it was without consideration and asked that it be set aside.
Trial was had in October, 1939. As hereinbefore stated, defendant’s demurrer to the evidence, interposed at the conclusion of plaintiff’s evidence, was sustained after defendant had submitted its evidence. The trial court said:
“At this time the court is of the opinion that the demurrer offered by defendant at the close of plaintiff’s case should be sustained and the same is sustained.
“The court is of the opinion that the release pleaded by the defendant is good — that no evidence sufficient has been adduced under the law for the court to set this release aside, or to show a mutual mistake of fact.”
The trial court did not say that the demurrer was sustained solely because of the release. If we should assume, however, that that was the only reason the court had in mind, we would still be faced with the rule that if a ruling or order from which appeal is taken was properly made, the reason assigned therefor is not of controlling importance. (Turner v. Jarboe, 151 Kan. 587, 591, 100 P. 2d 675; Stutz v. Douglas County Comm’rs, 139 Kan. 135, 137, 29 P. 2d 1094.)
Appellant’s contentions may be fairly summarized as follows: (1) By denial of liability on the ground that the deceased died a natural death and not an accidental one the defendant waived its right to plead the purported release as a defense; (2) the purported release did not in fact constitute a release; (3) the question of whether there was such mutual mistake of fact as would avoid the release should have been submitted to the jury; (4) the purported release was void for want of consideration; (5) an accidental overdose of medicine resulting in death constitutes accidental death by external, violent and accidental means; (6) there was evidence sufficient to require the question of whether death was caused by an accidental overdose of bromides to be submitted to the jury.
The conclusion presently to be stated as to sufficiency of the evidence to require submission of the case to the jury makes it unnecessary to extend this opinion by the lengthy discussion which would be necessary to consider adequately the other contentions.
Narration of a few additional facts should first be made. Doctor McKenzie shared a suite of offices with Doctor Daly, a dentist, a common reception room being used. The office attendant, who was on duty on September 25, 1934, testified that she did not know that Doctor McKenzie had been in his office that day until she received a phone call for him from Mrs. McKenzie at 4:30 in the afternoon and went into his private office where she found him dead upon the floor. She had last seen him before seven o’clock the preceding evening when he was lying down in his office. Doctor Daly had last seen him about the same time. Mrs. McKenzie testified that she had had a phone talk with Doctor McKenzie about seven o’clock the preceding evening, when he had called her; that at about eleven o’clock in the evening she called him when their dog bit her daughter, but that when he answered he was not normal; that “he was talking thiclc-mouthed, and his tongue was kind of thick and be seemed to j erk his words”; that he prescribed something for the bite but she didn’t use it, as she wasn’t sure she knew what he was telling. She heard nothing further about him until she learned of his death the next afternoon.
Doctor Williams, the coroner, who had practiced medicine for more than thirty-five years, viewed the body at the office, and later made a post-mortem examination, assisted by Doctor Harless, a pathologist, and executed the death certificate. He examined the vital organs and tissues, including the heart, lungs, liver and kidneys. He certified that the cause of death was acute myocarditis and acute dilatation of the heart. He testified that in the autopsy they found “chronic myocarditis, hypertrophy of the heart, chronic sclerotic endocarditis affecting the mitral valve, early fatty intimitis of the coronary artery, pulmonary congestion and edema.” No chemical analysis of the stomach was made, for the reason, as he testified, “we were satisfied the findings in the autopsy were sufficient to account for death.”
Dr. W. R. Wahl, professor of pathology and dean of the University of Kansas Medical School, made laboratory tests of the vital organs, prepared and signed the autopsy report. In addition to acute and chronic heart disease and the other findings of Doctor Williams, he found “parenchymatous degeneration of the liver, kidneys and heart” and other disorders not here necessary to recite.
Although Doctors Williams and Wahl were witnesses for the ap-pellee, appellant submitted Doctor Williams’ report and proof of death with her claim, and the diagnosis and report by Doctors Williams, Harless, and Wahl were submitted as an exhibit by appellant. Appellant testified, however, that she did not know that in the proof of death Doctor Williams had stated that death was due to acute dilatation of the heart and acute myocarditis; that she “didn’t pay any attention to what his death was due to”; that she “didn’t know anything about it, the autopsy or anything”; that she made no inquiry into the cause of her husband’s death; that she didn’t ask the coroner or any physician what disease he died of; and that “I found out what was considered to have been the cause of death three or four months later.” As-hereinbefore noted, it was alleged in the original petition that death resulted from an overdose of barbital and it was not until more than five years after Doctor McKenzie’s death that it was alleged, in the second amended petition, that an overdose of bromides was the cause of death.
Before considering the testimony further-it should be noted that under the double indemnity provision of the policy claimant is required to show not only that death resulted “from bodily injury effected solely through external, violent and accidental means” but that it so resulted “directly and independently of all other causes.” Moreover, no claim for double liability could be maintained if death resulted “directly or indirectly from infirmity of mind or body, from illness or disease.”
It is well settled that in actions to recover for accidental death the burden of proof is upon the plaintiff to show that the death was accidental. (6 Cooley’s Briefs on Insurance, p. 5283.) Indeed, there is much authority to support the proposition that in order to' meet this burden of proof in actions to recover under double indemnity provisions such as the instant one, the claimant must show by “clear and convincing evidence” that the cause of death was other than that disclosed by the hospital records or the autopsy report, or that the latter was founded on an accident within the meaning of the policy. (Merrill v. Phoenix Mut. Life Ins. Co., [Mass.] 26 F. Supp. 756, 757; Jones v. Mutual Life Ins. Co. of New York, [N. Y.] 113 F. 2d 873; Phillips v. Travelers Insurance Co., 288 Mo. 175, 231 S. W. 947; Massachusetts Protective Ass’n v. Mouber, 110 F. 2d 203; De Reeder v. Travelers Ins. Co., 329 Pa. 328, 198 Atl. 45; see, also, 6 Cooley’s Briefs on Insurance, pp. 5287, 5288.)
In the Jones case, supra, the deceased was found by his wife lying in the bathroom. Accidental death was claimed. The court, in holding that the plaintiff failed to make out a case for the jury, said: “The most favorable view that might be taken of the evidence would be that death might have occurred either from an accidental fall or disease. . . . Where the evidence is circumstantial and it appears that injury may have resulted from one of two causes for one of which but not for the other defendant is liable, then the plaintiff cannot recover because this leaves the matter to conjecture.” (p. 875.) In the Mouber case, supra, the deceased, who had heart trouble, backed his car over a curb and bumped a car behind him, and a doctor testified that the bump, coupled with his condition, could have caused death. Recovery was denied, and it was said that “evidence which is consistent with two conflicting hypotheses tends to support neither. If the plaintiff’s evidence is equally consistent with the hypothesis that the death of the insured was accidental and with the hypothesis that it was not accidental, it is insufficient to sustain the verdict.” (p. 206.)
The evidence upon which appellant relies in support of sufficiency may fairly be summarized as follows: The autopsy report contained a statement that the “cause of death is rather uncertain”; the deceased had theretofore taken bromides to relieve nervousness, in an effort to overcome alcoholism and upon several occasions this had caused him to talk incoherently and had rendered him unconscious or semiconscious; an overdose of bromides can cause death; when the body was found there was a brownish or straw-colored fluid, streaked with blood coming from his mouth and nostrils; his hands and face had an abnormal color, pallor, or discoloration; there was a water or drinking glass on the floor not far from his hand which contained a brown fluid or was stained “brown,” “greenish brown,” or “brownish purple,” and that two doctors gave their opinion, in answer to hypothetical questions, that death resulted from “an overdose of bromides.”
In analyzing the evidence it will suffice in most part to summarize rather than quote it at length. As already noted, Doctor Williams’ proof of death, submitted to the company in support of appellant’s claim, gave “acute dilatation of the heart; acute myocarditis” as the cause of death. Both Doctors Harless and Wahl, pathologists, made such findings after post-mortem examinations, together with many other findings of organic disorders. It is true that Doctor Wahl’s extended anatomical diagnosis and report contained the statement “the cause of death is rather uncertain,” but in a deposition received in evidence he reiterated his opinion that death was caused by heart failure due to myocarditis, and testified that in stating “the cause of death is rather uncertain” he did not mean the immediate cause, but that the final cause — the basic cause back of the chronic heart condition — was rather uncertain. While Doctor Wahl was a defense witness, this statement was made in explanation of his report which had been introduced by the plaintiff.
The fact that Doctor McKenzie had taken bromides theretofore, which resulted in incoherent talk and unconsciousness or semicon-sciousness might possibly be said to rais'e an inference that at eleven o’clock the night before his death he had taken bromides, though hardly a presumption that he had then taken or later took a dose of bromides which caused his death. This would seem to be especially true in view of the natural assumption that Doctor McKenzie, being a physician, knew what would be a medicinal dose of bromides. “Peacock’s bromides,” the sedative which appellant alleges had been used by Doctor McKenzie, can be bought at drug stores without a doctor’s prescription. Doctor Fulton, for plaintiff, testified that “an excessive dose may cause death by its effect upon the organs of the body . . . and especially with respiratory depressant.” Doctor Gripkey testified that “he never personally knew or verified a case of anyone dying from an overdose of bromides,” but that “there are such cases in medical literature.” In considering the demurrer we are not here concerned with defendant’s evidence on the point.
We find no probative substance to the testimony that there was a brownish or straw-colored fluid, streaked with blood, coming from the mouth and nostrils when the body was found. Mrs. McKenzie testified that on prior occasions when Doctor McKenzie was said to have been rendered unconscious from an overdose of bromides, she “saw fluids come from his mouth.” She did not say what color such fluids were. Nor was there any medical testimony that a fluid discharge such as that here described is peculiar to the rare cases said to be reported in medical literature of death from bromides. Doctor Williams testified that the discharge of a “clear, straw-colored liquid” from the mouth is “a common thing where a body has lain in a heated room for a number of hours.” However, Doctor Williams being a defense witness, we here disregard that testimony.
There was no medical or other testimony that the color or discoloration of the face and hands testified to in this case is an unusual color or discoloration observed in cases of death from overdose of bromides. Again, we are not here concerned with defendant’s rebuttal evidence on this point.
As to the water or drinking glass on the floor, several witnesses testified it was stained by some liquid that had been in it. Whether the stains appeared to be fresh stains no one testified. All but one testified that there was no liquid in the glass. Appellant urges that one witness, when asked: “Anything in the glass?” answered: “This brown fluid was in there.” And when asked as to the quantity of fluid, replied: “Wasn’t hardly any.” The witness, however, further testified on direct examination: “It was stained, and it looked like he was going for a drink of water when he fell.” On cross-examination the witness said: “The glass I saw on the floor was empty. There was a dark brown stain in the bottom.” In any event, there was no testimony, based on appearance, odor or otherwise, that there was or had been any bromides in the glass, or that the stains in the glass were bromide stains. There was not even any testimony that “Peacock’s Bromides” in a drinking glass leaves a “brown,” “greenish brown” or “brownish purple” stain.
There remains for consideration the opinion of the two doctors— given in answer to a hypothetical question — that death was due to an overdose of bromides. The weakness of this testimony is that it faded out on cross-examination. Both doctors stated that they had based their answer on the assumption that Doctor McKenzie had taken an overdose of bromides. But a hypothetical question can only be based upon proven or apparent facts. There could be no assumption of an overdose of bromides — that was an essential part of the very thing appellant was seeking to establish. Moreover, both stated that if Doctor Wahl made a diagnosis of chronic myocarditis from an examination of the heart on post-mortem, it would change or modify their answer to the hypothetical question. That diagnosis was contained in Doctor Wahl’s report which the appellant herself introduced as an exhibit.
There was no substantial evidence of any character to establish liability under the double indemnity provision. To find otherwise the jury would be compelled to presume or infer, in the absence of any evidence on the matter, that the drinking glass had contained bromides; that Doctor McKenzie had taken bromides from it; that the dose was an overdose; that such overdose was taken accidentally and that such accidental overdose was the cause of death without regard to the acute and chronic disease of vital organs disclosed by the post-mortem examination, or, as the policy has it, “directly and independently of all other causes.” (Italics ours.) This would be piling presumption and inference upon presumption and inference. It is elementary that that may not be done and that a burden of proof may not be met by mere conjecture. (Couch on Insurance, 7026, § 2171; 1 C. J. 495, § 278; Whiteker v. Wichita Rld. & Light Co., 125 Kan. 683, 265 Pac. 1103; Phillips v. Travelers Insurance Co., 288 Mo. 175, 231 S. W. 947.)
The demurrer to plaintiff’s evidence was properly sustained. The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, C. J.:
This is an application by C. C. Crebs for a writ of habeas corpus to secure his release from the penitentiary where he is serving a life term of imprisonment pursuant to a judgment and sentence of the district court of Seward county rendered on November 26,1930.
Attached to petitioner’s application for a writ of habeas corpus is a copy of the information on which C. C. Crebs, alias Chet Lawson, was prosecuted for the murder of Charles Doan, in Seward county, Kansas, on November 18, 1930. Also attached to the application was a copy of the journal entry recording the judicial proceedings which were had in the Seward county district court on November 26, 1930, pertinent excerpts of which read:
“The plaintiff appeared by John C. King, deputy county attorney, and the defendant appeared in person in the custody of the sheriff. The court advised the defendant as to his right to have counsel, and defendant announced that he had no counsel and desired none, and that he was ready to proceed.
“Thereupon defendant was formally arraigned and entered his plea of guilty as charged in the information, which plea was by the court accepted.
“Again on the same day this cause coming on for sentence of the defendant, the parties appeared as before. It appearing to the court that there is no legal reason why sentence should not be pronounced.
“It is by the court ordered and adjudged that the defendant is guilty of murder in the first degree, as charged in the information, and that he be and is hereby sentenced to confinement and hard labor in the Kansas penitentiary for life. And the sheriff of Seward county is ordered to convey the prisoner to said institution to serve said sentence. Signed: G. L. Light, Judge!’
The grounds on which petitioner bases his application are these:
(1) That he is not guilty of the murder as charged.
(2) The records will show that he was denied counsel by the court.
(3) That a confession was signed by him “by duress, abuse, cruel and unusual punishment,” and that such “confession was written by the abusers.”
(4) That he was denied a lawful hearing in due course of law.
(5) That sentence was pronounced without jurisdiction.
(6) That “he never at any time pleaded guilty to said charge and the state cannot show where he has been lawfully convicted.”
On order of this court the application summarized above was ordered to be filed without requiring a deposit for costs; and a rule was entered requiring the warden of the penitentiary to plead thereto.
In an amended answer, filed in the warden’s behalf, the state traversed all the material allegations of the petitioner’s application. Attached to this answer was a copy of the judgment and sentence, and of the commitment, dated November 26, 1930, authorizing the incarceration of “C. C. Crebs, alias Chet Lawson” in the penitentiary for the term of his natural life, on his plea of guilty of the crime of murder in the first degree.
Also attached to the answer was an “Exhibit C,” which is a typewritten document of twenty-eight pages entitled “In the Matter of the Statement of C. C. Crebs, Before Hon. G. L. Light (district judge), and L. E. Warden, undersheriff, on Friday, November 21, 1930, at 4 o’clock, p. m.” Later in this opinion we shall summarize its principal contents and state the circumstances under which it was made and later transcribed and signed by Crebs and authenticated by Judge Light.
An affidavit of L. E. Warden, now chief of police of Liberal, county seat of Seward county, who was undersheriff of that county at and about the time of the Doan murder in November, 1930, avers that in the evening of November 18, Crebs was brought into the county jail by the sheriff, Logan Graham, accompanied by certain officers or other persons not now identifiable, and delivered into the custody of L. E. Warden, undersheriff. According to Warden’s affidavit those officers or some of them entered the jail and stayed there with Crebs “a number of hours that night endeavoring to learn his connection with the murder.” Warden’s affidavit does not say who those officers were, but Judge Light’s affidavit (to which we shall refer below) makes it clear that the sheriff himself was one of them. Warden avers:
“I was personally present all the time these other officers questioned him about his whereabouts and other matters connected with his knowledge of the murder, and know of my ¡own personal knowledge that no ‘third degree’ methods of any kind whatsoever were used against the said C. C. Crebs in attempting to cause him to make a confession or to talk about the matter.”
The averment just quoted is squarely at odds with that of Crebs, whose verified statement reads:
“Soon after your petitioner was placed in jail the- sheriff and deputies started beating and abusing. I would fall asleep, they would beat me on the head [with] those blackjacks. ... I had no food from the 18th of November, until the 20th. I could not use the toilet which was just outside the cell they had me locked in. I used the floor before they would get anything for me to use. The night of the 18th they never took the handcuffs off of me nor the shackles and threatened to let the mob have me if I did not plead guilty. They held me and burned my bare feet with an electric light bulb which was attached to' electricity and caused intense heat, and applied to petitioner’s bare feet which caused big blisters to issue on the bottom of petitioner’s bare feet.
“They beat petitioner in his stomach causing a hernia, . . , On the 21st they gave me a good breakfast, and then two deputies took me before the judge and asked me to sign the manufactured and forged confession; petitioner refused to sign confession and they took petitioner back to jail and that night they told me to sign it or else, ... I finally signed the confession and told them again and again that I was not guilty of that charge.”
Apparently Crebs was held in jail without a warrant until November 20, when a complaint was filed before M. H. Flood, justice of the peace, charging him with the murder of Charles Doan. A warrant was issued and formally returned with recitals of service on November 24.
On November 21, according to Undersheriff Warden’s affidavit, he had a conversation with Crebs in the county jail, in which Crebs' said he would tell Warden “the whole thing." Warden’s affidavit continues:
“He [Crebs] stated that while he was in the penitentiary in Colorado he had learned from a fellow prisoner that Charley Doan of Liberal was a man who always had a roll of money on his person; he then told me all about the facts in connection with the murder of Charley Doan, how he had been around Liberal for sometime planning the ways and means to rob Charley Doan, how he had went to the Doan rooming house on the 18th, how he had ordered Doan to ‘stick ’em up’ when he and Doan were in a room alone, how Doan had refused to do so, and how he had then shot at Doan and missed him and then shot him twice; he then told me in detail how he had got out of the building and of his actions and whereabouts after the shooting and until he was arrested by the officers; I then told him that if all this was true that I wanted him to make a written statement to that effect; I suggested that I take him before the county attorney of Seward county and he make the statement there and have the county attorney reduce it to writing and he sign it. He said he would not go before any county attorney; that he had experiences with county attorneys and did not like them; he then said about as follows, ‘I’ll tell you what I will do though. I will go before the district judge and make this statement.’ I told him this was out of the ordinary, but I would see the judge about it. I then went and talked to G. L. Light who was the judge of the district court of Seward county at that time. Mr. Light stated that this was unusual, but that if he insisted on it he would listen to what he had to say 'if he were brought to his office; about 4 o’clock p. m. on November 21, 1930. I took the said C. C. Crebs to the office of Judge Light in the courthouse at Liberal; at that time the court reporter was in the office and Crebs asked that he leave before he talked to the judge; after that in the presence of myself and Judge Light he made a complete confession of the murder and of all his actions relating thereto; . . .”
Judge G. L. Light has made an affidavit of the incident which followed Crebs’ expressed wish to make a statement to him. In part, it reads:
“That on November 21, 1930, L. E. Warden, undersheriff of said county, who also was the resident jailer in charge of the county jail, appeared at my office and advised me that C. C. Crebs, who was being held for the murder of Charlie Doan, which occurred on November 18, 1930, previously, wished to talk to me. The officer reported that Crebs was anxious to talk to someone, but refused to talk to the county attorney or to anyone else, stating that he had no confidence in anyone but the judge. At this time I did not know him, and so far as I know he knew nothing of me by way of direct acquaintance or indirectly.
“I advised the officer that this would be a little out of the ordinary, but if it was Mr. Crebs’ request, to bring him over and I would find out what he had on his mind and what he wanted to say.
“Mr. Warden brought him over to my office and introduced him to me. He stated to me that he desired to talk to someone concerning the charge against him and that he did not want to talk to anyone but me. I inquired of him at that time if he had consulted an attorney and as I recall it, his answer was in the negative. ... I told Mr. Crebs it was a little out of the ordinary for one in my position to permit a man charged with an offense such as he was charged with to make anything in the form of a confession to me, or even consult with me concerning the subject matter, but that if he insisted, and wished to do so I would listen to whatever he wanted to tell me. He then narrated in his own way a statement, telling in detail of the offense and how it was committed.
“I then asked him if he desired that I have his statement converted to writing and he said it was perfectly agreeable with him. Whereupon, I called W. B. King, the official court reporter who came into the office and I decided to and did have the reporter take the conversation in question and answer form, the original of which, signed by Mr. Crebs, in my presence the following day, is^ hereto attached for the information of any and all persons concerned.”
Touching the dispute of veracity between Crebs and the under-sheriff, on the question whether Crebs was misused in the county jail, Judge Light’s affidavit recites:
“As I remember the incident ... at the beginning of the first conference, before the record was being taken, in the presence of officer Warden, Crebs and, myself, it was stated by one or the other . . . that Sheriff Graham, Chief of Police Akers and perhaps one or two of the other arresting officers whose names I do not recall, had been a' little indiscreet in their treatment of the prisoner immediately following his arrest and confinement in the county jail on the evening or night of November 18, 1930, but the details of such action I do not recall, except I am positive that there were no serious or injurious consequences as a result thereof. I had talked to both Crebs and Warden previous to taking the written statement and having the matter clearly in mind at that time I apparently failed to further! develop the subject when the record was being taken.”
Judge Light’s affidavit there refers to Crebs’ statement given ten years ago, which was repeated before the court reporter that same day and transcribed by him and signed by Crebs on the following day. In his oral argument before this court at the hearing of this application, Crebs acknowledged the genuineness of his signature to the statement of twenty-eight pages. The only point he sought to make against it was that when he did sign it a recital in pen and ink which followed his signature was not on the document. That recital reads:
“Subscribed and sworn to before' me this 22d day of Nov. 1930.
G. L. Light, District Judge.”
Being written in pen and ink, and obviously in the handwriting of the judge, that recital of authentication was properly appended to the document after Crebs signed it, not before. And here it seems convenient to summarize the contents of the statement. It opens with facts about petitioner's birth in Haviland, Kan., in 1903; his education which ended in the seventh grade; that his parents were living, but he had not made his home with them since 1925; that since that date he had served time in the federal penitentiary in Leaven worth, and in Canon City (Colorado state prison); that he served time in Canon City and was paroled therefrom before going to the federal prison; that he next got into trouble about liquor and was jailed for thirty days in Holly, Colo., and then was returned to Canon City prison, from whence he escaped; next he “was caught down in Oklahoma in a counterfeit deal,” and served twenty-seven months and eighteen days therefor, following which he was again taken to Canon City, from whence he again escaped aboüt a month before the murder of Charles Doan — which occurred on November 18,1930. Crebs also narrated in 'detail to Judge Light how he came to commit that homicide; that following his escape from the Colorado prison he arrived in the community and worked on farms and sold whisky; that on Saturday, November 15, 1930, he overheard someone say that Charlie Doan carried quite a bit of money on him. Crebs stated that he decided to try to get Doan’s money and studied the problem for three days before attempting it; that inside his shirt he carried a gun which he had stolen from a car pocket on Sunday night (November 16); that on Tuesday, November 18, he went to a building in Liberal in which there were upstairs rooms to let, and inquired for Charlie Doan. Doan appeared and Crebs asked Doan to show him a room. Doan complied. Crebs followed into the room, shut the door, and said, “Stick them up, Charlie.” Doan put his right hand into his pocket as if he might be reaching for a weapon. Crebs told him to stop, but Doan appeared to continue to be seeking a weapon on his person, so Crebs shot at him three times, only intending to wound, but not to kill him. At the last shot Doan fell, and Crebs left without taking time to search for Doan’s money. As he left the building by a rear stairway, a woman called out, “Stop him.” He walked without haste until he rounded a corner and then ran to his car and drove to a tourist camp some miles out of town. Then he went from place to place until some time that evening when he was arrested. Some of Judge Light’s questions, and Crebs’ answers, read:
“Q. How does it come that you chose to give me this statement, instead of the prosecuting attorney? A. Well, sir, I feel that you are a man that a person can put faith in, and trust.
“Q. Have you come to my office and requested to have this conversation and make this statement with me at your request. A. At my own request.
“Q. You haven’t been influenced by anyone? A. No, sir.
“Q. And you haven’t been threatened or abused in any way to make this statement? A. I was before I made the statement.
"Q. I mean with reference' to coming here today, to me? A. No, I wasn’t abused in no way.
“Q. And no one has -induced you to do this, but you have done it from your own free will, is that true? A. Yes, sir.
“Q. Under these circumstances Cecil, as you have voluntarily related them to us, what is your decision as to the proceedings? A. Well, I just made up my mind that there is no use' in living a life of crime any longer, and the quicker I get- it off my mind and get through with the whole thing, the better off I would be.
“Q. Is it your desire that such charges as will have to be filed be filed so that you can appear before the court and enter a plea of guilty, and get your sentence, is that your purpose in making this statement? A. That is my purpose.
“Q. In making this statement? A. Yes, sir.
“Q. You understand it will take some little time to start the wheels of the court in motion, to get the matter in shape so that you can appear before the court in a formal way, and you want that done as soon as it can conveniently and properly be done, is that the way I understand you? A. Yes, sir.
“Q. You understand, of course, that being district judge myself I do not take a hand in the prosecution? A. Yes, sir.
“Q. Nor in the defense? A. Yes, I understand that thoroughly.
“Q. And I will see that, your wishes in the matter, however, are carried out, and just as soon as we can conveniently do it, and give us the time to get to your case, you will be carried before a justice of the peace and that proceeding can be had, then the matter can be certified to the' district court. A. Will I have to wait until the district court sits in January?
“Q. Not if you want to enter a plea of guilty. You could have a trial to a jury if you wish it, but it is your desire to enter a plea of guilty, as I understand you. A. Well, here’s the way I look at it, Judge; that I won’t get any more time by pleading guilty than I would if I fought the case.
“Q. I do want to ask you this question: You have had more or less experience. with court proceedings, and do you want an attorney to represent you in these court proceedings? A. Well, if I am going to have a trial it will be necessary to have an attorney.
"Q. Yes, and you are entitled to it if you are not going to have a trial, if you want it. A. Well, sir, I don’t know what to do.
“Q. Well, I will tell you what I would suggest that you do; I think I will call in an attorney to look after your interests for you. The county will furnish an attorney, and I am going to appoint one. Do you know any attorneys here? A. I don’t know nobody here.
“Q. Would you feel better about it to have an attorney, that would be your attorney, that you could confide in, that you could talk to, the same as you have talked to Mr. Warden [deputy sheriff] and myself, and get his advice also; would you feel better about it? A. Well, sir, I don’t know what to do; I just declare I don’t know; it is an awful shape to be in.
“Q. Well, the reason I inquired about that, principally, was that it would become my duty to determine that when you are arraigned before me, and if I appoint an attorney for you I want to appoint one in whom all of us have the highest respect and confidence. A. Yes, sir.
“Q. And that is the kind of attorney you would have? A. I would appreciate that very much.
“Q. That is the kind of an attorney the court wants you to have, and it will be some little time before Mr. King [court reporter] will have time to transcribe this testimony, before you would be expected to sign it, possibly by some time tomorrow afternoon, or maybe a little later than that, but as soon as he has transcribed it I will either send it over or bring it over to you and you can study it and see that it is just as you want it, and if it isn’t true in any respect I want you to tell me, and if it is true you will do the proper thing, and in the meantime you study over as to what attorney, if any, or whether or not you want an attorney, and if you know any of the attorneys that you want, and if I can agree with you, I will appoint the attorney and see that he comes up and talks the matter over with you, and if you don’t want an attorney, of course it will not be forced upon you. A. Oh, no.”
Three days later, on November 24, 1930, Crebs was. taken before the justice of the peace, M. H. Flood, for his preliminary examination. The justice appointed E. W. Davis, an attorney of the local bar, to represent him. The transcript of the justice then recites:
“The oourt asked the defendant if he wished to have his preliminary hearing, consulting his attorney, he replied he waived his preliminary hearing. The court asked the defendant if it was on advice of his attorney that he waived his hearing. He replied ‘No,’ that it was voluntary on his part.
“The court bound the defendant over to the district court of trial, without bond.”
Following the waiver of the preliminary, the information was filed in the district court on November 26, 1930, and thereafter Crebs was brought into court, and the proceedings as set out in the journal entry attached to the petitioner’s application followed in regular order.
We take notice of some affidavits of fellow convicts of Crebs to the effect that shortly after he arrived in the penitentiary there were marks of burns on the soles of his feet, and indications of a rupture in the pit of his stomach. An affidavit in behalf of the petitioner was also filed by Dr. W. G. Emery, a physician of Barnard, who served as medical adviser of the state penitentiary in 1936. This affidavit averred that in 1930 at the time of the Doan murder he “was astonished at the quick arrest [of Crebs] and conviction,” and that—
“His story of being cruelly tortured in Seward county jail in order to elicit a confession and plea of guilty I substantiated to my satisfaction.
“The state owes this man a careful consideration of his case because of his illegal torture.”
In a later affidavit, Doctor Emery testified that in making his first affidavit he had no thought that it might be used in support of an application for habeas corpus, but rather as a character affidavit in Crebs’ behalf. Questioned under oath by the assistant attorney general, Doctor Emery deposed:
“Q. You know C. C. Crebs, and how long have you known him? A. I knew him while medical supervisor in the prison during 1936.
“Q. Did you know him before 1936? A. No.
“Q. You knew he pleaded guilty to murder in the first degree in 1930, in Seward county, Kansas, and you met him six years later? A. Yes.
“Q. Did you ever have occasion to discuss the matter with him? A. Yes, in 1936 at the penitentiary at Lansing.
“Q. Had you had an opportunity to make an investigation of the situation when it arose in Seward county? A. No, . . .
“Q. Did you have any opportunity to discuss the matter with the district judge, county attorney, sheriff, or undersheriff of Seward county? A. I discussed it with no one. Not until I became interested in Crebs’ story in 1936.
“Q. You have no opinion as to Crebs’ guilt or innocence? A. I am not informed enough to judge his guilt or innocence. I believe he was tortured into confessing by being hung by his thumbs, burning his feet with cigar butts, and told he would be dragged behind a car.
“Q. Did he tell you the names of the persons who allegedly tortured him in 1930? A. No, he referred to them as the jailers in Seward county.
“Q. Did anyone else tell you that he had been allegedly tortured? A. Two men told me of this and said that he had to have his feet treated after entering the prison hospital.
“Q. That was six years after his commitment to the penitentiary? A. Yes.
“Q. These two men were inmates of the penitentiary? A. Yes.
“Q. Did you discuss the matter of his alleged torture with anyone other than the two inmates of the prison and Crebs? A. I don’t believe I did.
“Q. . . . Your only information was from the newspaper accounts and you knew nothing about his case until you were medical supervisor at the penitentiary six years later. A. That’s right.
“Q. In conclusion, Doctor Emery, you did not know Crebs at Liberal, nor any facts surrounding his arrest and sentence from first-hand knowledge in 1930, nor did you treat him in the capacity of physician at Liberal, nor did you discuss his case except-with Crebs himself and two inmates of the pen after 1936? A. That’s right.”
There is nothing further presented in support of the application for the. writ of habeas corpus worthy of notice except a matter urged by the petitioner in his oral argument before the court. He advanced the point that he was twice put in jeopardy for the same offense. Presumably he has formed a theory of “double jeopardy” out of his private interview with Judge Light on November 21, and his later formal arraignment, plea and sentence on November 26. Whatever his theory, the point has no basis in fact. Jeopardy only attaches to a prisoner when he is brought into a court of competent jurisdiction (not merely brought before the judge) and formally arraigned and required to plead to a valid charge of crime. Ordinarily there is also one more requisite to the existence of jeopardy— which is that there should be a jury empaneled and sworn at the time the accused is required to plead. The questioning of a prisoner in jail, with or without abuse or cruelty, is not what the law describes as jeopardy, and neither is his preliminary examination before the justice of the peace, nor is his waiver of such examination.
Considering now the points relied on in the application seriatim, it must be held that petitioner’s assertion at this time, that he is not guilty of the murder as charged, and for which he was sentenced in 1930, is not a ground for a writ of habeas corpus.
Applicant’s next point — that the record will show that he was denied counsel, the record shows nothing of the sort.
The third point — that a confession was signed by him “by duress, abuse, cruel and unusual punishment,” and that “the confession was written by the abusers.” The record does not show the existence of any such confession, and certainly no such confession was used against him at his trial on November 26, 1930, which is the only trial at which a confession would have been of any avail against him. If by confession petitioner means the twenty-eight page statement he gave to Judge Light on November 21, and which he admits he signed on November 22, it is perfectly clear that this statement was voluntarily given, and that, too, in an interview with Judge Light, which the judge granted at petitioner’s request. But even if that twenty-eight page statement of Crebs to Judge Light be regarded as a confession, it was not used at his trial on November 26, so its characterization as a confession is immaterial.
The next point urged is that petitioner was denied a lawful hearing in due course- of law. This contention is wholly gratuitous, and absolutely nothing is offered in its support.
The next point is 1¿hat sentence was pronounced without jurisdiction. This point is untenable. The district court of Seward county was the one and only tribunal which did have jurisdiction.
Appellant’s final point is that he never pleaded guilty to the charge. The record, which is clear and unimpeached, is to the contrary. The evidence, also, is clear and convincing that the arraignment, plea, judgment, sentence, and commitment were regular in every respect.
Before concluding, however, we take this opportunity to ’restate the attitude of this court in respect to official misconduct which savors in the least of “third degree” practices. It is the duty of county attorneys, attorneys general, examining magistrates, district courts and the judges thereof, to see to it that nothing of that kind can be practiced with impunity in Kansas. There is no authority in law and none in common humanity for conducting midnight seances, wherein persons arrested on criminal charges are misused in the slightest degree, and none for holding persons in custody more than a few hours at most without a warrant for their arrest as contemplated by law. When this court gets a chance to show its attitude on this monstrous and un-American practice, we are not slow to do so. (See Farmer v. Rutherford, 136 Kan. 298, 15 P. 2d 474; State, ex rel., v. Jackson, 139 Kan. 744, 33 P. 2d 118; Pfannenstiel v. Doerfler, 152 Kan. 479, 105 P. 2d 886; also, Vol. 1, No. 1, of the Bill of Rights Review, pp. 24-33.) But in the instant case, if we should give the largest credence to petitioner’s evidence concerning the maltreatment he received at the hands of ruffian officials or other persons in the Seward county jail, that maltreatment did not vitiate the subsequent proceedings before the justice of the peace on November 24, nor the proceedings in the district court on November 26. Murderers are not rendered immune to punishment for their crimes on the mere ground that they have been unlawfully abused or maltreated by official ruffians who capture them and place them in the custody of the law.
The writ is denied. | [
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The opinion of the court was delivered by
DawsoN, C. J.:
Plaintiff invokes mandamus to compel defendant to pay a judgment.
In 1935 plaintiff’s claim for compensation as a Kansas soldier in the World War was disallowed, and he brought proceedings for review in the district court of Sedgwick county. The defendant board joined issues by a general denial. The trial court found all the controlling facts in plaintiff’s favor, finding specifically that he had served in the United States army for the time alleged, he was a resident of Kansas and Wichita was his post-office address when he entered the service, he held an honorable discharge from the army, his application for compensation had been filed within the extended satutory time, his claim had been disallowed, and his appeal therefrom had been taken in time.
On February 21, 1939, judgment was entered in plaintiff’s behalf for $687 with interest at 6 percent from December 29, 1935, which was the date on which defendant had disallowed his claim. With the interest added, the total judgment was for $817.54, and the court decreed that the latter sum should bear interest at 6 percent until paid, and that defendant should pay the costs.
The defendant did not appeal; it simply ignored the judgment, and has withheld payment thereof. Hence this application for mandamus.
To our alternative writ the defendant makes an answer and return in which it admits all the pertinent facts summarized above, but answers further, that—
“The plaintiff is not entitled to the payment of compensation by the state of Kansas, notwithstanding said judgment, for the following reasons, to wit:
“1. That said judgment was rendered on the same day but at a time subsequent to the time that chapter' 280 of the Laws of Kansas, 1939, being 1939 Supplement 73-102, became effective.
“2. That the official records on file in the War Department of the United States disclose that the plaintiff did not give the state of Kansas or any specific place therein as his place of residence at the time of entering the military services of the United States, but on the contrary, said records disclose that at said time plaintiff gave Braman, Oída., as the place of his residence.
“3. That at the time plaintiff entered the militaiy service of the United States during the World War, he was eighteen years of age and unmarried, and his father, David M. LeMarr, and his mother, Irene LeMarr, were residents of Braman, Oída.
IX
“Defendant further alleges that in no event should it be required to pay any interest upon plaintiff’s claims or to pay the court costs accrued in the district court of Sedgwick county, Kansas.”
It will be noted that judgment was entered in plaintiff’s favor on February 21, 1939, which was the same day that chapter 280 of the Laws of 1939 took effect. (G. S. 1939 Supp., 73-102.) That statute called a halt to the practice of giving a bonus under the Kansas statute (G. S. 1935, 73-101 et seq.,) to men in the military services of the federal government who had collected a similar bonus from another state; and it also provided that the term “resident of the state of Kansas” meant any claimant who gave this state as his place of residence when he entered the federal military service; and the statute made the federal military and naval records the controlling evidence thereof. It also provided that the statute should apply to claims pending before the compensation board at the time the statute took effect.
In the notable case of Richardson v. Soldiers’ Compensation Board, 150 Kan. 343, 92 P. 2d 114, which discussed the judicial history of the soldiers’ compensation statute from its inception in 1921, the popular referendum thereon in 1922, and the supplemental legislation which followed from time to time down to the last expression of the legislature on the subject (Laws 1939, ch. 280; G. S. 1939 Supp. 73-102), we held that in a certain sense a claim for compensation was “pending before the soldiers’ compensation board until it is finally paid.” In that case, however, the soldier’s claim for compensation was still in process of litigation so it was not an unduly robust construction of the statute to say that it was still pending before the board until paid.'
But can that interpretation extend also to a claim which has been reduced to judgment? As to it, can the compensation board still say: “Well, of course, this claim has been adjudicated in a court of competent jurisdiction, yet under the rule announced in the Richardson case, the claim is still pending before this board until it is paid, and as we haven’t paid it yet, we never will have to pay it.” If such hypothetical interpretation of the board’s present attitude does not demonstrate its fallacy, let us carry the illustration a little further. Suppose we hold in this case that plaintiff is entitled to the relief he now seeks, and direct the compensation board to pay the judgment of the district court of Sedgwick county. Can the board make a further response thus: “Well, we have merely lost another lawsuit. We have not yet paid the plaintiff’s adjudicated claim; consequently it is still ‘pending before this board’ and will continue to be pending before us as long as we don’t pay it!”
On occasion this court has had to remark that while the study and practice of the law call for clear thinking and logical reasoning, it is possible to reason and refine with such subtlety and acuteness as to overshoot the mark of justice altogether. (Haskins v. Kelly, 77 Kan. 155, 158, 93 Pac. 605; Atchison, T. & S. F. Rly. Co. v. Drainage District, 133 Kan. 586, 591, 1 P. 2d 253; Godfrey v. Kansas City Public Ser. Co., 149 Kan. 592, 595, 88 P. 2d 1037.)
In each of the recent cases of Hicks v. Soldiers’ Compensation Board, 150 Kan. 903, 96 P. 2d 618; Polk v. Soldiers’ Compensation Board, 151 Kan. 292, 98 P. 2d 93; Douglas v. Soldiers’ Compensation Board, 151 Kan. 636, 100 P. 2d 986; and Vickers v. Soldiers’ Compensation Board, 152 Kan. 173, 102 P. 2d 1003, the statute of 1939 was applied, and the rule of the Richardson case was followed; but each of those cases was still before the courts on appeal. None of them had been adjudicated to a finality.
Counsel for the board cite the case of Jella v. Soldiers’ Compensation Board, 121 Kan. 360, 246 Pac. 521, where this court de- dined to issue mandamus directing this defendant board to pay compensation after the petitioner’s right thereto had been partially determined. We say “partially,” because the only tendered issue in that case had been on the question of plaintiff’s residence, and “no order [of court] directed to the board was made.” There was no judgment to be enforced by mandamus or otherwise.
In the case at bar we have to deal with a final judgment, one un-appealed from, and where the time to appeal has gone by. The subject matter of the controversy in the Sedgwick county district court was adjudicated to a finality. It is res judicata. (Manley v. Park, 62 Kan. 553, 64 Pac. 28; Skaer v. Capsey, 127 Kan. 383, 386-387, 273 Pac. 464; Union Central Life Ins. Co. v. Pletcher, 144 Kan. 359, 58 P. 2d 1158; Morris Plan Co. v. Hill, 148 Kan. 295, 80 P. 2d 1049.) In 3 Bouvier, Rawle’s 3d rev. 2910, it is said:
“The ’doctrine of res judicata is plain and intelligible, and amounts simply to this, that a cause of action once finally determined, without appeal, between the parlies, on the merits, by a competent tribunal, cannot afterwards be litigated by'a new proceeding either before the same or any other tribunal; Foster v. The Richard Busteed, 100 Mass. 409, 1 Am. Rep. 125.”
There must be a finality to judicial controversy, not only for the sake of justice, but also to save the judicial system of administering justice from falling into public contempt. So we have no hesitancy in holding that the plaintiff’s judgment for his compensation must now be paid without further ado.
However, counsel for defendant do point out certain minor features of the district court’s judgment which did transcend the court’s jurisdiction and which are void on the face of the judgment. The compensation act makes no provision for the payment of interest on a soldier’s claim. No money has been provided to pay interest on delayed payment of claims. Moreover, that feature of the judgment which taxes the costs to the defendant is also a sheer nullity. The statute declares otherwise. (G. S. 1935, 73-131, Duckworth v. Board of Compensation, 116 Kan. 399, 402, 226 Pac. 707.)
It is the order of this court that the defendant pay the plaintiff the amount of the original judgment of the district court, $687. No interest should be paid, and no costs will be allowed to either party— following the rule applied in Stevens v. McDowell, 151 Kan. 316, 323, 98 P. 2d 123. It is so ordered. | [
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Opinion by
Strang, C.:
March 10,1887, the plaintiff company issued its policy of insurance to the defendant, agreeing to indemnify him against loss or damage by fire in the sum of $1,000 — $500 on his dwelling, and $500 on household goods and other things therein, for the period of one year. January 8,1888, the property was totally destroyed by fire. The company refused to pay the damages sustained by said loss, and on tbe-12th day of April, 1888, this suit was brought to recover for the loss sustained under said policy. The execution and delivery of the policy were admitted. The defendant in answer claimed, first, that the policy was void ab initio because of the fact that there were certain incumbrances in the form of mortgages upon the land before and at the time the policy was issued, and that the existence of said mortgages was not disclosed to the company, nor its agent, when said insurance was obtained; second, that there was at the time such insurance was obtained other insurance on said property, the existence of which was not disclosed to the company, nor to its agent; third, that the company was not liable because, in violation of a condition of the policy, the house was unoccupied when consumed by fire. The first of these propositions the plaintiff in error abandons in its brief, and says it will consider only the second and third of these questions. The case was tried by the court and a jury, and a verdict returned for the plaintiff below, in the sum of $1,056.75. The jury also made the following special findings:
“1. When was the building referred to in the petition in this case burned? Ans. On the 8th day of January, 1888.
“ 2. How long after said building was burned before plaintiff made proof of loss, if any was made, to defendant? A. On the 17th day of January, 1888.
“3. When did the plaintiff make his proof of loss in this case, if any was made? A. Same as above mentioned.
“4. When did the proof of loss in this case reach the office of defendant in the city of New York? A. If it has been proved, don’t know.
“5. What did the proof of loss, if any was made in this case, consist of? A. Statement made to defendant’s adjusting agent.
“ 6. Was there any other insurance on the building referred to in the petition in this case at the time the defendant in this action issued its policy ? A. Yes.
-“7. On the day the defendant in this case issued its policy of insurance, did it know of the existence of any other policy of insurance on the property insured ? A. Yes.
“ 8. On the day the policy was issued by the defendant in this case, did its agent Johnson actually know that there was a mortgage on the property covered by the policy and that the same was not paid ? A. Yes.
“ 9. By whom and how was the building referred to in this case occupied at the time it was burned? A. By the plaintiff.
“10. Where was the family of the plaintiff residing at the time the building referred to in this case was burned? A. In said building; temporarily absent at the time it was burned.
“11. Where was the plaintiff sleeping and taking his meals at the time the building referred to was burned? A. At Mr. Ford’s, in Sterling, Kas.
“ 12. Who had the key to the building referred to in this action and the possession thereof at the time the same was burned? A. Mr. Alfon had the key to the second room from the west, on the north side.
“13. What was the building in this action referred to worth at the time it was burned — that is, what was its market value? A. |1,300.
“14. Was there any of the property described in the policy of insurance in this case that was not in the building at the time the same was burned? If so, what was it? A. Yes; one sewing machine.
“15. How much, if anything, do you allow for the loss of the building, if any, to the plaintiff? A. $500, with interest at the rate of 7 per cent, per annum from the 17th day of March, 1888.
“16. How much, if anything, do you allow for the other articles mentioned in the policy (outside of the sum, if any, allowed for the loss of the building)? Give each item separately. A. $500, with interest at the rate of 7 per cent, per annum from the 17th day of March, 1888, on the following articles, to wit:
“1 organ, 12 chairs, 1 parlor set (parlor bed-room) and bedding, 3 bed-room sets, 60 yards of carpet, wearing apparel, 1 cook stove, 1 parlor stove, 1 bed-room stove, 1 dining-room table, 1 breakfast table, cupboard ware.
“17. Was there more than one mortgage on the house referred to in the petition, at the time the defendant issued its policy of insurance on the building? If so, did defendant have any knowledge of both of them at the time it issued its said policy? A. Yes.
“18. Was there any waiver of proof of loss by the defendant in this action? If so, by whom was such proof waived, and when? A. Yes; to wit, on the 17th day of January, 1888, by the defendant’s adjusting agent.
“19. If you answer the last question ‘yes,’ then state what such waiver consisted of. A. By the actions of the defendant’s adjusting agent.”
The first question raised in this case is one of practice. It is alleged that there is no case in this court, because the case-made does not show that it contains all the pleadings, proceedings, evidence, and instructions. It is held by this court that the case-made-must affirmatively show that it contains all the pleadings, proceedings, evidence, and instructions, when all of these things are to be reviewed in this court. We think the case before us does affirmatively show that it contains all the evidence and instructions and other matters to be reviewed in this court. While it is the better practice to incorporate a direct statement in the body of the case-made, showing that it contains all of the matters to be reviewed here, yet it will be retained and reviewed by this court if it otherwise sufficiently shows that it contains everything to be reviewed in this court.
The first contention of counsel for plaintiff herein is, that there was other insurance on the prdperty included in the policy sued on in this case when this policy was issued, and that the existence of such other insurance was not disclosed to the company nor its agent at the time the insurance in this policy was applied for. The company says that because the existence of such other insurance was not disclosed this policy was void. The jury found that the company knew of the .existence of the other insurance when it issued the policy sued on. It is contended, however, that this finding of the jury is not supported by sufficient evidence, if it is supported by any evidence. The other insurance complained of was in the Hartford Insurance Company, and it is admitted that the application for such insurance was taken and the policy therein countersigned by Mr. Johnson, the same agent who took the application and countersigned the policy issued by the plaintiff in error in this case, and that but a few weeks intervened between the dates of such policies. Mr. Johnson, the agent, testifies that, at the time he took the application for the policy sued on, he had forgotten the fact of having insured the same property only a few weeks before in another company, and that his attention was not called to such former insurance when the latter insurance was taken. Turning to the evidence of Mr. Wood, we find that he says the agent had knowledge of the former insurance; tljat when the first insurance was taken, the agent told him the property would bear other insurance; that afterward he met the agent on the street, and the agent asked him if he was not ready to take some additional insurance on his property, adding that he had several companies then, and could write him some more insurance on his property. Wood inquired what it would cost, and the agent told him he would go down to the office and see. Afterward, and without any further application on the part of Wood, the policy sued on was issued and delivered to Wood by Mr. Johnson. We think this evidence of Mr. Wood sufficient to support a finding that the company by its agent, Johnson, knew at the time it issued its policy of the other and former policy in the Hartford company on the same property.
The next contention of the plaintiff company is, that the house was permitted to become unoccupied, and was unoccupied when destroyed. Upon this question the jury found against the company, and say the house was occupied when consumed. Counsel says this finding is not supported by the evidence, and is against the evidence. We think this is a much closer question than the former one, and yet we think the evidence upon the question as to whether or not the house, was occupied at the time of the fire is of such a character that* it should be submitted to a jury, and that the court was right in refusing to instruct the jury as a matter of law, under the evidence, that the house was at the time of the fire unoccupied. The question turns largely upon the intention of the defendant, Wood, and such intention must, in the absence of any express declaration of Wood in relation thereto, be gathered from the circumstances of the case, and its ascertainment, considering the character of the evidence in relation thereto, is, therefore, peculiarly within the province of the jury. The evidence shows that the furniture and household goods were still in the building when the fire occurred, though they were being packed in some of the rooms of the house so as to make vacant other rooms therein; that Wood had slept in the house until within a week or five days, of the fire, and then went to Ford’s to sleep because he was not well; that he was at the house each day while he slept away, and was there till evening the night of the fire. It also shows that Wood had given a key to a young man named Alfon, who was fixing one of the bed-rooms as a sleeping room for himself; that he had moved his bed and trunk in, but had not yet actually slept there, though he was there the early part of the night of the fire and changed his clothes. While it is not very clear whether or not the house was occupied at the time of the fire, we think the evidence on that point was properly submitted to the jury; and the jury having found that the house was occupied, this court would not be justified in saying the jury were not warranted under the evidence in so finding. There is an allegation of error in connection with the instructions given, and also with respect to the instructions refused. We think the instructions properly voice the law of the case, and cover all the questions raised by the special requests of the defendant.
We therefore recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The only question presented in behalf of the petitioners is the validity of what is known as the “antitrust law,” so far as it relates to the business of insurance. (Laws of 1889, ch. 257.) The contention is, that the portion of the act pertaining to insurance is not clearly expressed in the title, as required by § 18, article 2, of the constitution, and is therefore void. The title is: “An act to declare unlawful trusts and combinations in restraint of trade and products, and to provide penalties therefor.” Section 1 of that act embraces the provision with reference to the business of insurance, and is as follows:
“Section 1. That all arrangements, contract, agreements, trusts or combinations between persons or corporations, made with a view or which tend to prevent full and free competition in the importation, transportation or sale of articles imported into this state, or in the product, manufacture or sale of articles of domestic growth or product of domestic raw material, or for the loan or use of money, or to fix attorneys’ or doctors’ fees, and all arrangements, contracts, agreements, trusts or combinations between persons or corporations designed or which tend to advance, reduce or control the price or the cost to the producer or to the consumer of any such products or articles, or to control the cost or rate of insurance, or which tend to advance or control the rate of interest for the loan or use of money to the borrower, or any other services, are hereby declared to be against public policy, unlawful, and void.”
Section 3 of the act provides as follows :
“Sec. 3. That all persons entering into any such arrangement, contract, agreement, trust, or combination, or who shall, after the passage of this act, attempt to carry out or act under any such arrangement, contract, agreement, trust, or combination described in sections 1 or 2 of this act, either on his own account or as agent or attorney for another, or as an officer, agent or stockholder of any corporation, or as a trustee, committee, or in any capacity whatever, shall be guilty of a misdemeanor, and upon conviction thereof shall be subject to a fine of not less than $100 and not more than $1,000, and to imprisonment not less than 30 days and not more than six months, or to both such fine and imprisonment, in the discretion of the court.”
It thus appears that the body of the act contains a specific provision for the prevention of trusts or combinations which tend to control the cost or rate of insurance, and to punish all persons who enter into or attempt to carry out such trusts or combinations.
The question presented is, does the word “trade,” used in the title, fairly indicate and include the provisions of the act with reference to insurance? It is argued that the usual meaning of the word should govern, and in that sense it has reference to the business of selling or exchanging some tangible substance or commodity for money, or the business of dealing by way of sale or exchange in commodities; and it is said that the use of the word in connection with that of “products,” in the title, qualifies the meaning of “ trade,” and makes it all the more apparent that the construction contended for is the correct one. This is the commercial sense of the word, and possibly may be the most common signification which is given to it, but it is not the only one, nor the most comprehensive meaning in which the word is properly used. In the broader sense, it is any occupation or business carried on for subsistence or profit. Anderson’s Dictionary of Law gives the following definition: “ Generally equivalent to occupation, employment, or business, whether manual or mercantile; any occupation, employment or business carried on for profit, gain, or livelihood, not in the liberal arts or in the learned professions.” In Abbott’s Law Dictionary the word is defined as “an occupation, employment or business carried on for gain or profit.” Among the definitions given in the Encyclopaedic Dictionary is the following: “The business which a person has learnt, and which he carries on for subsistence or profit; occupation; particularly employment, whether manual or mercantile, as distinguished from the liberal arts or the learned professions and agriculture.” A like definition of the word is given in the Imperial Dictionary.
Rapalje & Lawrence’s Law Dictionary, to which we are cited by the petitioners, gives the restricted definition: “Traffic; commerce; exchange of goods for other goods, or for money.” It is the only authority, however, which uses the word in its commercial sense alone. Bouvier limits the meaning to commerce and traffic and the handicraft of mechanics; and we are also cited by the petitioners to the definition given by Webster, which specifically is: “The act or business of exchanging commodities by barter, or by buying and selling for money; commerce; traffic; barter.” This author, however, gives the more enlarged meaning of the word as well, as follows: “The business which a person has learned, and which he engages in, for procuring subsistence, or for profit; occupation; especially mechanical employment as distinguished from the liberal arts, the learned professions, and agriculture; as we speak of the trade of a smith, of a carpenter, or mason, but not now of the trade of a farmer, or a lawyer, or a physician.” The broader signification given to the word by most of the lexicographers would fairly embrace and cover the provision of the act with reference to the business of insurance. The title prefixed to an act may be broad and general, or it may be narrow and restricted, but in either event it must be a fair index of the provisions of the act; that is, the subject of the act must be clearly expressed by the title. Here a term is employed in the title which, if given the broader meaning, would render the provision in question valid, while, by giving it the narrower and perhaps more common meaning, it would render the provision invalid. Which of these should be adopted? The mere generality of the title to an act does not render it objectionable, so long as the act has but one general object, and the title is such that neither the members of the legislature nor the people to be affected can be misled. Titles of a very general nature have been adopted in the legislation of this state, and their use has been encouraged and sustained. (Bowman v. Cockrill, 6 Kas. 311; Division of Howard Co., 15 id. 194; Woodruff v. Baldwin, 23 id. 491; Comm’rs of Marion Co. v. Comm’rs of Harvey Co., 26 id. 181; The State ex rel. v. Sanders, 41 id. 228.) That the broader meaning of the word “trade” was the one intended by the legislature, is manifest from the incorporation of the insurance provision in the body of the act. The meaning given by the legislature to the terms used for expressing the subject of the act should be considered by the court in determining the sufficiency of the title. While the legislature cannot extend the scope of the title by giving to a word therein a definition which is unnatural and unwarranted by usage, still, if the word admits of the construction given to it by the legislature, and can be properly used in a sense broad enough to include the provisions of the act, the intention of the legislature is entitled to great weight in determining the sufficiency of the title. In Woodruff v. Baldwin, 23 Kas. 494, it was said:
“Is it not more just and fair to say that the legislature has used the title in the broadest sense, a sense broad enough to include the subject-matter of this article, and that it meant by the expression ‘criminal procedure’ every proceeding resulting from crime, and not simply those for the prevention and punishment of crime? . . . The breadth and comprehensiveness of a title is a matter of legislative discretion..... The courts cannot modify a title, any more than they can change the body of the law. The title has to be construed even as the language of the act, and the courts may neither narrow nor enlarge the meaning which the legislature intended the title should have. Here is a title intrinsically broad and comprehensive. . . . Evidently the legislature intended by this title one whose scope was broad enough .to include the article, and while there is a sense in which the article does not treat of criminal procedure, yet we must impute to the legislature an intent to use the title in a broader sense.”
How can it be said that the business of insurance is foreign to the title of this act, when the subject expressed in the title, taken in its broadest sense, and the one intended by the legislature, would embrace such business? How can anyone be misled as to this provision by the use of the word “trade,” when the leading lexicographers and writers employ the word in a sense which is comprehensive enough to cover the provision ? The fact that the narrower meaning of the word is the one most frequently used will not justify the court in restricting the meaning which the legislature intended it should have. Suppose the legislature had passed a law entitled “An act to prevent and punish the obstruction of highways,” and in the body of the act included specific provisions declaring it to be unlawful to place obstructions upon railroads, as well as upon county roads, streets, and alleys, and prescribed severe penalties for the violation of its provisions: could it be said that the provision with reference to railroads was invalid because it was not indicated by the title to the act ? The term “highway,” as commonly used, applies to the public roads and streets over which all may travel, on foot, or horseback, or in carriages, and yet in its broader sense it includes railroads; and hence, when by the provisions of the act it appeared that the legislature used it in its broader sense, it could hardly be said that the provision with reference to railroads was unconstitutional because it was not fairly embraced in the title of the act. So here, the legislature having employed the word “trade” in its broadest sense, and one which fairly covers the provision assailed, we do not. feel warranted in adopting the narrower meaning or in holding the act invalid. The rigid and technical rule contended for by the petitioners has never been applied to § 16, article 2, of the constitution. Although the provision is mandatory, it has been repeatedly held by this and other courts that a liberal interpretation should be placed upon the construction of language employed in the title to express the subject of the act. In Bowman v. Cock rill, supra, the court said that the provision “should be liberally construed; otherwise the legislature would be confined within such narrow rules that they would be greatly embarrassed in the proper and legitimate exercise of their legislative functions.” In City of Eureka v. Davis, 21 Kas. 580, it was said that “it must be borne in mind that while the constitutional provision is mandatory, it must be applied in a fair and reasonable way; otherwise it would become a source of more injury than the ills it was designed to remedy.” In Philpin v. McCarty, 24 Kas. 402, it was remarked that “this constitutional requirement is not to be enforced in any narrow or technical spirit. It was introduced to prevent a certain abuse, and it should be construed so as to guard against that abuse, and not to embarrass or obstruct needed legislation.” In City of Wichita v. Burleigh, 36 Kas. 42, it was said that “a slight inaccuracy in the description of a thing in an act of the legislature, or in the title to the act, will not render the act void, where it may be known both from the act and the title thereto, and the circumstances then existing, what was meant and intended by the legislature.” (See, also, Woodruff v. Baldwin, supra; Comm’rs of Marion Co. v. Comm’rs of Harvey Co., supra; The State v. Barrett, 27 Kas. 213; Cooley’s Const. Lim., 6th ed., 175, and cases cited.)
Another rule recognized and followed by all courts in determining the validity of legislative enactments is, that they will not be declared void if they can be upheld upon any reasonable grounds. If their invalidity is a matter of any reasonable doubt, the doubt must be resolved in favor of the act. (Comm’rs of Cherokee Co. v. The State, 36 Kas. 337.) Guided by these rules, we reach the conclusion, not without some doubt, however, that the provision of the act with reference to insurance is not foreign to the title of the act, nor violative of § 16, article 2, of the constitution. We do not desire or intend to determine at this time the validity of the act as to any profession, occupation or business beyond that of insurance.
Having decided the provision to be valid, and all other questions being waived, it follows that the petitioners must be remanded.
Valentine, J., concurring.
Horton, C. J.:
I do not think the word “trade,” in the title of chapter 257, Laws of 1889, clearly or fairly indicates or includes lawyers, doctors, insurance agents, or insurance companies. | [
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The opinion of the court was delivered by
Johnston, J.:
Richard Wilson, as administrator of the estate of James W. Wilson, deceased, brings this action against the Cherokee & Pittsburg Coal & Mining Company to recover $10,000 as damages for the benefit of the parents of the deceased, who are his next of kin and heirs at law, for pecuniary loss alleged to have been sustained by them through the death of James W. Wilson, which was alleged to have been caused by the negligence of the company. James W. Wilson was an employé of the company, working in one of its mines, where there was an explosipn on November 9,1888, by reason of which he was killed. The averments of the petition with reference to the negligence were that—
“The defendant knowingly and wilfully permitted inflammable gases to accumulate therein, and permitted large quantities of coal dust, impregnated with sulphur, to accumulate in the passages thereof, and permitted the same to become dry and inflammable and explosive, and so allowed the same to so remain for a long space of time; that by means and reason of the said negligence, carelessness and default of the defendant, an explosion took place in said mine, at about the hour of 5 o’clock p. m. on the 9th day of November, 1888; that said explosion was caused by the negligence of said defendant in negligently permitting the accumulation of combustible and inflammable dust in said mine, which, being communicated with by a blast of powder in the mine, caused a general explosion in the mine; and, among other casualties, caused the death of the plaintiff’s intestate, as hereinafter stated; by means and reason whereof the said James W. Wilson was wounded, mangled, bruised, and killed, all without any fault or negligence on the part of the said James W. Wilson, and while he was working in said mine under and by virtue of his said employment; that had it not been for the accumulation of said inflammable and combustible matter in said mine said explosion could not and would not have happened. Said defendant knew, or should have known, in the exercise of ordinary prudence, that the presence and accumulation of said dust was a dangerous element in said mine, but negligently failed to provide reasonable precautions against danger, by sprinkling said mine or otherwise, or to provide against danger and death by the exercise of any ordinary prudence against permanent injury or death to employés and plaintiff’s intestate.”
The company answered, denying the allegations of the plaintiff below, and stating that if the deceased was killed at the time and place alleged, his death was caused and materially contributed to by his own negligence. A trial was had in April, 1891, which resulted in a verdict against the company for $5,000. The company complains of this judgment, and insists that the court erred in its rulings on the admission of testimony, and in determining the sufficiency of the evidence offered to sustain the allegations of the petition, and to uphold, the verdict that was rendered. It is also asserted that the court committed error in its charge to the jury, and in its rulings on the special questions of fact submitted to and returned by the jury.
It is shown, and not denied, that on November 9, 1888, a general explosion occurred in a mine owned and operated by the company, known as “Erontenac mine No. 2,” and that James W. Wilson and other employés engaged in the service of the company were killed in the explosion. The cause of the explosion is the principal subject of controversy in this action. The mine where the explosion occurred is a dry mine, from which bituminous coal was mined. The main hoisting-shaft, which was used for taking coal out of the mine and as a means of ingress and egress of the miners, as well as to conduct the air into the mine, was about 100 feet deep. At the bottom of the shaft was a main entry, extending east and west a distance of about 2,000 feet. The main east entry extended about 1,100 feet from the shaft, and from it were entries running north and south, which extended from about 200 to 700 feet from the main entry into the coal; and from these entries rooms or drifts were turned, running east and west into the coal. The coal was mined by blasting, and the manner of mining it was by drilling a hole into the face of the coal from two to six feet in depth. After drilling the holes, each miner made his own cartridges, placing as much powder therein as in his judgment was necessary to blow out the 'coal to the depth of the hole he had drilled. This hole was then tamped or filled with dust, dirt, or clay, or such material as was at hand in the room where the mining was done. These shots or blasts were fired off twice a day, and occurred about noon and five o’clock in the evening of each day. Sometimes the tamping would blow out without breaking the coal. This appears to have been due to improper tamping, or an insufficient quantity of powder, or the manner in which the hole is bored, as well as to the tenacity or solidity of the coal in which the cartridge is placed. When such a shot occurs, the charge shoots directly out of the mouth of the hole, like a shot fired from a gun, and it is known by miners as a “tight, gunning, or blown-out shot.” In some cases the flame of these gunning shots would extend a distance of 200 feet from the mouth of the hole. The mining and transportation of the coal through the mine caused considerable coal dust to accumulate in the entries and rooms of the mine, some of which was taken out of the mine by the hoisting-shaft, and to overcome which the mine was sometimes sprinkled.
The theory and claim of the plaintiff below is, that this fine coal dust, which had settled on the walls, floor and ceilings of the mine, and pervaded the atmosphere, was impregnated with sulphur, and was highly inflammable and combustible, and* when combined with the air and the gas liberated from the coal or generated by the flame and heat, is a dangerous explosive; that this fine dust was stirred up and ignited by the concussion and flame of a blown-out shot in the third or fourth north entry, and the blast thus started was accelerated and extended by large volumes of dust burning and expanding as it swept through the entire east part of the mine, until it found relief at the mouth of the shaft, and that the coal dust and flame extended up the main shaft and more than 60 feet above the ground on the outside before the force of the explosion was exhausted.
The company contends that the explosion which occurred, and by reason of which "Wilson was killed, was the accidental or careless igniting of a keg of powder by one of the miners, communicated to other kegs in the mine, thereby causing a general explosion throughout the eastern part of the mine, and passing out of the shaft. It is claimed that the mine is well laid out and properly ventilated; that the coal dust in the mine is not dangerous or explosive, and that if it is, the miners were as well aware of the prevalence and dangerous character of coal dust as were the owners or the managers of the mine.
There is testimony offered, though not very satisfactory, tending to show that the coal dust found in the mine is a dangerous explosive, which largely contributed to the disaster that occurred in the mine on November 9, 1888; and further, that the dangerous character of the dust may be destroyed by the sprinkling of the mine, and that those in control of the mine were aware of the dangerous character of the dust, and that an explosion could be prevented by proper sprinkling, which had been occasionally done, but not for some time previous to the explosion.
The defendant in error presents in his brief the opinions and reports of mining inspectors and others who had investigated the question in regard to the explosive character of coal dust, but their testimony was not taken and their opinions and writings were not brought into the case so that they can be considered by court or jury. If coal dust is an ’ explosive, it is not so universally recognized to be that the court may take notice of the same without proof. The witnesses who testified in this case, as well as the books, show that it is still an open and unsettled question. For this reason, the testimony of the mining superintendents, inspectors and others who have made a special study and examination of the subject would have been of great value to the court and jury in determining this disputed question. As we have stated, the proof offered by the plaintiff below tends to establish his contention; and although it is contradicted by that offered in behalf of the company, and in some respects is not as satisfactory as it should be upon which to base a judgment, we cannot say from an examination of the same that the demurrer to the evidence below was erroneously overruled, or that there was error in not directing a verdict in favor of the company. In view of the fact that there must be a reversal and another trial for erroneous rulings, we cannot with propriety enter upon a discussion of the weight or credibility of the evidence, or upon the facts as disclosed in the record now presented in this case. In another trial the testimony may be different, and possibly much fuller and more satisfactory upon the turning-points in the action.
Daring the course of the trial, the court permitted evidence to go to the jury, over the objection of the plaintiff in error, to the effect that the company had not provided sufficient doors or brattices for the mine. The witnesses Eisher, Wilson and Fox all gave testimony of this character, tending to show that the injury and fatality in the mine were enhanced by the failure of the company to provide suitable doors and brattices between room and room, or between rooms and entries. As the issues were formed, this testimony was unwarranted and prejudicial. It is not claimed or stated in the petition that there was any negligence in laying out, constructing or ventilating the mine. The charge of negligence was, that the company had permitted the accumulation in the mine of dry, inflammable, combustible and explosive coal dust, which it failed to sprinkle or remove, and which, being communicated with by the flame from a powder blast, caused a general explosion. The issue was joined upon this charge of negligence, and it was not subsequently enlarged by any amendment of the pleadings. Proof of negligence with respect to the doors and brattices did not sustain the allegation of negligence that was made, and the admission of the same over the objection of the company was prejudicial error. (Railway Co. v. Young, 8 Kas. 658; Railroad Co. v. Irwin, 35 id. 286.)
The company undertook to offer the testimony of Williams, Allen and Braidwood in this case, which had been given in the trial of Limb v. Coal & Mining Co., tried at a former term of the same court. Williams and Allen resided in Pueblo, Colorado, and counsel for both parties in this, action went out there to take their depositions, but instead of taking the same, and for the purpose of avoiding the expense incident to the taking of the depositions, and for the convenience of counsel, it was agreed by counsel that the testimony of these witnesses which had been given in the Limb case should be transcribed by the official stenographer of the court, and sworn to by him as being a true and correct transcript of the testimony of the witnesses, and when so transcribed and sworn to it should be used in all other eases against the company pending in that court, to the same extent and with like effect, and to be treated as the depositions of said witnesses, subject to the same objections as though they were present and testifying in court. In pursuance of this agreement, their testimony was transcribed by the official stenographer and duly verified by his oath as being true and correct. Afterward the whole of the testimony was introduced on the trial of the case of Stoop, administrator, against the company, and the testimony was permitted to be read, in accordance with the terms of the agreement made between counsel. When the written testimony of Williams was offered in this case, an objection was made to its competency and relevancy, as well as that no proper foundation had been laid for the question, and because the witness had not shown himself to be an expert. These objections were sustained, except as to some inquiries regarding the map which was used upon the trial. Upon concluding the reading of the testimony in chief, the plaintiff below objected to the reading of the cross-examination, and asked leave to withdraw the same from the consideration of the jury. The company objected to the withdrawal of the cross-examination, but the objection was overruled, and no part of the cross-examination was read except that which referred to the map which had been drawn by the witness. After the court permitted the withdrawal of the cross-examination, and a great part of the testimony of the witnesses Williams and Allen had been excluded from the jury, the defendant made an application for a continuance on account of the absence of the witnesses, and set forth the same by affidavit, reciting that the company had relied upon the agreement made to use this testimony, and for that reason did not have the personal attendance of these witnesses at the court. It is now contended that the court erred in permitting the withdrawal of the cross-examination, and abused its discretion in overruling the application for a continuance.
It appears, from the testimony offered, that Williams was the mining engineer for this coal company, as well as for various others in Colorado, Kansas, and New Mexico; that shortly after the explosion he had visited .the mine and investigated the cause and effects of the explosion. He was interrogated with reference to the condition of the mine after the explosion. It appeared that h'e had been engaged as a mining engineer and in the mining business for about eight years, and had given attention to explosions and the evidence of the same as indicating their cause, but his testimony with respect to the same was excluded from the jury. If he had been present in person and his testimony had been given, or if his deposition had been taken for use in this case, it is clear that the greater part of that which was excluded would have been competent and admissible. Objections to some of the preliminary inquiries may have been properly sustained, for the reason that the competency of the witness to answer the question had not been shown; but before the examination extended very far his competency to testify fully appeared; and if his deposition had been presented embracing the same questions and answers, a part of the examination in chief and the greater part of the cross-examination should have been admitted. If the plaintiff below did not desire to read the cross-examination of the witness which had been agreed should be treated as a deposition, the company should have been permitted to present the same to the jury. Some of the testimony of Allen in regard to his knowledge of the condition of the mine, and of the effects and cause of the explosion, was improperly excluded, providing his testimony is to be treated as a deposition. He was the general manager of the mine, had experience in mining coal, and had examined the results of the explosion for the purpose of determining its cause. He was, therefore, qualified to testify on these subjects. But considerable of his testimony in respect to the same was excluded from the jury, and objections made by the plaintiff below to questions asked of the witness by himself were sustained by the court, although they were' not made at the time the testimony was actually taken. As the testimony of these witnesses and Braidwood was taken for use in another case, probably the court could not compel the reading of the same in this case over the objections of the plaintiff below; but in view of the agreement which had been made, that the testimony should be received an<^ treated as a deposition, and in view of the facj. jja(j so treated in another case, their testimony should have been so treated by the court, or else a continuance should have been granted until the presence of the witnesses could be obtained. ' In view of the circumstances of the case, the company had a right to rely upon the stipulation which had been made, that the testimony of these witnesses, so far as the same was competent as a deposition, would be available in the present case; and as much of the testimony excluded would have been competent and material if treated as a deposition, the rulings of the court in respect to the same were prejudicially erroneous.
For these errors the judgment of the district court must be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, brought in the district court of Comanche county, on December 13, 1887, by E. A. Annis against John P. Jones, for the recovery of eight cows and two bulls, of the alleged value in the aggregate of $455. The defendant answered, interposing a general denial, and also alleging substantially as follows: That all his connection with the cattle was as cashier and agent of the First National Bank of Cold water, a corporation, and that the bank had the right to the possession of the cattle because of the following alleged facts: On May 12, 1887, Annis executed a promissory note to John P. Jones, cashier as aforesaid, for $148, with interest at the rate of 12 per cent, per annum, due in 60 days after date; and also executed a chattel mortgage to the same party upon the aforesaid cattle, to secure the aforesaid note; that the chattel mortgage contains, among other stipulations, the following:
“ If default shall be made in payment of said sum of money [the mortgage debt] or any part thereof, when the same shall become due and payable, or if said party of the second part [John P. Jones, cashier] shall at any time deem himself insecure, then and thenceforth it shall be lawful for said party of the second part, his executors or assigns or his authorized agents, to take into his possession said goods and chattels wherever the same may be found, and sell the same at public or private sale, and after satisfying the sum of money hereby secured and the interest thereon, and all costs, charges and expenses incurred, out of the proceeds of said sale, he shall return the surplus to the said party of the first part, or his legal representatives.”
That the note became due and was not paid, and the defendant and the bank, believing that the bank, as the owner and holder of the mortgage debt, was insecure, did, on November 30, 1887, take the possession of the mortgaged property for the bank. The plaintiff replied by filing a general denial. A trial was had before the court and a jury, and the jury rendered a general verdict in favor of the plaintiff, and assessed his damages at $77, and judgment was rendered that the plaintiff retain the possession of the cattle and recover the aforesaid damages and costs; and the defendant, as plaintiff in error, brings the case to this court for review.
According to the pleadings and the evidence, the mortgage debt was due and unpaid at the time when the defendant and the bank took the mortgaged property into their possession, and it does not appear that the debt has ever been paid; and these parties believed that the mortgage creditor was insecure, and probably as a fact such insecurity really existed. The mortgage covered all the property taken by the defendant and the bank, except perhaps two, or possibly three, cows; and the plaintiff, Annis, when he replevied the same, obtained the possession of all the property taken except two cows which had previously been disposed of, and he still retains the possession of the replevied property. It would therefore seem that the defendant ought to have recovered a judgment in the action in the alternative for all the replevied property except the two or three cows not covered by the mortgage; or the value of the bank’s interest therein, to wit, the amount still remaining due and unpaid on the mortgage, leaving the plaintiff to retain absolutely the two or three cows.
The plaintiff in error, Jones, claims in this court that the court below committed various errors, only a few of which, however, will it be necessary for us to consider. He urges that the court below erred in refusing to give the following, among other instructions, to the jury:
“ If you find from the evidence that the defendant detained possession of said property under a chattel mortgage, it will make no difference whether said debt was due or not, if at the time the defendant took possession of said property he believed himself insecure, for in that case he had the right under the mortgage to take possession of said property.
“If, prior to the commencement of this action, the defendant had disposed of any number of the cattle sought to be recovered and it was beyond his power to return the same, then, as to such cattle, your verdict as to such must be for the defendant, unless you further find that he disposed of the same to defeat plaintiff in this action.”
It is also claimed that the court below erred in giving the following, among other instructions:
“You may also take into consideration, in determining the damages the plaintiff is entitled to recover, if you find he is entitled to recover at all, the value of the property so taken and detained by the defendant. If you find that- any portion of it has been converted to the use and benefit of the defendant, such portion of the property you may find the value of, in determining the damage the plaintiff is entitled to recover.”
It is also claimed that the court below erred in refusing to submit to the jury the following, among other special interrogatories :
“1. Did John P. Jones have the possession at the commencement of this suit of all the property described in the plaintiff’s affidavit of replevin filed in this suit?”
“ 4. Was the debt secured by the mortgage from the plain tiff to John P. Jones, cashier, paid at the time the suit was instituted ?
“ 5. If you find for the plaintiff as to damages, how much do you find for the two cows that were slaughtered before the suit was instituted ? State separately the value of each cow so slaughtered.”
We would think the court below erred, substantially, as claimed by the plaintiff in error. The defendant in error, Annis, who was plaintiff below, attempted by his evidence to make it appear that the mortgage debt was not due when Jones and the bank took possession of the mortgaged property. We think, however, he failed; but upon the theory that he did not fail, then it devolved upon the defendant, Jones, and the bank to show that they believed themselves to be insecure at the time when they took the possession of the mortgaged property, for otherwise they would wholly fail in their defense to the action; and hence the first of the above-quoted instructions asked for by the defendant below, Jones, was very important, and should have been given. The next instruction above quoted asked for by the defendant and the one above quoted given by the court may be considered together. The plaintiff below, Annis, could not recover in replevin the two cattle disposed of and slaughtered before the action was commenced, or their value; but still their value, or the price for which they were sold, should have been taken into consideration by the jury in finding the value of the interest of the defendant and the bank in the replevied property, and this value or price of the cattle disposed of and slaughtered should be deducted from the mortgage debt, and Jones, as the representative of the bank, should recover as the value of their interest in the replevied property only the amount of the mortgage debt with this value or price deducted therefrom. The court below therefore erred in this particular also, for it permitted the plaintiff, Annis, to recover absolutely for these two cattle disposed of and slaughtered before the commencement of this action, and ignored wholly the mortgage and the mortgage debt. We think the court below also erred in re fusing to submit to the jury the special interrogatories above quoted. It is perhaps not necessary, however, to comment specially with reference to them.
The judgment of the court below will be reversed^ and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was a prosecution for embezzlement, under § 90 of the crimes act. The defendant was convicted, and the judgment of the court was, that he should be confined at hard labor for a term of two years in the state penitentiary. The information under which he was convicted charged as follows:
“That on the 10th day of March, 1891, in said county of Harvey and state of Kansas, one A. M. Fearn did intrust to William Combs, for safe custody, $530, current money of the United States, of the value of $530, he, the said William Combs, receiving and accepting the same as the bailee of said A. M. Fearn; that said $530 consisted of United States national bills, commonly called greenbacks, and national bank bills, silver certificates, and gold certificates. The denominations and names of each are unknown to said A. M. Fearn, the prosecuting witness, or your informant, but they all pass as current money of the United States, and all were of the value of $530. That after the said William Combs received said current money, as aforesaid, as such bailee, and on said 10th day of March, 1891, at the county of Harvey, in the state of Kansas, did then and there unlawfully and feloniously embezzle and convert to his own use, and make way with and secrete said $530, current money of the United States, and of the value of $530, belonging to and being then and there the money and property of said A. M. Fearn, without the authority, knowledge or consent of said A. M. Fearn, and then and there, in the manner aforesaid, the said money, the property of the said A. M. Fearn, did unlawfully and feloniously steal, take, and carry away, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Kansas.”
After the verdict, the defendant moved to arrest the judgment, upon the ground that the facts stated in the information did not constitute a public offense. This motion was denied, but the defendant still insists that the information was fatally defective, and on that ground he asks a reversal. Three objections are urged against the information: (1) That it does not specify the nature of the bailment; (2) that it contains no allegation of intent; and (3) that it does not describe the money alleged to have been embezzled with a reasonable degree of certainty.
It is to be observed that the sufficiency of the information was not raised by a motion to quash, nor until after trial and verdict, when the motion in arrest of judgment was interposed. “It was then too late to avail himself of technical error in form or mere imperfection in the statement of the complaint. Defects in a criminal pleading which might be held bad on a motion to quash, if one was made, are not always sufficient after a verdict of guilty to arrest a judgment.” (City of Kingman v. Berry, 40 Kas. 625; The State v. Knowles, 34 id. 393; The State v. Ratner, 44 id. 429.) Although the charge does not fully state the facts and circumstances of the bailment, it iairly indicates the character of the same. It shows who placed the money in his hands, the purpose for which it was intrusted to him, and wherein he has failed to carry out the trust. It fairly states' that the money was intrusted to him by Eearn for safe custody, but that, instead of safely keeping the money, he embezzled and converted the same to his own use, and did feloniously steal and carry it away.
We are referred to The State v. Griffith, 45 Kas. 142, as sustaining the objection to this information. The sufficiency of the information in that case, however, was raised early in the prosecution by a motion to quash, and, unlike the charge in the present case, the information there failed to allege the name of the person from whom the property was received, the purpose for which it was placed in defendant’s hands, or the conditions upon which he was expected to hold, dispose of, or return it. It was there decided that the defendant was entitled to be informed of the object of the trust, as claimed by the prosecution, and wherein he had failed to conform to that object. That has been sufficiently done in the charge under consideration to resist a motion in arrest of judgment.
The second objection, that the information contains no allegation of intent, cannot be sustained. The charge as stated includes the evil intent of wrongfully appropriating money entrusted to him by Eearn for a specific purpose to his own use, and sufficiently characterizes the intent with which the offense was committed. (The State v. Smith, 38 Kas. 194.) It was hardly necessary to allege that the money was embezzled and converted with the intention to embezzle and convert the same. It is difficult to conceive how he could have honestly and innocently embezzled and stolen the money entrusted to him.
The last objection is that the money is not described with sufficient certainty. It is described as “$530 current money of the United States, of the value of $530,” . . . “consisting of United States national bills, commonly called greenbacks, and national bank bills, silver certificates, and gold certificates.” This description is coupled with an allegation of inability to give the denomination and number of each, or a better description of the money embezzled and stolen. With this excuse for the failure to give a, more definite description, the information cannot be held fatally defective, and especially when the objection is not made until after a verdict has been returned. (The State v. Henry, 24 Kas. 457; The State v. McAnulty, 26 id. 533; The State v. Tilney, 38 id. 714.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The appellant was convicted in the Chatauqua county district court of an illegal sale of intoxicating liquor. The information filed against him contained four counts. He was acquitted on the first, third and fourth counts, and convicted on the second. The following language constituted a part of the information:
“And said county attorney hereby refers to the testimony of Jeremiah Ellixson, hereto attached, marked ‘B/ and makes the same part of this information and each and every count thereof.”
The testimony of Ellixson referred to in the information was given under oath on the 19th day of April, 1890, in an inquiry made by the county attorney' at his office. The state ment recited that Ellixson “got some beer last fall, during the day of the republican primary in Sedan, from Philip Smith and Pat. Nulty. I paid Philip Smith once for it, and I think I got some once in which Pat. Nulty made the change.” At the close of the evidence the county attorney elected to rely on a sale made to one A. C. Hilligoss for a conviction on the second count. Hilligoss testified that he thought that some time during the year 1889 he bought more than once whisky by the drink from the appellant, and paid him 10 cents per drink for it. He also testified that he could not mention anyone else whom he saw buy intoxicating liquors from Pat. Nulty in the year 1889. The information was filed on the 22d of August, 1890. The county attorney filed a written motion to be allowed to indorse the names of A. C. Hilligoss and others on the information on the 10th day of November, 1890. This motion is supported by an affidavit of the county attorney, in which he states that the testimony of said witnesses did not come to his knowledge in time to make this application at an earlier date. Ellixson was not a witness at the trial of the cause.
Upon this state of facts, we are compelled to reverse the judgment of conviction, and grant the appellant a new trial. It has been decided time and time again by this court that when the information is verified by the oath of a private person, and not by the county attorney, the defendant should not be found guilty of any offense except one of which the complaining witness had notice or knowledge at the time of verifying the information. (The State v. Brooks, 33 Kas. 708; The State v. Skinner, 34 id. 265; The State v. Hescher, 46 id. 534.) It is true that this information is sworn to positively by the county attorney; but he filed with it, and makes a part of it by special and express averment, the sworn statement of Ellixson,' and by this means presents to the defendant the particular offense with which he is charged. If he had not done this, but had relied on his own positive verification of the information, the judgment of conviction on the second count would not have been open to the objection made. But his positive verification is based upon and justified by the sworn statement of Ellixson, incorporated into and made a material part of the information, and hence the information charges the particular offense of selling to Ellixson as detailed in the sworn statement. It is shown conclusively by the record that at the time the information was filed neither Ellixson nor the county attorney had any notice or knowledge of the sale to Hilligoss. Ellixson does not make any statement of such a sale in his examination. The county attorney, in November, makes a motion to have the name of Hilligoss indorsed on the information, for the reason that the knowledge that Hilligoss would swear to an illegal sale had just come to his knowledge. So that it appears that, at the time the information was filed, notice or knowledge of the sale to Hilligoss was not had or possessed either by Ellixson or the county attorney. Apart from the reasons given by Mr. Justice Valentine in the Brooks case, if we permit this practice we would encourage county attorneys to file a bill of particulars against a defendant, and at the trial prove an entirely different offense; one of which the defendant had no notice or no time to prepare a defense.
The other reasons urged for a reversal need not be considered. The judgment must be reversed, and a new trial granted. The county attorney can obviate this objection by filing another information, if the offense is not barred by the statute of limitation.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action brought by Johnson & Williams upon a fire insurance policy issued by the Dwelling-House Insurance Company. In their petition they set forth the contract of insurance, the payment of the premium, the destruction by fire of some of the property insured, on December 26, 1886‘; that the loss sustained was $1,600, and that the company had refused to pay the loss, although the plaintiffs had performed all the conditions of the policy incumbent upon them. The defendant answered, admitting the execution of the policy, but alleging a breach of the condition of the same in regard to incumbrances. The company averred that in the written application for insurance, upon the faith of which the policy was issued, Johnson & Williams represented and declared that they were the absolute owners of the property sought to be insured, and that their property was unincumbered, when in fact there was upon the property at the time of the execution of the policy a mortgage lien and incumbrance; and it alleged that there was a provision of the policy to the effect that if the interest of the insured in the property was, at the time of the execution of the policy, or should become, any other dr less than a perfect legal and equitable title, free from all liens whatever, except as stated in writing upon the policy, then the policy should be absolutely void. It was further alleged that the insured, without the knowledge or consent of the company, and in violation of the provisions of the policy, executed and delivered another mortgage upon the property, after the execution of the policy, and before the loss occurred. The reply of Johnson & Williams was a denial of the foregoing facts alleged in the answer. The trial resulted in a verdict and judgment against the company, and it complains of the ruling of the court in admitting testimony and in instructing the jury.
On the trial the plaintiffs below were permitted to offer proof tending to establish a waiver of the condition of the policy respecting incumbrances, and such as would estop the company from urging the forfeiture against a recovery on the policy. It is undisputed that at the time the contract of insurance was made there was a mortgage of $3,500 upon the property insured, and it had not been discharged when the loss occurred. Testimony was given, over objection, that the agent wrote the answers in the application respecting incumbrances after it had been signed by the assured, and also tending to show that the agent knew of the existence of the mortgage when the contract of insurance was made. The court instructed the jury that—
“As the local agent might by contract indorsed on the policy have waived the answer to the questions with respect to incumbrances, or might have waived the condition concerning the mortgage, so he may, by acts and conduct of dealing with the assured, do that which amounts to such waiver.”
Testimony was also introduced concerning a settlement made by one Peck, an adjuster of the company, shortly after the fire occurred, by which it was agreed between the insured and the adjuster that, if a reduction of $112 was made from the amount claimed, the loss would be paid at once. In respect to this defense the court charged the jury:
“If you find from the evidence that, after the loss by fire of the insured property, on or about January 22, 1887, Peck, the adjuster of the company defendant, went on the plaintiffs’ premises and assisted the plaintiffs to make the proof of loss, and that said adjusting agent had full knowledge of the mortgage on the premises of the plaintiffs, if there was a mortgage, and that said adjusting agent of defendant, with full knowledge of all the facts, agreed with the plaintiffs, as a final settlement of the loss, to pay plaintiffs the sum of $1,488, as such settlement, and that the plaintiffs agreed with the adjusting agent of defendant to accept $1,488 in full satisfaction of the loss under this policy, then the parties should stand by this settlement, and your verdict.should be for the plaintiffs for $1,488, with interest at 7 per cent, from the time this sum was made payable by the agreement of the parties, if you find there was such agreement entered into.”
It is said that the amount named in the verdict of the jury corresponds with the amount mentioned by the court in its instruction. It is insisted that this evidence and these instructions are not within the issues or warranted by the pleadings in the case, and we are forced to that conclusion. The conduct and acts of the agent and the adjuster relied on as a waiver form an important condition of the contract, and, to estop the company from claiming a forfeiture, should have been specially pleaded, and the same may be said respecting the compromise and settlement which has been referred to. This was new matter, which should have been set forth in the reply with frankness and certainty, so that the company could have been prepared to meet the issues with its proof. As the issues were framed, the company had no notice that the assured would make any claim of waiver or estoppel. They set up in their petition, the contract, the loss, and the refusal of payment. The company answered that certain conditions of the contract had been broken, and hence no recovery could be had. The assured replied by a mere denial, which was nothing more than to say that no breach had occurred. It gave no intimation that the assured admitted the existence of an incumbrance, but insisted that the company was estopped to take advantage of a forfeiture. The condition alleged to have been broken was an important one. In respect to it, the court charged the jury that a breach of the same would render the policy void and defeat a recovery, unless the company was estopped by its own acts or had waived the warranty given by the assured. If the acts of waiver and estoppel had been pleaded, there was sufficient testimony produced by plaintiffs below to warrant the instructions given by the court. Undoubtedly an agent clothed with the authority or apparent authority of the agent in this case may waive the conditions and stipulations in the policy, and might also by his knowledge and acts estop the company from availing itself of a breach of condition or a forfeiture in certain cases. The evidence given to the jury on this subject, however, did not controvert the truth of the defense pleaded by the company, but practically admitted it, and then assigned reasons why the company should not be permitted to avail itself of such a defense. It is uniformly held that a waiver or estoppel must be specially pleaded before evidence to establish the same can be admitted. Under our code, the facts relied upon as a ground of action or defense must be clearly and concisely stated and a definite issue presented, so that the opposite party may not be taken by surprise upon the trial, but may be fairly notified of what he is required to meet. The new matter introduced in this case was not put in issue by the pleadings, and the company may, as it alleges, have been taken by surprise and wholly unprepared with its proof to contest the new issue. Neither the evidence introduced nor the instructions based taereon are warranted under the pleadings as they exist, and before they can be properly re-•i.i i ,t ii * , . ceived the reply must be amended. As tending to sustain this conclusion, we cite Insurance Co. v. McLanathan, 11 Kas. 533; Railroad Co. v. Grove, .39 id. 731; Railroad Co. v. Inwin, 35 id. .286; Insurance Co. v. Hutchins, 53 Tex. 61; Hayes v. Mut. Pro. Ass’n, 76 Va. 225; Lumbert v. Palmer, 29 Iowa, 104; Northrup v. Insurance Co., 47 Mo. 435; Warder v. Baldwin, 51 Wis. 450; Delphi v. Startzman, 104 Ind. 343; Phillips v. Van Schaick, 37 Iowa, 229; Dale v. Turner, 34 Mich. 405; Pom. Rem., §§556, 590, 661.
Error is assigned on the refusal of the court to permit an amendment of the answer just before entering upon the trial. The facts set forth in the proposed amendment constituted a defense, but the record fails to show any sufficient reason for the delay in presenting this defense, and, as the matter of amendment at that stage of the proceeding is largely within the discretion of the court, we cannot hold the ruling to be a reversible error. As there must be a new trial of the case, an opportunity will be given to both parties to amend their pleadings, and the objections suggested can thus be overcome.
We find nothing more in the record that requires attention, but the errors mentioned compel a reversal of the judgment and the granting of a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The substantial question involved in this controversy is, whether the plaintiff below, L. H. Kemper, may recover from the defendant below, C. M. Condon, the sum of $500 as agreed and liquidated damages, or whether he can recover only the amount of his actual loss or damage resulting from the breach of the contract sued on, which amount, according to the facts of the case as presented to us, cannot exceed $100. The contract upon which Kemper seeks to recover contains the following among other stipulations:
“ It is mutually agreed between said parties that a failure on the part of said Condon to perform these obligations shall entitle said Kemper to recover from him the sum of $500 as liquidated and ascertained damages for the breach of this contract.”
It will be seen that the parties themselves have used the words “liquidated and ascertained damages,” but nearly all the authorities agree that neither these words nor any other words of similar import are conclusive, but that the amount named, notwithstanding the use of such words, may nevertheless be nothing more than a penalty. Some of such authorities are the following: ■
Lampman v. Cochran, 16 N. Y. 275; Ayres v. Pease, 12 Wend. 393; Hoag v. McGinnis, 22 id. 163; Beale v. Hayes, 5 Sandf. 640; Gray v. Crosby, 18 Johns. 219; Jackson v. Baker, 2 Edw. Ch. 471; Shreve v. Brereton, 51 Pa. St. 175; Fitzpatrick v. Cottingham, 14 Wis. 219; Fisk v. Gray, 11 Allen, 132; Wallis v. Carpenter, 13 id. 19; Ex parte Pollard, 2 Low. 411; Bayse v. Ambrose, 28 Mo. 39; Carter v. Strom, 41 Minn. 522; same case, 43 N. W. Rep. 394; Schrimpf v. Mfg. Co. 86 Tenn. 219; Haldeman v. Jennings, 14 Ark. 329; Davis v. Freeman, 10 Mich. 188; Hahn v. Horstman, 12 Bush, 249; Low v. Nolte, 16 Ill. 475; Kemble v.Farren, 6 Bing. 141; Davies v. Penton, 6 Barn. & C. 216; Horner v. Flintoff, 9 Mees. & W. 678; Newman v. Capper, 4 Ch. Div. 724.
Of course, the words of the parties with respect to damages, losses, penalties, forfeitures, or any sum of money to be paid, received or recovered, must be given due consideration; and, in the absence of anything to the contrary, must be held to have controlling force; but when it may be seen from the entire contract, and the circumstances under which the contract was made, that the parties did not have in contemplation actual damages or actual compensation, and did not attempt to stipulate with reference to the payment or recovery of actual damages or actual compensation, then the amount stipulated to be paid on the one side, or to be received or recovered on the other side, cannot be considered as liquidated damages, but must be considered in the nature of a penalty, and this even if the parties should name such amount “liquidated damages.^ The following text-books upon this subject may be examined with much profit: 1 Sedg. Dam. (8th ed.), ch. 12, §§389-427; 1 Suth. Dam., ch. 7, §6, pp. 475-530; 13 Am. & Eng. Encyc. of Law, pp. 857 — 868; 1 Pom. Eq. Jur., §§440 — 447; 3 Pars. Cont., §2, pp. 156 — 163. The text-books upon this subject unite in saying that the tendency and preference of the law is to regard a stated sum as a penalty instead of liquidated damages, because actual damages can then be recovered, and the recovery be limited to such damages. (1 Suth. Dam., p. 490; 13 Am. & Eng. Encyc. of Law, pp. 853, 86Ó.) The decisions of this court are also in this same line. The only decisions of this court upon the subject of liquidated damages are the following: Kurtz v. Sponable, 6 Kas. 395; Foote v. Sprague, 13 id. 155; St. L. & S. F. Rly. Co. v. Shoemaker, 27 id. 677; Heatwole v. Gorrell, 35 id. 692. We are satisfied with the foregoing decisions of this court, but they do , not go to the extent of controlling the decision in the present case. The last case cited is supported by the following additional cases: Davis v. Gillett, 52 N. H. 126; Caswell v. Johnson, 58 Me. 164; Burrill v. Daggett, 77 id. 445.
In 1 Sedgwick on Damages (8th ed.), the following, among other language, is used:
“From the foregoing we derive the following as a general rule governing the whole subject: Whenever the damages were evidently the subject of calculation and adjustment between the parties, and a certain sum was agreed upon and intended as compensation, and is in fact reasonable in amount, it will be allowed by the court as liquidated damages.” (Section 405.)
“And here we are brought back by a somewhat circuitous path to the great fundamental principle which underlies our whole system — that of compensation. The great object of this system is to place the plaintiff in as good a position as he would have had if his contract had not been broken. So long as parties themselves keep this principle in view, they will be allowed to agree upon such a sum as will probably be a fair equivalent of a breach of contract. But when they go beyond this, and undertake to stipulate, not for compensation, but for a sum out of all proportion to the measure of liability which the law regards as compensatory, then the law will not allow the agreement to stand. In all agreements, therefore, fixing upon a sum in advance as the measure or limit of liability, the final question is, whether the subject of the contract is such that it violates this fundamental rule of compensation. If it does so, the sum fixed is necessarily a penalty. If it does not do so, the question arises, as in any other contract, as to what agreement the parties have actually made, and here, as in all other cases, their intention, as ascertained from the language employed, is a guide.” (Section 406.)
“Where the stipulated sum is wholly collateral to the object of the contract, being evidently inserted merely as security for performance, it will not be allowed as liquidated damages.” (Section 410.)
“Whenever an amount stipulated is to be paid on the nonpayment of a less amount, or on default in delivering a thing of less value, the sum will generally be treated as a penalty.” (Section 411.)
“Whenever the stipulated sum is to be paid on breach of a contract of such a nature that the loss may be much greater or much less than the sum, it will not be allowed as liquidated damages.” (Section 412.)
“A sum fixed as security for the performance of a contract containing a number of stipulations of widely different im portance, breaches of some of which are capable of accurate valuation, for any of which the stipulated sum is an excessive compensation, is a penalty.” (Section 413.)
“If the contract is one in which the measure of damages for part performance is ascertainable, and a sum is stipulated for breach of it, this sum will not be allowed as liquidated damages in case of a partial breach.” (Section 415.)
In 1 Pomeroy on Equity Jurisprudence, the following language is used:
“Where an agreement contains provisions for the performance or non-performance of several acts of different degrees of importance, and then a certain sum is stipulated to be paid upon a violation of any or all of such provisions, and the sum will be in some instances too large, and in others too small a compensation for the injury thereby occasioned, that sum is to be treated as a penalty and not as liquidated damages. This rule has been laid down in a somewhat different form, as follows: Where the agreement contains provisions for the performance or non-performance of acts which are not measurable by any exact pecuniary standard, and also of one or more other acts in respect of which the damages are easily ascertainable by a jury, and a certain sum is stipulated to be paid upon a violation of any or of all these provisions, such sum must be taken to be a penalty.” (Section 443.)
“Whether an agreement provides for the performance or non-performance of one single act, or of several distinct and separate acts, if the stipulation to pay a certain sum of money upon a default is so framed, is of such a nature and effect that it necessarily renders the defaulting party liable in the same amount at all events, both when his failure to perform is complete and when it is only partial, the sum must be regarded as a penalty and not as liquidated damages.” (Section 444.)
In 1 Sutherland on Damages, the following, among other language, is used:
“While no one can fail to discover a very great amount of apparent conflict, still it will be found on examination that most of the cases, however conflicting in appearance, have yet been decided according to the justice and equity of the particular case.” (Page 478.)
“To be potential and controlling that a stated sum is liquidated damage, that sum must be fixed as the basis of compen sation and substantially limited to it; for just compensation is recognized as the universal measure of damages not punitory. Parties may liquidate the amount by previous agreement. But when a stipulated sum is evidently not based on that principle, the intention to liquidate damages will either be found not to exist, or will be disregarded, and the stated sum treated as a penalty. Contracts are not made to be broken; and hence, when parties provide for consequences of a breach, they proceed with less caution than if that event was certain, and they were fixing a sum absolutely to be paid. The intention in all such cases is material; but to prevent a stated sum from being treated as a penalty, the intention should be apparent to liquidate damages in the sense of making just compensation; it is not enough that the parties express the intention that the stated sum shall be paid in case of a violation of the contract. A penalty is not converted into liquidated damages by the intention that it be paid; it is intrinsically a different thing, and the intention that it be paid cannot alter its nature. A bond, literally construed, imports an intention that the penalty shall be paid if there be default in the performance of the condition ; and formerly that was the legal effect. Courts of law, now, however, administer the same equity to relieve from penalties in other forms of contract as from those in bonds. The evidence of an intention to measure the damage, therefore, is seldom satisfactory when the amount stated varies materially from a just estimate of the actual loss finally sustained.” (Pages 480, 481.)
See also, especially, 3 Parsons on Contracts (16th ed.), page 156, et seq.
Many courts hold that the intention of the parties must govern, but say that if the damages stipulated to be paid, received or recovered on the breach of the contract are out of proportion to the actual damages that might be sustained, then that the parties could not in fact have intended liquidated damages but merely a penalty, whatever their language might be. Other courts hold that it makes no difference what the intention of the parties might be; that the nature of the contract itself must govern; and if the amount stipulated to be paid, received or recovered is out of all proportion to the actual damages that might be sustained, then that such amount must be treated as a penalty, whatever may have been the intention of the parties; that in fact, and in the very nature of things, such amount would be a penalty, and could not be anything else; that the parties could not by misnaming the amount and calling it liquidated damages make it such. In this connection, the following language of Judge Christiancy, who delivered the opinion of the court in the case of
“Again, the attempt to place' this question upon the intention of the parties, and to make this the governing consideration, necessarily implies that, if the intention to make the sum stipulated damages should clearly appear, the court would enforce the contract according to that intention. To test this, let it be asked whether, in such a case, if it were admitted that the parties actually intended the sum to be considered as stipulated damages, and not as a penalty, would a court of law enforce it for the amount stipulated? Clearly, they could not, without going back to the technical and long-exploded doctrine which gave the whole penalty of the bond, without reference to the damages actually sustained. They would thus be simply changing the names of things, and enforcing, under the name of stipulated damages, what in its own nature is but a penalty. The real question in this class of cases will be found to be, not what the party intended, but whether the sum is, in. fact, in the nature of a penalty; and this is to be determined by the magnitude of the sum, in connection with the subject-matter, and not at all by the words or the understanding of the parties. The intention of the parties cannot alter it. While courts of law gave the penalty of the bond, the parties intended the payment' of the penalty as much as they now intend the payment of stipulated damages; it must, therefore, we think, be very obvious that the actual intention of the parties, in this class of cases, and relating to this point, is wholly immaterial; and though the courts have very generally professed to base their decisions upon the intention of the parties, that intention is not, and cannot be, made the real basis of these decisions. In endeavoring to reconcile their decisions with the actual intention of the parties, the courts have sometimes been compelled to use language wholly at war with any idea of interpretation, and to say ‘that the parties must be considered as not meaning exactly what they say.’ (Horner v. Flint off, 9 Mees. & W. 678, per Parke, B.) May it not be said,' with at least equal propriety, that the courts have sometimes said what they did not exactly mean?”
And in the case of Myer v. Hart, 40 Mich. 517, 523, the supreme court of Michigan held as follows:
“Just compensation for the injury sustained is the principle at which the law aims, and the parties will not be permitted, by express stipulation, to set this principle aside.”
We might quote further from the text-books and the reported cases, but we think the foregoing is sufficient; and from the foregoing it certainly follows that the plaintiff below, Kemper, cannot “recover” “the sum of $500 as liquidated and ascertained damages for the breach of this contract,” notwithstanding such is the language of the contract. If the defendant, Condon, had removed the building situated on lot 6 three feet north, and had then put the same in as good condition as it was before, he would have so completed his contract that not one cent of damage could be recovered from him; and to so remove such building and to put it in as good condition as it was before would not have cost to exceed $100. But suppose that Condon had removed the building, and then had failed to put the same in as good condition as it was before : he would have committed a breach of the contract, but the actual damages might not have been $25. Then should the plaintiff, Kemper, recover the said sum of $500? Or suppose that Condon had removed the house and attempted to put it in as good condition as it was before, but had failed to repair a lock or a small portion of the plastering, or a broken window, which repairing might not have cost $1: then should Kemper have the right to recover the said sum of $500 ? All this shows that the parties did not have in contemplation the matter of actual compensatory damages when they stipulated that Kemper might rec0ver $500 from Condon as liquidated and ascertained damages in case of a breach of the contract, but shows that in fact, though not in words, they fixed the sum of $500 as a penalty to cover all or any damages which might result from a breach of the contract.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
In this action Emaline Hopkins obtained a judgment against S. D. Hopkins for $700, which judgment was declared a lien against certain real estate, the legal title of which was in S. D. Hopkins. He complains, and his proceeding in this court is based on a transcript of the record. The errors assigned are mainly those arising only upon the evidence and the rulings during the trial. Although what purports to be the evidence is attached to the petition in error, and certified to by the official stenographer and the clerk of the district court as being full and correct, it is not preserved either by a bill of exceptions or a case-made. For this reason, neither the evidence nor the proceedings of the trial which form no part of the record can be considered.
It is urged that the court erred in permitting plaintiff below to file a reply out of time. It appears a reply was filed a few days beyond the time allowed by the code, and the court on application struck the reply from the files, but at once set aside the default and authorized the filing of another reply imstanter. The trial did not occur, however, until about one year after the setting aside of the default and .the filing of the reply, and hence the plaintiff in error could not have suffered any prejudice by the ruling. The matter of setting aside defaults and permitting pleadings to be filed out of time largely rests in the discretion of the trial court, and its rulings thereon will not be disturbed unless there is a clear abuse of discretion. (Spratley v. Insurance Co., 5 Kas. 155.) There was no such abuse in this case, and there are no errors apparent on the face of the record.
Judgment affirmed.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action in replevin, commenced in the district court of Pottawatomie county by the defendant in error, to recover certain cattle. It seems from the evidence that John Wall was indebted to the plaintiffs in error in the sum of $500, which had been secured by a chattel mortgage. On the 16th day of August, 1887, Wall executed a renewal note for such indebtedness in the sum of $624.35, and, it is claimed by the plaintiffs in error, at the same time secured the same by giving a chattel mortgage upon the cattle in controversy. It was claimed by the plaintiff below that he purchased these cattle of Wall on the 18th day of November, 1887. On the 17th day of February, 1888, the plaintiffs in error, through C. E. Morris as their agent, went to the premises of the defendant in error and took possession of the cattle, but left them in the custody of the defendant in error, upon his executing a paper of which the following is a copy:
“ REDELIVERY BOND.
“ Whereas, on the 17th day of February, 1888, came W. A. Allen and son, by their agent, C. E. Morris, sheriff of Pottawatomie county, with a certain chattel mortgage given by John Wall to W. A. Allen'& Son on 74 head of cows and calves, to secure the payment of a certain promissory note for $624.35, the same being past due and unpaid, now the said Morris takes possession of 29 head of cows and 30 head of yearlings and two-year-olds next spring; and whereas I, C. E. Morris, turned said cattle over to F. P. Gardner to keep for him, the said F. P. Gardner agrees to deliver to the said Morris, on demand, the above-named cattle, or pay him $775, or enough thereof to pay the above-named note and all costs that may accrue. (Signed) F. P. Gardner,
D. R. Roundtree.”
The defendant in error afterward demanded possession of the cattle from Morris, which was refused, and on the 2d day of March, 1888, commenced this action. The plaintiffs in error answered by general denial, and alleged that they had a special ownership in the cattle by virtue of a chattel mortgage. The plaintiff below denied the execution of this chattel mortgage. A trial was had before a jury, and a verdict and judgment rendered in favor of the plaintiff below for a return of the property. The plaintiffs in error ask a reversal, for two reasons: First, that the plaintiff below was estoppéd from claiming title to the stock as against the defendants, under the agreement entered into; that the instructions of the court failed to present the effect of this contract, and that the instruction upon such contract was erroneous; second, that the trial court erred in allowing a witness to write his name in the presence of the court and the jury and admitting the same as evidence. Upon the trial of the case, the real controversy seemed to have been the question of the genuineness of the chattel mortgage under which the plaintiffs in error claimed title to the cattle. The evidence was mainly directed to that one question. It was in evidence that the plaintiff below signed an agreement with the sheriff to keep the stock until the question of the ownership was settled. We cannot tell from the record who obtained possession of the property, but it does appear from a finding of the court. that at the commencement of the action the property described in the petition was in the possession of the defendants, and that they still retained such possession at the time the verdict was rendered; and the judgment of the court was, that the plaintiff should have a return of the property replevied in the action, then in the possession of the defendants, or in default thereof, a money judgment for $1,185 and costs. There was no objection to the finding of the court as to the possession of the stock. Upon this state of facts, we do not think any material error was committed by the trial court in sustaining the verdict of the jury. The case seemed to have been tried by both parties upon the theory that the defendants below had the possession of the stock, and the court so found, and we do not feel justified in disturbing such finding now. . It is true as a general rule that a bailee receiving goods from his bailor cannot set up title in himself at the time of the bailment for the purpose of defeating a recovery by the bailor; (Thompson v. Williams, 30 Kas. 114;) but that question was not properly raised in the court below, and we do not think it should be now considered here for the first time.
The court instructed the jury that if the plaintiff willingly surrendered the cattle to the defendants, believing that they were being taken under the chattel mortgage, he would be estopped from afterward setting up any claim of ownership to the cattle; but if the jury should believe at the time he did surrender the cattle he believed that the agent of the defendants was taking the property under a legal process, and also surrendered them because he believed that the agent of the defendants was taking them as sheriff, then the plaintiff would not be estopped from setting up an ownership to the cattle after that time. We think, in the light of all the facts sur rounding the case, this instruction was a proper one for the jury-
The second assignment of error is, that the court- permitted John Wall, over the objection of the defendants, to write his name in the presence of the jury, for their inspection and comparison with the signature to the chattel mortgage which the plaintiff claimed was forged. This became harmless error by the subsequent cross-examination of this witness. The witness was asked to write his name upon a table, standing, in the presence of the court and jury, and the signature so written was introduced in evidence by the defendants. Having adopted the same method as that of the plaintiff to test the genuineness of the witness’s signature, we do not think the defendants can now be heard to complain of the introduction of such evidence. The judgment of the trial court should be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
Biglow Bros, brought an action in the district court of Finney county on the 23d day of June, 1886, on an account against Hillyer & Green and their assignee, Gibson. The action was commenced before the debt was due, and an attachment was sought under § 230 of the code. On the 28th day of June, an affidavit for attachment was filed, and a praecipe for a summons, and on that day a summons was issued, and returned on July 2d, served personally. On the 28th day of June, 1886, an undertaking in attachment was filed and approved by the probate judge of Finney county, and there was also filed with the probate judge an affidavit for an attachment. The clerk of the district court of Finney county issued an order of attachment on the 28th day of June, 1886, and on the same day the probate judge issued an order of attachment in this action. The record shows a service of the order of attachment issued by the probate judge, but it was returned to and filed with the clerk of the district court. On the 21st day of July, 1886, Hillyer & Green and Gibson filed a motion to dissolve the attachment, for the reasons that the allegations in the affidavit are not true; that they have not assigned or disposed of, nor are they about to dispose of their property, or any part thereof, with intent to defraud, hinder or delay their creditors; and that they have not sold, conveyed or otherwise disposed of their property, with the fraudulent intent to cheat or defraud, hinder or delay their creditors in the collection of their debts; and that said deed of assignment to Gibson was and is not fraudulent; that no attachment bond, as required by law, had been filed at the time the order of attachment was issued; that no order of attachment, as required by law, had be$n issued; that the order granting an attachment was made by the district court of Finney county, and not by the judge thereof, or the probate judge of Finney county. When this motion was heard at chambers by the judge of that judicial district, the plaintiffs below, by agreement of parties, were granted leave to amend their affidavit for attachment so as to show that the judge of the district court was absent from Finney county when said affidavit was made, and it was amended so as to read that—
“ Said Hillyer & Green have assigned, removed and disposed of, and are about to dispose of their property, with the intent to hinder, delay and defraud their creditors, and that Hillyer & Green have sold, conveyed and otherwise disposed of their property, with the fraudulent intent to cheat and defraud their creditors, and hinder and delay them in the collection of their debts.”
The judge then overruled the motion to dissolve the attachment, but held that the defendants Hillyer & Green could not be heard on the motion to dissolve the attachment. Gibson appeared by his attorneys, entered a general appearance, and was given leave to join in the motion to dissolve. The defendants filed an answer. On the 14th day of May, 1887, during the regular term of the district court of Finney county, by agreement of parties, J. C. Kitchen, who had become the assignee of Hillyer & Green, was substituted as a party, in place of Gibson. On that day Kitchen filed his motion to dissolve the attachment and set aside the levy made under it. On the 2d day of June, 1887, the plaintiffs below applied for a change of venue, because the then judge had been of counsel in the cause, and the action was sent to Barton county for further proceedings. On the 29th day of November, 1887, the original papers were filed in the Barton county district court. At the February term, 1888, of the Barton county district court the plaintiffs below filed a motion to strike Kitchen’s motion to quash the order of attachment and set aside the levy from the files, on the ground that no leave was obtained to file the same. This motion was sustained. Hillyer & Green and Kitchen then filed a motion to dismiss the cause for the reasons that the court had no jurisdiction to render a judgment; the action was commenced on a debt not then due, and no attachment was ever issued or granted in the case; no affidavit was filed that authorized the issue of an order of attachment, and because no application was ever made to the district judge, or to the probate judge for an order granting a writ of attachment, and because no bond for costs was ever filed. This motion was overruled. At the October term, 1888, of the district court, a jury was waived and the cause tried by the court. The defendants below objected to the introduction of any evidence, because the petition does not state a cause of action. This objection was overruled. The defendants Hillyer & Green then admitted that the account was correct as shown in the petition and exhibits, and that they were indebted as set forth. The plaintiffs below then rested. The defendant Kitchen demurred separately to the evidence, and the plaintiffs asked the court not to render judgment against him, but only to sustain the attachment. Defendants Hillyer & Green demurred separately to the evidence, and this was overruled. Hillyer & Green then offered to read in evidence the file papers, to show that no attachment was ever issued, and for other purposes, and this was objected to, and the objection sustained. Thereupon, on the demand of Hillyer & Green, the trial court made some special findings, as follows;
“The court finds in this case that this action was brought upon a debt not due, and an order of attachment obtained against the property of the defendánts Hillyer & Green. And afterward said Hillyer & Green moved to dissolve and discharge the said attachment, which motion was heard at chambers before Hon. J. C. Strang, judge of the sixteenth judicial district, in which said action was originally brought, and that the question of jurisdiction was raised in said motion, and that said motion was overruled, and that this cause was afterward sent to this county and district on change of venue. The court finds that this question of jurisdiction could have been lawfully passed upon by said Strang, judge, at chambers, and that it was so passed upon by him. And the court further finds that the debt is now due, and that the defendants Hillyer & Green are indebted to plaintiffs upon their demand sued on in this action in the sum of $2,227, and that the question, of the legality of the order of attachment and proceedings thereunder have been fully determined by said Judge Strang, and cannot be again raised upon the trial by this court.”
Hillyer & Green then filed a motion to dissolve the attachment, and this was overruled. They then filed a motion for a new trial, and this was overruled, and the court rendered a final judgment against Hillyer & Green for the sum of $2,-227.11 and costs,'and adjudged and decreed that the attachment be in all things confirmed and sustained, and made an order for the sale of the attached property, both real and personal, and an application of the proceeds of the sales. To all of the orders and judgment proper exceptions were saved, except that no exceptions were noted to the ruling of the judge made on the 22d day of July, 1886, sustaining the order of attachment. Hillyer & Green bring the case here for review, and strongly insist that various alleged errors should cause a reversal. The errors assigned will be considered in the order stated in the briefs.
I. It is first contended by the attorneys of the plaintiffs in error that the district court of Barton county erred in striking from the files the motion of Kitchen to quash the attachment issued by the probate judge of Finney county. Kitchen, by the agreement of parties, had been made a party, because he had succeeded Gibson as statutory assignee of Hillyer & Green. Gibson had made this same motion when he was assignee, and it was overruled, and such a motion could not be again made and heard without leave of the court. This is familiar practice. The motion of Kitchen was stricken from the files because no such leave had been applied for or granted. There was no error in this ruling.
II. The next four assignments of error are based upon the theory that the order of attachment was absolutely void because issued by the probate judge. The record shows that the clerk of the district court also issued an order of attachment, and both orders of attachment were delivered to the sheriff; but he made his return on the one issued by the probate judge, and this was the only irregularity in the whole proceeding. Hillyer & Green and Kitchen were duly served with process and made a general appearance in the case, and filed a motion to dissolve the attachment, on the ground that all the averments in the affidavit filed for attachment were false. This motion was heard at chambers and overruled, and by this ruling it was established that all the facts necessary to give the court jurisdiction in a case of this kind existed at the time the attachment issued. While such a ruling may not be said to be strictly res adjudicatei, nevertheless it is uni versally held to be the law of the case in which it is made for all the purposes of trial and final determination. In this motion to dissolve the order of attachment, no complaint or allegation is made that it was irregularly issued and served. The jurisdictional facts having been established by the ruling of the first motion to dissolve the attachment, and nothing being claimed in that motion as to the irregularity of the issue and service of the order, it was waived. No exceptions were saved to the ruling of the court on the motion to dissolve, and hence we cannot review that order. The record showing the existénce of the jurisdictional facts in cases of this kind, and showing a general appearance of the defendants in the original action, and showing the overruling of a motion to dissolve the attachment, it seems to us that all the other assignments of error are not controlling, as complete jurisdiction had been obtained by the usual process.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The evidence in the case is not preserved, but the record contains a short statement of what the evidence offered by the parties tended to show, and that is sufficient to raise the questions which the plaintiff desires to present upon the testimony and findings.. Complaint is first made of the refusal of instructions requested, as well as the giving of instructions which were objected to. While a general complaint is made, the plaintiff fails to indicate what the specific objections are, or to point out wherein the rulings are deemed by him to be erroneous.
The charge given appears to embody all material and correct instructions that were requested, and to fairly present the case to the jury. One request which raises the same question as is raised upon the findings was, that if the jury found that the purpose of the defendant in bringing the prosecution was to prevent the plaintiff from building a house, then such a prosecution was without probable cause. This instruction was modified by the court. After defining the offense of malicious trespass, and what facts would be sufficient to constitute probable cause for the institution of a prosecution therefor,, the court charged that, “if said prosecution was instituted merely to prevent the plaintiff herein from erecting a building on the lot in controversy, such fact would not constitute probable cause for commencing the prosecution.” This was a proper modification. If the sole purpose of the prosecution was to prevent the erection of a building, it would not have been justified. The construction of the house, however, appears to have involved the digging and preparation of a foundation, and hence the defendant may have desired not only to prevent the erection of a building, but also intended to prosecute and prevent the offense which had been committed, and the further commission of the same. Evidence was given tending to show that the defendant notified the plaintiff that the lot upon which he was digging and from which he was removing clay and dirt belonged to him, and warned him against further trespassing there; but, notwithstanding this warning, he refused to quit work, and further continued to trespass upon the defendant’s property. There was also testimony that the defendant before he commenced the prosecution counseled with attorneys, and after presenting them with a full statement of all the facts, they advised him that the plaintiff was guilty of the offense and that the prosecution could be maintained. Acting on their advice, he, in good faith and without malice, believing the action could be maintained, and that there was probable cause for making the charge, began the prosecution. And if there was probable cause for commencing the prosecution, and he, acting upon the advice of attorneys, in good faith believed there was probable cause, and if in good faith and without malice he caused the arrest and prosecution of the defendant, the fact that he may also have desired to prevent the construction of the building upon the lot would not entitle the plaintiff to recover. On the other hand, if his sole purpose was to prevent the erection of a building, or the mere enforcement of a civil right, then the arrest and prosecution would be without probable cause, for which the defendant would be liable.
In one of the findings returned by the jury, it is stated that the object of the defendant was to prevent the plaintiff from erecting a building on his land; and the plaintiff contends that this finding entitled the plaintiff to a recovery. The finding, however, when construed in connection with the others returned by the jury, shows that this was not the only object of the defendant in beginning the prosecution, but that he acted in good faith and without malice in the institution of the prosecution. It is found that he had reasonable grounds to believe that the plaintiff had committed the offense charged; that he acted upon the advice of his attorneys, after a full consultation and a statement of all the material facts, and that he relied upon the advice of the attorneys in bringing the action; and also that there was probable cause for the commencement of the prosecution. If the findings will fairly admit of an interpretation which will make them harmonious with each other and with the general verdict, that interpretation should be given, rather than one which will overturn and destroy the findings and verdict. (Railroad Co. v. Ritz, 33 Kas. 404; U. P. Rly. Co. v. Fray, 43 id. 750.) The findings may fairly be construed to show that the defendant instituted the prosecution in good faith, to punish the plaintiff for the offense charged against him. Although he desired to prevent the building of a house, he also desired and intended to procure the punishment of a public offense, and to prevent the further commission of the same. The digging up of the clay and dirt, and the removal of the same from the defendant’s land without consent or right, constituted probable cause, and it also constituted a part of the construction of the house. We think the findings may be fairly harmonized with each other and with the general verdict.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, C. J.:
This was an action in mandamus to compel defendant, the mayor of Galena, to sign the salary warrant of the city attorney. The trial court issued a peremptory writ. The defendant has appealed.
The action grows out of a dispute between the mayor of Galena and some members of the council.
The motion for a writ stated that plaintiff was the qualified and acting city attorney of Galena; that at all times G. S. 1949, 14-303, was in effect; that on July 1, 1955, all the warrants for the June salaries of city employees were duly signed by the mayor except for the salary of the city attorney in the amount of $75; that the council passed and approved the appropriation ordinance, including the city attorney’s salary; that the city treasurer and the city clerk signed but the mayor refused to sign it; that plaintiff had no remedy at law and as a matter of right was entitled to his salary and would suffer irreparable damages if the trial court did not order the mayor to sign the warrant. Judgment was asked that a writ issue.
The trial court issued an alternative writ ordering defendant to sign the warrant or show cause why he had not done so.
Defendant answered with first a general denial; then a denial that plaintiff was the city attorney of Galena and a statement that he had not been city attorney since May 4, 1955, when a city attorney duly appointed by defendant took office; that Galena was a city of the second class under the council form of government, consisting of a mayor and a council of ten members; that defendant had been since May 4, 1955, mayor, elected in April, 1955, on the Republican ticket; that at the same election three Republican members were elected and one Democrat and five members of the council were holdovers and one member seeking membership was not lawfully elected. The answer then stated a dispute over certain positions on the council, with which we are not presently interested; that plaintiff was never appointed city attorney by defendant; that plaintiff was not the real party in interest; that since defendant became mayor plaintiff and certain Democratic members of the council conspired together for the purpose of preventing any persons holding office in the city who were the choice of defendant as mayor in order that defendant might resign as mayor and the president of the council become acting mayor and plaintiff continue to draw his salary as city attorney; and at a special meeting called for the purpose of considering appointments five of the Democrat members failed to appear, so there was no quorum. The answer further alleged that the court had no jurisdiction to grant mandamus because the plaintiff had a plain and adequate remedy at law.
The defendant filed a motion for judgment on the pleadings on the ground that the court had no jurisdiction because the subject matter was not one where mandamus would lie; that the action was not properly instituted because the plaintiff sued the defendant as an individual; the pleadings showed the defendant was not indebted to the plaintiff; the pleadings showed wrongful conduct of plaintiff against defendant; because the plaintiff had an adequate remedy at law by civil action to collect any claim he might have against the city; and because the pleadings did not state a cause of action, either in mandamus or otherwise, in favor of plaintiff and against defendant. This motion was overruled.
The plaintiff made an oral motion to strike from defendant’s answer all except the general denial, the admission that Galena was a city of the second class with a council form of government and the admission by defendant that he was the mayor and a second general denial. This motion was sustained.
Thereupon the trial court heard evidence and proceeded to issue a peremptory writ.
The mayor is a Republican. The majority of the councilmen are Democrats. When the mayor took office in May, 1955, plaintiff was city attorney by virtue of having been appointed by the outgoing mayor, a Democrat. (See G. S. 1949, 14-201.) It is the duty of the mayor to appoint, by and with the consent of the council, a city marshal, city clerk, city attorney and city assessor. These officers hold their offices for a year or until their successors are appointed and qualified. Acting pursuant to this statute, the mayor appointed another city attorney but the council refused to confirm. The result was the old city attorney continued in office since his successor did not qualify.
G. S. 1949, 14-304, provides the mayor shall have power to sign or veto any ordinance passed by the city council and that any ordinance vetoed by the mayor may be passed over his veto by a vote of two thirds of the councilmen elected. In this action the appropriation ordinance for June carried an item for salary for Shaw for June in the amount of $75. This ordinance was duly passed by the council and signed by the mayor. Whether the mayor signed or vetoed this ordinance was discretionary with him. That act could not be controlled by mandamus. (See State, ex rel., v. Hannon, Mayor, 38 Kan. 593, 17 Pac. 185.)
G. S. 1949, 14-303, makes it the duty of the mayor to sign all orders and drafts drawn upon the treasurer for money and requires the clerk to attest them. This act enjoined upon the mayor is purely ministerial once the money is appropriated. Such is the case here. The act of signing plaintiff’s salary warrant was ministerial. The trial court did not err in issuing the peremptory writ.
The judgment of the trial court is affirmed.
Fatzer, J., not participating. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action by the guardian of an insane woman •to recover for the wrongful death of his ward’s husband. Defendants’ demurrers to plaintiff’s evidence were sustained. The plaintiff has appealed.
The action was against Berglund, the county attorney of Clay county; Erickson, the sheriff; Roll, the chief of police of Clay Center and Wright, a trooper of the state highway patrol.
The petition after alleging the official character of the defendants alleged that about October 9, 1947, Fletcher William Bush became mentally sick and unable to comprehend his surroundings; that on that day he requested that he be placed in jail, being under the delusion that his life was in danger, and while in jail he felt secure from his imaginary adversaries; that deceased was placed in jail under the custody of Erickson; that the defendants went to the jail without any authority or court order for the purpose of removing Bush from the jail; that Bush remonstrated and resisted efforts to remove him; that defendants acting under their official capacity attempted an immediate eviction of Bush; that in the course of this the defendants and one Mack, a deputy sheriff, acting under the direction of Erickson, fired tear gas into his place of confinement, frightening Bush; that notwithstanding their lack of authority, acting and counseling together, they caused a deadly poison, that is, a refrigerator gas, the exact nature of which was unknown to plaintiff, to be released in the place of confinement of Bush for the purpose of causing him to become unconscious, or to vacate the place of confinement; that Bush was known by defendants to be without reason; that the deadly gas was not measured into the cell and no doctor was present; and such gas was administered in such quantities that the death of Bush was inevitable; that Bush breathed the poisonous gas, as was intended by defendants, and from breathing it died; the defendants dragged the dead body of Bush into the open air, but no preparation had been made for the restoration of Bush, and upon the arrival of a doctor he was pronounced dead; that Bush died from the effects of the poisonous gas, wrongfully administered by defendants.
The plaintiff then alleged that plaintiff was the legal wife of Bush, his estate had not been administered and he left no children and plaintiff was his next of kin. The petition then alleged the history of Bush, with which we are not presently interested, and that plaintiff was deeply in love with her husband, and was damaged by his death.
Judgment was prayed for $15,000 damages. Berglund filed two answers. The first was a general denial except that he admitted he was county attorney of Clay county on the date in question. The second alleged that Bukaty was not the proper party plaintiff and had no standing in court because he never had moved to be substituted; and further that Bush’s death was an accident. Erickson pleaded five defenses. In these he set out what he claimed to be tire story of what happened. These defenses are not important here in view of the final disposition to be made of this case. Wright’s answer was to about the same effect. The same may be said of the answer filed by Roll, the chief of police. The plaintiff filed a denial for reply and Bukaty moved to be substituted. This was allowed.
At the close of plaintiff’s evidence the defendants each demurred to it. These demurrers were all sustained. Hence this appeal.
Plaintiff moved for a new trial on the grounds of abuse of discretion of the trial court, misconduct of the prevailing parties, accident and surprise, order sustaining the demurrers given under the influence of passion and prejudice, and was in whole or in part contrary to the evidence, and erroneous rulings of the trial court. This motion was overruled.
The assignments of error were the court erred in rejection of testimony; in sustaining the demurrers to the evidence and in overruling the motion for a new trial. On the hearing of the motion for a new trial the death certificate was offered and denied.
The testimony disclosed the death of an adult colored man in the Clay county jail. The defendants were all officers of one capacity or another.
John Wolf testified about seeing a colored man go past the hotel between six and seven. He was about six feet tall and wore no shirt. He will be referred to hereafter as Bush.
Roy Webb saw the same man and he had a club about as big as a crutch. He heard Bush say ‘1 will get the sons-of-bitches; I will get them.”
Julian Brenner testified he saw Bush come on down town, told a policeman and they went out to where he was, picked him up in the car, drove down to the jail, and he got out and started in. The man said once he had been shot in the leg and someone had been chasing him all night. This witness saw the club. In his opinion he was insane. He went into the jail voluntarily.
Don Brenner testified to about the same effect with the addition that the man thanked them for bringing him down to the jail.
Dick Sharpies was on the police force at the time in question. He testified that the man told him “Mister, you don’t know me; I am harmless.” He walked into the jail without any trouble. He took him into jail, put him in a cell block and asked him where he was going. He said “They raped my mother and killed her . . .” “And he said there was one officer in the bunch. And then he was telling about getting shot all through his legs. I asked him if we could see the hole and he said ‘Yes.’ He dropped his trousers down and there wasn’t a scratch on him nowhere that we could see.” In his opinion the man was not rational.
Ernest Roll, the chief of police, testified he was told about the large colored man, with a club running around; that he was told by the sheriff a man in jail was making trouble, breaking up the furniture. Bush was standing tip in a cell block with a leg off the table in his hand, not hurting anybody. The sheriff was inside. When they were trying to get the doors closed Bush struck at the sheriff with the table leg. It got between the two doors and they could not be closed. Bush worked around and got the stick out and they locked the door. At that time only the witness Roll, Erickson, Jimmie Mack and Mr. Berglund were there. They were going to try to get him to a doctor or something. But every time they said anything he said “If I get out of here I will kill every one of you sons-of-bitches.” The door was locked at that time. After detailing some conversation between the officers and with Bush this witness testified about shooting some tear gas in and its being ineffectual. They brought a colored man to the jail to talk to Bush. Then Mr. Erickson talked to Laflin about some of the refrigerator gas. When this was mentioned Berglund called Dr. Croson. He saw Laflin connect up a tank of gas. He heard Laflin say he didn’t think it was anything because he had had it shot right in his face. Mr. Berglund called Dr. Croson and asked him if refrigerator gas was poison. He only heard Berglund’s side of the conversation. He did not remember whether Berglund told him what kind of refrigerator gas it was. He saw the gas turned on and heard Bush cough. The gas was sickening.
On cross-examination he testified about Bush attacking the sheriff with the table leg when he went in to the cell block. Erickson and Berglund wanted to take Bush to the state hospital. He heard Berglund say that Dr. Croson said this refrigerator gas was not harmful. He had been to several police schools but they had never taught him the use of the refrigerator gas. Mr. Berglund had made arrangements to take Bush to Topeka. After Bush fell over they took him out of jail. He was not dead when they took him out. They put. handcuffs on him. They tried artificial respiration on him right away and finally got a pulmotor. No arrangements had been made for having a doctor there before they began shooting in the gas. He saw Bush get a mattress and lie down, so he ran around and told the other officers; Bush looked strong and healthy before the gas was turned on. He testified on cross-examination by Mr. Berglund that he did not hear him order anyone to get the refrigerator gas but they all talked about it; that his job was to see when he had keeled over. He heard Berglund say “Wait till I call Dr. Croson.” And he heard him state not to use the gas until he had called Dr. Croson. He testified that he had nothing to do with planning the use of the gas.
James D. Mack testified he was undersheriff; that he saw Mr. Bush in the jail; that the table was all busted up and the legs were on the floor and he was mumbling. Mr. Erickson leaned down to pick up some of the table and Bush had a table leg and rushed to Erickson with it. They got out to the door and locked it. The evidence as to the tear gas and other happenings at the jail was like Roll’s testimony; that if they could have gotten Bush in one of the little cell blocks they would have locked him in there until they could have done something witii him. They had no order from any court; the only reason they could not leave him in jail he was busting it up; that he thought Berglund told him he had talked to the probate judge; that he heard Berglund say “If you will bring him down, we will take care of him.” That he thought Mr. Erickson found some tear gas shells and Mr. Berglund saw Mr. Bush had broken three or four windows on the north and east sides; after they brought him out of the jail they started artificial respiration and they called for a resuscitator; that he and another man went to the hospital and got the one that was there and saw no handcuffs or leg irons about deceased, but when he got back he had handcuffs. He was pronounced dead after the resuscitator had been there and was used. Dr. Croson came while they were using it. He was not trying to injure Bush in any way but thought he could have taken the table and jammed the bars and the wire mesh off the windows and could have killed himself with the glass that was on the floor. Bush was a transient. He had never seen him before. He thought Roll and Erickson had turned the water off in the basement; that after he rushed at Mr. Erickson the second time with the table leg Bush tried to get out of jail but they prevented him by holding the door.
Mr. Wright testified he was a member of the highway patrol at the time and to about the same effect as the other witnesses about what happened at the jail; that he was present when the refrigerator gas was brought in and he heard Mr. Berglund say “I am going to . . . call Dr. Croson and see if this would be O. K.” He did not hear the conversation. He did not know how long they kept the gas on. He had no authority as a highway patrolman to stop them from using the gas. Bush was breathing when they got him out on the porch and when they got him out, then the witness was nauseated and left the scene. He thought the gas used was ammonia. In talking they merely referred to it as refrigerator gas. Nobody’s actions indicated they wanted to hurt Bush. In his opinion it would have been possible for Bush to have killed himself with the stuff that was in the jail.
Don Laflin was engaged in the refrigerator business. He testified the refrigerator gases in normal use are the Freons, the methyl chlorides, ammonia and sulfur dioxide. They are in drums and carry a label; stamped on this particular drum were the words “sulfa dioxide.” Mr. Erickson asked if this particular gas was poisonous and he answered “I wouldn’t say I would recommend it.” Erickson wanted him to bring some over to the jail. He brought a small drum, a roll of tubing and a wrench. He stated all gas is measured by weight only. It is liquid under pressure. This container only contained one pound of liquid. He had to get a second container. He used about three pounds altogether. He testified from the time the first shot was put in and the last amount was roughly twenty minutes. It immediately vaporizes when it comes out of the container. He mentioned to Mr. Erickson to start with to call a doctor and they got word back it would not hurt. “That’s the only thing I know.” There was no conversation about this particular gas. He said he wasn’t qualified to say whether it was poison. He was asked to place a tube on the drum and turn it off and on. When the first tank ran out of gas he asked me to get another one. He did not open it completely. He thinks perhaps there was gas going in there about ten minutes altogether the second time. When somebody said Bush fell I shut the drum off completely. The deceased had handcuffs on at one time but he did not see them. When Erickson came over to ask him about the use of the gas he did not ask him if he was familiar with the use of it. He wanted to know if it was poisonous. He directed them to call a physician and would not state. He said it was the only gas available during the war and they had used a lot of it. He turned the gas on carefully because there was so much pressure. He understood they called Dr. Croson. He was not able to say whether the amount he was exposed to in the drugstore was a greater amount than was used in the jail.
Dr. Mcllvain testified that sulfur dioxide is S02 sulfur and oxygen two parts; that when it comes in contact with moisture in the lungs or any place else it forms sulfuric acid H^SO^ It erodes the tissues and kills them. There is no defense to it in large quantities. He performed the post-mortem examination and found that the injury to the lungs caused Bush’s death; that the air sacks were full of bloody fluid and were totally unable to function; that in his opinion sulfur dioxide caused his death. When asked as to the length of time an exposure to sulfur dioxide would result in death he said "... A very short time, I am sure, if it were the cause of death.” When asked if this man had any other trouble he said “I am sure that I don’t know how anyone could tell whether a person had a mild inflammation from a cold where their lungs had been burned out with sulfuric acid.”
There was evidence as to the relationship of plaintiff with Bush and other members with which we are not concerned here. All of the defendants demurred to the evidence of plaintiff. These demurrers were sustained. Hence this appeal.
Now as to the law of the case. The court stated in its opinion the question to be determined was whether there was any evidence that any of the defendants exercised malice or bad faith. The court stated there was no such evidence. At the hearing on the motion for a new trial the court again stated that the evidence did not show any malice or lack of good faith on the part of the officers, which was necessary in order to make a case.
The defendants cite the rule from 46 C. J. 1042, Sec. 326.
“Public officers, when acting in good faith within the scope of their authority, are not liable in private actions, and ordinarily purely ministerial officers are protected in executing orders of superiors fair on their face, even though such orders were erroneously issued by such superiors. . .
Also authorities to the effect that
“An officer charged with preserving peace and good order, and maintaining the supremacy of the law, and executing its mandates, must, of necessity, act on the aggressive in many instances, and is not confined, in the use of physical force, to that which may be lawfully used by a private person in his relation with others; he is clothed with authority to exert such force as may be necessary to the proper performance of the functions of his office, though death be the result.” (See Note 67 L. R. A. 297.)
There are certain well-established rules for deciding a demurrer to the evidence.
We will not weigh evidence. (See Rowan v. Rosenthal, 113 Kan. 604, 215 Pac. 1008, and many other authorities.) The rule stated another way is we consider only evidence favorable to the party-adducing it and will not weigh or compare other evidence. (See Harris v. Exon, 161 Kan. 582, 170 P. 2d 827.) It concedes every inference from evidence favorable to plaintiff’s claim. (See Travis v. Simpson, 106 Kan. 323, 187 Pac. 684.) We will consider not only evidence favorable to plaintiff but surrounding facts and circumstances from which inferences in his favor may be drawn. (See Sizemore v. Hall, 148 Kan. 233, 80 P. 2d 1092.)
With these rules in mind, we have a story of a colored man picked up by an officer under circumstances from which an inference might be drawn that he was at least mentally disturbed. He was taken to the jail as seemed was proper under the circumstances; that he created a disturbance in the jail there can be no doubt; the sheriff as keeper of the jail had a duty under all the surrounding facts and circumstances. Just what his duty was we need not answer. Apparently the officers present had in mind causing him to leave the cell block since that is the usual function of tear gas. It temporarily blinds the one against whom it is used so he may be more easily subdued once he is in the open. This did not work on account of the windows Bush broke out, thus enabling him to get some fresh air.
Then the deadly sulfur dioxide was used. A reasonable inference is, the purpose of using this gas was to render Bush unconscious, since an officer was detailed to watch him, and come around and tell the officers feeding the gas into the jail when he had “keeled over.” The drum in which the gas was contained had the label “sulfa dioxide” on it. There was evidence that one of the defendants called a doctor and asked him about the use of “refrigerator gas.” There was nothing in the record that anything was said about “sulfa dioxide” although the drum was so labeled. There is evidence that the man who furnished the gas advised the officers to call a doctor but none was called until Bush was dragged from the jail. There was substantial testimony by a doctor as to the deadly nature of sulfuric acid, which is formed when sulfur dioxide is exposed to the air and comes in contact with moisture in the lungs.
The statute makes it the duty of the sheriff to treat all prisoners with humanity. (See G. S. 1949, 19-1919.) It also makes him the keeper of the jail. (See G. S. 1949, 19-1903 and G. S. 1949,19-811.) We all concede that there are circumstances under which physical force must be applied to a person when taking him into custody in case he becomes unruly. In such cases the rule is that an officer may use such force under all the surrounding facts and circumstances as is reasonably necessary.
The rule is laid down in 80 C. J. S. 326, as follows:
“A sheriff owes a duty to a prisoner in his custody to keep him in health and free from harm. He must exercise ordinary and reasonable care under the circumstances to preserve the life, health, and safety of a prisoner in his care and custody, and he is liable to the prisoner or his representatives for negligent or wrongful acts causing his injury or death.”
See, also, 80 C. J. S. 329, where it is said:
“Thus a sheriff or constable is liable for an assault where in performing his duties he uses unnecessary force and a person is thereby injured.”
A case where tear gas was used is Pfannenstiel v. Doerfler, 152 Kan. 479, 105 P. 2d 886. There the petition alleged that officers seized plaintiff and discharged tear gas into his face, injuring his eyes, and while he was in a weakened and unconscious condition incarcerated him in the county jail. The defendants were the sheriff, a deputy sheriff and a constable. The defendants’ demurrers to the petition were overruled. After a discussion of some points, not here involved, we said:
“It is the duty of a sheriff or other officer having lawful custody of a prisoner to treat the prisoner properly, and, as the statute (G. S. 1935, 19-1919) says, with humanity.’ This matter was considered by this court in the case of Farmer v. Rutherford, 136 Kan. 298, 15 P. 2d 474, and again in State, ex rel., v. Jackson, 139 Kan. 744, 33 P. 2d 118. Supporting citations set out in the latter case need not be here repeated. We think that the instant allegations of failure to provide medical attention are pertinent within the plain import of the statute.” (p. 483.)
The opinions cited in the above quotation were both cases where persons in the custody of the sheriff were abused. Defendants make the categorical statement that the above opinions were not in point here because in each of them the officers had no lawful- authority whatever to try to accomplish the object they sought to accomplish. We are unable to follow defendants in this argument. Clearly in the Pfannenstiel case, supra, the reasonable inference from the allegations of the petition was that the tear gas was used while taking the plaintiff into custody. Resides, it is not a question of the officers having a right to subdue plaintiff. The question is whether the use of such a deadly gas was reasonably necessary under all the surrounding facts and circumstances.
We hold that such was a question of fact and that under the record in this case the court erred in holding there was no substantial evidence to sustain the allegations of the petition.
The judgment of the trial court is reversed, with directions to proceed with the trial of the cause in accordance with the views expressed herein.
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The opinion of the court was delivered by
Thiele, J.:
This was an action in which the plaintiff sought a determination that G. S. 1949, Ch. 74, Art. 15, creating the board of examiners in optometry and G. S. 1949, Ch. 65, Art. 15, providing for the examination and registration of optometrists, with amendments thereto, be declared unconstitutional and void and that pending a determination the defendants be restrained from proceeding with a hearing by the board on a complaint seeking revocation of his certificate of registration as an optometrist, and upon final hearing, for a permanent injunction. At the time the petition was filed the district court made its order restraining the defendants from prosecuting plaintiff on the charges brought until further order of the court.
The defendants demurred to the petition on three grounds, that: (1) the petition did not state facts sufficient to constitute a cause of action; (2) several causes of action were improperly joined; and (3) the petition was not drawn upon a single and definite theory and there was such a confusion of theories it was impossible to determine upon which of several theories relief was sought. The court heard the demurrer and on January 7, 1955, sustained it as to ground 1 and overruled it as to grounds 2 and 3, and dissolved the restraining order issued on June 25, 1954.
On January 13, 1955, plaintiff served his notice of appeal to this court from the rulings adverse to him, and on the same day applied to the district court for a stay and an order fixing bond, as a result of which the trial court found the order of June 25, 1954, was in effect a temporary injunction, and it fixed a bond, terms of which need not be noted, and ordered the temporary injunction of June 25, 1954, remain in force until plaintiff’s appeal be determined. Appellant’s specifications of error are sufficient to cover his contentions later discussed.
We note that the defendants served notice of cross-appeal from the rulings adverse to them, but in their brief they make no contention and present no argument with respect to such rulings, and we therefore consider the cross-appeal as abandoned.
It appears from the petition and exhibits attached thereto that on or before June 10,1954, an amended complaint was made by Waldie and Babb to the board of examiners in optometry charging, in substance, that plaintiff'Marks: (1) had practiced optometry in an unethical manner; (2) was guilty of grossly unprofessional conduct of a nature likely to deceive or defraud the public; (3) had an arrangement with Zale’s Jewelers to collect his accounts, and with Dr. Ellis Carp, not licensed to practice optometry within this state, and such arrangement was unlawful and unethical; (4) had committed acts for which the board might refuse to admit him as a candidate to its examination; (5) had caused and permitted advertisements, details of which will not be set forth; and (6) had failed and refused to notify the board of the place or places where he engaged or intended to engage in the practice of optometry, in violation of the laws of Kansas, particularly G. S. 1949, 65-1509, and asking that Marks’ certificate of registration be revoked.
Under date of June 10, 1954, a copy of the complaint was served on Marks and he was advised in writing that he had ten days to file his answer, and that he was entitled to a public hearing, an opportunity to produce testimony and to confront witnesses against him and that the hearing would be held in the Sedgwick county district court room on July 8, 1954.
The instant action was commenced on June 25, 1954, by Marks. The petition is lengthy and must be summarized.
In his petition Marks alleged he practices the “quasi-profession” of optometry in Wichita; that defendants Frantz, Cathers and Rust are members of the board of examiners in optometry and also members of the Kansas Optometric Association, a corporation; that other defendants reside in Wichita; that defendants Waldie and Babb, members of the Kansas Optometric Association, filed the complaint against plaintiff and pursuant thereto, Rust, without authority, directed a letter to plaintiff enclosing a copy of the complaint and informed plaintiff of the hearing thereon on July 8, 1954. Plaintiff then alleged that G. S. 1949, Ch. 74, Art. 15, and Ch. 65, Art. 15, and supplements thereto, were unconstitutional and void, and any complaint filed with the board of examiners in optometry was without force for the following reasons: (A) Under the state constitution the governor is empowered to see that the laws are faithfully executed, and the legislature cannot delegate its powers to the governor or to any board and cannot usurp the constitutional power of the executive; that in creating the defendant board the legislature in fact delegated legislative powers to the governor and directed that the governor appoint specified individuals to carry out the act, which legislation usurped the power extended to the governor under the constitution; that the legislature in directing the governor to appoint members of the board from a list of names supplied him by the Kansas Optometric Association, a corporation, in fact delegated legislative authority to a corporation in violation of the state constitution, and as a result, the board thus created is unlawfully controlled by the above association to the detriment of plaintiff and all optometrists practicing in competition with the members of that association; (B) The above acts are unconstitutional for the reason that said acts require that every optometrist, before securing renewal of his certificate to practice, must furnish evidence to the board that he attended at least two days of the annual education program of the association or its equivalent, and that such requirement is unconstitutional for the reason the legislature has failed to provide a course of study and in lieu has delegated the power to the association and has placed in it the authority to determine the program to be followed. Other allegations in expansion of ihe above are not summarized. Plaintiff further alleged that the optometry act unlawfully delegates to the board the authority to prescribe a code, of ethics for optometrists, but provides no standards to govern the board in establishing a code and is therefore an abuse of legislative authority and discriminatory between optometrists who are and are not members of the above association, and unconstitutional. Plaintiff also alleged that an optometrist is a quasi-professional and also -an artisan merchant, and optometry is not a learned profession and subject to a-code of ethics and any attempt by the legislature to provide for a-code is unwarranted and under the circumstances unconstitutional. Plaintiff also alleged at length that the act-creating the-board does not provide the manner in which a complaint is to be made or who may prefer charges and that Waldie and Babb had no authority to make complaint; that prior to 1953 the board had adopted rules under G. S. 1949, 74-1504, and that section had been repealed, and the rules theretofore adopted became a nullity; that the board had no authority to make rules and, in any event, had made no rules for the conduct and procedure of the board for ■ government of applicants for registration, and that the complaint was not authorized by any statute or rule; that the acts charged against plaintiff do not violate the act or the repealed, regulations. Other allegations may be said to be variations of the above. We need not note allegations as to plaintiff’s right to practice as a valuable property right which will be imperiled by a hearing of the charge even though he should be acquited. v '
As has been noted defendants’ demurrer on the ground facts sufficient to constitute a cause of action - were not alleged was sustained and plaintiff appealed.
In a preliminary way we note appellees’ contention that courts may not interfere with administrative agencies and boards in the lawful performance of their duties and substitute the court’s judgment for that of the administrative tribunal and that such tribunals should not be enjoined from performing their duties, in support of which they quote appropriate language from Kansas City v. Utilities Commission, 103 Kan. 473, 176 Pac. 324; Kansas Gas & Electric Co. v. Public Service Com., 122 Kan. 462, 251 Pac. 1097; and Bohl v. Teall, 155 Kan. 505, 126 P. 2d 216. The cited cases need not be reviewed for they support the general contention made. In our opinion, however, they are not decisive here. The same general contention was made in Butler v. Rude, 162 Kan. 588, 178 P. 2d 261, where the plaintiffs sought to enjoin enforcement of a rule of the state board of embalming on the ground the board was without power to adopt the rule. After reviewing other decisions of like import and Bohl v. Teall, supra, this court held they did not control as the challenge was not to the rules generally but to the board’s power and authority to make the particular rule attacked, and that the plaintiffs could maintain the action. We think- that, by analogy, the decision controls here where the challenge is to the constitutionality of the statute creating the defendant board. If the statute be declared unconstitutional, there would be no board and anything it did would be a nullity.
Before taking up appellant’s contentions, we take note of established principles applicable where constitutionality of a statute is to be determined. Constitutionality of a statute is presumed, doubts as to constitutionality are resolved in favor of legality, and before the statute may be stricken down, it must clearly appear the statute offends. (See, e. g., Carolene Products Co. v. Mohler, 152 Kan. 2, 102 P. 2d 1044; Board of County Comm'rs v. Robb, 166 Kan. 122, 199 P. 2d 530; State, ex rel., v. Board of Regents, 167 Kan. 587, 207 P. 2d 373, and cases cited therein.) In determining constitutionality of a statute the court’s duty is to uphold the legislation rather than defeat it and if there is any reasonable way to construe the legislation as constitutionally valid that should be done. (See e. g., Mizer v. Kansas Bostwick Irrigation District, 172 Kan. 157, 239 P. 2d 370.) It is further to be noted that constitutionality of legislation will be considered only where necessarily involved and such a determination required (See, e. g., State, ex rel., v. School District, 163 Kan. 650, 185 P. 2d 677), and that constitutionality may not be questioned by one not affected by its operation. (See, e. g., Kansas Utilities Co. v. City of Burlington, 141 Kan. 926, 931, 44 P. 2d 223; Stone v. City of Wichita, 145 Kan. 377, 65 P. 2d 595.) With respect to the last rule, it may be observed that under the complaint filed with the hoard, the appellant is charged with certain acts. Insofar as they are concerned he may question constitutionality of the statute involved — but under that rule he has no standing to attack the act as an entirety and respecting those phases of it which are not involved in the charges against him and by way of illustration we mention attendance at the educational programs as outlined in his petition.
We note also that in his brief appellant presents two questions, one that G. S. 1949, 65-1504 (i) is an unconstitutional delegation of legislative power, the other that G. S. 1949, 74-1501, et seq., is unconstitutional as delegating powers of government to a private corporation. The two questions are separately discussed by him. Appellees contend that the two statutes are in pari materia and should be construed together. We note that the optometry act was originally enacted as Laws 1923, Ch. 220, and covered the field. The division into chapter, article and section numbers in the Revised Statutes of 1923 and subsequent compilations of our statutes did not have the effect of malting two separate statutes. We consider Ch. 65, Art. 15, and Ch. 74, Art. 15, as one act.
Discussion of appellant’s contentions does not require an exhaustive review of the statute under attack. In particulars it has been amended since publication in the General Statutes of 1949. We shall refer hereafter to chapter and section number as presently existing but shall not note whether they appear in the General Statutes or in the 1955 Supplement. As referred to hereafter they were in effect prior to the time the complaint was filed. Under 74-1501 the governor appoints a board of examiners in optometry consisting of three members “to be selected from a list of four names for each appointment, submitted by the Kansas optometric association, or its successor.” No person shall be eligible for appointment unless he has been engaged in the actual practice of optometry in Kansas continuously for five years last past. Under 74-1504 the board is empowered to enforce the act and is given specific powers which need not be reviewed fully here but which include, (e) to grant certificates of registration, and to revoke certificates for any causes specified in 65-1504, (/) to administer oaths and take testimony upon granting or revoking certificates, (h) to make rules and regulations for the procedure and conduct of the board and for the conduct and government of applicants for certificates of registration and licensed and registered optometrists, and “to prescribe a code of ethics for optometrists practicing within this state, which said rules, regulations and code of ethics shall not be inconsistent with the provisions of this act.”
Under 65-1504 unlawful acts are defined as including (a) sale of any certificate of registration, (b) purchase of any certificate, (c) alteration of a certificate, (d) use of a fraudulently issued, counterfeited or altered certificate, (e) practicing optometry under a false or assumed name or as a representative or agent of any person, (f) false statements in regard to an application before the board or for a certificate of registration, (g) practicing optometry without having a valid unrevoked certificate, (h) bartering or giving away glasses, spectacles, lenses or frames as presents “or (i) to practice optometry in any unethical manner.”
Under 65-1504a, it is unlawful for any person duly licensed to (a) give away as premiums any glasses, spectacles, lenses or frames, (b) to test eyes and fit glasses “in any unethical manner,” or (c) to advertise in any manner or form in an attempt to deceive the public.
Under 65-1504b, it is unlawful for any person to dispense an ophthalmic lense or lenses without having obtained a prescription or order from a licensed optometrist or other person legally, permitted to test eyes and fit glasses.
Under 65-1506, a certificate of registration may be revoked for thirteen specified reasons, and included therein are (c) any grossly unprofessional conduct of a nature likely to defraud or deceive the public, (g) the employment of any unregistered person to perform work covered by the act, (?) any cause for which the optometry board might refuse to admit a candidate to examination, and (m) for violations of any provisions of the optometry law.
Under 65-1511, it is provided that if any paragraph or provision of the act shall be held unconstitutional, the same shall not affect any other paragraph or provision of the act.
Appellant’s first contention of unconstitutionality is limited solely to G. S. 1949, 65-1504 (i). This subsection provides that it shall be unlawful for any person “(i) to practice optometry in any unethical manner.” The contention is that the quoted language is unconstitutional for the reason it fails to fix any standard or define with any clarity and exactness the term “unethical manner”; that legislative power is vested in the house of representatives and senate (Constitution, Art. 2, Sec. 1) and cannot be delegated (Oakland State Bank v. Bolin, 141 Kan. 126, 40 P. 2d 437); that while the legislature possesses all the legislative power of the state, it may enact general provisions and leave those who are to act thereunder to use discretion to fill up the details, but such discretion may not be granted where the legislature has not expressly enacted all the outlines (Coleman v. Newby, 7 Kan. 82; State, ex rel., v. City of Topeka, 176 Kan. 240, 270 P. 2d 270), and if the legislature does not fix standards with reasonable clarity and exactness, the delegation is unconstitutional (State, ex rel., v. Hines, 163 Kan. 300, 182 P. 2d 865; Johnston v. City of Coffeyville, 175 Kan. 357, 264 P. 2d 474; and State, ex rel., v. Kansas Turnpike Authority, 176 Kan. 683, 273 P. 2d 198). It is further contended that sections 65-1504,1504a and 1504b are penal and wholly unrelated to other portions of the act and 65-1504 does not define “unethical manner” or in any way limit the phrase to a specific class of conduct, and it is argued that no optometrist could read the last section and know by reading it what acts or manner of practice would offend the section or would be considered by the optometry board as a violation, that “unethical manner” is so indefinite its meaning is uncertain and therefore 65-1504 (i) violates the constitution and should be stricken down.
Answering the above argument, it may be observed the statute contains a separability clause and even though we agreed with the appellant that subdivision (i) of 65-1504 is unconstitutional, the remainder of the act stands. Appellant is charged, not in a criminal action, but in a proceeding to revoke his certificate of registration under portions of the statute not under attack, and he would not be entitled to injunctive relief.
In our opinion, however, the appellant’s contention cannot be sustained. Constitutionality is not to be determined by isolating from context, one subparagraph of one section of an entire act. Bearing in mind the rules of statutory construction above mentioned, it is our duty to examine the statute and, if possible, to construe it so as to uphold it. Under 65-1506, the board is empowered to revoke a certificate of registration for thirteen specified reasons, the last of which is “For the violations of any of the provisions of this act.” Under 74-1504 (e), the board is empowered to revoke a certificate for the violation of 65-1504, and under 74-1504 (h), the Board has power to adopt a code of ethics, but whether it has done .so, or if it has, whether that code is a proper one under the authority granted, is not disclosed by the petition. We shall here confine our .attention to 65-1504 heretofore summarized which provides that it shall be unlawful for any person to commit nine specific acts, the last of which is “to practice optometry in any unethical manner”, and ignore for present purposes other sections which have a bearing thereon.
Although appellant argues that the case is distinguishable from the one at bar we note that in Richardson v. Simpson, 88 Kan. 684, 129 Pac. 1128, the action was one to enjoin enforcement of an order of the state board of dental examiners revoking the plaintiff’s license. The complaint there charged the plaintiff with obtaining money by false pretenses and of dishonorable conduct. In this court the plaintiff contended that the portion of the statute warranting revocation of a dentist’s license for “dishonorable conduct” was unconstitutional and void because too indefinite to be made the basis for action. Reference is made to that opinion for the comment and citations of authorities leading to the holding in the third paragraph of the syllabus which reads:
“In a statute authorizing the revocation of a dentist’s license for specific offenses, the additional phrase ‘or for any other dishonorable conduct’ is not void for indefiniteness.”
In our opinion the question presented in the instant case is analogous to that considered in the Richardson case, supra, and the principle there stated should apply here, and that we should and we do hold that the term “unethical manner” as used in subparagraph (i) of 65-1504 means conduct of the same general conduct as that specified in the preceding subparagraphs of that section.
Although more broadly stated, the gist of appellant’s second contention of unconstitutionality is that under 74-1501 the governor must appoint the members of the board of examiners in optometry to be selected from a list of four names for each appointment submitted by the Kansas optometric association, and that such a provision deprives the governor of his power of determination and appointment and confers it on the optometric association, which appellant says is a private corporation, although that does not appear from the statute.
Directing attention to Art. 15, Sec. 1, of our constitution that all officers whose election or appointment is not otherwise provided by the constitution shall be chosen or appointed as may be prescribed by law, he states whether that constitutional provision authorizes the legislature to delegate the power of appointment of public officers to a private corporation has never been decided by this court, and he cites definitions of public officers, which we need not review as we are of the opinion that members of the board are public officers, and to authorities that the power of appointment is a sovereign power, and argues that being a sovereign power, it may not be delegated to a private corporation and that requiring the governor to appoint from a list submitted to him by a private corporation is equivalent to conferring that power on the private corporation.
Appellant directs attention to State ex inf. v. Washburn, 167 Mo. 680, 67 S. W. 592, decided by a divided court, where it was held that a statute requiring the governor to appoint as members of an election commission from lists of names submitted by party central committees was, although the power to the committee was not literally a power to appoint, designations that led to an appointment, and considering the statute as conferring such power, for that was its effect, it was unconstitutional. He also directs attention to Westlake v. Merritt, 85 Fla. 28, 95 So. 662, where, by a divided court, it was held that a provision of a statute requiring the governor to appoint the members of the Board of Chiropractic Examiners from a list of names submitted by the Florida Chiropractic Association, a private corporation, was in effect that the Association selected and the governor merely ratified; that it was apparent the appointing power of the governor was limited and his choice made under the circumstances was not an exercise by him of his exclusive rights of appointment. That court cited State ex inf. v. Washburn, supra, in support of its contention. It may be noted without further comment that the two cases noted support appeallant’s contention. Appellant also directs attention to The State v. Crawford, 104 Kan. 141, 177 Pac. 360, where defendants were being prosecuted under a clause of a statute compelling electric wiring “shall be in accordance with the national electrical code.” In the opinion it was said that the power to make, amend, alter and repeal laws was in the legislature and it could not abdicate its functions and delegate its powers to any other body, and, omitting the discussion, the court held the clause was void.
Appellant also directs attention to our constitution as vesting executive power in a governor, legislative power in a house of representatives and senate, and judicial power in the supreme court and inferior courts, and to Coleman v. Nemby, supra, that these three branches include all of the delegated power of the government, and having been delegated by the people of the state to their respective departments, cannot again be delegated by the department to which it belongs. In extending his argument, appellant also cites and quotes at some length from Tucker v. State, 218 Ind. 614, 35 N. E. 2d 270, and State ex inf. v. Washburn, supra.
The appellee board’s answer to the above contention and its argument that the provision for appointment under attack do not afford any basis for declaring the provision unconstitutional is extended and must be stated summarily. The board contends that the question actually concerns the power of the legislature to provide for boards and officers and the manner of their appointment and selection; that our constitution restricts and does not grant power and the legislature except as restricted by the constitution is free to act (Jansky v. Baldwin, 120 Kan. 332, 243 Pac. 302); that the legislature has power to regulate optometry and provide a board for that purpose, and that none of the powers conferred on that board are authorized by the constitution to be performed by another person, officer and board (Ratcliff v. Stock-yards Co., 74 Kan. 1, 86 Pac. 150; The State v. Railway Co., 76 Kan. 467, 92 Pac. 606), and directing attention to the constitutional provision as to legislative power (Art. 2, Sec. 1) and to the power of the legislature to provide for the election or appointment of all officers not otherwise provided for in the constitution, cites and quotes at length from Sartin v. Snell, 87 Kan. 485, 125 Pac. 47, wherein may be found a considerable discussion as to the power of appointment and its exercise in instances, to which reference is made.
Our constitution does provide for certain appointments to public office by the governor, but it makes no provision whatever as to the defendant board other than as provided in Art. 15, Sec. 1, which reads that “All officers whose election or appointment is not otherwise provided for, shall be chosen or appointed as may be prescribed by law.” There is no constitutional limitation on who may be appointed, nor any constitutional restriction on the legislature exercising its power as it shall see fit. As a matter of fact the legislature has provided a restricted power of appointment in many instances. Examples of restrictive appointments to specified boards may be found in the following: state board of agriculture, by G. S. 1949, 74-501, and G. S. 1955 Supp., 74-502 and 503; state entomological commission, by G. S. 1949, 74-512; board of nurse registration and nursing education, by G. S. 1949, 74-1106; board of osteopathic examination and registration, by G. S. 1949, 74-1201; board of pharmacy, by G. S. 1955 Supp., 74-1603, 1604 and 1605; board of embalming, by G. S. 1949, 74-1701; and Kansas livestock commission and its president, by G. S. 1949, 74-4001 and 75-1901. Other statutes, which need not be cited, provide for appointments either by officers other than the governor or by legislative appointment. It is noted that the constitutionality of the above mentioned statutes has never been questioned except as hereafter stated and they are noted only to direct attention to what seems to be a settled legislative pattern. See discussion in State, ex rel., v. Kansas Turnpike Authority, 176 Kan. 683, 273 P. 2d 198, as to power of the legislature to make two of its members ex-officio members of the Authority.
Some analogy may be derived from Goodrich v. Mitchell, 68 Kan. 765, 75 Pac. 1034, where it was contended that a veteran s preference law was unconstitutional. In that case it was said:
“The general doctrine is that, in the absence of constitutional limitations, the legislature may prescribe how and by whom offices shall be filled.” (l.c.768.) ■
“. . . Our constitution differs materially from those of many of the states with respect to the granting 'of privileges. The only provision we have touching the subject is found in section 2 of the bill of rights, which is:
“ ‘All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.’
“In most of the states the granting of special privileges or immunities is expressly prohibited; but, as will be observed, ours seemingly contemplates that such privileges may be granted, as it provides that none shall be granted that may not be altered, revoked, or repealed. The legislature may, then, exercise its judgment and discretion in the selection of officers, unhampered by restrictions, unless some are to be implied from those expressed or from the theory of our government.” (1. c. 769.)
“Nor is there any novelty''in our legislation on the subject, as like preferences have been given by the legislatures of a great many states and by the congress of the United States, and, except where the acts have been drawn so as to conflict with express constitutional provisions, they have been generally upheld.” (1. c. 770.)
The precise question as to the power of the legislature to restrict appointment to office to one belonging to a particular body or organization has not been before this court, but it has been before the supreme or appellate courts of other states.
In Bradley v. Board of Zoning Adjustment, 255 Mass. 160, 150 N. E. 892, the court considered an act providing for a board of twelve to be appointed by the mayor of Boston, one from a list of two to be nominated by the chambers of commerce, and others from lists nominated by other organizations. The court in upholding constitutionality noted that State ex inf. v. Washburn, supra, and Lasher v. The People, 183 Ill. 226, 55 N. E. 663, were to the contrary, but said its conclusion of constitutionality was supported by the great weight of authority, and in addition to its own cases, cited others from New York, Maryland, Louisiana, California, Minnesota and Ohio.
In Elrod v. Willis, Governor, 305 Ky. 225, 203 S. W. 2d 18, it was held that a statute requiring the governor to appoint members of Disabled Ex-Servicemen’s Board from a list submitted by the American Legion was not unconstitutional.
In Miller v. El Paso County (Texas Civ. Appeals), 146 S. W. 2d 1027, the court considered among other matters constitutionality of a statute which provided for a board of county development of five' members two of whom were to be appointed by the commissioners’’ court and three of whom were to be appointed by the board of directors of the chamber of commerce of the county seat. Referring to State ex inf. v. Washburn, supra, the court said:
“The decision in this case was by a divided court. It must be conceded that there is a division of authority on the proposition. The practice in this State seems to have been somewhat at variance with the doctrine laid down in the Missouri case.” (1. c. 1034.)
After further discussion, the court said further:
“In several cases in jurisdictions other than ours the legality of the delegation of the power of nomination and appointment to nonofficial bodies has been recognized. 46 Corpus Juris, pp. 950, 951; McCurdy v. Jessop, 126 Md. 318, 95 A. 37; In re Bulger, 45 Cal. 553; Overshiner v. State, 156 Ind. 187, 59 N. E. 468, 51 L. R. A. 748, 83 Am. St. Rep. 187; State v. Sowards, 64 Okl. Cr. 430, 82 P. 2d 324; Bradley v. Board of Zoning Adjustment, 255 Mass. 160, 150 N. E. 892.
“In principle we can see little difference in confiding the power of appointment to an office other than the executive department and confiding it to an official body.” (1. c. 1035.)
The court concluded the statute was not unconstitutional.
We have examined many authorities cited in the briefs and not mentioned above, but bearing in mind our constitutional provision as to the power of the legislature to prescribe for the filling of vacancies in public office, the general trend of our legislation thereon, and analogies drawn from our cited cases, and in accord with what we deem to be the clear weight of authority in other jurisdictions, we hold that the statute providing for the appointment of the members of the board of examiners in optometry is not unconstitutional.
Heretofore in this opinion we have set out at considerable length the complaint filed before the board and against the appellant, the details of his allegations and the statutes involved. We think it clear that appellant is not charged with failing to attend the educational programs of which he complains. Under decisions previously cited, constitutionality of the parts of the act dealing with the educational program need not and will not be discussed. Neither need we discuss the power of the board to adopt a code of ethics, nor what it may contain. There is no allegation such a code was ever adopted or if it was, that appellant violated it.
In our opinion the allegations of the petition did not disclose facts which would warrant a court in interfering with the defendant board in the lawful performance of its duties, and the trial court did not err in sustaining the defendants’ demurrer to the plaintiff’s petition.
The ruling and judgment appealed from is affirmed.
Fatzeh, J., not participating. | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal by a mother from an order denying her application for 'custody of her minor children.
On April 21, 1954, plaintiff wife obtained a divorce from her husband. They were the parents of four minor children. The decree granted custody to plaintiff until May 30, 1954, but provided that on that date plaintiff's mother, a resident of Independa ence, should have custody. Plaintiff and defendant were allowed visitation rights with the children on alternate week ends, and defendant was ordered to pay a stated amount for their support. The decree was silent as to a finding of unfitness of the mother to have custody of her children, and from the record it appears that defendant did not desire custody himself. This arrangement and provision for the children has been carried out and they are still in their maternal grandmother’s custody.
The mother, who in the meantime has remarried, has on several occasions sought to obtain custody of the children, but on each occasion her application has been denied. At no time throughout all of these proceedings has the trial court made a finding that she was an unfit person to have custody. At one of these healings the court stated that its reason for giving custody to the grandmother at the time of the divorce was that defendant husband re quested that such be done. This appeal is by the mother from an order denying her latest attempt to gain custody.
The situation in which custody matters arise are varied. Usually the dispute is between the divorced parents themselves as to which one is entitled to custody. While, from this record, it appears that the father is not seeking custody himself, it is clear that he is attempting to preclude the mother from gaining custody. And, although the grandmother’s position in the matter appears to be somewhat that of a “bystander,” the contest, from a legal standpoint, is between her and her daughter.
In our view of this case it is unnecessary to discuss the many guideposts and rules applicable to child custody matters found in the numerous decisions of this court. Those interested will find an exhaustive review of the entire subject in 1 Kan. L. Rev. pp. 37 and 165. We confine ourselves to the sole proposition whether, under the record, the mother is entitled to custody as against the grandmother.
It is a firmly-established rule in this state that a parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to the custody of his children as against grandparents or others who have no permanent or legal right to their custody, even though at the time the natural parent seeks their custody such grandparents or others are giving the children proper and suitable care and have acquired an attachment for them. We cite but a few of our many decisions in support of the rule: In re King, 66 Kan. 695, 72 Pac. 263, 97 Am. St. Rep. 399, 67 L. R. A. 783; Wood v. Shaw, 92 Kan. 70, 139 Pac. 1165; Crews v. Sheldon, 106 Kan. 438, 186 Pac. 498; Jendell v. Dupree, 108 Kan 460, 195 Pac. 861; In re Kailer, 123 Kan. 229, 255 Pac. 41; Smith v. Scheuerman, 133 Kan. 348, 299 Pac. 616; Jones v. Jones, 155 Kan. 213, 124 P. 2d 457; May v. May, 162 Kan. 425, 427, 176 P. 2d 533; In re Jackson, 164 Kan. 391, 190 P. 2d 426; Bailey v. Bailey, 164 Kan. 653, 192 P. 2d 190; Stout v. Stout, 166 Kan. 459, 463, 201 P. 2d 637; Ramey v. Ramey, 170 Kan. 1, 223 P. 2d 695, and Monroe v. Slaughter, 171 Kan. 614, 237 P. 2d 372.
As heretofore related, the trial court at no time made a finding of unfitness of the mother. In fact, as late as February 6, 1956, the court overruled defendant’s motion for an order nunc pro tunc to the effect that at the time of granting the divorce a finding was made that she was not a fit and proper person to have custody of her children.
The mother, not having been found to be an unfit person to have custody, is, as against the grandmother, entitled to custody of her minor children.
The judgment of the trial court is therefore reversed. | [
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The opinion of the court was delivered by
Wertz, J.:
These consolidated appeals are from an order of the trial court overruling defendants’ demurrer to plaintiffs’ petition in each case.
Plaintiffs are the residuary legatees, and defendant The Ogallah Christian Church is the beneficiary under the trust .created by the last will and testament of Elizabeth Yetter, deceased. Defendant Clarence Reynolds is the qualified and acting trustee of the trust estate. The remaining defendants, with the exception of The Texas Company, are the trustees of defendant The Ogallah Christian Church. Defendant The Texas Company is the assignee of a certain oil and gas lease covering the property involved.
The appellees in each case will be referred to as plaintiffs, and appellants as defendants.
In case No. 40,149, plaintiffs as residuary legatees brought their action in the district court of Trego County under the Declaratory Judgment Act (G. S. 1949, 60-3127, et seq.) for a declaratory judgment interpreting the last will and testament of the decedent, and to determine the rights of plaintiffs and defendants to certain income from real estate devised under the will.
Case No. 40,150 was a proceeding filed on the same day by plaintiffs in the probate court of Trego County, asking that court to determine the interests of the parties in certain property and income, and for an accounting by the trustees of the income from the trust estate created by Elizabeth Yetter, deceased. The probate court proceedings were duly certified to the district court of Trego County, and on application of the plaintiffs, without objection on the part of defendants, the cases were consolidated for the purpose of hearing defendants’ identical demurrers filed therein. In overruling the demurrer in each case, the trial court found that the petition in case No. 40,149 stated an actual controversy and cause of action for declaratory judgment for construction of a will and testamentary trust; that in addition it contained prayers, the validity of which is not now decided, for additional relief based on plaintiffs’ contentions of what the declaratory judgment should be, and further found that the petition in case No. 40,150 was merely a petition by alleged interested parties for disapproval of the trustee’s accounts and disbursements, with a prayer for an accounting and judgment against the trustee for sums alleged to be due plaintiffs, all based on their contentions as to what the declaratory judgment in case No. 40,149 should be.
Defendants first contend that the petition in case No. 40,149 fails to state facts sufficient to show that an actual controversy exists.
No useful purpose would be served by setting forth in detail the allegations of the lengthy petition which includes, by reference, a copy of the will in controversy. We have examined the petition, and 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 will. In that situation, the long and well-established rule in this state is that a petition is sufficient as against a 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 respective litigants, based upon all the prevailing material facts and circumstances which may ultimately become involved in the remedial relief sought under the provisions of the act. We do not deem it necessary to reiterate the law sustaining the mentioned well-established rule as it has been recently stated in Stalnaker v. McCorgary, 170 Kan. 9, 223 P. 2d 738, and cases therein cited and analyzed, where we said:
“Following School District v. Sheridan Community High School, 130 Kan. 421, 286 Pac. 230; Hyde Park Dairies v. City of Newton, 167 Kan. 730, 208 P. 2d 221, and other decisions cited in the opinion it is held, that 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, G. S. 1935, 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 G. S. 1935, 60-3127 to 60-3132, inclusive.” (Syl.)
However, it may again be said it is rare that a demurrer is an appropriate pleading for a defendant to file against a petition for a declaratory judgment. It is only proper where the petition fails to set forth facts which clearly make it appear there is a controversy between the parties, and just what the controversy is. Since the petition sets forth an actual controversy between the parties as to their respective rights under the involved will, the district court properly overruled defendants’ demurrers.
Defendants next contend that the petition is not based on a single and definite theory, because there is blended with the action for a declaratory judgment a cause of action for an accounting, etc. Analysis of the petition discloses that there is but one cause of action stated, and that is for a judgment interpreting and declaring the rights of the parties under decedent’s will. G. S. 1949, 60-3129, authorizes further relief based on a declaratory judgment, whenever necessary and proper. The section prescribes a method by which further relief — than mere interpretation of the will — may be obtained. Those portions of the prayers in plaintiffs’ petition in case No. 40,149, and the petition in case No. 40,150 filed in the probate court in the trust estate praying for an accounting, etc., are merely indicative of the various forms of consequential relief to which plaintiffs would be entitled in the event the controversial paragraph in the testator’s will is construed favorably to plaintiffs’ contention. Where remedial and further relief is prayed for in a declaratory judgment action, the trial court in determining the question of law has tire right to adjudicate the whole controversy at one trial and grant all relief that might flow therefrom when necessary in order to make its judgment complete and effective on the question of law presented. (Phoenix Indemnity Co. v. Zinn, 177 Kan. 689, 281 P. 2d 1065; Rutland Savings Bank v. Steele, 155 Kan. 667, 127 P. 2d 471; Railroad Bldg., Loan & Savings Ass’n v. Grayum, 136 Kan. 418, 423, 15 P. 2d 405.)
This appeal is limited solely to the sufficiency of the petition in each case. The issues have not been joined by the parties and the trial court has rendered no declaratory judgment in the case. Notwithstanding the remaining questions raised, the defendants seek to enlarge the scope of our review by attempting to argue and have us decide the merits of the cause and prejudge matters which might become material in determining the propriety or justice of the relief sought. This we cannot do. The extent of our power is to reverse, vacate, modify or sustain the trial court’s judgment. (G. S. 1949, 60-3302.)
The judgment of the trial court overruling the demurrer to the petition in each case is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for damages for personal injuries and property damage sustained in a two-car collision alleged to have been caused by the negligence of - defendant. The sole question for our determination is whether the court erred in striking a part of the combined amended answer and cross-petition of the defendant. The general facts may be summarized as follows:
Sometime ago, the date not shown, the federal government constructed an airport on an area a mile and a half square about 4 or j 5 miles northeast of the city of Coffeyville for the purpose of training aviators; sometime later, the date not shown, the federal government determined it had no further use of the airport and conveyed it to the city of Coffeyville. The area is not within the corporate limits of Coffeyville, but, for our purposes at least, the city owns the ground and improvements thereon and has the care and management of it. The area is bound on the west by U. S. Highway 169, a north and south improved highway. About the middle of this airport area on the west side there is a highway opening from U. S. Highway 169 to the east, which soon spreads into 2 roads which extend east, one to the south side and one to the north side of the airport buildings. There are also north and south roads built through the area of the airport between the airport buildings and the highway on the west. All of these are paved roads about 20 to 21 feet wide with 2 feet of gravel curbing on each side, and the intersections are cut back at the corners so as to have a little wider space. In the southwest corner of the airport property and south of the roads just mentioned there are a number of buildings, which, at the time of the accident in question, had been leased by the city to the Continental Can Company, Inc., and were used by it as an industrial plant. This company employed a number of men and at the time of their changing of shifts, from 4:15 to 4:45 P. M., the roads above mentioned were heavily traveled.
Plaintiff alleged that on November 12, 1953, about 4:25 P. M. he was driving his 1949 Pontiac sedan south on the second street west of the airport buildings at a speed of about 20 miles per hour; that as he • approached the intersection of an east and west street and when he was about 100 feet north of the intersection, he looked to his right and observed an automobile driven by defendant about 400 feet west of the intersection; that plaintiff assumed defendant was driving at a lawful speed and looked to the east and south and as no cars were approaching, he crossed the intersection; that defendant was driving her 1953 Ford automobile east on the cross road at a high and dangerous and unlawful rate of speed, about 60 miles an hour; that defendant negligently and unlawfully drove her car into and against the car plaintiff was driving, striking plaintiff’s car on the right side at the rear of the car at a time when plaintiff was past the middle of the intersection; that the collision occurred in the southwest quarter of the intersection at a time when the front of plaintiff’s car was south of the macadam portion of the east and west street and when the rear wheels of plaintiff’s car were about 3 feet south of the center of the east and west street.
It was further alleged that on said date §§ 8-532, G. S. 1951 Supp. and 8-550, G. S. 1949, were in full force and effect relating to speed of motor vehicles and indicating which vehicle is entitled to the right of way at intersections.
The amended petition alleged negligence in detail. It also alleged the injuries to plaintiff and the property damage, all of which were itemized, and the prayer was for damages in the sum of $32,-028.25.
To this amended petition defendant filed an amended answer and cross-petition. In her answer she admitted there was a collision between the two cars at about tire time alleged but denied all allegations of negligence on her part, and denied all damages alleged to have been sustained by plaintiff. She alleged that if any damages were sustained by plaintiff they were proximately caused and contributed to by plaintiff’s own careless and negligent conduct and want of ordinary care in the respects more particularly alleged in the amended cross-petition, the allegations of which cross-petition were made a part of the amended answer as fully as though alleged in the amended answer. The amended answer contained a general denial as to all matters alleged in the amended petition and which were not specifically admitted. Defendant filed an amended cross-petition for affirmative relief against plaintiff; referred to all the allegations, admissions and denials of her amended answer, and made the same a part of her cross-petition as though fully set out therein. It described the roads and their use substantially as hereinbefore described, and alleged that at least by the year 1951, the city of Coffeyville had acquired control and ownership of the airport and had leased a portion thereof to the Continental Can Company, Inc.; that thereafter the general public, including the employees of the Continental Can Company, Inc., continued to use the east and west road in ingress and egress to the airport and industrial area leased by the city; that on November 12, 1953, and for about 3 years prior thereto, there was a well-settled and generally recognized and followed custom, practice and usage, concerning the operation of any automobiles in either direction along the north and south intersecting roadways, as follows:
“(a) To stop all vehicles before entering the said east and west road above alleged, whether from the north or the south side thereof.
“(b) That at all interesctions of the said east and west roadway above alleged to yield the right-of-way to all vehicles either in the said intersection or approaching the same from either direction at such distance as to constitute an immediate hazard.”
It was further alleged that plaintiff was an employee of the Continental Can Company, Inc., where he had been employed since April 2, 1951, and on numerous occasions operated automobiles and knew or in the exercise of reasonable observation and attention should have known, on November 12, 1953, of the above well-settled general custom, practice and usage; that the defendant was an employee of the Continental Can Company, Inc., and knew of the well-settled custom, practice and usage; that the surface of the road was dry, the weather was clear and there was sufficient light that neither of the automobiles had their lights turned on.
It was further alleged that as defendant, driving about 30 to 35 miles per hour, arrived at a point one block west of the intersection where the accident occurred and looked to her left she observed plaintiff about a block and a half or two blocks north of the intersection and driving his car southward toward the intersection of the east and west road; that, assuming plaintiff was driving his car at a lawful rate of speed, defendant continued to drive eastward toward the intersection; that at the time plaintiff was driving his 1949 Pontiac at a dangerous, high and unlawful rate of speed, about 50 miles an hour, and continued such speed until he arrived at a point a few feet north of the intersection; that he failed to stop his car before driving into the east and west road, and failed to yield to defendant the right of way which she declared she was lawfully entitled to at the intersection; that instead, when defendant was about 15 to 20 feet west of the intersection and about to enter the same, he very slightly reduced the speed of his car and then increased the speed thereof as he entered the intersection and endeavored to race across the same from north to south, ahead of defendant; that plaintiff’s unlawful and negligent conduct confronted defendant with a sudden and unexpected emergency so that notwithstanding defendant’s utmost effort and diligence her car collided with the car operated by plaintiff at or very near the center of the intersection; that the speed of plaintiff’s automobile was so great that following the collision said car proceeded southward about 130 feet from the intersection and came to a stop on the east side of the north and south road; that after the collision defendant’s automobile proceeded to a point about 20 feet east of said intersection where her car went into a ditch on the south side of the east and west road, resulting in her personal injuries later described.
She further alleged that plaintiff was negligent, careless and failed to exercise reasonable care and prudence in the operation of his car in several respects, which were detailed. The damages to her car also were detailed. Defendant claimed total damages in the sum of $11,251.26. The prayer was that plaintiff take nothing by his amended petition and that she recover her damages.
Plaintiff moved to strike from defendant’s amended cross-petition all allegations pertaining to the custom, practice and usage alleged in defendant’s amended answer and cross-petition. This motion was sustained, and defendant has appealed from that ruling of the court.
The provisions of Ch. 283, Laws of 1937, “Regulating Traffic on Highways” is now, as amended from time to time, Ch. 8, Art. 5, G. S. 1949, with the general heading, “Uniform Act Regulating Traffic on Highways.” Sec. 7 of the original act, now G. S. 1949, 8-507, reads:
“The provisions of this act shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any rule or regulation in conflict with the provisions of this act unless expressly authorized herein. Local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of this act.”
This section of the act has never been amended.
Sec. 50 of the original act, now G. S. 1949, 8-550, reads:
“(a) The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway. (b) When two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right, (c) The foregoing rules are modified at through highways and otherwise as hereinafter stated in this article.”
Section 32 of the original act became G. S. 1949, 8-532, and has since been amended by Laws of 1951, Ch. 110, § 1, and by Laws of 1953, Ch. 47, § 1, and pertains to speed restrictions. It has been printed in the 1951 and 1953 Supp. to G. S. 1949, which we refer to without quoting because of its length.
The sections of the statutes quoted or referred to above were in force on November 13, 1953. It is clear from reading them that tire custom, practice and usage alleged by defendant in her amended answer and cross-petition, and stricken therefrom by the court on plaintiff’s motion, is contrary to our statutes.
It is well settled by the law of this state, and generally, that the alleged custom, practice and usage which is contrary to the existing law cannot be used either to establish or defeat an action and evidence thereof cannot be received.
In Clark v. Allaman, 71 Kan. 206, 80 Pac. 571, it was held:
“Evidence cannot be received of local customs contrary to established principles of law.”
See, also, Rains v. Weiler, 101 Kan. 294, 166 Pac. 235, and Manufacturing Co. v. Merriam, 104 Kan. 646, 652, 180 Pac. 224. Other cases are collected in 2 Hatcher’s Kansas Digest (Rev. Ed.), Customs and Usages, p. 290.
25 C. J. S., Customs and Usages, § 10, p. 91, reads:
“A custom or usage repugnant to the express provisions of a statute is void, and whenever there is a conflict between a custom or usage and a statutory regulation the statutory regulation must control, . . . Alleged customs or usages have also been adjudged illegal for conflicting with the terms of charters or ordinances of municipal corporations, or of the criminal or penal statutes of the state.”
55 Am. Jur., Usages and Customs, § 14, p. 276, reads:
“Rights do not spring from a custom that violates a law, . . . Local usages, for example, cannot contravene the settled principles of the law, nor can evidence be received of local customs which are contrary to established principles of law. A custom or usage is not admissible which makes a substantial change in the rights and relations of the parties, and which violates a settled rule whether established by statute or by common law.”
Our conclusion is the trial court did not err in striking from defendant’s amended answer and cross-petition the allegations pleaded as to custom, practice and usage. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is an action to recover the amount of two checks payable to plaintiff, drawn on defendant bank, which were protested by the bank and never paid. The action is based upon alleged false and fraudulent representations made to plaintiff by an officer of the bank, in reliance upon which plaintiff was induced to forbear the remedies of self-help and legal action then available to him against the maker of the checks, and that as a result thereof the bank received material benefits.
The appeal is from orders of the trial court overruling the bank’s motion to strike portions of the petition and its demurrer to the petition.
The petition, which is lengthy and detailed, will not be set out in full, and a brief summary of its allegations will be sufficient to present the question involved.
On July 17, 1952, plaintiff, a resident of Cloud County, sold 217 cases of eggs to the Topeka Packing Company, receiving in payment therefor a check in the amount of $2,604 drawn on defendant bank. On July 24, 1952, he sold 225 cases of eggs to the same company, receiving in payment therefor a check in the amount of '$2,927.60 drawn on defendant bank. The next day he received from the bank a notice that the first of these two checks had been protested. He immediately drove to Topeka in his empty truck, intending to repossess the eggs for which the check had been given, and which he still could have identified. Upon arrival in Topeka .he talked with an officer of the bank who, acting in his capacity as such official, represented to and assured plaintiff that the Topeka Packing Company was not in financial difficulty and was solvent; that there was no doubt but that he would be paid the amount of the protested check within a week or two; that the check was the first one given by the company which the bank had protested, and persuaded plaintiff to leave the check with the bank for collection.
As a result of this conversation plaintiff refrained from repossessing the eggs in question and refrained from taking any legal action to recover from the maker thereof the amount of the check.
On the date these representations were made to plaintiff, and for some time prior thereto, the packing company had been in financial difficulties and was in fact insolvent, and the bank had previously protested other checks given by the company for the purchase of eggs. The company was indebted to the bank and through a system of different “types” of checks (all of which is detailed in the petition) the bank received payments on the company’s indebtedness to it. During this period the company had a substantial “float” of outstanding checks for which it did not have sufficient funds on deposit with the bank, and all of these facts were known by the bank at the time the representations in question were made to plaintiff.
On August 1, 1952, the bank, under the terms of a note and chattel mortgage executed to it by the company, took possession of 1,227 cases of eggs held by the company and sold them to another party for the sum of $10,688.03. Included in these eggs were the eggs sold by plaintiff, and the bank applied the proceeds to reduce the indebtedness of the company to it. Later the second check, in the amount of $2,927.60, given to plaintiff, was protested.
On August 7, 1952, bankruptcy proceedings were commenced by other parties against the packing company.
In connection with its motion to strike portions of the petition the bank contends that allegations concerning a “custom” between the bank and the packing company with respect to the handling of checks written by the company are immaterial and irrelevant to the issues presented, and further that some of the allegations sought to be stricken refer to the future rather than to a present or past state of facts, and reliance is had upon First National Bank v. Mense, 135 Kan. 143, 10 P. 2d 19, in which it was held that in order to be actionable, false' and fraudulent representations must relate to a past or existing fact, and that no action will lie to recover for fraud based upon a failure to perform a promise looking toward the future.
Conceding the correctness of the rule when applied to appropriate facts and circumstances, we think there is no room for its application in the instant case, and neither do we think the trial court erred in refusing to strike allegations concerning the transactions between the bank and the packing company. All were a part and parcel of the entire course of dealing upon which plaintiff based his cause of action, and were directly related to the alleged false and fraudulent representations made by the bank to him.
The bank contends that its demurrer to the petition on the ground that pleading does not state facts sufficient to constitute a cause of action should have been sustained for the reason that it is not alleged that plaintiff parted with any lien or existing right possessed by him, and that the most that can be said of the alleged misrepresentations is that they amounted merely to an expression of opinion rather than statements of fact and therefore are not actionable.
In oúr opinion the bank’s contentions may not be sustained.
Plaintiff alleged that the eggs could have been identified and recovered at the time of the misrepresentations. He left the check with the bank for collection. The bank subsequently received substantial sums from the packing company which were applied on its indebtedness to the bank rather than to pay the check. Under all of the facts alleged it may not be said that plaintiff did not part with existing rights to insist upon and enforce collection.
And neither may it be said that the alleged misrepresentations amounted to nothing more than mere expressions of opinion on the part of the officer of the bank. The petition sets out in detail the fact that notwithstanding the packing company’s financial condition, of which the bank was well aware, plaintiff was told untruths concerning the actual state of facts and was assured that he was in no danger of losing the money rightfully due him. Such statements coming from one who was in position to know were not mere expressions 'of opinion — they amounted to statements of fact.-
Much more on the subject could be said but is considered unnecessary, particularly in view of the fact the case has not been tried. As having a bearing on the matters presented, however, we call attention to the following authorities: 37 C. J. S., Fraud, §48, pp. 302, 303; 23 Am. Jur., Fraud and Deceit, §§ 71, 81, 82, 83 and 89; Robbins v. Barton, 50 Kan. 120, 31 Pac. 686; Discount Co. v. Bank, 101 Kan. 253, 166 Pac. 476; Shriver v. National Bank et al., 117 Kan. 638, 232 Pac. 1062; El Dorado Nat’l Bank v. Eikmeier, 133 Kan. 412, 300 Pac. 1085; Atlas Acceptance Corp. v. Weber, 138 Kan. 89, 23 P. 2d 479, and Olsburg State Bank v. Anderson, 154 Kan. 511, 119 P. 2d 515.
The orders of the trial court overruling the motion to strike portions of the petition and overruling the demurrer thereto are affirmed.
Harvey, C. J., not participating. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from a judgment denying a writ of habeas corpus sought by appellant, hereinafter referred to as petitioner, who had been bound over for trial for his alleged crime after a preliminary examination before an Edwards county magistrate.
It is disclosed by the record that the county attorney filed a complaint before the judge of the county court of Edwards county, charging that on November 7, 1953, Clarence E. Windle did unlawfully, willfully and feloniously draw, make, utter, issue and deliver to Farlow Implement Co. his certain check in writing, drawn upon the First National Bank of Spearville, Kansas, in the sum of $2,000, payable to the order of Farlow Implement Co., knowing at the time of the making, drawing, uttering and delivering of said check that he had no funds on deposit in, or credits with said bank, with which to pay said check upon presentation. Pursuant thereto, the petitioner was arrested and brought before the judge of the county court of Edwards county for a preliminary examination and bound over to the district court for trial. Petitioner commenced an action of habeas corpus in the district court to procure his discharge from custody, contending the evidence was not sufficient to justify the examining magistrates holding him for trial. The trial court sustained a demurrer to petitioner’s evidence and remanded him to the custody of the sheriff, and he appeals.
The evidence as disclosed by the record is not in dispute. Windle, on November 7, 1953, gave to E. J. Farlow, owner of the Farlow Implement Co., the following check:
“Nov. 7, 1953
“Pay to the order of Farlow Implement Co. $2000.00
“Two Thousand & no/100............... ......Dollars
“First National Bank, Spearville, Kansas
“Hold Jan 1 “ss/Clarence E. Windle”
It was agreed between the parties that Farlow was to hold the check until January 1, 1954, as Windle would have between $15,000 and $16,000 coming in from the sale of his sheep, at which time he was to present it to the bank for payment. The words “hold Jan 1” were placed on the check at tire time it was given to Farlow. After January 1, Farlow took the check to the bank at Spearville, and payment was refused by the bank for the reason Windle did not have sufficient funds in the bank to pay the check.
To justify binding over for trial a person accused of crime, it is only necessary at the preliminary examination that sufficient evidence be adduced to satisfy the examining magistrate that a crime has been committed and that the accused is probably guilty. (G. S. 1949, 62-620 and 62-621.)
G. S. 1949, 21-554, provides, in pertinent part, that it shall be unlawful for any person to draw, make, utter, issue or deliver to another any check on any bank or depository for the payment of money, knowing at the time of the making and delivery of the check that he has no funds on deposit in or credits with such bank with which to pay the check upon presentation. Section 21-555 provides that any person willfully violating any of the provisions of the aforementioned section, shall be deemed guilty of a misdemeanor if the check is drawn for less than twenty dollars, and be deemed guilty of a felony if the check is drawn for twenty dollars or more. Section 21-556 provides for abatement of the action under certain conditions.
Petitioner contends that the mentioned statutes are in conflict with section 16 of the bill of rights, which forbids imprisonment for debt, except in case of fraud. We do not deem it necessary to labor this point inasmuch as the same question was presented to this court in State v. Avery, 111 Kan. 588, 207 Pac. 838, where we held, after analyzing the statutes and section 16 of the bill of rights, that the statutes do not impose imprisonment for debt, saying:
“. . . The worthless check must be willfully drawn, knowing at the time there are no funds on deposit to meet it. Beyond that, the legislature may, for protection of the public interest, require persons to act at their peril, and may punish the doing of a forbidden act without regard to the knowledge, intention, motive, or moral turpitude of the doer. There is no constitutional objection to such legislation, the necessity for which the legislature is authorized to determine. . . .” (p. 590.)
We held the purpose of the statute was to discourage overdrafts and resulting bad banking, to stop the practice of “check-kiting,” and generally to avert the mischief to trade, commerce and banking which the circulation of worthless checks inflicts. Although the statute tends to suppress fraud committed by the worthless-check method, the evils referred to are all quite distinct from those consequent on fraud, and the statute is to be regarded as creating a new and distinct offense, and does not violate section 16 of the bill of rights.
The principles announced in State v. Avery, supra, have been upheld in State v. Crane, 136 Kan. 181, 14 P. 2d 634; State v. Gillen, 151 Kan. 359, 99 P. 2d 832; State v. Bechtelheimer, 151 Kan. 582, 100 P. 2d 657, and State v. Marshall, 152 Kan. 607, 106 P. 2d 688.
The gist of petitioner s second argument is that the check marked “hold” constituted a postdated check and as a result does not violate the provisions of section 21-554. As disclosed by the record, there is no question but that petitioner issued and delivered the check on November 7, 1953, and that it was plainly marked “hold Jan 1”. There is no contention that at the time petitioner gave the check it was to be considered anything but a check. There was no evidence that it was to be treated as a promissory note or any other instrument except a check. There was no contention that it was not properly presented at the bank for payment, and refused for insufficient funds. Assuming that it was a postdated check, again this question was treated adversely to petitioner’s contention in State v. Avery, supra, where we held that the statute also applied to postdated or checks to be presented for payment at a future date. In State v. Marshall, supra, we held that an understanding between the maker and payee of a no-fund check that the check is to be held and treated as a promissory note does not constitute in itself a defense in a prosecution for violation of the provisions of section 21-554.
Counsel for petitioner is cognizant of our decision in State v. Avery, supra, but contends that it is the most extreme case upholding the constitutionality of the statute in question. The opinion in that case was written in the year 1922. Although our legislature held fifteen regular sessions since that time, the worthless-check statute in question has not been modified, indicating that our legislators are satisfied with the interpretation of the statute given to it in that opinion, and we know of no reason at this late date for making any modification of our former decisions on the questions involved.
The evidence justified a finding that on the dates of the execution and presentation of the check in question there were no funds on deposit to meet it, and that the offense denounced by section 21-554 of the statute had been committed, and that there was probable cause to believe petitioner was guilty. The trial court did not err in sustaining the state’s demurrer to petitioner’s evidence.
The judgment is affirmed.
Harvey, C. J., not participating. | [
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The opinion of the court was delivered by
Smith, C. J.:
This was a divorce action. The appeal is from the judgment dividing the property and settling the property rights of the parties. There had been one other divorce action between these parties. A divorce had been granted defendant wife from her husband. That decree was subsequently set aside. The action was dismissed on February 15, 1955. That day this action was commenced by the husband.
The petition alleged the necessary facts of residence; that the parties were married on December 27, 1947, and had been husband and wife ever since; that no children had been born to the union and defendant had been guilty of gross neglect of duty, by reason of which the plaintiff, that is, the husband, was entitled to a divorce. It was further alleged the parties had property which should be equitably divided between them. The prayer was for a divorce and division of the property and other equitable'relief. The petition was filed on February 15, 1955. On February 23, 1955, the defendant filed first a general denial and admitted the facts of residence, that no children had been born to the union, and that they had property which should be equitably divided.
For a cross petition she alleged she had been a dutiful and faithful wife with no fault on her part and that plaintiff had been guilty of extreme cruelty and gross neglect of duty and it was impossible for them to continue to live together as husband and wife. She then alleged that during their married life they had accumulated substantial property; that certain real estate had been sold and a bank was holding as escrow agent the sum of $7,635.45; that they had entered into an agreement in writing by which this was to be divided equally; that the plaintiff had been permitted to withdraw a portion of his share and $1,600 had been charged against his interest therein; that they had household goods, most of which were the property of defendant, and a substantial amount of which was at that time in the possession of the plaintiff; that all of these should be awarded the defendant; that she believed the plaintiff had concealed a substantial amount of money, which had been on deposit in banks, and was attempting to defraud her out of it and he should be required to give a complete accounting; that shortly before the marriage she advanced $500 to him for the purpose of buying cattle, which became their joint property, and she had before their marriage advanced $2,500; that plaintiff operated a farm during 1952,1953 and 1954 and raised a considerable amount of hay and grain for which he refused to account, except he gave her $50, and he should be required to give a complete accounting. The prayer of the cross petition was for a divorce and that the property rights be equally adjusted and her attorney allowed a fee.
The answer of the plaintiff to this cross petition was first a general denial and then a specific denial that there was any agreement to divide equally the proceeds. On account of the final judgment we are not interested any further in this contract.
The prayer was that defendant take nothing under her cross petition and plaintiff be granted relief as in his original petition prayed for.
The defendant entered her appearance immediately on the action being filed, whereupon the trial court found the action was commenced immediately after the dismissal by the court of the former case, an emergency was declared and evidence heard immediately.
The motions of defendant wife for temporary alimony and attorney fees were denied and $150 was ordered paid to each party through their attorneys from money on deposit in a bank.
It was adjudged that plaintiff, that is, the husband, had been guilty of gross neglect of duty toward defendant and by reason thereof she was given a divorce. There was set aside to the plaintiff the property which he owned in Jefferson county to be his absolutely.
On March 29, 1955, the trial court entered its final judgment in which there was set over to defendant Opal the title to the property she owned in Kansas City, Missouri, and all furniture and personal property which had been moved from the residence of the parties. It was further adjudged she was to receive out of the $7,335.48 in escrow $1,850; and there was awarded plaintiff the real estate in Jefferson county, together with all the farming equipment and personal property he might have in his possession, together with $5,435.48 out of the $7,335.48 in escrow. It was further adjudged each party should pay his or her own attorney fee. The costs were assessed against the plaintiff. Defendant’s motion for a new trial was overruled.
Defendant appealed from the order of March 29, 1955, dividing the property, and from the order of May 24, 1955, denying defendant’s motion for a new trial.
The specifications of error are that the trial court erred in abusing its discretion by failing to award defendant suit money and attorney fees;' in failing to award defendant a fair and equitable share of the property jointly owned by-the parties; in failing to award defendant any proceeds from the sale of crops acquired during the marriage other than a small number of items of household goods; and in only awarding defendant 25 percent of the proceeds from the sale of the farm.
She argues only the question whether the trial court erred by abusing its discretion by awarding her less than 25 percent of the net proceeds from the sale of the jointly acquired homestead and other property.
The pertinent statute, G. S. 1949, 60-1511, provides in part as follows:
“When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to . . . all the property . . . owned by her before her marriage . . . and not previously disposed of, and shall be allowed suoh alimony as the court shall think reasonable . . .”
G. S. 1949, 60-1507, provides in part as follows:
“. . . on granting a divorce in favor of the wife or refusing of the application of her husband, the court may require the husband to pay such reasonable expenses of the wife in the prosecution or defense of the action, as may be just and proper, considering the respective parties and the means and property of each . . .”
The defendant concedes there is no set rule in such cases and that the division was at the discretion of the trial court. She argues, however, the decision should be supported by substantial evidence and that the division was fair and equitable taking into consideration all the surrounding facts and circumstances. She argues the trial court’s judgment did not meet this test. In effect she asks us to read this record and reach a different conclusion than that reached by the trial court.
The affairs of the parties had been managed so that substantially all they had outside of an item of household goods, which were given defendant, was the money on deposit in the bank from the sale of the last farm owned by them. There was a great deal of testimony by both parties as to other transactions in which money was expended, sometimes for a gain, more often for a loss. The trial court remarked in a memorandum opinion that, the financial dealings between the parties were “not understandable.” The evidence did not tend to prove that plaintiff had any cash or other personal property concealed. The record of their financial transactions offered us is not such as to enable us to examine.it and reach a different conclusion than that reached by the trial court with any confidence it would be any more equitable. Defendant was awarded her household goods worth a substantial amount; the real property she had owned in Missouri at the time of the marriage and a substantial part of the cash, in the bank. There was evidence that plaintiff was considerably worse off at the time of the divorce than at the time of the marriage. In other words, the couple had lost money instead of accumulating any.
We are unable to find where the trial court abused its discretion. (See Stanton v. Stanton, 166 Kan. 386, 201 P. 2d 1076.)
Defendant does not argue the question about attorney fees and suit money — hence it will not be discussed here.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action in which plaintiff sought to recover damages arising from the operation of three motor vehicles as later set forth. Demurrers of the defendants to his amended petition as amended were sustained and he appeals.
On October 9, 1954, plaintiff filed his amended petition and as a result of defendants’ motions, on February 26, 1955, he filed amendments thereto. For our purposes, we shall refer to his pleadings as the petition.
Under the allegations of the petition there are two groups of defendants, one group is J. L. Chew and Charlotte Chew, partners doing business as the C & S Well Service-Company, who owned a truck being driven in the course of his employment by their agent, Emile Truhlar, and this group is hereafter referred to as Truhlar. The other group is Anton J. Klaus doing business as Anton J. Klaus Truck Service, who owned a truck driven in the course of his employment by their agent, Richard Stecldein. This truck was operated on the highways of Kansas pursuant to a permit from the State Corporation Commission and was covered by a policy of insurance issued by Tri-State Insurance Company. This second group is hereafter referred to as Stecklein. The further allegations of the petition are that on December 16, 1952, at about 6:45 p. m. and more than one-half hour after sunset plaintiff was driving his automobile north on U. S. Highway 183 which was an improved blacktop highway, the traveled portion of which was twenty-seven and one-half feet in width;, that his vehicle was in good mechanical condition with brakes in good working order and equipped with good headlights which were lighted at the time, and that he was driving at a speed of fifty miles per hour; that unknown to plaintiff, Truhlar had negligently parked and left his truck unattended and unlighted on the east half of the traveled portion of the highway; that the truck was not equipped with any visible red light on the rear thereof, nor any visible reflectors on the rear thereof, nor were there any flares, in violation of G. S. 1949, 8-581 and 8-586; that the truck was about eight feet in width and so parked there was not a clear and unobstructed width of twenty feet of such part of the highway, opposite the parked truck, left for the free passage of other vehicles, nor was there a clear view of the truck from a distance of 200 feet to the south, in violation of G. S. 1949, 8-570. It was further alleged that the parked truck was not readily visible from the rear; that it had a bed with sides about an inch and a half wide and eighteen inches high and the rear was of dark and dirty color all of which tended to make it invisible, and:
“That as the vehicle which this plaintiff was driving approached the point on U. S. Highway 183 approximately three (3) miles South of Stockton, Kansas, it came over the crest of a hill South of said parked truck, the exact distance from the crest of the hill to the parked truck being unknown to the plaintiff, but believed to be approximately 300 to 400 feet; that as plaintiff topped the crest of this hill he noticed oncoming bright lights, believed by plaintiff to be approximately 900 to 1000 feet north of plaintiff’s automobile; when plaintiff had travelled approximately 75 to 100 feet North down the highway, he further noticed a vehicle in his lane of traffic which appeared to be in motion; that plaintiff decreased his speed to approximately 45 miles per hour to allow the vehicle with bright lights to pass and when the oncoming vehicle, to the best of the knowledge and belief of plaintiff was approximately 300 to 350 feet North of plaintiff’s vehicle and plaintiff was approximately 125 to 150 feet South of the parked vehicle, said oncoming vehicle dimmed its lights, and plaintiff observed for the first time that the vehicle in his lane of traffic was not moving and to avoid striking such parked vehicle plaintiff pulled sharply to the left to go around such parked vehicle and plaintiff did get around said parked vehicle but in getting back to the right lane of traffic was struck in the left side of his car by the vehicle which had been approaching from the North which was a 1951 Ford Semi-Truck driven by Richard Stecklein of Hays, Kansas. Said collision caused plaintiff to lose control of his automobile, causing it to skid into the ditch running along the east side of said highway and resulting in the personal injuries to plaintiff and damages to plaintiff’s automobile, as hereinafter stated.”
Plaintiff then alleged that because there were no lights or reflectors on the rear of the parked truck and because of its shape and color and because it was parked in the center of plaintiff’s lane of traffic, it was impossible for plaintiff upon first sighting the truck to immediately ascertain that the truck was parked and not moving down the highway. He charged Stecklein with being negligent in failing to have his truck under control, in failing to apply his brakes and to stop when he knew a collision was imminent, in failing to drive to his right as far as possible in order to give plaintiff clearance to pass the parked truck, in operating at an excessive rate of speed “the exact speed being unknown to plaintiff,” in failing to keep a proper lookout and in failing to dim his lights. Plaintiff further alleged that as the result of the acts of negligence he suffered injuries and property damages and he prayed to recover therefor.
Each group of defendants demurred on the ground that facts sufficient to constitute a cause of action were not stated. These demurrers were sustained, but the record does not disclose whether the trial court ruled that tire facts alleged failed to disclose negligence of either group of defendants, or that they did disclose that plaintiff was guilty of negligence which was the proximate cause of his injuries and damages. In due time plaintiff perfected his appeal to this court where he specifies the rulings as error.
Appellant’s argument that the trial court erred is predicated on an assumption that his allegations were sufficient to charge each group of defendants with negligence and that the only question is whether his allegations showed him guilty of negligence which precludes his recovery, and his brief is devoted to that question. For reasons later set forth we do not fully agree with the assumption.
Appellant’s contentions are divided. He first contends that he had a right to assume that others using the highway were obeying the law and that he was not guilty of negligence until he had knowledge to the contrary, citing Siegrist v. Wheeler, 175 Kan. 11, 259 P. 2d 223, Stephens v. Bacon, 176 Kan. 460, 271 P. 2d 285, and other authority. It may be said those decisions support the contention. He next contends that under the circumstances alleged as to the color of the parked truck and the fact he came on it after coming over the crest of a hill, and other allegations, he was not bound by the rule that one operating his vehicle in the nighttime must have it under such control he can stop it within the range of his lights and that the rule does not apply where the obstruction is of such a character and so placed that a driver of a motor vehicle properly equipped with lights and brakes, driven at a reasonable speed, is unable to see the obstruction in time to avoid colliding with it. Hayden v. Jack Cooper Transport Co., 134 Kan. 172, 5 P. 2d 837; Womochil v. List & Clark Construction Co., 135 Kan. 695, 11 P. 2d 731; Deardorf v. Shell Petroleum Corp., 136 Kan 95, 12 P. 2d 1103; Frakes v. Travelers Mutual Cas. Co., 148 Kan. 637, 84 P. 2d 871; and Towell v. Staley, 161 Kan. 127, 166 P. 2d 699, cited by the appellant support the contention as made. He further argues that although the trial court had stricken from his petition an allegation he acted in an emergency, the allegations of the facts and circumstances disclose that an emergency did exist, and the rule should be applied that one who, in a sudden emergency acts according to his best judgment and omits to act in a most prudent manner is not chargeable with negligence; that although he saw the Truhlar truck ahead of him, it was not until the lights were dimmed on the Stecklein truck he knew the Truhlar truck was not in motion, he was confronted with an emergency and the fact he acted as he alleged did not convict him of negligence. In support he cites Metzinger v. Subera, 175 Kan. 542, 266 P. 2d 287, where the rule contended for was applied.
And finally he directs attention to the familiar rule that in passing on a demurrer all the allegations of the pleader must be accepted as true and if reasonable minds might reach different conclusions therefrom, the question must be submitted to the trier of the facts and cannot be determined by the court as a matter of law, citing Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721, and cases cited therein. The case cited dealt with a demurrer to evidence, but the review made is informative.
We first note the contention of Stecklein that he is not charged with negligence, and if that be true the question of plaintiff’s negligence is immaterial as to him. Notwithstanding appellant charged Stecklein with negligence in particulars as heretofore set forth, those charges were in their nature conclusions for he had theretofore in his petition set forth that as he came over the crest of the hill he noticed oncoming bright lights (of the Stecklein truck) about 900 to 1000 feet away. Appellant traveled north and when he was about 125 to 150 feet south of the parked truck, Stecklein was about 300 to 350 feet north of it. Stecklein was on his own side of the highway, and, so far as the allegations go, had no reason to know that appellant would come over into the west side of the highway and into the lane in which Stecklein was proceeding. Stecklein had the right, which appellant insists he had, to assume that appellant would stay on his side of the highway. Appellant alleged he slowed to 45 miles per hour and if so he proceeded north at the rate of 66 feet per second. The distances set forth in the petition indicate Stecklein was driving about the same speed. The net result is that but a few seconds elapsed between the time appellant first saw Stecklein and appellant crossed into his left lane of traffic and struck Stecklein’s truck. If there was any emergency involved as between the two, appellant created it and Stecklein is not to be held negligent because he did not turn farther to his right and avoid appellant who created the situation by being where he had no right to be. In our opinion the trial court properly sustained Stecklein’s demurrer for the reason actionable negligence was not alleged against him.
Appellees Truhlar made no contention the petition does not charge them with actionable negligence and without discussion we hold that it does. Their contentions that the trial court did not err in ruling on their demurrer may be summarized. They direct attention to the basic rule that the operator of a motor vehicle is required to articulate his speed with his ability to stop within his range of vision, citing Bottenberg Implement Co. v. Sheffield, 171 Kan. 67, 229 P. 2d 1004, and cases cited therein, and contend the allegations of the petition show that plaintiff did not comply with his duty, and they infer from the fact he slowed down when he saw the parked truck that he did so in order to pass it as soon as the oncoming Stecklein truck had passed. In our opinion the appellant’s allegations are not to be so construed. Appellant alleged he saw the truck when he came over the crest of the hill, supposed it was moving and did not discover otherwise until the lights of the oncoming truck were dimmed when he saw it was stopped. His effort to go around the parked truck was in an attempt to avoid colliding with it. Appellees Truhlar recognize there are exceptions to the basic rule of control above mentioned which arise out of a sudden change in the operator’s situation not caused by his own failure or neglect to comply with the basic rule, citing Drennan v. Penn. Casualty Co., 162 Kan. 286, 176 P. 2d 522, where it was held that the operator of an automobile, blinded by lights from an oncoming car, who collided in his lane of traffic with a truck standing on the highway, was, under the facts, not guilty of negligence as a matter of law but the question was for the trier of the facts, and Metzinger v. Subera, supra, and other cases. They contend further that the emergency doctrine, relied on by appellant, does not apply where the operator’s own negligence placed him in the unexpected situation, citing Eldredge v. Sargent, 150 Kan. 824, 96 P. 2d 870, and DeGraw v. Kansas City & Leavenworth Transportation Co., 170 Kan. 713, 228 P. 2d 527. The Eldredge case arose on a motion for judgment on answers to special questions and it was held those answers did not bring the case within any exception to the established general rule that it was negligence as a matter of law to drive an automobile at night at such a speed it could not be stopped within the distance objects could be seen ahead of it. In the DeGraw case this court considered a demurrer to evidence. It was said that under the circumstances it could hardly be said the driver of the bus was faced with an emergency where he saw a skidding truck in the wrong lane of traffic and obviously out of control, at least six hundred feet away. In Metzinger v. Subera, supra, it was held:
“It is a general rule of law that one, who, in a sudden emergency, acts according to his best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence.”
Appellees recognize that as a general rule and in the absence of notice to the contrary, the operator of a motor vehicle may assume that others using the highway are obeying the law, and say it is equally true that the operator may not act on that assumption where the factual basis for it has disappeared, and that may be conceded. They argue that when appellant first observed the Truhlar truck in his path it showed no rear light or reflectors, and that in itself was notice the conditions were not normal and that an assumption the truck was moving was unjustified, and that the factual basis for an assumption the rules of the road were being complied with disappeared the moment appellant saw an object on the highway without lights. We cannot agree. Appellant did allege that as he came over the hill he saw the Truhlar truck and that it had no lights. That did not mean the truck was not moving along the highway. Appellant alleged he slowed down and only discovered the truck was not moving after the lights on the oncoming truck were dimmed. Under such circumstances we may not say as a matter of law that appellant did or did not observe the requirements of the basic rule above mentioned or that he was or was not faced with an emergency which excused compliance with the rule. In our opinion the questions presented should be presented to the trier of the fact for determination.
Appellees have expanded some of the matters above discussed and have cited other decisions under a general contention plaintiff’s own negligence was the proximate cause of his injuries. We have examined that argument and the cases cited, but are of the opinion that what is said above disposes of the appeal.
The ruling of the trial court sustaining the demurrer of Anton J. Klaus, doing business as Anton J. Klaus Truck Service, Richard Stecklein and Tri-State Insurance Company, is affirmed and its ruling sustaining the demurrer of J. L. Chew and Charlotte Chew doing business as C & S Well Service, a partnership, and Emile Truhlar is overruled and the cause remanded with instructions to overrule that demurrer. | [
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The opinion of the court was delivered by
Robb, J.:
This was an appeal by the defendant from a conviction in the district court on an appeal to that court from a conviction in the county court of a violation of that part of the vehicle code (G. S. 1949, 8-547) which forbids the turning of a motor vehicle from a direct course upon a highway before such a movement can be made with reasonable safety.
Appellant contends on appeal that no direct course upon a highway was established by the evidence and the complaint did not state a public offense. He also contends he had looked and thought the turn could be made with safety and that the accident was the result of speed on the part of the driver of the car which attempted to pass him. His contentions will be covered later after a summary of the facts and pertinent evidence.
On October 9, 1954, at about 6:00 p. m. appellant and his wife were driving north from Pratt on highway 281; they were returning to their home in Stafford; a hubcap came off their car and at the first intersection north, appellant turned his car around for the purpose of going back and finding the hubcap; appellant parked the car on the shoulder on the west side of the highway which was the approximate location where he thought the hubcap had come off; the car was headed south; appellant got out of the car and looked for the hubcap until darkness caused him to abandon the search and he then returned to his car.
Appellant further testified that he looked for approaching traffic from the north and south both before and after getting into his car, but saw none; he then started the car and immediately commenced a direct turn across the highway to head back north; after making part of the turn he looked through his window and again saw nothing, but when he was about halfway across the highway, he became aware that another car was in the vicinity; there was nothing to impair his vision.
Witnesses on behalf of the state testified to the following facts:
Louis Dean Horton, driver of the car coming from the north and going towards Pratt, placed the time of the accident at about 5:30 p. m.; he was about one half or one fourth of a mile to the north when he first saw appellant’s car parked with the two left wheels on the pavement and the rest on the shoulder; appellant had “just kind of veered, started like he was going on down the road going south and we seen him look back. But he said he didn’t see us.” Instead of going on down the road, appellant cut over into the left lane; he (Horton) honked the horn for quite a distance before he came up to appellant’s car; he was traveling sixty to sixty-five miles per hour; there was a little knoll about one half mile north of where he tried to pass appellant; he saw appellant’s car as soon as he came over the knoll; appellant’s car traveled very slowly and came to a position lengthwise across the highway; the center stripe of the highway came through about the middle of appellant’s car.
T. O. Brewer, a passenger in the Horton car, testified that it was dark and appellant’s car was parked on the shoulder; that the car started to move back gradually into the lane of traffic, then started to turn into what appeared to be a U turn if it had been completed; they (Horton and Brewer) first noticed appellant’s car as they came over a slight rise about one half mile to the north; appellant’s car was barely creeping when he drove out onto the highway; he traveled about two car lengths or more on the highway before starting to make the turn.
Marvin Lewis, highway patrolman, testified he arrived at the scene about 6:50 p. m.; he stated that appellant’s car had been parked with all four wheels off the blacktop on the west shoulder, which was quite wide; the tire tracks of appellant’s car showed that it went out into the west lane of highway 281, continued south for seventy-five or one hundred feet, and then angled rather abruptly to the southeast; it then veered off and was finally parked on the east shoulder. Lewis further stated he had given appellant a ticket to appear in court; he also testified that at sixty-five miles per hour the Horton car would have been traveling ninety-three feet a second.
Glenn Clopton, another highway patrolman, testified he arrived at the scene with Marvin Lewis; that appellant’s car tracks were in a southeasterly direction from where the car had been parked on the west side shoulder; the car had come out onto the highway, had proceeded south for seventy or seventy-five feet, and then had crossed the highway in a southeasterly direction.
At the end of the state’s evidence appellant demurred and moved for a discharge, but both the demurrer and the motion were overruled. After all the evidence was in the court instructed the jury. The record disclosed no objections were made to any particular instruction and it will, therefore, serve no purpose to reiterate the instructions here. The jury returned a verdict of guilty, the trial court in time overruled a motion for a new trial and sentenced the appellant. This appeal followed.
The first question raised by appellant on appeal is that the complaint does not state a public offense. As previously mentioned, the statute involved is G. S. 1949, 8-547, and the part which is applicable here reads:
“(a) No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety. . . .”
The pertinent parts of the complaint stated,
. . one Pallas H. Webber . . . did then and there unlawfully turn a vehicle . . . from a direct course,upon a highway before such movement could be made with reasonable safety.”
This is a description of the offense in the words of the statute and we cannot agree with appellant that the complaint should have been quashed. It is sufficient. Kansas authority on this subject is plentiful and it is well covered in State v. Hazen, 160 Kan. 733, 737, 165 P. 2d 234, where there is a thorough discussion of the subject.
It is quite clear that this was a public offense because it was an act or omission forbidden by law, and the law provides a punishment. (G. S. 1949, 8-5,125.) We cannot agree with appellant’s contention that the statute applies only in civil cases and that the law applicable in negligence cases is appropriate here. This is a criminal action and we are not concerned with anything re lating to a possible damage action which might grow out of the facts and circumstances of this case.
The only objections made to the instructions were general and considering the instructions as a whole, they appropriately covered the case. The requested instructions of appellant followed his theory that negligence, coupled with contributory negligence, is the only question here, but in view of what we have already said, that construction is incorrect. The trial court did not err in refusing to give the requested instructions.
Appellant stated that he looked and did not see the other vehicle but it had to be there according to the evidence of the two men in it and the two highway patrolmen who arrived immediately after the accident. We believe the jury was justified in finding that the turn from a direct course was made when it was not safe to make such a turn and for this reason we will not disturb the verdict. The controlling rule in this case is that a person is presumed to have seen what he could or should have seen. This rule is neither novel nor startling and does not require a review of our Kansas cases thereon at this time.
We do not find any error on the part of the trial court and the judgment and sentence thereon are affirmed.
Harvey, C. J., not participating. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is a workmen’s compensation case where the commissioner rendered an award in favor of the claimant, which was affirmed by the district court, and an appeal has been taken from that judgment by Builders, Inc., and its insurance carrier.
The appellant has made four specifications of error, which are briefed under one general heading, i. e., whether there was substantial evidence introduced before the examiner and affirmed by the trial court, upon which to base claimant’s award. Both parties agree this is the only point in the appeal. Most of the usual preliminary features of a compensation case such as employment, being under the Act, notice of alleged accident, demand for compensation, and amount of wages are not controverted. No point is urged as to the fact of claimant’s accident, which occurred July 20, 1954, or about his actual disability, so, the serious question presented is the sufficiency of the evidence of causal connection between the accident and the disability.
Specifically, appellant contends the expert testimony, which diagnosed claimant’s disability as conversion hysteria, was highly speculative and conjectural and could not form the basis of an award, since one of the factors which might have produced the disability, i. e., the financial difficulty claimant experienced in August, 1954, was not considered in forming the opinion, and further, that such testimony was indefinite with respect to traumatic relationship between the injury and the disability.
Omitting portions relating to compensation and expenses found to be due under the Workmen’s Compensation Act, the all decisive finding made by the commissioner in making his award, which was substantially adopted and approved by the trial court in rendering its judgment, in part, reads:
“It is found, in addition to the stipulations, that claimant was injured by accident arising out of and in the course of his employment with the respondent on July 20, 1954, from which claimant suffered temporary total disability commencing August 21, 1954. . . .”
As preliminary, we point out that under G. S. 1955 Supp. 44-556, appellate jurisdiction in compensation cases is confined to reviewing questions of law only. In so doing, it is necessary to determine whether the record contains substantial evidence which tends to support the trial court’s factual findings, and this court is required to review all the evidence in the light most favorable to the prevailing party below. Under the rule established by the decisions of this court, such findings are conclusive and will not be disturbed on review even though the record discloses some evidence which might warrant the trial court making a finding to the contrary. (Andrews v. Bechtel Construction Co., 175 Kan. 885, 267 P. 2d 469; Silvers v. Wakefield, 176 Kan. 259, 270 P. 2d 259; McDonald v. Rader, 177 Kan. 249, 277 P. 2d 652; Evans v. Board of Education of Hays, 178 Kan. 275, 284 P. 2d 1068; and, Shobe v. Tobin Construction Co., 179 Kan. 43, 292 P. 2d 729.) Numerous decisions of like import will be found in 9 West’s Kansas Digest, Workmen’s Compensation, §§ 1940-1969, and 5 Hatcher’s Kansas Digest (Rev. Ed.) Workmen’s Compensation, § 153.
In giving the announced rule effect, we inquire: What is substantial evidence? In In re Estate of Harris, 166 Kan. 368, 372, 373, 201 P. 2d 1062, it was stated it must appear from the record that the trial court’s findings are based upon facts which substantiate them, otherwise they do not rise to the dignity of “substantial evidence.” The term “substantial evidence,” when applied by this court in reviewing an award under the Workmen’s Compensation Act, means evidence possessing something of substance and relevant consequence and carrying with it fitness to induce conviction that the award is proper, or furnishing substantial basis of fact from which issue tendered can be reasonably resolved.
We turn to another rule established by this court in a long line of decisions applicable to workmen’s compensation cases, which is that our workmen’s compensation statute is to be liberally construed with a view of making effective the legislature’s intent and not for the purpose of nullifying it. (Mendel v. Fort Scott Hydraulic Ce ment Co., 147 Kan. 719, 78 P. 2d 868; Hilyard v. Lohmann-Johnson Drilling Co., 168 Kan. 177, 211 P. 2d 89; and Sundgren v. Topeka Transportation Co., 178 Kan. 83, 283 P. 2d 444.)
Another rule the decisions oí this court require us to apply in considering this appeal is that traumatic neurosis following physical injury long has been recognized as being compensable under Workmens Compensation Laws, not only in England from whence we took our compensation act, but in this country under statutes quite like our own (Morris v. Garden City Co., 144 Kan. 790, 792, 793, 62 P. 2d 920), and, the rule is applicable to such injury even though financial, marital and other worries play a part (Hunnewell's Case, 220 Mass. 351, 107 N. E. 934; Rexroat v. State, 142 Neb. 596, 7 N. W. 2d 163; Peterson v. Dept. of Labor & Industries, 178 Wash. 15, 33 P. 2d 650; American S. & R. Co. v. Industrial Com., 59 Ariz. 87, 123 P. 2d 163; and, Horovitz on Workmen’s Compensation, pp. 75, 76).
Keeping these rules in mind, we turn now to the record for the purpose of determining whether the evidence most favorable to claimant is sufficient to sustain the award. The claimant testified that on July 20, 1954, while in the employ of appellant he fell from a scaffold into a window of a house he was working on, striking his back and ribs on the window sill, and then fell from the window to the ground — a distance of four and a half to six feet; that he reported the .accident to his superintendent and attempted to continue work but he could not do so; that he was immediately afflicted with pain in his side and lower back; that his superintendent told him to go to Dr. Clyde W. Miller, the company doctor, which he did; that Dr. Miller examined him, made x-rays and taped from, “right under my arm clear down to the right, down along below my belt,” and that he told Dr. Miller his whole side was hurting. He further testified that he returned to work on July 28, 1954, to light duty as a “lead man,” that he was in pain about the ribs, back and head but found he could keep his mind off it if he worked; that he had to quit work again on August 21, 1954, because of increased pain; that between July 28, 1954, and August 21, 1954, claimant lost two days work. He further testified that he was having difficulty in walking; that his doctor placed him in the hospital on August 28, 1954, where he was confined until September 30, 1954, when he was released. Claimant had no history of disability prior to the accident and was in good physical condition prior to that time. Upon his admission to the hospital claimant found that it was becoming increasingly difficult to walk and that his shoulder was paining him severely; he fell frequently and on one occasion fell in a shower bath at the hospital after which his shoulder pained him more severely. Two weeks before he left the hospital he lost the use of his legs and was unable to walk, which condition exists at the present time. When claimant lost the use of his legs he also lost all sense of feeling in them; he was unable to move or to use them. When he was in the hospital, anesthetic tests were made by doctors who examined his lower extremities; they stuck pins into his legs, and used a vibrator and a tuning fork on them. Claimant left the hospital in an ambulance. He testified that when sitting down he felt like he was cut in two, and there was no feeling of life below his waist.
Sometime prior to the accident claimant had been buying a house and had made payments on it for about a year; he quit making payments in August or September, 1953. A foreclosure action was instituted and “foreclosure papers” were served upon claimant the first part of August, 1954. The trial court found that as a result of the judgment of foreclosure claimant moved from the premises on October 28, 1954. However, there was reference made to eviction papers, which were served upon claimant by the sheriff in August, 1954, to remove him from the premises. Claimant testified that the difficulty about his home did not cause him any worry or disturbance.
Dr. D. V. Conwell was a witness for claimant. He testified he was a psychiatrist and was in charge of the neurology and psychiatry division of the Hertzler Clinic for approximately 14 years; that he had examined claimant on January 11, 1955, and again on February 8, 1955, prior to the hearing before the examiner. He took the claimant’s history and performed a complete examination including a detailed examination of his reflexes and sensations in his lower extremities; that claimant had an absence of all sensations below the ensiform (lower part of sternum or breastbone) and he did not respond to the pin pricks or the tuning fork or to any of the tests in his lower extremities; that he had loss of both deep and superficial sensations to the ensiform on both sides — he was numb; and, that claimant responded in a normal manner to all the sensory tests above the ensiform. Quoting from appellant’s abstract, the fol lowing questions and answers appear as a part of his direct examination:
“Q. What diagnosis did you make, if any, at that time, Doctor, after the examination? A. Well, with the combination of complaints that we had we thought that he had a nervous condition called a conversion hysteria. Examiner Meador: Called what? A. Conversion hysteria. It is a form of a nervous break. . . . Q. (By Mr. Foster.) Is this sometimes called a traumatic neurosis? A. Called a traumatic neurosis or posttraumatic neurosis or a psychoneurosis. But they are all conversion hysteria — conversion hysteria seems to cover or be more of a descriptive term. Q. Before I go into the radiology report on this, Doctor, I would like for you to comment on this diagnosis, as to the nature of it, that is, is it permanent or how long does it last, and so forth. ... A. Most of them recover. It is a matter of time, and it is a matter of apparently how much insight the patient has into his difficulties. After trauma the time is rather an important element. It has been figured out, . . . that those that are going to make a spontaneous recovery usually do it in the first six months, and after that the rate of recovery drops to where in the second six months probably about half of them will recover, and in the third six months probably IS to 20 percent, and after 18 months very few recoveries. Q. After this 18-month period you are describing, then, there is no recovery, is that correct or — . A. Very few. Q. Very few. And by recovery’ you mean, then that the man would be permanently disabled after 18 months? A. I have seen them in their 27th and 28th year, personally, of a continuous process like we have here.” (Emphasis ours.)
“Q. Is there anything, Doctor, that you can think of, other than the objective and subjective findings of your examination, that would affect your diagnosis — anything—or change it or make you alter it from what you described? A. Oh, I suppose there might be influencing factors, but I haven’t detected any of them here.” (Emphasis ours.)
In response to a hypothetical question détailing the history of the injury on July 20, 1954, its consequences and treatment, the witness made the following answer:
“A. The opinion .is that this conversion hysteria may well be — this conversion hysteria reaction he had may well be the result of that trauma. It would be much more apt to be a conversion hysteria resulting from the trauma than an organic spinal cord lesion which would be located clear up opposite the fourth dorsal vertebra, and where he has no area of sensitiveness there at all. That would fit with this line of anesthesia here. So I don’t think he has a myelitis. And a conversion hysteria could well follow a trauma in an hour or week or month or two months afterwards, if he had persistent symptoms.” (Emphasis ours.)
On cross-examination Doctor Conwell testified in substance as follows: Claimant had subdeltoid bursitis in the form of a nervous breakdown, a combination, causing pain in claimant’s arm; that he found pathological process in the left shoulder but none as it concerned the lower extremities; that there was no physical impairment which would result in paralysis; that he felt the disuse or lack of use of the lower extremities was due to his nerves; that the numbness in his feet began approximately September 3, and the pseudo-paralysis began a week later; that pseudo-paralysis is a paralysis without pathological background; that a hysterical condition can arise from a number of causes, and some of them which might produce a paralysis similar to claimant’s condition are family trouble, financial losses or emotional upsets; that claimant told the witness he didn’t have family trouble of any consequence and gave the witness no information regarding his financial condition; that apparently claimant was handling his personal affairs pretty well until sometime in July or August, 1954, “then, for some reason or other,the man didn’t feel able to compete with his job. And he has had this nervous collapse as a result.” Claimant told the witness he was suffering from pain when he was working. The witness was asked the following questions and he made the following answers:
“Q. (By Mr. Brainerd.) If you would assume with me for a moment that Mr. Barr was named as a defendant in a mortgage foreclosure, covering his home located at 951 North Edwards or thereabout, which mortgage foreclosure was filed February 15, 1954; that thereafter and on the 9th day of June, 1954, a journal entry of judgment was entered foreclosing the mortgage on Mr. Barr’s home; on August 16, 1954, a praecipe was filed for a writ of assistance — • Well . . . that on the 18th day of August, 1954, the real estate was sold under the order of the clerk of the district court by the sheriff, and on or about that day the sheriff evicted— A. On what day? Q. On or about the 16th or 18th day of August, 1954, the sheriff evicted Mr. Barr from his home. Now, would you, in your opinion, believe that would be a sufficient financial involvement to cause this hysteria when viewed in connection with the fact he worked up until about the 20th day of August, 1954? . . . Q. To sum it up, Doctor, if a man’s home was foreclosed under mortgage procedure and the property was sold by court order and he was evicted from his home by a sheriff, wouldn’t that be a sufficient financial— A. When did all this business start? A. The sale was in the middle of August and he was removed from his home in the middle or the latter part of August, 1954. A. Well, as far as the hysteria would be concerned, that could be a factor — particularly if he wasn’t able to keep up with his work. And we have this left arm also to consider some, and that I don’t think is hysteria.” (Emphasis ours.)
“Q. What are your findings, both subjective and objective, that would relate his hysteria back to his injury of July 20, 1954? A. There we have to take into consideration the history of the thing. Q. Now, in answering the first hypothetical question put to you, you didn’t take into consideration the mortgage foreclosure and the financial development in the month of August, 1954, did you? A. It didn’t seem to be of enough moment to the man to tell me about it at the time. Q. If he had given you that— A. He was complaining of his left arm and his inability to use his legs.”
“Q. . . . Will you assume for me the fact he did have financial troubles in August, and then tell me what your opinion would be as to the cause of this hysterical condition? A. I would still say the thing dates hack to the accident. Q. And what is the basis for your opinion? A. Well, we consider the history is reasonably correct. Q. Would you be inclined to entirely ignore his financial condition, a condition that arose in August of 1954? A. We see a lot of poor people and they are not in this bad a shape.” (Emphasis ours.)
“Q. Well, assume he worked up until he entered the hospital. Would you give any consideration to the fact that he worked up until that time? A. I would consider that we had a poor man that was trying to get along and you say that he had financial obligations with his disability, and it was becoming unbearable. Certainly, being thrown out of your home would aggravate— it wouldn’t make you feel happy. It probably could be an aggravating factor.” (Emphasis ours.)
“Q. Let me wind it up this way: What do you point to, Doctor, that would eliminate his financial condition as being a cause of his hysteria? A. I am afraid I don’t understand your question. Q. Well, before you are able to say that the cause of his condition is entirely related to the accident of July 20 you are going to have to eliminate the possible effect of the mortgage foreclosure in the middle of August, are you not? A. Well, according to the record, however, he was seeing a doctor before he was foreclosed. ... I think this trouble is following the accident. Q. Now, what in your findings, in your opinion, entirely eliminates the effect of the mortgage foreclosure? A. I think it may be of some — it may be a contributing factor. Q. It is very possible it could be entirely the cause of it, isn’t it, Doctor? A. I don’t think so.” (Emphasis ours.)
On re-direct examination he testified as follows:
“Q. When Mr. Brainerd asked you in his cross examination if the claimant was suffering pain when he was working, you were referring to the working that took place after the accident of July 20, were you not — his complaint of pain while working during the intervening time he returned to work? A. He didn’t tell me about having pain previous to his accident at all. Q. What would you rate the man’s percentage of disability as being at this time? A. He would be totally disabled right now. Q. . . . this is the last question and this is an important one: Do you feel that this trauma, this hypothetical trauma I have described, was at least an aggravation causing his present condition? ... A. That is what I thought.” (Emphasis ours.)
It should be stated that the three doctors who testified for appel lant controverted some of Dr. Conwell’s testimony; other parts of their testimony could well be construed to support it and the trial court may well have given it consideration. However, no attempt has been made to relate appellant’s evidence, since on review of findings of the trial court this court is concerned only with evidence which supports or tends to support the findings made. (Smith v. Cudahy Packing Co., 145 Kan. 36, 40, 64 P. 2d 582; Gallagher v. Menges & Mange Const. Co., 146 Kan. 506, 72 P. 2d 79; Walker v. Finney County Water Users Ass’n, 150 Kan. 254, 257, 92 P. 2d 11; Williams v. Cities Service Gas Co., 151 Kan. 497, 499, 99 P. 2d 822; Mitchell v. Mitchell Drilling Co., 154 Kan. 117, 118, 114 P. 2d 841; and, Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846.)
Summarizing Dr. Conwell’s testimony with respect to whether there was traumatic relationship between the injury and disability, he said: “We thought he (claimant) had a nervous condition called a conversion hysteria”; that, “the conversion hysteria reaction he had may well be the result of that trauma (from the accident of July 20, 1954)”; that, “a conversion hysteria could well follow the trauma in an hour, a week or month or two months afterwards, if he had persistent symptoms”; that, “after trauma the time is rather an important element. Those who are going to make a spontaneous recovery usually do it in the first six months, and after that the rate of recovery drops to where in the second six months probably about half of them will recover and in the third six months probably 15 to 20 percent, and after eighteen months very few recover.” When asked whether he considered the trauma was an aggravating cause of claimant’s present condition, he said: “That is what I thought.” With respect to whether he took into consideration claimant’s financial involvements during August, 1954, in forming his opinion that claimant’s disability was the result of the injury, he said, “Well, as far as the hysteria would be concerned, that would be a factor — particularly if he wasn’t able to keep up with his work.” He further said: “it probably could be an aggravating factor” of claimant’s disability but he concluded his testimony by saying, “I would still say the thing dates back to the accident.” With respect to the permanency of claimant’s disability Dr. Conwell stated, “I have seen them in their 27th and 28th year, personally, of a continuous process like we have here,” and “he (claimant) would be totally disabled right now.” The evidence disclosed claimant had the persistent symptoms Dr. Conwell referred to; he had pain about his ribs, back and head during the time he was working from July 28, 1954, until he quit work on August 21, 1954, because of increased pain.
When claimant’s evidence is considered in the light of the evidence in the cases of Vera v. Swift & Co., 143 Kan. 593, 56 P. 2d 96; Son v. Eagle Picker M. & S. Co., 144 Kan. 146, 58 P. 2d 44; Smith v. Cudahy Packing Co., supra, and Long v. Lozier-Broderick & Gordon, 158 Kan. 400, 147 P. 2d 705, held sufficient by this court to sustain awards to injured workmen, it will be readily observed it is more convincing than the evidence in these cases with respect to causal connection between the accident and the disability.
In the Vera case, supra, the employee died from a streptococcic infection. On the day the workman last worked for the employer, an elevator he was operating descended out of control several stories to the bottom of the elevator pit and rebounded a foot and a half. The claim was that the fall aggravated infection present in his body and contributed to his death. In this case there was no positive medical opinion that the elevator fall contributed to the workman’s death, nor even that it probably did. The testimony was that such a fall could lower resistence and enhance the activity of an infective germ, if present, or that the fall might have caused the infection to flare up. This court said it did not feel justified in holding there was no substantial evidence to support the finding of the trial court.
In the Smith case, supra, claimant worked as a cattle butcher; he received a small cut or skin wound on his right arm. Within a week the wound had entirely healed. Several days later he developed ringworm on his right leg. In answer to a hypothetical question as to whether it was possible that the infection could have gotten into claimant’s system by allowing hides from infected cattle to slip over the wound on his arm, one doctor answered, “he certainly could.” To a similar question another doctor answered, “It would be possible,” although he testified that ringworm is a local and not a systemic infection. This court affirmed a judgment on the ground that the evidence made certain the possibility of contracting the disease and practically eliminated every other source of infection.
In the Son case, supra, although the medical testimony was otherwise weak in the nature of establishing causal connection the doctor did, at one point, make the unqualified statement that, “The injury was the beginning of the trouble.”
In the Long case, supra, a piece of slag penetrated a workman’s eye. The doctor stated that the slag in the eye, “may have been the cause of the uveitis.” This court in affirming the judgment held that the evidence of the eye specialist was stronger than the supporting evidence in either the Vera case, supra, or the Smith case, supra, and affirmed the judgment.
In view of the testimony of Dr. Conwell, we do not think appellant’s contention can be sustained. The fact that Dr. Conwell did not state with certainty and exactness the cause of claimant’s disability after a hypothetical question had been submitted to him, would be supposing an exactness in medical science to which most learned followers have not yet attained. (Roark v. Greeno, 61 Kan. 299, 59 Pac. 655.) That he admitted claimant’s financial condition, which resulted in the loss of his home, could be an aggravating factor of cause of his disability is evidence of his professional honesty, and a clear indication he did not eliminate this factor in arriving at his opinion that the disability had traumatic relationship to the accident on July 20, 1954, and while financial worries may have been a contributing factor and were probably an aggravating cause to claimant’s present condition, he said, “The thing dates back to the accident.”
Before concluding we refer again to Dr. Conwell’s testimony when he stated he thought the trauma in this case was at least an aggravation causing claimant’s present condition. It should be pointed out our decisions (See West’s Kansas Digest, Workmen’s Compensation, § 556 and Hatcher’s Kansas Digest [Rev. Ed.], Workmen’s Compensation, § 16) universally hold that accidental injuries are compensable where an accident only serves to aggravate or accelerate an existing disease or intensifies the affliction.
In view of the previous holdings of this court, some of which have been heretofore discussed, we have no hesitancy in finding, as a matter of law, that the award in favor of claimant is based upon substantial evidence.
Having reviewed claimant’s evidence and considered all the facts and circumstances in the light most favorable to the claimant, as we are enjoined to do both by the statute and the rule so often reiterated, we conclude there was substantial evidence to support the finding and judgment. The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
The question here concerns the propriety of an order appointing a receiver to operate, manage and develop an oil and gas lease.
Briefly stated, circumstances and events leading up to the appointment were as follow:
In 1945 Pay Rock Oil, Inc., was the owner of an oil and gas lease on property in Greenwood County. Later, fractional interests in the lease were assigned to various parties, including seventeen nonresident appellees herein. The assignments provided that Pay Rock retained operational rights and that it was to operate the lease. A producing well was drilled, and in November, 1953, Pay Rock filed an action to partition the lease. Personal service was had on appellant Riley, a co-owner, and publication service was had on the seventeen nonresident appellees. Riley elected to take the property at its appraised value and commenced to operate and manage it without the consent of the nonresident owners. Later, they, under G. S. 1949, 60-2530, moved to vacate and set aside the judgment, such application being supported by an affidavit and answer of each. After due notice of the hearing of this application all parties except Pay Rock appeared and argued the matter. In February, 1955, the judgment in the partition action was vacated and set aside. Appellant Riley continued to operate the lease contrary to the wishes of the nonresident appellees. In May, 1955, Riley filed an action to partition the lease, and shortly thereafter the nonresident appellees, through their ■ counsel, filed an application for the appointment of a receiver pursuant to the provisions of G. S. 1949, 60-1201. Riley filed a motion to strike the application. This motion was denied, and in July, 1955, the court made an order appointing a receiver. Riley has appealed.
It is contended the court erred in overruling the motion to strike the application for the appointment of a receiver and erred in appointing a receiver. The allegations of the application will not be detailed. We have examined them and are of the opinion they were sufficient under the First portion of G. S. 1949, 60-1201.
With respect to whether the court erred in appointing a receiver the chief complaint appears to be that inasmuch as the application for the appointment was verified by counsel on information and belief only, it was insufficient under the rule laid down in State, ex rel., v. Molitor, 175 Kan. 317, 263 P. 2d 207.
This contention is without merit and cannot be sustained.
The Moliter case was an ex parte proceeding and for the reasons stated in the opinion it was held that under the circumstances disclosed an application for the appointment of a receiver verified on information and belief only, was insufficient to authorize the appointment. Such, however, is not the situation before us. Here the parties were in court and were given every opportunity to present evidence on the question. The court had the entire matter before it and was familiar with the contentions of the various owners of the lease in question. In fact, it heard testimony as to the operations of similar receiverships, all of which had a bearing on the advisability of appointing a receiver in the case under consideration. We find no error in the record and the judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This was an action to recover damages for malicious prosecution. The defendants were Schmidt, sheriff of Ellsworth County, Anderson, a deputy sheriff of Ellsworth County, and The Fidelity and Deposit Company of Maryland, surety on the sheriff's official bond. The jury returned a verdict in the amount of $2,400 against all three defendants and answered special questions. The sheriff and his surety moved for judgment on the answers to special questions notwithstanding the general verdict. This motion was sustained and plaintiff has appealed from that ruling.
This is the second chapter of litigation growing out of the prosecution of plaintiff on charges filed in the county court of Ellswortih County by Anderson, the deputy sheriff. The background of the matter is set out in State v. Anderson, 178 Kan. 322, 285 P. 2d 1073, in which the conviction of Anderson of the charge of perjury was upheld by this court.
The instant action is to recover damages for the alleged malicious prosecution of the criminal charges against plaintiff mentioned in the Anderson case. The petition is lengthy and will not be summarized other than to state that it alleges the charges preferred against plaintiff in the complaint signed by Anderson were untrue and were made by such deputy with the encouragement, instigation and ratification by the sheriff in his official capacity, with the deliberate, willful and malicious intent on the part of both of them to injure plaintiff, all of which is denied in the answer filed by the sheriff and his surety.
In its answers to special questions the jury found (1) that at the time in question defendant Anderson was a deputy sheriff; (2) that the signing of the complaint by Anderson against plaintiff was an official act in his capacity as a deputy sheriff; (3) that defendant Schmidt, the sheriff, did not in any way encourage, instigate, confirm or ratify the signing of the complaint by Anderson against plaintiff; (4) that Schmidt did nothing illegal, malicious or wanton toward plaintiff, and (6) that Schmidt had probable cause to believe that plaintiff was intoxicated when he was brought to the county jail of Ellsworth County following his arrest. Other special findings are immaterial to the question before us.
As heretofore stated, on motion of the sheriff and his surety the judgment was as to them set aside, but was permitted to stand against Anderson, the deputy.
The record before us is very sketchy and incomplete, and we are told that plaintiff did not procure a transcript of the evidence. Our scope of review is therefore limited.
In this state the liability of a sheriff for the official acts of his deputy is not based upon the doctrine of respondeat superior but on the fact that by statute the deputy is his representative for whose acts he is liable as if they had been done by himself. (Duran v. Mission Mortuary, 174 Kan. 565, 258 P. 2d 241.) See also Pfannenstiel v. Doerfler, 152 Kan. 479, 105 P. 2d 886, and Zurbucken v. Glens Falls Indemnity Co., 158 Kan. 599, 149 P. 2d 617.
The statute in question, G. S. 1949,19-805, reads:
“Each sheriff may appoint such and so many deputies as he may think proper, for whose official acts and those of his undersheriffs he shall be responsible, and may revoke such appointments at his pleasure; and persons may also be deputed by such sheriff or undersheriff in writing, to do particular acts; and the sheriff and his sureties shall be responsible, on his official bond, for the default or misconduct of his undersheriff and deputies.”
In other words, under this statute a sheriff and his bondsman are liable for the default or misconduct of a deputy in the performance of an official act by such deputy.
In their briefs the parties discuss rules relating to the subject of malicious prosecution, but in view of the record before us such general discussion is of little assistance. We have no way of knowing the basis upon which the trial court set aside the verdict against the sheriff and his surety. It may have been due to the fact the jury in its answers to questions 3 and 4 absolved the sheriff of any wrongdoing in connection with the filing of the complaint by Anderson. If the trial court so reasoned we believe it was in error, because of the fact that under the statute a sheriff could be entirely innocent of any personal wrongdoing and still be liable for the acts of his deputy. On the other hand, it has been held many times that a judgment which is correct in result will not be disturbed on appellate review even though the reasons given for its rendition are wrong. (Henks v. Panning, 175 Kan. 424, 264 P. 2d 483; George v. Ayesh, 179 Kan. 324, 295 P. 2d 660.)
It also is possible that the trial court ruled as it did because of a lack of evidence to support the second finding of the jury to the effect that the signing of the complaint against plaintiff by Anderson was an official act committed by him in his capacity as a deputy sheriff. Here again we are left to surmise, but in passing take note of the elementary rule to the effect that an appellant must affirmatively show error before this court will reverse. We are unable to say that plaintiff has assumed that burden.
During the oral arguments we were told that prior to plaintiff’s arrest Anderson had caused an open bottle of liquor to be “planted” in plaintiff’s automobile. Following plaintiff’s arrest Anderson signed a complaint charging him with four offenses, one of them being unlawful transportation of an open bottle of intoxicating liquor. This is related in State v. Anderson, supra.
The complaint was filed in the county court of Ellsworth County. Under G. S. 1949, 20-808, the justice code of criminal procedure applied. G. S. 1949, 63-201, provides that whenever a complaint shall be made to a justice of the peace on the oath or affirmation of a person competent to testify, charging any person with the commission of a misdemeanor, a warrant shall issue. In other words, under this section a complaint may be signed by anyone who is competent to testify to the facts stated therein. It need not be signed by an officer. The complaint in question was not signed by Anderson as a deputy sheriff, as such. It was signed by him as an individual. We concede it can be argued that the entire transaction was carried out by Anderson in his capacity as a deputy sheriff. On the other hand, the statute (G. S. 1949, 19-805, supra) does not impose liability on a sheriff and his bondsman for every default or misconduct on the part of his deputy. Liability attaches only where the default or misconduct occurs in the performance of an official act by the deputy. In Farmer v. Rutherford, 136 Kan. 298, 305, 15 P. 2d 474, it was said that there is no liability upon the surety unless something is done which amounts to a violation of an official duty. In Hitsman v. Kennedy, 138 Kan. 564, 27 P. 2d 218, this court adhered to the rule that liability upon an official bond arises only with reference to acts of the officer which pertain to some function or duty which the law imposes upon his office, and that a sheriff and his bondsman are not liable for an unofficial act of a deputy where the act is one which the law does not require him officially to perform. On the subject generally, see 47 Am. Jur., Sheriffs, Police, and Constables, § 158, p. 932, and 80 C. J. S., Sheriffs and Constables, § 179, p. 424.
There are numerous statutes which define and set out the official duties of a sheriff, many of which may be performed by an under-sheriff or deputy. References are to G. S. 1949, and a few of them are 19-811,19-812,19-813, 60-3814, 60-3815, 60-3816, 79-2101 et seq., and 79-3235, but we know of no statute or rule which requires a deputy sheriff to sign a complaint. In other words, the signing of a complaint is not a duty imposed on him by law. As a practical matter, when a deputy sheriff does sign a complaint, charges therein contained undoubtedly are the result of facts learned by him in his capacity as such deputy, but it does not follow that the act of signing such complaint constitutes an official act, as that term is herein defined. The act of Anderson in signing the complaint, even though false and constituting perjury, not being an official act, did not, under the statute, impose liability on the sheriff or his bondsman. The ruling of the trial court entering judgment in favor of those two defendants was correct and is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This is a workmen’s compensation case. Neither the employer nor insurance carrier is questioning the amount of the award and all controverted issues are between the claimants with respect to the degree of dependency and apportionment of compensation conceded to be due and payable under its terms.
The issues can be simplified by immediate relation of uncontroverted facts and matters disclosed by the record.
The proceeding was commenced by William Gene Shobe and Sharon Rae Shobe, minors, by and through their brother and next of kin, Warren Doland Shobe, and by Hazel Shobe, widow of William S. Shobe, deceased, against the respondent, Tobin Construction Company, and Travelers Insurance Company, its insurance carrier.
By stipulation at the hearing before the Commissioner it was agreed that the deceased, William S. Shobe, met with personal injury by accident on January 7,1954, and that he died on the same day; that his death resulted from an injury that arose out of and in the course of his employment at a time when the relationship of employer and workman existed; that the parties were governed by the Kansas Workmen’s Compensation Act; that the average annual earnings of the deceased were sufficient for maximum benefits under the Act; that compensation for medical and burial expenses have not been paid by the respondent; and that the issues to be determined were: (1) Who were the dependents of the deceased at the time of his death and what was their dependency? (2) Who was entitled to receive compensation for the death of deceased and in what proportion? (3) Who was entitled to receive the allowance for funeral expenses?
The award handed down by the Commissioner contains everything necessary to complete the factual picture and discloses his disposition of the cause. Portions thereof pertinent to the issues read:
“Summary or the Evidence
“Claimant, Hazel Shobe, testified she was married to deceased at the time of his death. She had been married previously, but her former husband was dead. She and deceased Shobe were married February 14, 1953, at Monticello, Kansas. No children were bom as a result of the marriage, and she is expecting none. She is forty-six years of age. At the time of her husband’s death, she was wholly dependent upon him for her support. Deceased had two children by a former marriage, who were wholly dependent upon him at the time of his death for support and maintenance. Deceased’s first wife is dead. The witness did not work after she married Mr. Shobe. She had worked up until two or three days before marrying him. She owned her home at the time she married deceased. She did not rent the home to anyone else. . . . She had no income from her former husband. She had no income from anything else at the time of her husband’s death.
“Warren D. Shobe testified he was guardian of the two minor children, Sharon Rae, age 10, and William Gene, age 14. At the time of Mr. Shobe’s death, these children were dependent upon the deceased for their support. He paid the funeral bill . . .
“Don W. Pearce testified for the claimant children. He set the value of Hazel Shobe’s home at $8,750.00 cash. In his opinion the home could be rented for $110.00 or $120.00 a month.
“Findings
“The Examiner finds that at the time of the death of William S. Shobe, he left as dependents, Hazel Shobe, widow; Sharon Rae Shobe, age 10, and William Gene Shobe, age 14; that the widow and the minor children were wholly dependent upon deceased for their support at the time of his death. That they should receive the maximum allowance under the law to be apportioned one-half to the widow, Hazel Shobe, and one-half to Warren D. Shobe, guardian of the estate of Sharon Rae Shobe and William Gene Shobe, minor children, for the use and benefit of said two minor children. That the allowance of burial expenses in the statutory amount of $450.00 be paid to Warren D. Shobe.
“Award
“Wherefore, Award of Compensation Is Hereby Made in favor of the widow of the deceased workman, Hazel Shobe, and the minor dependents, Sharon Rae Shobe, age 10, and William Gene Shobe, age 14, in the sum of $9,000, which is apportioned one-half to the widow, and one-half to Warren D. Shobe, guardian of the estate of Sharon Rae Shobe and William Gene Shobe, payable at the rate of $28 per week, one-half to the widow and one-half to the guardian. As of June 3, 1954, there is due and owing 21 weeks of compensation at $28 per week, or $588.00, which is hereby ordered paid one-half to the widow, and one-half to the guardian. The remainder of the compensation, $8,412.00, is to be paid at the rate of $28 per week, one-half to the widow and one-half to the guardian, until fully paid, or until the further order of the Commissioner.
“Award is also made for the payment of the statutory funeral benefit of $450 to Warren D. Shobe who paid all of the funeral expenses.”
Warren Doland Shobe, as guardian, appealed from the foregoing ' award to the district court of Wyandotte County in conformity with the statute (G. S. 1949, 44-556), by filing his notice of appeal with the Commissioner within twenty days after the rendition of such decision. Thereafter the cause came on for hearing in the district court which refused to change or modify the award in any respect, made express findings to the effect the award of the Commissioner should be approved and adopted and rendered judgment accordingly. Thereupon the guardian perfected this appeal for and on behalf of the minor claimants.
In approaching consideration of the contentions advanced as grounds for reversal of the trial court’s judgment it is well to keep in mind certain principles which, although universally applicable in workmen’s compensation cases, have particular significance in view of the involved facts and circumstances.
For two of such principles we quote from the syllabus of Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846.
“In an action under the workmen’s compensation act it is the function of the trial court, not that of the appellate court, to pass upon the facts.
“Whether the judgment of the trial court in such an action is supported by substantial competent evidence is a question of law, as distinguished from a question of fact.” (¶¶ 4 & 5.)
Another is to be found in Stanley v. United Iron Works Co., 160 Kan. 243, 160 P. 2d 708, which reads:
“On review in a workmen’s compensation case the appellate court (1) is concerned only with evidence tending to support the award and does not consider evidence which might have warranted a contrary conclusion, (2) examines the record merely for the purpose of ascertaining if such award is supported by substantial competent evidence, and (3) liberally construes provisions of the compensation act with the view of effecting its purpose.” (Syl. fl.)
For another see Peters v. Peters, 177 Kan. 100, 276 P. 2d 302, which holds:
“The degree of dependency in a workmen’s compensation case is a question of fact and findings with respect thereto will not be disturbed on appellate review when there is any evidence to support them.” (Syl. ¶ 2.)
And for still another see Dean v. Hodges Bros., 170 Kan. 333, 224 P. 2d 1028, where it is said:
“. . . Our decisions are to the effect that dependency is to be determined as of the date of tire accident. See page 473 of the opinion of Proffitt v. Aldridge, 154 Kan. 468, 119 P. 2d 523, where it is said, ‘Appellants are correct in contending the degree of dependency must be determined as of the time of the accident [G. S. 1935, 44-508 (j) (now G. S. 1949, 44-508 [/']), 44-510 (2c) (now G. S. 1955 Supp. 44-510 [2c])].”’ (p. 336.)
Appellants’ first contention is there was no competent evidence on which the Commissioner could base his finding that Hazel Shobe, hereinafter, in the interest of brevity, referred to as the ap pellee, was wholly dependent upon the deceased at the time of his death. The first argument advanced in support of their position on this point is that appellee’s testimony to the effect she was wholly dependent upon her deceased husband for her support at the time of his death was in the form of conclusions, hence the trial court had no competent evidence whatsoever on which to base the finding she was wholly dependent. This argument lacks merit and we are not disposed to labor it. It suffices to say it is answered in Dean v. Hodges Bros., supra, where it is said:
“G. S. 1935, 44-523, reads:
“ ‘The committee, arbitrator, commission, or court, shall not be bound by technical rules of procedure, but shall give the parties reasonable opportunity to be heard and to present evidence. . . .’
“In construing the force and effect of the section of the statute just quoted we have held many times the rules of the civil code are not applicable to compensation proceedings and that the commissioner should not confine the parties to strict rules of evidence.
“For illustration see Freeman v. Fowler Packing Co., 135 Kan. 378, 11 P. 2d 276, where it is said:
“ ‘The commissioner as an administrative officer heard testimony concerning the subject of death resulting from accidental injury not admissible under the rules of evidence applicable to procedure in court. He was permitted to do this by statute (R. S. 1931 Supp. 44-523). In reviewing the commissioner’s work, the courts may not nullify it by applying their own standards; and if the commissioner’s decision be based on substantial and satisfactory evidence, relevant, reasonable, and persuasive, though not technically admissible under the rules of evidence governing procedure, the decision will be upheld. (Holt v. Peterson Construction Co., 134 Kan. 149, 151, syl. ¶ 2.)’”
Specifically, the gist of the argument next advanced by appellants in support of their position on the point now under consideration is that even though appellee testified she was wholly dependent upon her deceased husband her testimony disproves that fact because it discloses that on the date of his death she owned the home in which they had been living, hence it must be held as a matter of law that she was only partially dependent upon him. In addition to what has been heretofore related the appellee did testify that she had no income from any source at the time of her husband’s death. Under such circumstances, mindful of the principle that dependency must be determined as of the time of the accident, we are unwilling to say as a matter of law there was no substantial competent evidence on which to base the trial court’s conclusion appellee was wholly dependent upon her deceased husband at that time. In our opinion to hold otherwise would do violence to the rule (See, e. g., Roberts v. City of Ottawa, 101 Kan. 228, 231, 165 Pac. 869; Rupp v. Jacobs, 149 Kan. 712, 718, 88 P. 2d 1102; Chamberlain v. Bowersock Mills & Power Co., 150 Kan. 934, 944, 96 P. 2d 684; Murphy v. I. C. U. Const. Co., 158 Kan. 541, 548, 148 P. 2d 771; Bailey v. Mosby Hotel Co., 160 Kan. 258, 268, 160 P. 2d 701; Green v. Burch, 164 Kan. 348, 355, 189 P. 2d 892; Forcade v. List & Clark Construction Co., 172 Kan. 119, 121, 238 P. 2d 549, and numerous cases therein cited), as old as the law itself, that the Workmens Compensation Act must be liberally construed to effectuate its purposes.
With further reference to appellants’ position on the point just determined we note they cite no decisions, either from this jurisdiction or elsewhere, to sustain it. It has been said that in that situation (See McCoy v. Fleming, 153 Kan. 780, 783, 113 P. 2d 1047; Ehrhart v. Spencer, 175 Kan. 227, 233, 263 P. 2d 246; Walker v. City of Hutchinson, 178 Kan. 263, 266, 284 P. 2d 1073) this court might well conclude that their counsel, after diligent search, have been unable to find any. Be that as it may, when due consideration is given to the purposes behind its enactment, we are unwilling to believe, or hold, the framers of our Workmen’s Compensation Act intended that ownership of the family home on the part of the wife of a deceased workman precludes a conclusion she was wholly dependent upon his earnings for her support on the date of the accident resulting in his death.
Appellants’ next contention is that the district court erred in confirming the Commissioner’s finding that the award should be apportioned one-half to the appellee widow and one-half to the appellants, the minor children, instead of equally on the basis of its finding that all three of such parties were wholly dependent upon the deceased workman. Stripped of all excess verbiage the essence of appellants’ position on this point is that since the court found each of the parties was wholly dependent the act requires that the compensation due and payable under its terms must be equally divided among them. We do not agree.
For many years the Workmen’s Compensation Act, dealing with the amount of compensation payable under its terms to the heirs of a deceased workman in contested cases, has contained the following provision:
“The commissioner shall have the power and authority to apportion the compensation allowed under either subsection (a) or subsection (b) hereof in accordance with the degree of dependency as,of the date of the accident. . . .” (G. S. 1935, 44-510 [2c], G. S. 1949, 44-510 [2c], G. S. 1953, Supp., 44-510 [2c].)
And another of its sections, dealing with uncontested cases where compensation has been paid to the Commissioner for the benefit of dependents, has read:
“. . . Where the compensation has been so paid the commission [commissioner], or such court upon the application of such administrator or any of such dependents, and upon such notice and proof as it may order shall determine the distribution thereof among such dependents. . . .” (G. S. 1935, 44-513, G. S. 1949, 44-513.)
In view of the foregoing sections of our statute it seems clear that, as between the dependents of a deceased workman, the Commissioner is given the right to apportion compensation according to the dependency of the respective dependents as the facts show the case to be. We have previously so indicated in numerous decisions. See, e. g., Carrington v. British American Oil Producing Co., 157 Kan. 101, 138 P. 2d 463; Peters v. Peters, supra. Indeed we think that was the rule prior to the complete revision of the Workmen’s Compensation Act in 1927. (See McCormick et al. v. Coal & Coke Co., 117 Kan. 686, 232 Pac. 1071.)
Another contention, suggested but not seriously argued by appellants, is that there was no evidence to support the Commissioner’s findings as to the degree of dependency between the involved dependents. Where, as here, the record discloses a complete hearing with respect to that question and a full opportunity on the part of the Commissioner to determine the needs and requirements of the dependents we do not believe the Act contemplates that, when approved and adopted by the district court, his award with respect thereto can be disturbed on the ground there was no evidence to support it. Therefore, since all our decisions hold the degree of dependency in a workmens compensation case is a question of fact and that findings with respect thereto will not be disturbed on appellate review when there is any evidence to support them, this contention cannot be upheld.
A final contention raised by appellants, to the effect compensation was apportioned to the dependents under our statute of descents and distribution and not in compliance with requirements of heretofore quoted sections of the Act, finds no support in the record, hence there is no necessity for discussion or arguments advanced with respect thereto.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is an original action in quo warranto to oust defendants from proceeding under the provisions of Chapter 86, Laws of 1955 (G. S. 1955 Supp. 17-4742-4761), commonly known as the Urban Renewal Law.
Allegations of the petition and answer will not be detailed. It is sufficient to say it is contended by plaintiff, and denied by defendants, that the act violates certain provisions of our constitution and is therefore unconstitutional and void. And neither do we consider it necessary to set out in full the act which covers over twenty-one pages of the 1955 Session Laws and nine pages of the statute book. Reference will be made to sections of the act.
In general, it may be said that the over-all purpose of the act, as expressed in the declarations of necessity found in section 2 thereof, is to enable certain cities to take steps to eliminate slum and blighted areas which constitute a serious and growing menace injurious of the public health, safety, morals and welfare of the residents of the state, the elimination of which is declared to be a matter of public policy.
Section 19 limits the application of the act to cities having a population of more than 75,000. It is conceded that Wichita, Kansas City and Topeka are the only cities to which the act presently applies.
Plaintiff’s first contention is that the population limitation constitutes special legislation prohibited by article 2, section 17, of the constitution, which reads:
“All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state: Provided, The legislature may designate areas in counties that have become urban in character as urban areas’ and enact special laws giving to such counties or urban areas such powers of local government and consolidation of local government as the legislature may deem proper.”
In passing, it is to be noted that this section was amended by popular vote in 1954 by the addition of the language in the proviso. For purposes of this case, however, we need not discuss whether the addition of the proviso has any bearing on the question before us, and we therefore proceed to a discussion of the matter as though the section had not been amended.
The validity of similar legislation has been before this court in Redevelopment Authority of the City of Kansas City v. State Corp. Comm., 171 Kan. 581, 236 P. 2d 782, and State, ex rel, v. Redevelopment Authority of Kansas City, 176 Kan. 145, 269 P. 2d 484. In each of those cases legislation then under consideration was held to bé a special law where a general law could have been made applicable, and therefore unconstitutional. We consider it unnecessary to review in detail what was said and held in those cases, and reference is made to the opinions for the facts, questions involved, and reasons for the decisions.
In the first mentioned case it was held that for an act passed by the legislature to have uniform operation throughout the state, as required by the mentioned provision of the constitution, it need not affect every individual, class or community; that it is competent for the legislature to classify and adopt a law general in its nature to the class created, provided the classification so made be a natural one and not arbitrary, fictitious or capricious, and that ordinarily a classification based upon population is sufficient to satisfy the constitutional requirement provided it is based upon distinctions which have a reasonable and substantial relation to the subject matter of the act.
As stated, the act here under consideration applies only to cities having a population of more than 75,000. No other limitation is mentioned. Classifications based solely upon population quite uniformly have been held valid, provided, of course, they were based upon real and substantial distinctions which bore a reasonable and substantial relation to the subject matter involved. See State, ex rel., v. City of Topeka, 168 Kan. 663, 215 P. 2d 644; City of Lawrence v. Robb, 175 Kan. 495, 265 P. 2d 317, and Common School District No. 6 v. Robb, 179 Kan. 162, 293 P. 2d 230.
It is a matter of common knowledge that as cities become more populous they are more subject to slum and blighted areas which are injurious to the public health, safety, morals and welfare of the residents, and in our opinion the population of a city furnishes a legitimate ground for a classification and differentiation such as that contained in the act under consideration. We therefore hold that the act is not a special law within the prohibition of article 2, section 17, of the constitution.
It is next contended the act violates article 12, section 1, of the constitution, which reads:
“The legislature shall pass no special act conferring corporate powers. Corporations may be created under general laws; but all such laws may be amended or repealed.”
A short answer to this contention is that we already have found the act to be general legislation rather than a special law, and in City of Lawrence v. Robb, 175 Kan. 495, 499, 265 P. 2d 317, it was said that if an act be held to be general legislation the question of a special act conferring corporate powers needs no discussion.
The substance of plaintiff’s next contention is that the act is unconstitutional because it authorizes a city to acquire land through the exercise of eminent domain for a private use as distinguished from a public use.
Section 8 of the act provides that a city may acquire by condemnation any interest in real property which it may deem necessary in connection with an urban renewal project. Under section 9 a city is given authority to sell, lease or otherwise transfer property which has been acquired by purchase, condemnation or otherwise, to private redevelopers, subject always to limitations and restrictions enumerated in the act which obligate such purchasers or lessees to devote the property only to the uses specified in the urban renewal plan. Because of this it is argued that inasmuch as private individuals or corporations might stand to profit from the undertaking, the use and purpose would thus be private rather than public.
It is elementary that the legislature possesses no power to authorize the appropriation of one’s property for a private use or purpose, but it is equally well-settled that the right to take private property for a public use is inherent in the state, and that the legislature may authorize the acquisition and appropriation of private property for a public use provided the owner is compensated therefor. (Ottawa Hunting Ass’n v. State, 178 Kan. 460, 464, 289 P. 2d 754.) The difficulty often encountered lies in the inability of courts comprehensively to define the concept of a public use or purpose, due, no doubt, to the exigencies shown by the facts and the diversity of local conditions and circumstances in an everchanging world.
In our opinion the concept of the terms public purpose, public use, and public welfare, as applied to matters of this kind, must be broad and inclusive. As community fife becomes more complex and our cities grow and become overcrowded, the need to use, for the public benefit, areas which are not adapted to the pressing needs of the public, becomes more imperative. Eradication of blighted areas goes to the very essence of public welfare. To hold that the clearance and redevelopment of blighted areas, as defined and characterized by the provisions of the act under consideration, is not a public use of the property and is not in the public welfare, is to close one’s eyes to the cold hard facts and realities of everyday life. The mere fact that through the ultimate operation of the law the possibility exists that some individual or private corporation might make a profit does not, in and of itself, divest the act of its public use and purpose. In upholding similar federal legislation as applied to the District of Columbia in the recent case of Berman v. Parker, 348 U. S. 26, 99 L. ed. 27, 75 S. Ct. 98, the Supreme Court of the United States said:
“Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end. . . . Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established. . . . The public end may be as well or better served through an agency of private enterprise than through a department of government — or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects.” (pp. 33, 34.)
We hold that the purpose and use for which property may be acquired by condemnation is a public use and purpose, and that the act is not invalid on the ground contended.
Plaintiff’s next contention is that section 9 of the act, which authorizes a city to sell or otherwise dispose of property acquired by condemnation to a private person or corporation to be used by them for a gainful purpose, violates public policy and section 2 of the bill of rights of the constitution, which reads:
“All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.”
and in this connection relies upon Winters v. Myers, 92 Kan. 414, 140 Pac. 1033, in which it was said that a statute which has the effect of transferring property belonging to all of the people, without compensation or public advantage, to a few, denies that equal protection and benefit to the people for which government is instituted and as declared in the bill of rights. Reference to the facts and question involved in that case clearly establishes that it is not in point on the question here involved. Furthermore, it already has been held that the use and purpose here involved is public. In Johnson v. Reno County Comm'rs, 147 Kan. 211, 225, 75 P. 2d 849, it was said that the mentioned section of the bill of rights refers solely to political privileges and not to those relating to property rights. And in Herken v. Glynn, 151 Kan. 855, 867, 101 P. 2d 946, a political right was defined as consisting of the right and power to participate in the establishment or management of government, or to exercise the right of suffrage and to hold office.
We find no merit in plaintiff’s contention that the act violates the mentioned section of the bill of rights.
Plaintiff further contends the act is unconstitutional in that it contains an unlawful delegation of legislative powers, contrary to article 2, section 1, of the constitution, which reads:
“The legislative power of this state shall be vested in a house of representatives and senate.”
Section 15 of the act provides that a city may itself exercise its urban renewal project powers, or may, if the local governing body by resolution determines such action to be in the public interest, elect to have such powers exercised by an urban renewal agency, with the exception of certain limitations contained in section 7 (h). Provision also is made, in the discretion of the governing body of the city, to exercise the powers through a board or commissioner, or through officers of the municipality. Section 16 provides for the creation of an urban renewal agency and defines its authority in detail.
One phase of this question was considered in State, ex rel., v. City of Topeka, 176 Kan. 240, 270 P. 2d 270 (commonly known and referred to as the “Park and Shop” case), and it was held that any attempt by a municipal corporation to contract away any of its powers or duties granted by the legislature, to a private individual or corporation, constitutes an illegal delegation of such powers and duties by the city. In that case the statute under consideration did not authorize tire city to delegate any of its powers or duties to a private individual or corporation, whereas the act before us specifically authorizes a city to delegate certain powers and duties within prescribed limitations. The question is — did the legislature have power to do this, or does it amount to an unlawful delegation of legislative authority?
We think it clear that while the legislature cannot delegate its constitutional power to make a law, it can make a law which delegates the power to determine some fact or state of things upon which such law shall become operative. In other words, the legislature may enact general provisions but leave to those who are to act certain discretion in “filling in the details,” so to speak, provided, of course, it fixes reasonable and definite standards which govern the exercise of such authority. For a general discussion of the subject see State, ex rel., v. Hines, 163 Kan. 300, 182 P. 2d 865, and State, ex rel., v. Board of Education, 173 Kan. 780, 787, 788, 789, 252 P. 2d 859.
A careful examination of the questioned provisions of the act convinces us that it is not invalid on the ground it contains an unlawful delegation of legislative powers.
And, finally, it is contended that the act violates article 2, section 16, of the constitution, which in part reads:
“No bill shall contain more than one subject, which shall be clearly expressed in its title, . . .”
We find no merit in this contention. The act concerns only one subject — urban redevelopment — and that subject is expressed very clearly in its title. For a discussion of the question see State, ex rel., v. Board of Education, supra, pp. 784, 785, and State, ex rel., v. Shanahan, 178 Kan. 400, 286 P. 2d 742.
Much more could be said concerning the contentions made with respect to the points under consideration, but limits of time and space render it impractical to do so. An act of the legislature is not to be stricken down on the ground it is unconstitutional unless infringement of the superior law is clear beyond reasonable doubt, and judicial examination of any law enacted by the legislature proceeds on the assumption that it is valid unless it contravenes an express inhibition of the constitution or one necessarily implied from some express affirmative provision of that instrument. (Hicks v. Davis, 97 Kan. 312, 154 Pac. 1030; State, ex rel., v. Board of Education, supra, and State, ex rel., v. Ancient Order of United Workmen, 178 Kan. 69, 283 P. 2d 461.) No such showing of invalidity of the act in question has been made.
We therefore hold that Chapter 86, Laws of 1955 (G. S. 1955 Supp. 17-4742-4761), is not invalid for any of the reasons asserted, and judgment is accordingly entered in favor of defendants.
Fatzer, J., not participating. | [
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The opinion of the court was delivered by
Pabkeb, J.:
These cases originated in the district court of Sedgwick County. Case No. 39,650 was commenced by Rosa Smith against the Wichita Transportation Corporation, a public carrier, to recover damages sustained by her as a result of being run over by one of the carrier’s motor busses while attempting to board such vehicle at a regular bus loading zone located on the south side of Kellogg and east of Hydraulic streets in the city of Wichita. Plaintiff prevailed and the defendant appeals. Case No. 40,067, although stemming from Case No. 39,650, was an independent action for a new trial, brought by the carrier against Rosa Smith under the provisions of G. S. 1949, 60-3005 and 60-3007 to 3016, Incl. The relief sought was denied and the plaintiff appeals.
When the appeals reached this court they were docketed under separate numbers. Thereafter, on joint application of the parties, they were consolidated by order of this court for purposes of argument and decision. In view of the nature of the issues involved we think that action was ill-advised. However, it cannot now be rescinded and we must make the best of it. For that reason, each case will be considered separately although both will be disposed of in this opinion. Therefore, until otherwise indicated, what will be stated has reference to Case No. 39,650.
The pleadings are not in question, hence no attempt will be made to detail their contents. For all purposes here pertinent it may be said that each party charges that negligence on the part of the other was the cause of the involved accident.
With issues joined as just indicated the cause came on for trial by a jury which, at the close of a long and spirited trial, returned its general verdict in favor of plaintiff for the sum of $50,000.00 along with answers to twelve submitted special questions which read:
“1. Was Rosa Smith standing within the bus loading zone when the bus came to a stop? Answer: Yes.
“2. Did Rosa Smith place her foot on the step of the bus before the bus started? Answer: Yes.
“3. Did tire bus start with door open? Answer: Yes.
“4. Did the bus start with a sudden and violent lurch or jerk? Answer: Yes.
“5. Was the starting of the bus while the plaintiff was actually stepping on the steps of the bus the cause of plaintiff’s fall? Answer: Yes.
“6. Was the plaintiff running along the sidewalk at the side of the bus after the bus started in motion? Answer: No.
“7. Was the fall and injury caused by the negligence of the plaintiff? Answer: No.
“8. If you answered the above question yes,’ state the negligence of the plaintiff. Answer:
“9. Was the proximate cause of the plaintiff’s fall the negligence of the bus operator? Answer: Yes.
“10. If you have answered the above question ‘yes,’ state the negligence of the bus operator. Answer: Failure to observe passenger coming aboard.
“II. Was the proximate cause of the injuries the result of the negligence of both parties? Answer: No.
“12. Was this an unavoidable accident? Answer: Could have been avoided.”
In due tíme the defendant filed a motion to set aside the answers to special questions and a motion for a new trial. Subsequently the trial court overruled such motions. It then approved the general verdict and rendered judgment in accord therewith. Thereupon defendant perfected its appeal and brought the case to this court under specifications of error permitting consideration of the matters it now states are the questions involved on appellate review.
At the outset it should be stated the tenor of all claims advanced by appellant in support of the principal questions raised as the basis for its position the judgment should be reversed and a new trial granted is of such nature that it requires an analysis of the evidence adduced at the trial. With that in mind we have carefully examined a long and complicated record and shall now, in highly summarized form, give our version of what is to be there found with respect to the evidence and matters deemed by us to be decisive of the rights of the parties.
On August 81,1951, at about 8:10 a. m., a dry clear day, appellee, a fifty-two year old woman, was attempting to get aboard one of the appellant’s passenger busses, weighing 16,100 pounds, at a bus loading zone, located as heretofore indicated, when she either fell or was thrown under the wheels of that vehicle, which ran over her body and caused the severe and permanent injuries presently to be described.
Claims of the parties respecting the cause of the accident are highly conflicting.
Appellee’s position, supported by her own testimony and that of one corroborating eyewitness, is that she was standing in the bus loading zone when the bus approached and stopped; that she went to the front door, the loading door of the vehicle, and attempted to board; that such door was open and she could see the bus driver who was looking back over his shoulder out of the window, in the opposite direction to the north and west; that just as she got her right foot up on the bottom step of the bus and had her left foot about off the pavement the bus started up with such a rush that it threw her back into a bus stop sign with such force she bounced back under the bus and was run over by one of its wheels; and that she had no conscious recollection of anything that happened thereafter until some time later.
Appellant’s position is that appellee had not reached the loading zone at the time the bus made its stop but on the contrary was seen running across Kellogg street from the north and to the rear end of such bus after it had stopped at the loading zone with the intention of reaching and boarding it before it left such zone. Its evidence on this point is supported by the bus driver who testified he saw no one in the loading zone as his bus approached that location or when he stopped to let off a passenger. It is also supported by the testimony of three women passengers on the bus, and by one other lady who happened to be standing in a doorway of a business establishment located on the east side of Kellogg street directly across from the point where such bus had stopped, all of whom testified in substance that as the bus stopped they saw a gray haired woman running across Kellogg street from the north who passed the rear end of the bus and disappeared from their view. At least one and perhaps more of the passengers said that as this woman came around the right rear end of the bus she began pounding on the rear west side thereof and called for the driver to stop. The appellant produced no eyewitnesses to the accident and none of its witnesses purported to identify appellee as the woman they had seen running across Kellogg street. As a matter of fact, appellee produced witnesses who testified her hair was not gray and that on the morning in question her head was .covered by a scarf.
Appellant introduced evidence to the effect that immediately after the accident, and before she had been removed from the point where it occurred, appellee made statements consistent with its theory that she was the person whom three witnesses had seen running across Kellogg street just prior to the accident. On the other hand appellee, who as we have heretofore indicated had stated she remembered nothing after the accident occurred, produced witnesses who said they were present at the time and heard her make no such statements. She also adduced expert medical testimony to the effect that due to extreme shock it was inconceivable she would have been coherent at that time and that if she were conscious her condition was such statements made by her could not be relied upon.
During the course of the trial a bitter controversy developed between counsel for the respective parties over a missing police report wherein the officer making such report had stated that immediately after the accident appellee had made statements of the character above indicated and then, when testifying at the trial as a witness for appellant, stated that he did not recall her having made any such statements. This witness also testified that, although he believed appellee was conscious after the accident she was in a severe state of shock; that she was mumbling unintelligibly and was very incoherent; that he asked her name while they were waiting for the ambulance and that she was unable either to understand him or unable to answer; and that she remained in that condition all the way to the hospital while he was with her in the ambulance.
We regret another matter must be mentioned and that only because counsel themselves have made it necessary. The record, as well as the briefs and arguments, disclose numerous charges and countercharges on both sides with respect to the integrity of the witnesses, the credibility to be given their testimony, and the good faith and conduct of counsel prior to and throughout the course of the trial. We are not disposed to here detail such charges. For our purposes it suffices to say the record discloses they were all presented and argued during the trial in such manner and form that both the court and jury were fully cognizant thereof and we can assume that the jury in reaching its verdict and the trial court in overruling the motion for a new trial not only gave them full and complete consideration but determined the force and effect to which they were entitled in reaching their respective decisions.
What has been heretofore related, while it is not intended to and by no means covers all the facts of record, is sufficient to demonstrate there was substantial competent evidence to support the answers to the special questions and the jury’s general verdict. Therefore, since under all our decisions it is not the function of this court to pass upon the credibility of witnesses or the weight to be given their testimony, it cannot be successfully argued that the judgment should be reversed on the basis of lack of evidence to support it. It should be added that except for one point to be subsequently mentioned and discussed appellant makes no serious contention to the contrary.
The first contention of appellant with respect to the trial court’s action in overruling the motion for a new trial is that it abused its discretion in making that ruling because the verdict was clearly contrary to the overwhelming weight of the believable evidence. The mere stating of this contention makes it obvious that if we were to sustain it we would have to test the credibility of the witnesses, weigh the evidence and assume the position of the trier of the facts. That, as we have heretofore indicated, is the very thing our long line of decisions holds we cannot do. See, e. g., Dunn v. Madden, 109 Kan. 94, 197 Pac. 1116, where it is said:
“. . . The rule consistently followed in this court for more than a half century is that this court on appeal cannot weigh conflicting evidence nor pass upon the credibility of witnesses. That is the function of the jury who are in a better attitude than this court to determine these questions. We cannot set aside the finding of a jury based on conflicting testimony because of the greater number of witnesses who gave adverse testimony nor because the evidence in record form may seem to us to preponderate against the finding. . . .” (pp. 95 and 96.)
For one of our more recent decisions dealing with the same subject see Stoskopf v. Stoskopf, 173 Kan. 244, 245 P. 2d 1180, and the numerous authorities therein cited.
Another contention advanced by appellant is that the trial court abused its discretion in overruling its motion for a new trial be cause “the entire records show a pattern of untruthfulness, falsification of records and a scheme amounting to a gross miscarriage of justice.” The trouble with this contention, from appellant’s standpoint, is that after a careful and extended examination of the entire record we do not believe it can be construed in accord with its views. It follows the trial court did not abuse its discretion in reaching a like conclusion.
It is also claimed the trial court abused its discretion in overruling such motion when facts were before it which could not have been placed before a jury. Our view is that appellant has failed to affirmatively establish its position on this point. Moreover, in the face of a record disclosing that during the trial the court exercised the utmost liberality in permitting appellant to introduce any and all evidence it deemed necessary to its defense, we refuse to believe such court would have approved the verdict and denied the motion for new trial if it had been presented with facts sufficient to convince it appellant had not received a fair trial.
Another claim respecting error in the overruling of the motion for a new trial is that the verdict was so grossly excessive as to indicate passion and prejudice. This claim has not been mentioned or discussed up to this point because it can be determined along with appellant’s final contention the trial court erred in approving the verdict of the jury as to amount when the same was so excessive as to shock the conscience of the court. We therefore give our attention to those matters, noting as we do so that appellant introduced no testimony in connection therewith and that the evidence on which their decision must depend is uncontroverted. Here again, since neither of the parties has seen fit to summarize the testimony having to do with the subject, our statement with respect to pertinent evidence relating thereto will be based in the main upon our version of what the record discloses and is in no sense to be construed as covering everything to be found therein.
On the morning of the accident in question appellee was a woman fifty-two years old with a conceded life expectancy of 19.49 years. She had always had excellent health and had never been to a doctor or in a hospital. She was employed as a domestic and maintained a home for her minor son and daughter. Her wage rate was $1.00 per hour, lunch and transportation, and when she had employment she usually worked seven and one-half to eight hours per day. Her average earnings a month or two before the accident were about $40 per week. Before the accident occurred she went fishing with her sons, bowled, attended dances and church, and took her grandchildren to the park which was a mile from her home. Since the accident she cannot do any of such things; cannot stand to have her grandchildren around because it makes her too nervous; has lost her home and now has to live from place to place with her children; does not now go out in public very much because of the pain and embarrassment of being a cripple; and is unable to carry on her former work as a domestic. So much for the testimony of Mrs. Smith, which has been limited to a very general statement inasmuch as we believe the nature of her injuries, the extent of her pain, suffering and disability, and the expenses incurred by her as a result of the accident should be based upon the testimony of witnesses who can be classified as having no interest in the lawsuit.
Leo Crumpacker, a physician and surgeon and specialist in surgery, who was at the hospital when appellee arrived there in the ambulance and was the first to see and examine her, described her condition on arrival as follows:
“I found a female woman — I don’t know her exact age — but she appeared to be somewhere in her forties, lying on a stretcher. There were multiple areas of injury over her body. Her skin was cool and moist. She was in a dazed-mental state. Her eyes were glassy. There was an obvious deformity of the right chest, and when the right chest was palpated with the hand, multiple fractures of the ribs could be felt. There was an injury and laceration of the right forearm; there was a fracture of the forearm as could be demonstrated by feeling; there was an accumulation of fluid which was beginning to take place over the right anterior medial aspect of the abdomen, extending down on to the thigh and around the buttocks; there were multiple areas of abrasions and contusions over the body. Her blood pressure was low. She had injuries involving the right chest, which you could feel the end of the ribs rubbing together, what we call crepitation down over the right side of her abdomen, extending down and around the right hip. There was softness of the tissues indicating there was the beginning of a collection of fluid in underneath, and in examining the pelvic region on the right you could feel a little crepitation there. There was deformity of the right leg — rotating with the foot out in that manner (indicating), and her blood pressure was sixty over nothing at first.”
Later in bis testimony this same witness testified, among other things, that Mrs. Smith was very critically ill and that there was question in his mind whether she was going to live from one moment to the next; that literally she was bleeding into her tissues; that the fluid was collecting in the large injured area on the right side of her body at such a rapid rate they could hardly replace the fluid going into this area through two needles in her veins; that it was blood that collected in the injured tissues and resulted in a condition known as hematoma; that after giving her vigorous emergency treatment he turned her over to Dr. Bowman, an orthopedist, a bone specialist, and Dr. Buck, a chest specialist, associates in his office, because of her extreme chest and bone injuries; and that he saw her some weeks later after she was pretty well along because of a rectal condition she developed as the result of being in bed and all the enemas she had.
Ben H. Buck, Jr., a chest specialist, testified in part as follows:
“. . . I first saw Rosa Smith with Dr. Crumpacker while she was in the emergency room at the hospital. I examined her while she was in the emergency room. My preliminary examination was to ascertain whether the lung had been injured enough to cause it to collapse. She had fractured ribs. When I first saw her she was in shock and was being given fluid in order to combat the shock. She was lying on the table and was moaning and groaning but primarily she was in shock. I examined her ribs and found that there were several fractures of tire ribs. When I first saw her it was shortly after 9:00 o’clock. I do not believe she would have been able to be very coherent shortly after the accident. I took X-rays showing the right chest at St, Francis Hospital. The first eleven ribs were the ones involved. Mrs. Cocke, Dr. Bowman’s- nurse made a sematic drawing of the chest in this case. We splinted her chest so that she could breathe a little better and put sand bags on the right side of the chest. It is hard to splint fractures in the chest because of the constant motion of the lungs underneath. I saw Mrs. Smith in the hospital several times during the next several weeks. I took an X-ray of Mrs. Smith’s chest on April 6, 1953. It shows a deformity in the uniting of the ribs. The ribs were not exactly together when they healed. They were probably offset somewhat. That explains the way they are healed. There is a good bone between them now but they are not perfect as to shape. I believe the ribs are healed as well as they ever will be at this time. There is a small intercostal nerve along the lower border of the ribs. It is conceivable that bony pressure or involvement of this nerve could cause pain.”
A portion of the testimony of Harold S. Bowman, an orthopedic surgeon, reads:
“. . . I treated Mrs. Smith. I first saw her on August 31, 1951, at the request of Dr. Crumpacker after she had been admitted to the St. Francis Hospital. I examined her after I arrived at the hospital.
“She was desperately ill, was in shock, she was receiving oxygen and had been receiving intravenous fluids and had a deformity of the right chest. She had a splint on the right arm and the pelvis on the right side was high in regard to the left. X-rays were made on the 3rd of September, 1951. X-rays showed a fracture of all the rami of the pubic bones, a dislocation of the right sacroiliac joint and the pelvis had been pushed up on that side about three inches. They show a transverse fracture in the lower part of the middle third of the right radius. An X-ray taken January 5, 1952, shows the fracture of the radius, the lateral bone of the arm and shows the union of the fracture in good position. I took X-rays of Rosa Smith on April 6, 1953. She had been home a little over a year at that time. The X-rays showed the lower portion of the spine, hips, the ilium, rami, the ischium, and the sacrum. It shows the ilium on that right side during the interval of time since I had last seen her had been redisplaced upwards. Another X-ray taken on April 6, 1953, shows the same thing that the other X-ray shows but does not include the lumbar spine. It shows the fracture of the displacement of this area apparently having reunited. I also took X-rays on March 16, 1954. It shows that the fractures have stabilized themselves in the same position as they had a year previous. The right hip at the sacrum is pushed up in the neighborhood of an inch and a half. I don’t expect the position of the bone will change and the fibrous tissue will remain in the present position. We put splints on the forearm the day of the accident trying to keep the extremities quiet so that there would be little damage to the soft tissues. On September 5, we closed the laceration on the forearm and placed the right arm fracture in a cast. We attempted to set the bone to the pelvis and hip on September 6, 1951. This was done by the use of traction and splints as shown by the photographs plaintiff’s Exhibit 9. We got up to thirty pounds of weight but finally had to drop it down to just below twenty pounds. There was pain in the early part of traction but after a person becomes stabilized, the pain decreases and moves away. I saw Rosa Smith in my office on March 16, 1954. The symptoms were relatively the same. I do not think she can work. She can only be on her feet a few minutes and then have to sit again. She is able to walk a block or two. The bill of Dr. Buck, Dr. Crumpacker and myself is in the amount of $1,315.00. It would be a good tiling for her to have periodic checkups for the next year or two. It is possible she might be hospitalized in the future. I can only give an estimate that she might have $1,000.00 worth of expenses in the future. It is just a guess. The traction was removed on November 15, 1951. She was discharged from the hospital on January 6, 1952.”
Dorothy Stotts, a registered nurse and supervisor on the Fourth Floor at St. Francis Hospital, where appellee was a patient, was called as a witness and stated that she recalled Rosa Smith as a patient and saw her every day when on duty during the time she was in the hospital. Among other things she testified that when Mrs. Smith was admitted to the hospital she was very critically injured and in a very serious condition; that she was on duty every day of the 129 days appellee was in the hospital; that during a part of the time (which we pause to note other portions of the record disclose was 12 weeks), she was strung up in traction, which required a great deal of tedious care, cautious treatment, and no sudden motion; that a great deal of pain is connected with a patient under that treatment; that such pain is nerve-racking because it is a constant pull causing pain; that appellee had muscle spasms as a result of traction; that due to her condition putting clean linens on the bed and giving her a bath was a long, tedious and painful procedure; that it required a number of people to do it; and that very rarely could she have one of the nurses touch her without pain.
We have searched the abstracts and briefs submitted and, except for claims made in the petition, fail to find any reference to expenses other than doctor bills incurred by appellee as a result of the accident. However, the record does disclose the use of an ambulance, the use of the hospital for 129 days and the use of some private nurses. Inasmuch as we are here concerned only with the size of the verdict we think we can take judicial notice of the fact that such services are not furnished gratuitously to a hospital patient and may safely assume that as charged in the petition those expenses are in excess of $1,500.
We are not disposed to review the many cases cited by counsel for the parties dealing with other situations where questions relating to the excessive status of a verdict have heretofore been discussed, considered and determined. Readers of this opinion interested in such decisions will find many of them cited and discussed in our recent decision of Knoche v. Meyer Sanitary Milk Co., 177 Kan. 423, 280 P. 2d 605. Nor are we inclined to here labor the strenuous arguments made by counsel in behalf of their respective clients, all of which have had our considered attention, regarding their views as to whether the involved verdict and judgment should be set aside as excessive. It suffices to say that, after an exhaustive review and careful examination of the entire record, taking into consideration the age of the appellee, her fife expectancy, her probable loss of earnings, the nature of her injuries and their permanence, and the pain and suffering which she has endured and will continue to endure from those injuries and the treatment thereof; and considering amounts of verdicts for somewhat comparable injuries, heretofore approved by this and other courts, in the light of increased cost of living and the impaired purchasing power of money, we have concluded it should not be said the amount of the involved verdict, even though it is for a substantial amount and must be considered as quite liberal, is such as to shock the conscience of this court or that such verdict should be set aside or disturbed as excessive.
And on the basis of the conclusion just announced, since all arguments with respect thereto are founded on its amount, we are forced to hold appellant’s contention the trial court abused its discretion in refusing to grant a new trial on the ground the verdict was so grossly excessive as to indicate passion and prejudice on the part of the jury cannot be upheld.
We now direct our attention to the separate and independent action (Case No. 40,067) brought by the carrier on March 25, 1955, which we pause to note was almost a year after the rendition of the verdict in Case No. 39,650, under the provisions of G. S. 1949, 60-3005 and 60-3007 to 3016, Incl.
This action was commenced by the filing of a petition wherein, after stating the facts relied on, plaintiff prayed for the granting of a new trial and the vacation of such judgment on the basis of newly discovered evidence and fraud practiced by the successful party in obtaining such decree. Thereafter, although the statute (G. S. 1949, 60-3011) does not require it, defendant (Rosa Smith) filed an answer in the form of a general denial, which joined issues on all grounds for relief relied on in the petition.
In due course the cause came on for hearing before the trial judge who had rendered the initial judgment and the plaintiff adduced its evidence. Thereupon the defendant demurred to such evidence on the ground it did not disclose grounds for a new trial or show facts sufficient to vacate the judgment. Counsel for defendant then stated he desired to introduce the record of testimony in the case in which the judgment was rendered. After an inquiry by the court as to whether there was objection to admission of such record counsel for plaintiff stated it was not proper on a demurrer but if defendant was going to introduce part of her case it was all right, but certainly not on the demurrer. The court then admitted the record and, following argument by counsel respecting the evidence produced at the trial, rendered its decision sustaining the demurrer and then, according to the journal entry which is approved by counsel, signed by the court and hence must be assumed to be correct, denied the petition for a new trial and rendered judgment taxing the costs of the case to the plaintiff. Plaintiff brings the case to this court, under specifications of error, charging that the trial court erred in sustaining the demurrer to the evidence, in rendering judgment in favor of defendant, and in refusing to grant a new trial.
At the outset tihe issues can be simplified by stating that counsel for appellant, although insisting badges of fraud are visible, concede the evidence adduced at the hearing was not sufficient to warrant a new trial on that ground and state that for that reason their arguments will be limited to the grounds of newly discovered evidence. We shall proceed accordingly.
Appellant raises some questions regarding the propriety of the ruling on the demurrer. Since, under the existing facts and circumstances, they are not decisive nothing would be gained by considering them and we are not inclined to prolong this opinion by discussing them. Assuming, without deciding, that the sustaining of the demurrer was unwarranted the fact remains the record discloses the trial court took action on the petition for a new trial by denying it and in connection therewith followed the procedure and considered everything required by our decisions. See, e. g., Boyer v. Champeny, 133 Kan. 434, 437, 300 Pac. 1069, where it is said:
“The statute above quoted (now G. S. 1949, 60-3005), with other provisions of the code relating to proceedings for a new trial, make it the duty of the court, in passing on a petition for a new trial such as was presented in tills case, to consider the pleadings and evidence offered at the trial as well as that offered in support of the petition for a new trial, and upon the whole case to determine whether the decision given at the trial was wrong. (Houghton v. Bilson, 90 Kan. 360, 133 Pac. 722.). . . .
“Evidence offered in support of a petition for a new trial should be considered on the same basis as though it were offered on a motion for a new trial, the only difference being that if it is discovered after the three days provided for the filing of a motion for a new trial it may be considered and presented by the court under a petition for a new trial. Naturally the new evidence offered should be material, ordinarily should not be simply cumulative or impeaching, and the party presenting it should make a showing that with reasonable diligence he could not have discovered the evidence in time to have presented it at the trial.” (p. 437.)
We pause to here note that in following the procedure outlined in the decision from which we have just quoted the court was operating under and governed by the provisions of G. S. 1949, 60-3004, which, so far as here pertinent, read:
“. . . A new trial shall not be granted as to any issues in a case unless on the pleadings and all the evidence offered at the trial and on the motion for a new trial the court shall be of the opinion that the verdict or decision is wrong in whole or in some material part. . . .”
We further note that when the quoted provisions of the foregoing statute are given full force and effect they compel the conclusion that when a petition for a new trial has been denied the decisive appellate issues involved are limited to questions relating to whether the trial court erred in failing and refusing to find the verdict or decision complained of was wrong.
From what has been heretofore stated it can now be said that, looking through form to substance, the essence of every material contention advanced by appellant in support of its position the court erred in denying the new trial and rendering judgment against it is that the nature of the .newly discovered evidence presented to the court was such as to require it to grant a new trial. Let us see.
Upon resort to the record it appears that in reaching its decision the court had before it all the evidence adduced at the trial in which the verdict was rendered as well as the newly discovered evidence; that it reviewed the new evidence on which appellant was asking for a new trial in the light of the old record and announced two conclusions. In substance one of such conclusions was that some of such evidence related to conversations between two strangers to the lawsuit, in no sense binding upon the appellee, and could not be admitted if a new trial was granted. The other was that the remainder of the evidence presented was cumulative, in that it supported a theory in the case and before the jury throughout the trial, i. e., that appellee was running toward the bus at or about the time of the accident, and therefore afforded no sound basis for the granting of a new trial.
The rule that newly discovered incompetent evidence is not a ground for the granting of a new trial is so elementary that it requires no citation of the authorities supporting it. The rule that cumulative evidence does not warrant such action is also well-established. See, e. g., Sheahan v. Kansas City, 102 Kan. 252, 169 Pac. 957, which reads:
“A party is not entitled to a new trial on the ground of newly discovered evidence, where the new evidence is of the same kind and goes to the same point as that offered on the trial.” (Syl. f 2.)
See, also, Mourning v. Harrison, 154 Kan. 242, 118 P. 2d 558.
We now turn to the newly discovered evidence on which the court refused to grant a new trial, noting as we do so that it would add nothing to this opinion or the body of our law to detail or discuss it. Indeed, we see no necessity for laboring any of its aspects. It suffices to say that after a thorough and painstaking analysis of all such evidence we are convinced the trial court was not only correct in the conclusions reached by it respecting the character of such evidence but properly decided that none of it was of such force and effect as to afford sound grounds on which to base a ruling granting a new trial. It follows the record discloses no error warranting a disturbance of that ruling or a reversal of the judgment.
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from a judgment following a trial upon the answers of John K. McFadden and Berdie McFadden Bleser (appellees herein), finding that the lost or destroyed will of 33. B. McFadden, deceased, was revoked; ordering the judgment of the district court of May 20, 1932, set aside, and affirming the order ■of the probate court of Pratt County of September 2, 1931, denying probate of the will. The plaintiff, James A. McFadden, has appealed.
This is the second appearance in this court of litigation over the lost or destroyed will of B. B. McFadden, deceased. The first appeal was from an order overruling separate motions of John K. McFadden and Berdie McFadden Bleser directed against the judgment of the district court rendered May 20, 1932, ordering the probate court to admit the lost or destroyed will to probate. Our decision reversing that ruling is found in McFadden v. McFadden, 174 Kan. 533, 257 P. 2d 146, and that decision was affirmed on rehearing, 175 Kan. 372, 264 P. 2d 920.
In the interest of brevity, the factual background of this litigation will not be here restated since it is set forth in McFadden v. McFadden, 174 Kan. 533, 257 P. 2d 146, beginning at the top of page 534 and ending with the second paragraph on page 536, and by this reference incorporated herein.
On January 6, 1954, Berdie McFadden Bleser filed her answer in which she alleged that either in 1918 or 1919 her mother, B. B. McFadden, deceased, executed a last will and testament in which John K. McFadden, a son of the decedent, was named as executor; that on or about July 25, 1921, B. B. McFadden destroyed the will at Huerfane County, Colorado, in the presence of John K. McFadden and others; that B. B. McFadden died intestate July 22, 1922, the owner of the legal and equitable title to a quarter section of land in Pratt County; and, that as one of the seven children of B. B. McFadden she is the owner of an undivided one-fourteenth interest in said land. The prayer was that the judgment of the district court entered May 20, 1932, admitting the will to probate be set aside and held for naught and that she be adjudged the owner of an undivided one-fourteenth interest in the real estate. On the same day, January 6, 1954, John K. McFadden filed his answer setting out substantially the same allegations as were contained in Berdie’s answer, and asked the same relief.
On June 4, 1954, a pretrial conference was had to consider the questions involved in the action. The district court found that the answers of Berdie and John should be amended in certain respects. It further found that of the five heirs at law who were defendants in the original proceedings in 1932, two lived in Haviland, Kansas, and three resided in the state of Oklahoma, and ordered that all of the heirs at law of the decedent who were parties in the original proceedings be notified of the pendency of the answers of Berdie and John, and those who were nonresidents of Kansas were directed to be notified by personal service of summons out of state as provided in G. S. 1949, 60-2529. Counsel and the court discussed the opinion of this court in McFadden v. McFadden, supra, and the effect, if any, it might have with respect to the judgment of the district court rendered in May, 1932. Counsel for appellees stated, in effect, that the heirs at law of the decedent who were parties defendant and who had either entered their appearance or were served with process in 1932, were foreclosed of any interest in the decedent’s estate by reason of the judgment rendered May 20,1932, since the court had jurisdiction of them, and that the rights of such defendants could not be affected by any judgment the trial court might render upon the answers of appellees. The trial court expressed the view that the will was good as to all parties who were properly before it in 1932, and null and void as to the appellees.
On September 13, 1954, James A. McFadden (appellant herein) filed an amended petition alleging that in 1917 B. B. McFadden executed her last will and duly acknowledged the same; that she died a resident of Pratt County in July, 1922; that the will cannot be found, and he is unable to produce it; that at the time of decedent’s death the will was in the possession of E. G. McFadden, the husband of decedent, and had become lost or destroyed while in the possession and under the control of E. G. McFadden; that “a copy of said will cannot be produced but the same is substantially as follows” the purport of which is that five children, Goldie M. Miller, Mabel C. Starling, Ethel G. Muns, Berdie McFadden, and John K. McFadden were bequeathed the sum of $20; the rest and residue of the decedent’s estate was devised to a daughter, Myrtle, and a son, James, share and share alike, and that her husband, E. G. McFadden, was named executor. Appellant further alleged that on June 4, 1931, he filed an application in the probate court of Pratt County for the admission of said will as a lost or destroyed will; that on September 2, 1931, the probate court refused to admit said will to probate. The prayer was that the will be established; that the order of the probate court of Pratt County of September 2, 1931, be vacated and set aside, and that the will be admitted to probate.
On November 5, 1954, the appellant filed a reply denying new matters set up in appellees’ answers filed January 6, 1954, which were inconsistent with the allegations contained in the amended petition.
On December 7, 1954, a trial was had in the district court upon the issues thus joined. The court rendered judgment in favor of the defendants, including the appellees, and made findings of fact and conclusions of law. One of the findings of the district court was:
“Then there is another matter — that of the revocation of the will and destruction of the will. In my mind the preponderance of the evidence is that the will was revoked, destroyed, in a lawful manner in the little homestead shack there at Walsenburg, Colorado. And that in itself, of coruse, eliminates all the other questions in the case. But I was just thinking that an appeal might be desired in this case and I would express my views for the benefit of the appellant as to what I find the facts to be.”
The appellant filed a motion for a new trial, which was overruled. Counsel for the parties did not agree as to what should be contained in the journal entry. The district court rendered judgment upon the findings of fact and conclusions of law previously entered; the order of the probate court of September 2, 1931, refusing to admit to probate as a lost or destroyed will, an instrument purported to have been executed by B. B. McFadden as her last will and testament, was affirmed, and the judgment of the district court rendered May 20, 1932, ordering the probate court to admit to probate the lost or destroyed will of the decedent, was set aside and held for naught as to all of the parties. From this judgment James A. McFadden has appealed.
Thus, we are presented with a most unique situation. A wife and mother died in 1922, leaving her husband and seven children as her only heirs at law. Nine years later a son, James, filed a petition in the probate court to admit her lost or destroyed will to probate. After a full hearing, it was denied. No appeal was taken from that order. Within the statutory time, James filed an-action in the district court to require the probate of the lost or destroyed will. Of the other seven heirs at law of B. B. McFadden — the husband and father, one son and five daughters; only six were named as party defendants and only five of the six named as defendants were served with process or entered their appearance. No service, either personal or by publication, was had upon John K., the other son (who was named as a defendant) or upon a daughter, Berdie (who was not made a party to the action). Notwithstanding the fact that the district court did not have all of the heirs at law of B. B. McFadden before it on May 20, 1932, when James’ action contesting the order of the probate court refusing to probate the lost or destroyed will was tried, it rendered an order, which reads, in part:
“. . . That the order of the probate court of Pratt County, Kansas refusing to admit said will to probate is hereby set aside, that said will is entitled to probate in Pratt County, Kansas, and the same is hereby ordered admitted to probate.”
No appeal was taken from that judgment. On June 2, 1932, the probate court admitted the will to probate. No further proceedings were had in the probate court pertaining to the will. We are advised that the real estate owned by B. B. McFadden at the time of her death is still within the McFadden family, and that there are no rights of innocent third parties involved.
In McFadden v. McFadden, supra, this court, in effect, held that the appellees were necessary and indispensable parties to the action contesting the order of the probate court refusing to probate the lost or destroyed will, and since they were not served with summons or legal process, the judgment was void as to each of them and they should be permitted to intervene and file appropriate pleadings. As heretofore indicated, following the trial upon the answers of appellees, the district court found that the lost or destroyed will had been destroyed and revoked and that the judgment of the district court rendered May 20,1932, should be set aside as to all defendants including the appellees. Were the district court’s findings of fact and conclusions of law correct? The appellant contends they were not and specifies error, which he has briefed under three separate headings.
Appellant first contends that the district court erred in finding (1) that the appellant had failed to establish the contents of the lost or destroyed will; (2) that the proof failed to establish the proper execution of the will; and (3) that the will had been revoked.
In making these contentions appellant concedes it to be the rule that the district court is the sole judge of the weight and credibility of the evidence, and this court on appellate review will not disturb findings of fact based upon substantial evidence. It would be of little benefit to extend this opinion by prolonged discussion of arguments advanced by appellant in support of these contentions, nor would it add anything to our reports to detail the evidence on which a decision of these questions must necessarily depend. It is sufficient to say that after a careful and painstaking review of all the testimony, we have little difficulty in concluding, and are convinced, the record discloses substantial competent testimony, which sustains the district court’s findings of fact objected to by appellant. Under the rule established by this court in a long and unbroken line of decisions, such findings are conclusive and will not be disturbed on appellate review even though, as appellant points out, the record discloses some evidence which might have warranted the district court in making a finding to the contrary. For some of our recent decisions where this rule is discussed, see, Shotzman v. Ward, 172 Kan. 272, 239 P. 2d 935; In re Estate of Haugh, 174 Kan. 278, 255 P. 2d 652; and, Condon National Bank of Coffeyvitte v. Krigel, 176 Kan. 279, 270 P. 2d 232. Numerous decisions of like purport will be found in 2 West’s Kansas Digest, Appeal and Error, §§1010 (1), 1011 (1), and 1 Hatcher’s Kansas Digest (Rev. Ed.) Appeal and Error, §§ 507, 508. From what has been said it is obvious that the district court did not err and this contention of appellant affords no sound basis for reversal of the judgment.
The appellant next contends the district court erred (1) in refusing to admit evidence; (2) in the admission of evidence; (3) in refusing to enter judgment for the plaintiff, and (4) in overruling plaintiff’s motion for a new trial. Appellant contends the district court erred in refusing to admit in evidence the depositions of the two attesting witnesses to the will of B. B. McFadden taken prior to and introduced at the hearing in the probate court in September, 1931, and admitted in evidence at the trial in the district court in May, 1932. The deponents are deceased. Appellees objected to the introduction of the depositions on the ground that they were not parties to the previous proceedings and were not given notice of the taking of such depositions and had no opportunity to cross-examine the witnesses. We do not think the district court erred in refusing to admit the depositions. The ruling is amply supported by the authorities.
In 16 Am. Jur. 749, Depositions, § 115, it is stated:
“A deposition cannot be used on the trial of a case against a defendant who was not a party to the action when the deposition was taken.”
and at p. 751, Depositions, § 121, it is further stated:
"... a deposition which was taken in a former suit is incompetent as evidence in a subsequent trial against a person who was not a party to the first suit and who was not permitted, at the time the deposition was issued, either to cross-examine the hostile witness or to file cross interrogatories.”
In 26 C. J. S. 938, Depositions, § 95 (b), it is stated:
“A deposition taken at a time when a person is not a party to the action cannot be used against him after he has been made a party, . . . Evidence taken under an ex parte commission is not admissible against a defendant, who is brought into the cause by an amendment made in plaintiff’s bill, after the commission had issued.”
In Rutherford v. Geddes, 71 U. S. 220, 18 L. Ed. 343, Mr. Justice Miller said:
“The depositions relied on by appellant were properly ruled out, for the reason that they were taken without notice to defendants, in another suit to which defendants were not parties, and in which they had no right or opportunity to cross-examine the witnesses. . . .” (p.224.)
See, also, In re Hedgepeth, 150 N. C. 245, 63 S. E. 1025; Walker v. Case, Executor, 211 Ark. 1091, 204 S. W. 2d 543; and Knowles v. Stargel, 261 Wis. 106, 52 N. W. 2d 387.
The appellant contends that John K. McFadden was incompetent as a witness to testify he was present and saw his mother, B. B. McFadden, destroy her will by setting fire to it and its copy and drop it in a stove in his home near Walsenburg, Colorado, in July, 1921, for the reason that it was a transaction had with his mother. The point is not well taken. The court ruled, and we think properly, that he was not testifying to a transaction but to what he observed. See, In re Estate of Benso, 165 Kan. 709, 199 P. 2d 523.
Appellant next contends that the testimony of John K. McFadden established there was no will. He cites Caeman v. Van Harke, 33 Kan. 333, 6 Pac. 620, to the effect that it is incumbent upon the plaintiff to show that a later will, or revoking instrument, was signed, attested and subscribed with all the formalities prescribed by the statute for the making of a will. Appellant misconstrues the evidence by proceeding on the theory that appellee was attempting to prove revocation of a former will by proving a later will. This was not the situation. The evidence of both the appellant and appellees points to the same will: the one made at Holly, Colorado, in November, 1918, which was prepared by F. H. Allen and witnessed by F. H. Allen and Frank Dixon. The disagreement which existed between the appellant and the appellees was as to the contents only. It was this will which the district court held was destroyed and revoked by B. B. McFadden. We do not believe appellees’ evidence is susceptible of the objection made to it by appellant.
Appellant further contends the district court erred in refusing to render judgment for the plaintiff, and in overruling his motion for a new trial. We do not believe the district court erred in this respect. It saw the witnesses and heard them testify with the exception of the deposition of Goldie M. Pons, and concluded plaintiff had failed to establish with reasonable certainty the exact terms of the lost or destroyed will of B. B. McFadden; that there was no evidence whatsoever as to the execution and attestation of the purported will, and that it had been destroyed and revoked by the decedent. It rendered judgment in favor of all the defendants. As previously stated, there was substantial competent evidence to support its findings and they are not subject to appellate review. The granting of a motion for a new trial ordinarily rests in the sound discretion of the trial court and seldom is the basis of reversal on appeal (Fritchen v. Jacobs, 138 Kan. 322, 26 P. 2d 448; Durkin v. Kansas City Public Service Co., 138 Kan. 558, 27 P. 2d 259; Wentworth v. First Trust Co., 147 Kan. 466, 77 P. 2d 976). Other authorities of like import will be found in 4 Hatcher’s Kansas Digest (Rev. Ed.) New Trial, §61, and 7A West’s Kansas Digest, New Trial, § 6.
Appellant maintains the district court erred in formulating its judgment, and contends it was not based upon any issue raised during the trial. Specifically, appellant contends the district court erred in rendering judgment in favor of all defendants and directing the judgment of the district court of May 20, 1932, ordering the probate court to admit to probate the lost or destroyed will of B. B. McFadden be set aside and held for naught as to all defendants. Appellant makes no objection to the judgment with respect to appellees but strenuously urges that it is invalid as to the five heirs at law who were parties defendant in the original proceedings in May, 1932. He contends the judgment of May 20, 1932, is valid and binding upon these five defendants; that it has not been corrected or modified on appeal, and that it is final as to them. He further contends that the trial on December 7, 1954, was a lawsuit between James A. McFadden, as plaintiff, and John K. McFadden and Berdie McFadden Bleser, as defendants; that there were no other appearances by any of the five heirs at law who were defendants in the original proceeding in May, 1932, and that the court could not render a judgment which would affect their rights under the will of B. B. McFadden. His argument is based, in part, on what transpired at the pretrial conference June 4, 1954. This conference has been heretofore noted. The fact the district court entertained an opinion at the pretrial conference that our decision in McFadden v. McFadden, supra, left the will good as to all parties who were properly before it in 1932, and null and void as to the appellees, would not prevent the district court, following trial on the answers of appellees, from changing its view. During a trial a district court may reverse its previous holding on some law or fact question. If a judge thinks he has made an erroneous ruling at any stage of a proceeding, he would want to correct it, and should do so. Certainly, the expression of an opinion by the district court at the pretrial conference did not prejudice ap pellant in any way. It was after the pretrial conference and following the trial at which the district court heard all the evidence, that it concluded appellant had failed to establish the contents of the will, its due execution and that it had been destroyed and revoked. Moreover, the order of the court following the pretrial conference (G. S. 1949, 60-2705), which was approved by counsel for both parties, only refers to amendments to appellees’ answers and to the notice to be given the heirs at law of the decedent. This order apparently recites all of the action taken at the conference. We find no merit in this contention.
Was the judgment rendered by the district court on May 20,1932, a valid, binding and final adjudication as to the rights of all the heirs at law? To answer this question requires further consideration. On September 2, 1931, the probate court refused to admit the will to probate. Appellant could have appealed from that order to the district court (R. S. 1923, 22-1101); instead, on September 14, 1932, he filed this action pursuant to R. S. 1931 Supp. 22-223 to contest the order of the probate court refusing to probate the will. R. S. 1931 Supp. 22-223, reads:
“The mode of contesting a will after probate, or an order of the court refusing to probate the will, shall be by civil action in the district court of the county in which the will was admitted to probate or the order of the court refusing to probate was made, which action may be brought at any time within one year after the probate or the order of the court refusing to probate the will, and not afterwards: Provided, That this act shall not apply to any action or proceedings now pending.” (Emphasis supplied.)
Prior to the enactment of this statute the proponent of a will had but one remedy in case the probate court refused to probate a will, which was by appeal to the district court (Evans v. Evans, 109 Kan. 608, 201 Pac. 60), and the district court had only the jurisdiction of the probate court (Ross v. Woollard, 75 Kan. 383, 89 Pac. 680; Wright v. Young, 75 Kan. 287, 89 Pac. 694; Durant v. Durant, 89 Kan. 347, 131 Pac. 613). A proceeding in the probate court to probate a will was not adversary in character and was in rem (Maurer v. Miller, 77 Kan. 92, 95, 93 Pac. 596; McCarthy v. Weber, 96 Kan. 415, 151 Pac. 1103). On appeal the district court had merely probate jurisdiction, and the proceeding was likewise in rem. The court acquired jurisdiction of the res, and its decree affected the interest therein of all parties who in fact had an interest in it (Maurer v. Miller, supra).
Following the enactment of the statute the district court was not restricted to the exercise of virtually probate jurisdiction invoked by the appeal; the right was given to a proponent to institute directly in the district court an action to contest the order of the probate court. This was a civil action and the court possessed all the powers of a district court in a civil action. Whether it is an action in rem is unnecessary for us to decide, but that it is a civil action is clear beyond doubt and all provisions of our code of civil procedure are applicable to it. In Evans v. Evans, supra, Mr. Justice Burch said of the statute under discussion, the following:
“The statute provides for two kinds of contest, one by the contestant after probate of the will, and one by the proponent after probate has been refused. The contestant contests the will. The proponent contests the order of the probate court. The contestant contests the will because the probate court has found it was duly executed and the testator was of sound mind and under no restraint. The proponent contests because the probate court has found the will was not duly executed, or the testator was not of sound mind, or the testator was under undue restraint. The district court is not restricted to the exercise of virtually probate jurisdiction invoked by appeal from the probate court. The action is a civil action, and the court possesses all the power of a district court in a civil action. . . .” (p. 611.) (Emphasis supplied.)
That the district court did not have all necessary and indispensable parties before it on May 20, 1932, has been established. In McFadden v. McFadden, supra, it was said:
“While not factually identical, we think the rule laid down in Madden v. Glathart, 115 Kan. 796, 224 Pac. 910, should apply to the question before us:
“ ‘The court is not here passing upon the validity of a will. The practical effect of the trust deed, however, if made effective, would be similar to that of a will._ The trust deed contemplates a disposition of the grantor’s property, both real and personal. It is a salutary rule that, in suits involving the validity of a will, the heirs who would inherit the property, if the will be invalid, are not only proper but necessary parties.’ (Citing authorities.) (pp. 800 and 801.)
“To the same effect see Ayers v. Graff, 153 Kan. 209, 109 P. 2d 202, where it was said:
“ ‘It is well settled that in a suit to constare a will, all persons who are interested in the subject matter and whose interests will necessarily be affected by the construction of the will and the decree rendered are not only proper, but necessary and indispensable parties.’ (Citing authorities.) (p. 212.)
“See, also, 68 C. J. Wills, §§ 708 and 709, pp. 955, 956 and 957.
“It is elementary that two essentials to a valid judgment are that the court have jurisdiction of the subject matter and of the persons whose rights are to be adjudicated. . . .” (p. 538.)
The rulings set forth in these authorities apply with equal force to an action in the district court which seeks to contest an order of the probate court refusing to probate a will as they do to an action to construe a will; and, heirs at law who would inherit the property, if the will be declared invalid, are not only proper and necessary, but indispensable parties thereto.
Since the appellant’s action was a civil action the district court could and should have required all the heirs at law to appear and defend before it rendered judgment. Our statute G. S. 1949, 60-416, authorizes the court to determine any controversy between parties before it, but when a determination of the controversy cannot be had without the presence of other parties the court or judge must order them brought in. In failing to do so, the district court did not have all necessary and indispensable parties before it. Consequently, it did not have jurisdiction of all parties to be affected, and it could not render a valid and final judgment as to whether there was or was not a valid will. That was the issue involved. That which transpired in the district court in December, 1954, relates to that which occurred in 1932 — the issue was unchanged. The appellees were delayed in making their defense since one was not a party and neither received notice of the action. Upon the filing of their answers and notice given to all the heirs at law, one of them — the appellant — appeared and contested the same issue which was before the court in 1932. The district court found appellant had failed to establish the contents of the will or to prove its due execution, and that it was destroyed and revoked. How can the rights of any of the heirs at law be established under a will which does not exist? We think there are no rights. To hold otherwise, would be recognition of a judicial freak. A will is indivisible. It is either established as a whole or is wholly set aside. The interest of all parties therein is inseparable; to save the right of one is necessary to save it to all; to bar the right of two is to bar it to all. The rights of all parties are all saved or all barred. There either is or there is not a valid will.
It is significant to note that the order of the district court of May 20, 1932, was: “that said will is entitled to probate in Pratt County, Kansas, and the same is hereby admitted to probate.” The judgment was that the will should be admitted to probate. It is established there is no will. For this reason alone the judgment of the district court of May 20, 1932, is inoperative and the district court properly set it aside. Likewise, the district court properly affirmed the order of the probate court on September 2, 1931, in refusing probate of the will.
We have thoroughly reviewed the record and find no error. In summary, we hold that the judgment of the district court of May 20, 1932, was void and ineffective at its inception as to all the heirs at law; that all persons who were interested in the subject matter and whose interests were necessarily. affected by such judgment were not only proper, but necessary and indispensable parties to such action and a full and complete determination of the issue involved, i. e., the existence or nonexistence of the lost or destroyed will of B. B. McFadden, could not be made until all such parties were present in court and had an opportunity to present their defense; that having presented their defense, the district court found appellant had failed to establish with reasonable certainty the terms of the will of B. B. McFadden, or to prove its due execution and attestation, and that it was destroyed and revoked; that the district court properly set aside the invalid judgment of May 20, 1932, and correctly directed the order of the probate court of Pratt County of September 2, 1931, be affirmed. The judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
On May 21, 1946, the district court of Rrown County rendered a judgment wherein it granted Mary R. Feldmann, the defendant, a divorce from Carl R. Feldmann, the plaintiff, gave her custody of their two minor children and approved certain contractual property settlement agreements, which were made a part and portion of such divorce. Later, and on July 15,1947, the plaintiff attempted to obtain a modification of the judgment by striking everything therefrom except the portion thereof granting the defendant a divorce. The trial court overruled such motion and on appeal to this court we affirmed on the ground its judgment had become final and conclusive as between the parties.
In Feldmann v. Feldmann, 166 Kan. 699, 204 P. 2d 742, the first appearance of the case in this court, we detailed the facts giving rise to that lawsuit, and for that matter the present appeal, with great care and at considerable length. For that reason the statement of facts therein made, which we now incorporate in this opinion by reference will suffice to supply tire factual background essential to the disposition of the major portion of the decisive issue here involved. Therefore, the factual statement of this opinion will commence with the recital of material events occurring after the disposition of the first appeal.
Since, and notwithstanding the rendition on April 9, 1949, of our decree in Feldmann v. Feldmann, supra, the plaintiff, who by that time had employed different counsel, has made two attempts to modify the original judgment of May 21, 1946. In each instance the trial court attempted to modify such judgment and granted the relief sought, its first order being made on March 21, 1950, and the second on November 1,1954.
On December 29, 1954, the defendant, who by this time had also employed new counsel, filed motions to set aside (1) the order of March 21, 1950, reducing child support payments and (2) the order of November 1, 1954, again reducing such payments. These motions charged that such orders were each null and void because the court was without jurisdiction to render the same and that she had had no notice of such motions or the hearings in connection therewith.
On February 9, 1955, the defendant’s motions to set aside the orders therein attacked were heard and the trial court, after stating that it had always had doubt as to its right and power to modify the original judgment, sustained such motions and found and ordered that all orders and proceedings had in the cause subsequent to May 21, 1946, which in any manner conflicted with the judgment and decree entered therein on May 21, 1946, should be set aside and vacated as void. In addition it ordered that plaintiff pay the sum of $200 as suit money for the defendant and the further sum of $100 to her attorneys as a fee for their appearance and prosecution of the cause. Thereupon plaintiff perfected the instant appeal.
When what has been heretofore stated is supplemented by the full and complete factual statement .of Feldmann v. Feldmann, supra, it appears the all decisive question involved in this appeal is whether, after a husband and wife have entered into a marriage settlement whereby they agree upon a division of property as between themselves and payments to be made by the husband to the wife for the care and support of their children, including maintenance of the wife while such children remain in her care and custody, and thereafter such agreement is approved by the trial court in a divorce action and made a part of its judgment and decree, the rights and liabilities of the parties are governed by the terms of the judgment, including the contract or by the statutory authority of the court in divorce cases.
We think the foregoing question was involved and decided when this case was here before and is therefore res judicata so far as this appeal is concerned. Nevertheless, we have reexamined our decisions and, on the basis of what is said and held in Feldmann v. Feldmann, supra; French v. French, 171 Kan. 76, 229 P. 2d 1014; In re Estate of Shideler, 172 Kan. 695, 242 P. 2d 1057, and the numerous decisions therein cited, have no difficulty in concluding that under the existing facts and circumstances the rights of the parties are controlled by the original judgment of May 21, 1946, which, as we have heretofore indicated, includes their marriage settlement contract and requires compliance with its terms and conditions. Therefore, since such judgment has never been appealed from and all our authorities (see, e. g., Buchanan v. Lambdin, 176 Kan. 62, 269 P. 2d 443) hold that attempts to modify a judgment after the expiration of the term at which it is rendered are void, it follows that the trial court’s action in sustaining appellee’s motion to set aside previous orders, wherein it had attempted to modify such judgment after the term, must be upheld.
With commendable candor counsel for appellant concede that the order of the trial court in allowing suit money and an attorney fee was proper if — as we have held — it did not err in setting aside the orders last above mentioned. For that reason arguments advanced in connection with such phase of the appeal require no further consideration or discussion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This was an action by an insured against an insurance company for a declaratory judgment to determine the rights and obligations of the parties under an automobile insurance policy.
From an adverse judgment defendant has appealed.
Plaintiff was the owner of a 1952 Pontiac automobile. The insurance policy in question was purchased by him from defendant and was in effect from February 20, 1953, to August 20, 1953. It was a “standard policy” classified as for “pleasure and business,” and insured plaintiff against liability for bodily injury to the extent of $15,000 for each person, and against liability for property damage for each accident to the extent of $10,000. It provided that in the event plaintiff was sued as a result of a collision involving his automobile, or one being driven by him, defendant company would defend such suit.
With respect to coverage while driving a vehicle other than the described Pontiac the policy provided:
“V. Use of Other Automobiles
“If the named insured is an individual who owns the automobile classified ‘pleasure and business,’ . . . such insurance as is afforded by this policy for bodily injury liability, for property damage liability . . . with respect to said automobile applies with respect to any other automobile, subject to the following provisions:
“(a) With respect to the insurance . . . the unqualified word‘insured’ includes (1) such named insured, . . .”
“(b) This insuring agreement does not apply:
“(1) To any automobile . . . furnished for regular use to the named insured . . .
“(2) To any automobile while used in the business or occupation of the named insured . . . except a private passenger automobile operated or occupied by such named insured, . . .”
On April 17, 1953, while driving a 1951 Chevrolet vehicle, commonly known as a “carry-all,” and which was owned by the adjutant general’s department of the state of Kansas, plaintiff was involved in a collision with a vehicle owned by one D and being driven by D’s wife. As a result of this mishap D sued plaintiff to recover for damage to his vehicle in the amount of $500, and D’s wife sued plaintiff to recover for her personal injuries in the sum of $5,585.
Plaintiff notified defendant insurance company of these actions filed against him, but the company, after making an investigation under a reservation of rights, refused to defend the suits for the asserted reasons that (1) at the time of the collision in question plaintiff was driving a vehicle which was furnished for his regular use by his employer, and (2) that the vehicle being driven by plaintiff at the time in question was other than a private passenger automobile used in the business or occupation of plaintiff, and therefore the exclusionary provisions of the policy, supra, relating to the use of other automobiles, applied, thus relieving defendant company of all obligation to defend the actions.
Because of this dispute between the parties as to their respective rights and obligations under the policy plaintiff filed this action for a declaratory judgment.
The pleadings raised only two questions. The first was whether the Chevrolet vehicle which plaintiff was driving at the time of the collision was one “furnished for regular use” to bám. The second was whether the vehicle was other than “a private passenger automobile.”
The trial court, after hearing considerable evidence, made findings of fact on the two questions as follow:
“9. That the 1951 Chevrolet automobile being driven by the plaintiff on April 17, 1953 was furnished to the plaintiff by the employer of plaintiff, the Adjutant General of the State of Kansas. That plaintiff used said automobile very seldom, probably not more than 2 or 3 times a year and then only for short trips. That said automobile was not furnished to the plaintiff Tor regular use.’
“10. That the 1951 Chevrolet automobile was called a ‘carry-all’ by the manufacturer, which is similar to the type generally called ‘station wagon.’ That the automobile in question at the time of the accident, before and since has only been used to transport one to seven human beings. That said automobile was and is a private passenger automobile.”
As a conclusion of law the court held:
“1. That the defendant, Farmers Mutual Automobile Insurance Company was obligated under its policy No. 15-021851 to provide the protection to the plaintiff up to the limits set out in the policy declarations for the accident in which the plaintiff was involved on April 17, 1953 while the plaintiff was driving the 1951 Chevrolet described in plaintiff’s petition, . . .”
Judgment was entered accordingly and defendant has appealed, specifying as error the findings quoted above, the conclusion of law, the rendition of judgment thereon, and the denial of its motion for a new trial.
Concerning the question whether the Chevrolet vehicle which plaintiff was driving at the time of the collision was one “furnished for regular use” to him, the evidence disclosed the following:
Plaintiff had been employed as a civilian employee of the adjutant general’s department of Kansas for several years. He was a contracting and purchasing clerk and bought items and supplies for the arsenal located on south Topeka Avenue in Topeka. The major portion of his duties was performed at his desk at the arsenal. His work required him to leave the arsenal very little, but occasionally he would drive from the arsenal to some store in downtown Topeka, and on rare occasions he would drive outside of Topeka. There were thirty or thirty-five employees in plaintiff’s office, and a “car pool,” consisting of four vehicles, including the Chevrolet in question, was available for use by the employees. These vehicles were owned by the adjutant general’s department. The vehicle in question was purchased in 1951, and between then and April 17, 1953, the date of the accident, plaintiff had driven it perhaps four or five times. During the six months following the accident he had driven it approximately five or six times. He and his immediate superior testified that this vehicle was not furnished for his regular use, and that, provided it was not being used by some other employee, it was merely available to him on the very infrequent occasions he had to use a government-owned vehicle in his work. On many occasions, when no vehicle in the “car pool” was available he used his own automobile.
Upon this evidence, of which the foregoing is only a brief résumé, the trial court found that the vehicle in question was not furnished to plaintiff for his regular use within the meaning of the exclusionary provision of the policy.
The evidence concerning whether the vehicle in question was other than “a private passenger automobile” disclosed the following:
It is referred to in the “trade” and by the manufacturer as a “carry-all,” and is described as being identical to what is commonly known as a “station wagon,” except that it lacks many of the “refinements” of the latter. It has the same engine and mechanism as a comparable “station wagon,” has two doors, a front seat, middle seat and rear seat. It always had been used to carry persons, not exceeding seven in number.
Upon this evidence, of which the foregoing is merely a brief summary, the trial court found that the vehicle was a private passenger automobile within the meaning of the exclusionary provision of the policy, and not a “truck,” as contended by defendant.
We think there can be no question but that the findings by the trial court on these two controverted issues are amply supported by substantial competent evidence. Such being tire case, under the well-established rule, they are not to be disturbed on appellate review. And, if the findings are to be upheld, the conclusion of law made by the court is of a certainty correct and judgment was properly rendered thereon.
However, as the precise questions apparently have never been passed upon by this court, we pause briefly to comment on defendant’s contentions. In support of them we are cited to a number of decisions from other jurisdictions in which “use of other automobile” provisions in insurance policies are discussed. Each has been examined and considered. A number of them are set out in the annotation found at 173 A. L. R. 901. A study of the authorities discloses that courts have found it difficult to lay down any hard and fast rule, and that, generally speaking, each case has been decided upon its own facts and circumstances. As a matter of practical everyday experience, the average person occasionally drives an automobile other than his own. The purpose and effect of the “use of other automobile” provision in a policy are obvious. It extends the driver’s insurance to infrequent or casual driving of other automobiles, but excludes him from coverage with respect to his regular use of an automobile not covered by the policy. And, with respect to the requirement that the “other automobile” be a private passenger automobile, the reason is equally obvious. It is common knowledge that the ordinary risk is greatly increased when an insured is driving a truck, bus, delivery, freight or cargo-hauling vehicle.
We agree with the trial court that under the facts of this case the use which plaintiff made of the vehicle in question clearly was so infrequent and casual that it is not to be considered as one furnished to him for his regular use within the meaning of the policy, and that it was not intended for and in fact was not used for any purpose other than transporting not to exceed seven passengers. It clearly was a private passenger automobile within the meaning of the policy.
Defendant inferentially contends that inasmuch as the vehicle in question was government-owned it therefore was not a “private” passenger automobile. This contention cannot be sustained. The test to be applied to the word “private” is the type of vehicle and not its ownership.
And there is still another reason why we think this case was correctly decided in the court below. Assuming, for the sake of argument, there is some ambiguity or uncertainty in the language of the exclusionary provision in question, defendant company is bound by the universal rule to the effect that where a provision of an insurance policy is susceptible of different constructions it is to be construed most favorably to the insured, and that if the insurer intends to restrict its coverage it should use language clearly stating its purpose. (Evans v. Accident Association, 102 Kan. 556, 171 Pac. 643, L. R. A. 1918D 122; Sebal v. Columbian Nat. Life Ins. Co., 144 Kan. 266, 58 P. 2d 1108; Knouse v. Equitable Life Ins. Co., 163 Kan. 213, 181 P. 2d 310; and Smith v. Mutual Benefit Health & Acc. Ass’n, 175 Kan. 68, 258 P. 2d 993.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
The two appeals here disposed of grow out of an action originally commenced in the district court and a proceeding originally commenced in the probate court, the purpose of each being to recover damages for the alleged wrongful death of William L. Riley.
Without recital of all details it may be said the appeals arise from the following.
On June 10, 1951, there was a collision of an automobile in which William L. Riley was riding with another automobile driven by Virgil W. Fallon. Riley was killed, and on July 2, 1951, his widow, Nova J.-Riley, commenced an action against Fallon in the district court of Sedgwick county to recover for his alleged wrongful death. On September 11, 1951, Don Riley was appointed administrator of the estate of William L. Riley, later qualified, and on February 2, 1952, commenced an action in the district court against Virgil W. Fallon. An attack was made against maintenance of the latter action which the trial court sustained and the action was dismissed. On appeal the judgment of the trial court was affirmed, it being held the widow could maintain the action. (See Riley v. Fallon, 173 Kan. 816, 252 P. 2d 629.) In the meantime Virgil W. Fallon had answered in the first suit. On December 1, 1953, and before the action was tried, Virgil W. Fallon died and on January 19, 1954, Hazel K. Fallon was appointed as administratrix of his estate by the probate court of Sedgwick county. On January 27, 1954, Nova J. Riley filed her claim in the probate court against the estate of Virgil W. Fallon and requested transfer of the hearing thereof to the district court for consolidation with the original action and on January 28, 1954, C. H. Pugh, attorney for the Fallon estate ■acknowledged service of the Riley claim and consented that the claim be transferred to the district court and consolidated with the •original action. On the same day, January 28, 1954, Nova J. Riley filed in the district court a motion in which she alleged the death of Virgil W. Fallon and the appointment of an administrator of his estate, and that her cause of action survived the death of Fallon and she prayed for an order of revivor, and at the same time filed a document signed by Hazel K. Fallon by C. H. Pugh, her attorney, acknowledging service of the motion to revive, that the action survived and consenting to such revivor, and on the last day the district court entered an order of revivor and an order of consolidation.
The contentions raised on the appeals arise from proceedings in the district court subsequent to the above. The abstracts filed contain some of the pleadings filed, and some, but apparently not all, of the orders made, as well as a great deal of colloquy between counsel and between court and counsel as well as evidence received at hearings had. Detailed reference is neither necessary nor advisable.
On February 15, 1954, counsel who had represented Virgil W. Fallon in his lifetime, and his insurance carrier, in the action brought by Nova J. Riley in the district court, filed ¿ motion to strike the action from the trial docket for the reason there had been no revivor of the action. An extended hearing was held in which it was developed by evidence that, under circumstances which will not be detailed, Pugh, who was attorney for the Fallon estate in the probate court but was not an attorney of record in the district court, had signed the consent to a revivor under the belief he was acknowledging only service of the motion and not a consent thereto; that he was not authorized to consent to any revivor and he moved the court to strike from the files all pleadings, papers and orders signed or approved by him, as well as the order of consolidation. Colloquy between counsel as to considering the motion to revive as being filed on February 18, 1954, and served on attorneys of record for Fallon need not be detailed. The result of the hearing was an order made February 18, 1954, that the order of consolidation of the original district court action and the transferred claim from the probate court was cancelled and revoked; that the order of revivor of the original action was revoked and held for naught; that the pleadings, orders and other matters approved by Pugh having to do with consolidation or revivor were stricken and the motion to revive was considered filed and served as of February 18, 1954. Although there is some controversy as to who prepared it, there can be no doubt that suggested forms of a journal entry were considered by counsel on each side resulting in a form of journal entry to which all counsel agreed and setting forth the orders above indicated.
The order for consolidation having been set aside, the original action in the district court and the claim transferred from the probate court were separately considered.
First, we shall note later proceedings in the original action. On February 17,1955, or one day less than a year after the former order of revivor was set aside on February 18, 1954, and a little over thirteen months after the administratrix of the estate of Virgil W. Fallon was appointed and qualified on January 19, 1954, plaintiff obtained a hearing on her motion to revive the action against'the administratrix. This motion was denied. On March 24, 1955, the administratrix filed her motion that the action be dismissed because it had not been revived within the time required by law and was not subject to revivor over her objection. The court heard the motion and on April 11, 1955, sustained it and dismissed the action. In due tíme the plaintiff perfected her appeal to this' court which bears No. 39,960.
Secondly, we shall note later proceedings in respect to the claim certified to the district court from the probate court necessary here. On May 5, 1954, the administratrix filed her answer to the claim and on May 11, 1954, the claimant filed a reply thereto. On February 2,1955, a lengthy pretrial conference was had, details of which need not be set forth, and on February 7, 1955, the administratrix filed her motion for judgment in her favor on the admissions and evidence adduced at the pretrial conference. The motion was heard by the court on March 10, 1955, and taken under advisement by the court. In a letter dated May 10, 1955, and addressed to counsel the court stated among other things that the claim was filed in the probate court more than two years after the cause of action on which it was based arose, that the administrator could not waive the statute of limitations, that the claim was barred by the statute of limitations and the court should disallow the same (citing Hammond v. Estate of Hammond, infra), that the claim was not filed in time and the motion for judgment should be sustained. A journal entry in accordance was filed. In due time the claimant perfected her appeal to this court which bears No. 40,006.
The two appeals were consolidated for hearing in this court, as both the original action in the district court and the claim filed in the probate court and transferred to the district court for hearing, were for the purpose of determining liability of Virgil W. Fallon, or after his death, of his estate, for the alleged wrongful death. In that respect they have a common basis but as two appeals are involved, raising distinct questions, they will be separately considered and determined.
We shall first determine the appeal in No. 39,960.
Appellant’s specifications are that the trial court erred in: 1. Revoking the order of consolidation made January 28,1954; 2. Revoking the order of revivor made January 28, 1954; 3. Striking from the files all pleadings and orders approved by Pugh, attorney for the estate of Fallon; 4. Overruling appellant’s motion to revive against Fallon’s administrator; and 5. Sustaining appellee’s motion to dismiss the action.
The first three specifications of error may be considered together. We have read and examined carefully the record as abstracted showing the lengthy hearing which resulted in the making of the orders complained of, but we are not disposed to say more' than has been previously stated. We are satisfied that the trial court had a sufficiency of evidence before it on February 18, 1954, to hold that the order of consolidation of the action in the district court with the claim transferred from the probate court, and the order of revivor, both made on January 28,1954, were improvidently made and should be set aside, and that its further order striking pleadings approved by Pugh did not, under the circumstances, constitute any error. In fact, there is reason to say from the record that appellant agreed to such orders being made, on appellee’s agreement that the appellant’s notice to revive should be considered as served and filed on February 18, 1954.
The fourth specification of error is that the trial court erred on February 17,1955, in overruling appellant’s motion to revive against the administratrix of the Fallon estate. The facts may be repeated. Fallon died on December 1, 1953, and his administratrix was appointed January 19, 1954. Notice of motion to revive was served, as shown in preceding paragraph, on February 18, 1954, but the record does not disclose that anything further was done to procure a revivor until February 17, 1955.
The answer to the appellant’s contention is found in the provisions of the code of civil procedure. The action for wrongful death was created by what is now G. S. 1949, 60-3203, and was properly brought by the widow as provided by 60-3204 against Fallon, who was then alive. When Fallon died the action survived under 60-3201 and could have been revived against his personal representative, the administratrix, under 60-3213. The code further provides by 60-3209 that the order of revivor may be had on the motion of the adverse party, here the appellant, and under 60-3210 if not made by consent, that notice of the application shall be served as provided therein. Here the service of notice was waived, but no consent to revivor was given, and nothing further occurred from the date of the appointment of the administratrix on January 19, 1954, or from the date service of notice was considered as served on February 18, 1954, until February 17, 1955, or more than one year after the appointment of the administratrix. In such case 60-3214 applies. It reads:
An order to revive an action against the representative or successor of defendant shall not he made without the consent of such representatives or successor, unless in one year from the time it could have been first made.” (Emphasis supplied.)
The attempted revivor came too late and the trial court properly denied the motion to revive.
Appellant’s fifth specification that the trial court erred in dismissing the action needs but short notice. The failure to revive in time resulted in a situation where a revivor could not be had and the cause of action further prosecuted. The trial court did not err in dismissing it.
In appeal No. 40,006 the sole specification of error is that the trial court erred in sustaining the appellee’s motion for judgment. Appellant’s argument on this specification is intermingled with her argument the trial court erred in refusing to revive the district court action. Although repetitious, the fact is that Nova J. Riley in due time commenced an action in the district court against Virgil W. Fallon who died before it was tried. On the same day she commenced a proceeding to have that action revived, and at a time over two years after the alleged wrongful death, she filed a claim in the probate court to recover for the same loss. In so doing she ignored the provisions of G. S. 1951 Supp., 59-2238, which reads:
“(1) Any action pending against any person at the time of his death, which by law survives against the executor or administrator, shall be considered a demand legally exhibited against such estate from the time such action shall be revived. Such action shall be revived in the court in which it was pending and such court shall retain jurisdiction to try and determine said action. (2) Any action commenced against any executor or administrator after the death of the decedent shall be considered a demand legally exhibited against such estate from the time of serving the original process on such executor or administrator. (3) The judgment creditor shall file a certified copy of the judgment obtained in an action such as described in subsection (1) or (2) of this section in the proper probate court within thirty days after said judgment becomes final.”
Under the above statute, the action pending in the district court against Fallon would be considered a demand legally exhibited against his estate from the time that action was revived, and the district court retained jurisdiction to try and determine the action. No revivor was had and consequently the pendency of that action did not amount to a legally exhibited demand against the estate of Fallon. Assuming, without deciding that she was at liberty to abandon the action in the district court by dismissal, by failure to prosecute or by failure to obtain a revivor, and that by so doing she was free to file a demand in the probate court, that demand was not made until January 27, 1954, or over two years and seven months after a cause of action for wrongful death accrued. The period of limitation for commencement of such an action is two years (G. S. 1949, 60-3203) and the claim was barred. Appellant makes some complaint that the defense of the statute of limitations was not raised by answer or by any written defense and was not interposed until after the issues had been made up, at which time she was barred from reviving the district court action. It makes no difference that the statute of limitations was not raised by the answer or written defenses of the administratrix. She was without power to waive the bar of the statute, and when it developed that the claim was barred, it was the duty of the court to disallow it. (See Hammond v. Estate of Hammond, 150 Kan. 113, 91 P. 2d 19, and cases cited; and Lane v. Estate of Wells, 150 Kan. 261, 92 P. 2d 9; In re Estate of Badger, 156 Kan. 734, 137 P. 2d 198; In re Estate of Hill, 162 Kan. 385, syl. 7, 176 P. 2d 515, and cases cited therein.)
We are not impressed by appellant’s argument that appellee’s resistance of the motion to revive the district court action alters the situation with respect to the claim filed in the probate court. In order to have the claim considered as one legally exhibited in the probate court by reason of the pendency of the action in the district court, revivor of that action was necessary, and the burden of getting that done was on the claimant and no one else.
The trial court did not err in sustaining the motion of the administratrix for judgment.
The judgments appealed from are affirmed.
Harvey, C. J., not participating.
Robb, J., not participating. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action to expunge from the records in the office of the register of deeds an agreement placed of record by defendant, casting a cloud on plaintiffs’ title in certain oil and gas leases and to quiet title to such interest in plaintiffs.
Appellants Louis H. Martin and Watson B. Joyes will be hereinafter referred to as plaintiffs, or separately as Martin and Joyes, and the appellee Roy M. Hunter as defendant or Hunter.
Plaintiff Martin was an aviation pilot and had been acquainted with Hunter about two years, and they acquired and developed oil and gas leasehold estates together.
Plaintiff Joyes was for many years a promoter in the drilling of leasehold estates for oil and gas. He had known Hunter for many years, but was not then acquainted with Martin.
Defendant Hunter was a petroleum engineer and had devoted more than forty years to various phases of the oil and gas business and the development of oil and gas leases.
Some months prior to the institution of this action, Martin represented to Hunter that he had relatives and acquaintances in and around Hardtner in Barber county and, through such relationships, and acquaintance of his kindred with the landowners there, he could secure a block of acreage in that vicinity, provided a test well could be drilled somewhere on a block of acreage in approximately six months from the date of the proposed leases.
Martin secured for Hunter a Kansas blueprint oil and gas map from a Wichita map company, reflecting the landowners and the leases on the proposed block. Martin cross-marked with a pencil all the acreage he thought could be leased including two tracts of land, one of 160 acres and another of 80 acres belonging to Edd and Helena Sterling. After studying the map, Hunter went to the office of Joyes and exhibited the map to him, telling him of the acreage Martin thought he could secure, including the Sterling property. Joyes expressed a willingness to join in the enterprise, provided he could participate equally with Hunter and Martin. Hunter informed Martin of his conference with Joyes and urged that Joyes be taken in on the deal. Thereafter Hunter took Martin to see Joyes and they agreed to work together on the project. After working together for some time they entered into the following written agreement:
“This agreement made this . . . day of March, 1954, by and between Louis H. Martin, Roy M. Hunter and Watson B. Joyes, all of Tulsa, Okla. witnesseth:
“Whereas, Louis H. Martin, by virtue of his connection with the landowners in the vicinity of Hardtner, Barber County, Kansas, represents that he can secure a block of oil and gas leases covering some twenty five hundred acres, more or less, for the drilling of a well within a period of six months, and
“Whereas, Roy M. Hunter is able and willing to aid in the promotion of a well on said block and to make the necessary maps to use in said promotion, and,
“Whereas, Watson B. Joyes, by reason of his experience and contacts, can and will make the most advantageous drilling deal possible for the benefit of all concerned.
“It is hereby mutually agreed that Martin and Joyes will proceed to Hardtner as soon as possible and write up tire oil and gas leases upon the most favorable terms possible. For tire purpose of facilitating negotiations it is desirable that the leases be taken in the name of Watson B. Joyes, however, if this is not feasible they will be taken in Louis H. Martin’s name and Martin agrees to assign to Joyes or his designate at such time as a deal is consummated.
“When leases are secured and in order, Joyes will proceed to use his best efforts to promote a test well on the block. Whatever monies, overriding royalties and or leases are cleared on the deal shall be divided between Martin, Hunter and Joyes, share and share alike.
“In order to simplify and expedite a deal, it is agreed that Joyes shall have full control of the block and the making of any deal upon such terms and conditions as he deems advisable.
“Actual out of pocket expense shall be shared equaly.
“Witness our hands this 22nd day of March, 1954.
“Watson B. Joyes,
“Roy M. Hunter,
“Louis H. Martin.”
Subsequent to the signing of this agreement, Martin proceeded to block some 2,000 acres, some in his and some in the name of Joyes. The first lease was taken March 24, the Sterling leases on March 25, the Platt lease on April 3, and the Achenbach lease on April 8. The dates of other leases are not material here.
A portion of the block was assigned to the Aurora Gasoline Company who entered and drilled a producing gas well on the Rathgeber lease within the block in September, 1954.
In November, Martin made a division of the profits of the enterprise which he claimed at the trial was a full settlement. At the time, Hunter did not know whether Martin had conveyed the Sterling leases to get the well drilled, or sold the leases and contributed the money to the promotion of the Rathgeber well.
Hunter made a trip to Medicine Lodge, January 8, 1955, and discovered from the records in the office of the register of deeds that the Sterling leases were in the name of defendants Martin and Joyes, each owning an undivided one-half interest, with a well being drilled thereon at the time by Aurora Gasoline Company. Hunter contacted Joyes at Tulsa, Oklahoma, and demanded his interest in the leases, and Joyes advised him that he had been paid enough out of the deal. Hunter then made written demand on Martin and Joyes for his interest in the Sterling leases.
Hunter then filed the aforementioned written agreement between the parties of record in the office of the register of deeds of Barber county, after making a notation thereon that it was applicable to the Sterling leases. Martin and Joyes then filed the present action asking that the contract so recorded be stricken from the record and that title be quieted in them as plaintiffs.
Hunter filed a cross-petition asserting that by reason of the contract with the plaintiffs the relationship of joint adventurers existed, and that by reason of the fiduciary relationship he was entitled to his undivided one-third interest in the Sterling leases.
The case was tried by the court on a partial stipulation of facts, and the evidence presented by the respective parties. The court made the following findings of fact:
". . . that during the latter part of 1953 or the early part of 1954 the Plaintiff, Louis H. Martin, was an airplane pilot of Tulsa, Oklahoma; that he approached the Defendant, Roy M. Hunter, and advised Defendant that he was related to and had the acquaintance of several large landowners in the vicinity of Hardtner, Kansas, and that he believed he could get up a drilling block of leases in said vicinity; that an oil and gas map of Barber County was procured and after one or more conferences concerning the acquisition of a block of leases in said vicinity the Plaintiff, Martin, and the Defendant, Hunter, solicited the Plaintiff, Watson B. Joyes, to join them in an adventure. Thereafter Plaintiffs and Defendants made and entered into the contract in writing as set forth in plaintiffs’ petition and Defendant’s cross-petition. Immediately thereafter the said Plaintiffs, Martin and Joyes proceeded to Hardtner, Kansas, and commenced leasing operations. For several days thereafter said parties were acquiring leases pursuant to the written contract and on March 25, 1954, the Plaintiff, Martin, acquired from Edd L. Sterling and wife two oil and gas leases on land hereinafter described. Both of these tracts were in close proximity to the other lands being leased. Martin paid Sterling one dollar per acre for said leases which was necessary in order to obtain the same, as was the case upon certain of the Achenbach land. The court further finds that during said leasing operations the parties acquired leases upon approximately 2500 acres, including the Sterling leases. Thereafter the Plaintiff, Watson B. Joyes, negotiated a drilling contract with a drilling company whereby the Plaintiffs assigned most of the leases, retaining certain interests therein, to the drilling company and obtained a producing well upon the block of leases assigned. The Sterling leases, however, were not assigned to the drilling company and some time after production was obtained on the block of leases assigned the Plaintiff, Martin, assigned a one-half interest in the Sterling leases to his co-plaintiff, Watson B. Joyes. That the Plaintiffs accounted to the Defendant for all of the leases taken and sold, except the Sterling leases, and concerning which the Defendant, Hunter, was not advised until in January, 1955. Immediately thereafter and on January 20, 1955, Defendant, ITunter, caused the contract between the Plaintiffs and the defendant to be acknowledged as to himself and procured the recordation of said contract in the office of the register of deeds of Barber County, Kansas, together with a reference thereon to the two tracts of land covered by the Sterling leases. The court finds that the belated acknowledgment by the Defendant did not cause said instrument to become eligible to record and that the same should be stricken therefrom. The court further finds that the Plaintiffs and the Defendant became joint venturers and that by reason of said relationship each of said parties assumed fiduciary relationship to each of the others and each was entitled to an equal part of benefits and accumulation from said joint venture . . .”
The court concluded as a matter of law that the contract, dated March 22, 1954, between the parties and recorded in the office of the register of deeds, be canceled of record, and further ordered that upon Hunter paying the plaintiffs, or tendering into court for their benefit, one-third of the cost of the Sterling leases together with one third of the delay rentals paid thereunder, Hunter would become an equal and co-owner of the Sterling leases with plaintiffs. Plaintiffs were directed to convey to Hunter his one-third interest therein as more fully set out in the judgment entered. From an order overruling plaintiffs’ motion for a new trial, they appeal.
Plaintiffs’ abstract contained seven specifications of error. However, after an examination of their brief, they may be summarized as (1) the decision of the court was contrary to the evidence; (2) the trial court erred in holding the joint venture or partnership covered the Sterling leases, and (3) in entering júdgment allowing Hunter a one-third interest in the Sterling leases subject to the drilling contracts made by the plaintiffs.
Plaintiffs first contend that the transactions with respect to the two Sterling leases were individual transactions of Martin, in which Hunter had no interest or claim. It is asserted that these dealings by Martin were no part of the original joint adventure, but were personal dealings not associated therewith, and that the Sterling leases formed no part of the block of acreage secured under the agreement between the parties.
Defendant Hunter contends that the Sterling leases were a part of the joint adventure, and that the map presented by Martin to him for consideration was to be presented to Joyes in an attempt to get a drilling contract for a well some place in the block, and that Martin had plainly marked thereon the two Sterling leases as a part of the block which might be obtained.
The evidence was highly conflicting, each party offering proof to sustain the respective contentions. The court by its findings concluded the Sterling leases were a part of the joint adventure, and included in the acreage to be obtained by Martin for the benefit of all parties. Both Hunter and his son testified that when Martin brought the map from the Kansas Blueprint Company, the Sterling leases were plainly marked, along with other land in the block, open for leasing. It was stipulated that Martin took the first leases in the block on March 24, 1954; the Sterling leases on March 25, the Platt lease on April 3, and the Achenbach on April 8; that the leases, except Sterling’s, were put in the block and accounted for by Martin; that the gas well on the block was brought in as a producer in September, 1954. The evidence disclosed that subsequent thereto, Martin assigned a half interest in the Sterling leases to Joyes, and a well was brought in on the Sterling leases in January, 1955. Hunter checked the records and found for the first time that the Sterling leases were being held by Martin and Joyes and no accounting had been made to him on these leases.
No useful purpose could be gained by narrating all the controversial evidence contained in the record. Suffice it to say that the mentioned facts were sustained by ample, competent evidence, and the court did not err in holding that the Sterling leases were part of the block of acreage obtained in the joint adventure of the parties.
This is essentially a fact case. Plaintiffs, in effect, ask this court to retry their lawsuit. We cannot do so.
It has been a well-established rule in this state for more than ninety years that this court accepts as true the trial court’s findings of fact when they are based upon competent evidence; and on appeal it is of no consequence that there may have been much contradictory evidence adduced at the trial, which, if believed by the trial court, would have compelled entirely different findings of fact and an entirely different judgment, and when the error assigned is that the findings and judgment are contrary to the evidence, it is only necessary on appeal to consider whether there is some competent and sufficient evidence upon which the judgment is based; and a consideration or recital of the contradictory evidence cannot aid in correctly determining that question. (Bayer v. Cockerill, 3 Kan. 282; Bruington v. Wagoner, 100 Kan. 439, 164 Pac. 1057.) In Stanley v. Stanley, 131 Kan. 71, 289 Pac. 406, we said:
“Rule followed that where a general finding and judgment of the trial court is supported by substantial testimony the supreme court cannot undertake to make an independent determination of the question whether the preponderance of evidence inclined on the side of the prevailing party or on the side of his adversary.” (Syl. f 2)
In Jones v. Jones, 161 Kan. 284, 296, 167 P. 2d 634, it is stated:
“. . . It is well established that the trial court, not this court, has the duty of determining whether the evidence is clear and convincing, and that on appeal it is of no consequence there was much contradictory evidence offered, which, if believed, would have compelled entirely different findings of fact and an entirely different judgment . . .”
See, also, Gilpin v. Burch, 145 Kan. 224, 231, 65 P. 2d 308; Tucker v. Hankey, 173 Kan. 593, 250 P. 2d 784; In re Estate of Beeler, 175 Kan. 190, 194, 262 P. 2d 939; Rupp v. Rupp, 171 Kan. 357, 233 P. 2d 709.
Under the record in this case it was established that the relationship of joint adventurers existed between plaintiffs and defendant and, as such, they stood in a close relationship of trust and confidence, and were bound by the same standards of good conduct and square dealing as are required by partners. Each of the parties had the right to demand and expect from his associate full, fair, open and honest disclosure of everything affecting the relationship. Under such conditions, Martin could not act in such a manner that his personal interest was hostile to that of Hunter.
One of the leading cases on the law pertaining to joint adventurers is Meinhard v. Salmon, 249 N. Y. 458, 463, 164 N. E. 545, wherein Chief Judge Cardozo, speaking for the New York Court, said:
“Joint adventurers, like copartners, owe to one another, while the enterprise continues, the duty of the finest loyalty. Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising'rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘distintegrating erosion’ of particular exceptions (Wendt v. Fischer, 243 N. Y. 439, 444). Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.”
In Potucek v. Blair, 176 Kan. 263, 270 P. 2d 240, and cases therein cited, we held that the relationship of joint adventurers is a fiduciary one based on mutual confidence and trust.
Under the contract between the parties in the instant case, it was the duty of Martin and Joyes to write the oil and gas leases in the block upon the most favorable terms possible and, for the purposes of facilitating negotiations, the leases should have been taken in the names of Joyes or Martin and, when the leases were secured, Joyes was to proceed to use his best efforts to promote a test well on the block, and whatever monies, overriding royalties, and or leases which might be cleared on the deal should have been divided between Martin, Hunter and Joyes, share and share alike. Martin and Joyes accounted to Hunter for all the leases except the Sterlings. These they withheld for their own personal interests, even though taken at the identical time other leases were taken under the joint adventure. The general rule is that until the joint adventure has terminated or the enterprise has been abandoned, a joint adventurer cannot exclude his associates from an interest in the property by purchasing it for his individual account; neither can he acquire for his individual benefit, or for the benefit of himself and one of the other co-adventurers, an interest therein antagonistic to the interest of his co-associates, and if he does so purchase or acquire such interest in breach of his duty to his co-adventurers, he must account to them therefor. (Kincaid v. Miller, 129 Colo. 552, 272 P. 2d 276; Crawford v. Crawford, 163 Kan. 126, 181P. 2d 526.)
Plaintiffs contend the court erred in refusing to permit, on rebuttal, the introduction of a blueprint map dated May, 1954, reflecting the fact that the Sterling property was still under an oil and gas lease. The court properly rejected this evidence as it was stipulated between the parties that the Sterling property had been under a lease to Mr. Coppinger but these leases were released of record on February 26,1952. Moreover, the record disclosed Martin had secured a lease on the Sterling property March 25, 1954.
After a careful review of the entire record, we must conclude, as the trial court, that Martin and Joyes having acquired the Sterling leases, continued to own them or at least had an equitable interest in them, until they were divided equally between them and their co-adventurer Hunter, and the court rightfully ordered plaintiffs to convey to Hunter his undivided one-third interest as set forth in the judgment below. We find nothing in plaintiffs’ brief which would justify a reversal of the judgment rendered by the trial court.
The judgment is affirmed. | [
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