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The opinion of the court was delivered by
HoutoN, C. J.:
It is urged by the defendants that there is .a defect of parties defendant in the petition as to the school-district taxes, and therefore that this court cannot pass upon the legality of those taxes. This view is correct. The parties ■defendant are under no legal obligation to defend the school districts. As the districts are directly interested in the collection of those taxes, the officers thereof should have been made parties defendant. (The State v. Anderson, 5 Kas. 90; Carpenter v. Hindman, 32 id. 601; Gilmore v. Fox, 10 id. 509-512; Hays v. Hill, 17 id. 360.)
It appears from the petition that the assessed valuation of .all the taxable property in the county of Jefferson for the year 1882, was $3,217,000.31. The levy for the “poor-fund” of two mills, was in addition to the ten mills levied for current •expenses. As the taxable property of Jefferson county, for 1882, was less than $5,000,000, the question is presented, whether the tax for the “poor-fund” was one of the current ■expenses of the county, and should therefore have been included within the ten-mills limitation. Sec. 35, ch. 79, Comp. Laws of 1879, gives the board of county commissioners authority to annually levy a tax for the support of the poor. We have biblical authority that “the poor always ye have with you,” and experience shows that the expense for the support of the poor in the counties of the state is an expense to be incurred every year — in other words, an expense of the ■current year. Therefore, in our opinion, the “poor-fund” is simply one of the items which the county board takes into consideration in levying a tax for county expenses, or for current expenses. (Comm’rs of Osborne Co. v. Blake, 25 Kas. 356.) The statute permitting the county commissioners to levy and assess a tax for the support. of the poor of their respective counties, was adopted in 1862. At that time, there was no limitation to the power of taxing for such purposes. In 1868 the legislature passed an act which limited the levy for the-current expenses of any one year to one per cent, on the dollar, where the taxable property of a county is less than $5,000,-000. (Gen. Stat. of 1868, ch. 25, § 181; Comp. Laws of 1879, ch. 25, § 220; Bartlett v. A. T. & S. F. Rld. Co., 32 Kas. 134.) The levy of two mills upon all the taxable property of Jefferson county for the “poor-fund,” is therefore illegal, because in excess of the levy of ten mills for county or current expenses, and not having been authorized by a direct vote of the people therefor. (Bartlett v. Railroad Company, supra.)
It is said, however, that as the taxes levied by virtue of said § 35 cannot be applied to any other object than that mentioned therein, that this tends to show that the legislature did not place any limitation upon the power of taxing for the “poor-fund.” This does not necessarily follow. The statute provides that when a judgment shall be rendered against the board of county commissioners of any county, or against any county officer, where the same shall be paid by the county, it shall be levied and collected by a tax, and when so collected, shall be paid by the county treasurer to the person to Avhom the same shall be adjudged. Taxes levied under this authority are held to be county expenses, or current expenses. (Comm’rs of Osborne Co. v. Blake, supra.) The whole course of the later legislation in the state has been to restrict and fix the limits of the taxing power, and since the adoption of said §181, of ch. 25, Gen. Stat. of 1868, we do not think that the legislature intended that the power of the board of commissioners to levy a tax for the support of the poor should be unlimited.
The demurrer to the complaints regarding the alleged ex cessive levy by the school district will be sustained, but the demurrer to the levy of two mills for the “poor-fund” will be overruled.
The case will be remanded, with direction to the court below to dispose of the same in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
HortON, C. J.:
It is contended on the part of the defendant that this court cannot pass upon the merits of this case, because it does not affirmatively appear from the record that all of the evidence upon which the district court acted is before us. Brown v. Johnson, 14 Kas. 377, is cited as conclusive. In that case it was said that it was easy to perceive that many things might have entirely overthrown the testimony presented. Such is not the case here. It was held in Wolf v. Washer, 32 Kas. 537, that—
“In order to sustain a demurrer to the evidence, the court must be able to say, as a matter of law*, that the party introducing the evidence has not proved his case; and the court, cannot, upon conflicting and contradictory evidence, say that as a matter of fact the preponderance of the evidence shows-that the party introducing it has not proved his case.”
In the case at bar, there was ample testimony tending to support the plaintiff’s cause of action; and we cannot perceive or imagine any evidence that would have entirely overthrown that presented. Of course, contradictory and conflicting testimony might have been offered, and we may, for the purpose of this case, concede that such testimony was introduced; but the court has no right, upon demurrer to evidence, to weigh conflicting testimony or to decide the case upon the preponderance of the evidence. If the case had been submitted to the court upon all the evidence introduced, and the decision had been rendered upon the merits, we could not interfere with the ruling of the court upon the record presented. As it comes to us, however, upon a demurrer to the evidence, and as the testimony in the record tends to support the plaintiff’s case, and as we cannot perceive that it might have been entirely overthrown, it is our duty to declare the law upon the testimony.
The evidence conduced to prove that on November 14,1864, William Merket died intestate, leaving as his heirs the plaintiff and Marais de Cygne Merket; that on December 5,1864, William C. Waybright was appointed administrator of his •estate; that on October 8, 1867, Waybright was appointed guardian of the minor heirs of said William Merket, deceased ; that the land in controversy was purchased and the improvements thereon paid for in part out of money belonging to the .said estate, then in the hands of Waybright, as administrator; that the title to the land was taken in his (Waybright’s) own name, and so remained at the time of his death; that on July 31, 1868, Waybright, as such administrator, made a final settlement, which purported to show a balance of $2,537.39 belonging to the estate; that on July 31, 1868, Waybright executed a receipt, of which the following is a copy: "State ■of KANSAS, GeeeNwoox) County, July 31,1868. — Received of W. C. Waybright, administrator of the estate of William Merket, late of said county, deceased, $2,537.39, on final settlement of said estate. — W. C. Waybright, guardian of Marais de Cygne and Josephine Merket;” that this receipt was filed with the probate judge on said July 31, and afterward placed upon tire records of the probate court; that at the time of this final settlement, Waybright said to the probate court, "that he had ho money; that the funds of the Market estate were all used • up, as he had invested' the same in his mill;” “that he was badly involved, and could not even pay the fees due from him as administrator to the probate judge,” and had the fees charged up to him as guardian, together with what was due from him Upon his final settlement; that before the'commencement "of this action,'Marais deCygne Merket died; that on January 28,1872, Waybright died, devising the land in question to his wife, Sarah Ann "Waybright, who on May 18, 1875, married the defendant; that afterward, said Sarah xlnn Waybright died, leaving the defendant her sole heir; that the plaintiff is the only surviving heir-at-law of William Merket, deceased, and at the time of this trial was over 18 years of age; that the estate of Waybright failed to pay out to the extent of about $7,000; that the bond executed by Waybright, as guardian of Marais de Cygne and Josephine Merket, was in the penal sum of $2,000 only.
Waybright, as administrator, acted in a fiduciary character, and by investing in real estate and the improvements thereon the money belonging to the estate of which he was administrator, and by taking the title in his own name, became seized in trust for the estate, or, in other words, for the heirs.
“ If a person having a fiduciary character purchase property with the fiduciary funds in his hands, and take the title in his own name, a trust in the property will result to the cestui que trust, or other person entitled to the beneficial interest in the fund with which the property was paid for: as if a trustee purchase with the trust fund and take the title in his own •name, the trust will result to the cestui que trust; if a guardian purchase with the money of his ward, a trust will result to the ward, and if an executor or administrator purchase property in his own name with money belonging to the estate, a trust in the property will result to the heirs, legatees, or other persons entitled to the beneficial interest in the estate.” . . . “In all these cases, the transaction is looked upon as a purchase paid for by the cestui que trust, as the beneficial interest in the money belonged to him; and the identity of the money'does not consist in the specific pieces of money or bills, but in the general character of the fund out of which the payment is made, and the fund may be followed so long as its general character can be identified.” . . . “If, however, a trustee purchase an estate with trust funds, and add funds of his own to the purchase-money, a trust will result to the cestui que trust, and the burden will be upon the trustee to show the amount of his own funds in the purchase; otherwise the cestui que trust will take the whole.” (1 Perry on Trusts, 2d ed., §§ 127,128.) “Where the trust fund constitutes a part only of the purchase-money of the estate, the court usually gives a lien on the land only for the amount of the trust fund invested and interest; but where the entire land is the fruit of the trust fund, the cestui que trust has an election to take the land, or the trust fund and interest.” (2 Perry on Trusts, 2d ed., § 842; Beck v. Uhrich, 16 Pa. St. 499; White v. Drew, 42 Mo. 561; Seaman v. Cook, 14 Ill. 501; Cook v. Tullis, 85 U. S. 332; National Bank v. Insurance Co., 104 id. 54; Morrill v. Raymond, 28 Kas. 415; Peak v. Ellicott, 30 id. 156.)
Counsel suggest that as Waybright, on July 31, 1868, receipted as guardian of the minor heirs for the said sum of $2,537.39, due from him as administrator to the estate, and as this receipt was filed with the probate judge and the matters connected therewith placed on record in the probate court, that this action cannot be maintained. We think otherwise. Executors or administrators cannot be permitted, under any circumstances, to derive a personal benefit from the manner in which they transact the business or manage the assets of the estate. (1 Johns. Ch. 620; 4 id. 303; 1 Fonblanque’s Eq., B. 1, ch. 2, § 12, JK; 1 Story’s Equity Jur., § 318.)
An administrator cannot purchase real estate in his own name with money belonging to the estate and expend other moneys of the estate in making improvements thereon, and then place the trust fund used by him as administrator beyond the reach of the heirs, by subsequently qualifying as guardian of the minor heirs of the estate, and as such guardian receipt to himself as administrator for the moneys of the estate previously used and expended by him. The heirs of the estate have an election either to hold the administrator and guardian personally responsible for the money of the estate invested in his own name, or to follow it into the land and have that adjudged trust property. They cannot, however, do both. In this case, the heir seeks to follow the money into the land, and does not rely upon the administrator’s bond executed by Way-bright, or upon the bond given by him as guardian.
The ruling and judgment of the district court 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.:
On the 11th day of August, 1884, the judge of the district court of Marion county issued an attachment against Melvin Burrows for contempt in willfully refusing to comply with the orders made by said judge in certain proceedings in aid 'of execution pending before him. The attachment Avas returned, and a hearing was had before the judge at chambers, on the 30th day of August, 1884, when he was adjudged guilty of contempt, and was committed to the jail of Marion county until he should comply with the orders of the judge, which he had disobeyed. From this order and judgment he appeals to this court.
The first question which we meet in this case, is raised by an objection to that part of the record AA'hich purports to be a bill of exceptions, because it Avas not settled and signed within the time prescribed by law. The record shows that the decision of the judge, to which exception is taken, was made on the 30th day of August, 1884, and that the bill of exceptions was presented and allowed on the 18th day of September, 1884. It is provided that bills of exceptions in criminal tañáis shall be settled, signed and filed in the same manner as in civil actions; and § 300 of the code of civil procedure prescribes that—
“The party objecting to a decision must except at the,time the decision is made, and time may be given to reduce the exception to writing, but not beyond the term. If the decision objected to is made in vacation, or at chambers, the judge may give time to réduce the exception to writing, not exceeding ten days.”
The language of the statute is plain, and clearly limits the time within which bills of exception may be presented and allowed. It has been held by this court, that a bill of exceptions not filed within the time prescribed by law, forms no part of the record, and that the judge cannot, even with the consent of counsel, extend the time for reducing the exceptions to writing and presenting them for allowance, beyond the statutory limit within which it must be completed; 'and that this court cannot take cognizance of, or consider as a part of the record, a bill of exceptions which is not allowed and authenticated in the manner and within the time prescribed by the statutes. (Brown v. Rhodes, 1 Kas. 359; Gallaher v. Southwood, 1 id. 143; Lownsberry v. Rakestraw, 14 id. 151-154; The State v. Bohan, 19 id. 48.)
The rule prescribed by the statute is a reasonable one. The theory is that the exceptions should at once be reduced to. writing, and allowed and settled while the facts and proceedings in the case are fresh in the minds of judge and counsel The party objecting to the decision of a judge, made in vacation or at chambers, should prepare and present his bill of exceptions at the time of the hearing at which the rulings or decisions objected to are made, and while the counsel for the opposite party are present. If additional time is necessary or desired in which to reduce the exceptions to writing, application should be made to the judge therefor, who may give time not exceeding ten days. If no time is asked or given at the conclusion of the hearing before the judge, the parties are concluded, and are not thereafter entitled to have the exceptions allowed or settled. These requirements are absolute, and we cannot disregard them. In this case there was no extension of time asked for by the appellant, or granted to him. From the statement made by the judge, attached to the bill of exceptions, it i spears that on the 6th of September, 1884, the appellant appeared before tbe judge and presented for bis allowance an incomplete and imperfect bill of exceptions, which the judge refused to allow and settle. The appellant then gave notice to the opposite party that the bill would be submitted to the judge for his allowance on the 18th day of September, which was accordingly done, and the bill was then allowed, signed, and ordered to be made a part of the record of the cause, against the objection of the appellee. It will be observed that the bill of exceptions brought up in the transcript was presented and allowed nineteen days after the decision was made, and at a time when the power of the judge to settle and sign the exceptions was at an end. The bill of exceptions, therefore, is not properly a part of the record, and we are compelled to disregard it.
The bill of exceptions having been stricken out, there remains in the record only the transcript of the findings and judgment in the contempt proceeding, and any question raised thereon is properly before us. Most of the argument made by counsel on behalf of appellant is directed to alleged errors which appear only in the bill of exceptions, and are excluded from our, consideration. In the absence of the testimony in the case, we are bound to assume that it fully supports the findings, and that the proceedings were regular except so far as error "may appear in the entry of the findings and judgment.
^Appellant contends that he cannot be held guilty of con- \ in this case, because the order of the judge to which he refused to yield obedience was void. The ground upon which he makes this claim is, that the examination of the judgment debtor in the proceedings in aid of execution was held at Cottonwood Falls, outside of the county where the judgment debtor resided, and to which the execution was issued. It is true that § 482 of the code, in referring to the power of the judge to require a judgment debtor to appear and answer concerning his property, provides that it shall be before “such judge, at a time and place specified in such order, within the county to which the execution was issued.” The examination of appellant in Chase county was irregular. But in this case it appears from tbe findings of the judge, that the appearance of the appellant outside of Marion County, where he resided, and his examination at Cottonwood Falls, Chase county, was voluntary, and apparently was held there for his convenience. It appears that an order was first issued, requiring the appellant to appear in Marion county and answer concerning his property. This order was duly served upon the appellant, but he failed to obey it, and vras cited to appear at Cottonwood Falls — where the judge was then holding court — and show cause why he should not be punished for contempt, in refusing to conform to the requirement made by the judge. The appellant accordingly appeared under this citation and purged himself of contempt, and then and there he volunteered to submit to an examination, which was reduced to writing, and which he signed without objection or exception. The further consideration of the case was — with the consent of all the parties — then adjourned until a later day in Marion county, where the hearing was completed, and where the order objected to was made.
It will be seen that the proceeding was instituted in the proper county, and service upon the appellant was there made. The examination of the appellant, and other testimony taken ' outside of the county, being in writing, was submitted by appellant for the consideration of the judge, at the adjourned hearing in Mai’ion county, and no question or objection vtfas 1 made by the appellant that it had been taken and reduce&dt? writing in Chase county. Whatever of irregularity there was in the examination of appellant outside of • the county where the execution issued, was therefore waived. The appellant, having introduced and read in evidence the .testimony taken outside of the county, with the consent of the opposite party and the approval of the judge, cannot thereafter be heard to object. (Hobart v. Frost, 5 Duer, 673; Viburt v. Frost, 3 Abb. Pr. 119; Buel v. Lockwood, 3 N. Y. 197; The State v. Adams, 20 Kas. 325.)
As another ground of error, it is insisted by the appellant that the order which he refused to obey, and upon which refu sal the proceeding for contempt is founded, was one which the judge had no authority to make; that the order made was one commanding the appellant to pay a debt, and that to commit him for contempt in failing to obey the order would in effect be imprisonment for debt. In such proceedings, “the judge may order any property of the judgment debtor, not exempt by law, in the hands either of himself or any other person or corporation, or due to the judgment debtor, to be applied toward the satisfaction of the judgment, and may enforce the same by proceedings for contémpt, in case of refusal or disobedience.” (Code, §490.) In this case the judge found that the appellant had property which consisted of money in his possession and under his control, not exempt by law, that should be applied toward the satisfaction of the judgment, and ordered that it be so applied. It was not an order to pay a debt, but was a direction to apply certain property, discovered upon the examination to be in the possession of the appellant, to the satisfaction of the judgment against him.
A showing by the judgment debtor that his disobedience of the order was not willful or contumacious, but was occasioned by a lack of money or property with which to satisfy the judgment, would ordinarily entitle him to a discharge; and a commitment for contempt, based on the .refusal to obey an order, in such a case would probably be in violation of our constitution, which forbids imprisonment for debt except in cases of frhud. But whether the testimony before the judge showed or tended to show fraudulent conduct on the part of the appellant in the concealment of his property, or in seeking to avoid the application of money or property to the satisfaction of the judgment, or whether he was willfully obstinate in his conduct, we cannot know. None of the testimony is before us.
"We refrain from expressing any opinion upon the question of how far a judge may go by an order made in proceedings in aid of execution to enforce a payment of pecuniary obligations, until it is fairly presented to us. With nothing before us but the findings of the judge, we are unable to say that the order made in this case is unwarranted or erroneous, and therefore it will be affirmed.
It appears that the name of the late attorney general is signed to one of the motions filed in this ease, but it was without his knowledge, and no part was taken by him in any of the proceedings in the cause.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action for slander, commenced by James Cooley against J. J. Haag. The case was tried before the court and a jury, and judgment was rendered in favor ■of the plaintiff and against the defendant for $30 and the costs of suit; and the defendant, as plaintiff in error, brings the case to this court, and alleges error in several particulars.
I. It is claimed that the court below erred in overruling the motion of the defendant below to require the plaintiff below to make his petition more definite and certain. The petition does not give or attempt to give the names of the persons to whom the alleged slanderous words were spoken, nor the time nor place when or where they were spoken, and the aforesaid motion of the defendant asked the court to require the plaintiff to make his petition more specific and definite in these particulars; but the court overruled the motion. In this we think the court erred. Of course, indefiniteness on the part of the petition did not prevent its stating a cause of action, or render it insufficient as against a demurrer. A petition may state a good caiise of action for slander, without stating when, or where, or to whom the alleged slanderous words were spoken; but by not stating these things it makes it much more difficult for the ■defendant to prepare for his defense. The plaintiff in such an action ought, in all fairness to the defendant, to inform the defendant as to when and where, or about when and where, and to whom, the plaintiff claims the defendant uttered the alleged slanderous words. The defendant might then be able to clearly show that in fact he never did utter them. If on the hearing of the motion to require the plaintiff to make his petition more specific and definite in these particulars, it should appear to the court that the petition was already as specific and definite and certain as it well could be under the circumstances, the court might then very properly overrule the motion.
II. .The defendant also demurred to the plaintiff’s petition upon the ground that it did not state facts sufficient to constitute a cause of action. He also raised the same question in various other ways during the trial. The alleged slanderous words were spoken by the defendant of and concerning the plaintiff, and were as follows: “ He stole my corn.” “ He stole my corn, and I can prove it.” “ By God! he stole my corn.” As these words were not spoken of the plaintiff in his profession or occupation, and as no special damages are alleged in the petition, it is claimed that no cause of action is stated, unless the uttering of the aforesaid words is actionable per se; and it is further claimed that in order that they may be actionable per se, it is necessary that they impute not only a criminal offense, but also an offense of an infamous character and punishable by imprisonment in the penitentiary. We do not think that this is the law. The words spoken in the present case impute larceny, (Townshend on Slander and Libel, §144, pp. 207, 208, b. b., steal — stolen;) and larceny is a criminal offense involving moral turpitude. This, we think, is all that is necessary to render the words spoken actionable per se. (Harrington v. Miles, 11 Kas. 480; Henicke v. Griffith, 29 id. 516; Bisbey v. Shaw, 15 Barb. 578; Townshend on Libel and Slander, ch. 8, and cases there cited.) It is an indictable offense in this state to steal corn in any quantity. (Crimes Act, §§ 78, 80.) Even to sever corn from the soil of another and to take and convert the same to the wrongdoer’s own use, with the intent to steal the same, is larceny, and an in dictable offense. (Crimes Act, § 87.) Even the trespass of ■severing com from the soil of another is a misdemeanor. (Comp. Laws of 1879, ch. 113.) And prosecutions for misdemeanors, •as well as for felonies, may be instituted and carried on by indictment. (Cr. Code, §§ 3, 4, 5, 66.) The statutes relating merely to trespasses have no application to this case, however; for the alleged libelous words in the present case charged a larceny, and not merely a trespass.
III. The court of course had the right, in its discretion, and with proper notice to the parties, to limit the number of witnesses to be introduced on each side to prove the general reputation of the plaintiff for honesty and integrity. (Bunnell v. Butler, 23 Conn. 65; Bissell v. Cornell, 24 Wend. 354; Gray v. St. John, 35 Ill. 222.) But we think the court erred in limiting the number to three.
IV. We do not think the court below erred in refusing to permit the defendant to introduce evidence tending to show what the general reputation of the plaintiff for honesty and integrity at the time of the trial was. What his general reputation for honesty and integrity at that time was, was not in issue. It was what his general reputation for honesty and integrity was at the time when the alleged slanderous words were spoken that was in issue, and the evidence should have been ■confined to that time.
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
HoetoN, C. J.:
It is claimed by the plaintiffs in error, defendants below, that as Lizzie S. Burtis did not sign the note executed by her husband, James P. Burtis, and that as she was the owner of the property mortgaged, and that as the discharge in bankruptcy released her husband from the payment of the note, therefore that the property mortgaged is not subject to the payment of the debt secured thereby. It is conceded that the mortgage was given before the discharge iu bankruptcy was obtained, or the application filed therefor, ■ and that the debt secured by the mortgage has never been paid; but it is contended that the discharge under the bankruptcy proceedings wiped out the debt secured by the mortgage, and that there is no debt whatever existing. The argument of counsel is not sound. The discharge in bankruptcy is not payment; it operates to discharge the bankrupt and future acquisitions, while at the same time the mortgagee, or other lien creditor, is permitted to have satisfaction out of the property mortgaged or subject to lien. (In re Campbell, 1 N.B.R. 165; Cole v. Duncan, 58 Ill. 176.)
Under the bankrupt law, a secured creditor against a bankrupt could resort to one of these remedies: First, he could rely upon his security; second, he could abandon it and prove the whole debt as unsecured; or, third, he could be admitted only as a creditor for the balauce remaining after the deduction of the value of the security. (Assignee v. Perkins, 1 Woods, 383; Reed v. Bullington, 11 N.B.R. 408 ; In re Hartell, 7 id. 559.) Section 5118 of the U. S. Rev. Stat. (1878) reads: “No discharge shall release, discharge, or affect any person liable for the same debt for or with the bankrupt, either as partner, joint contractor, indorser, surety or otherwise.” In Hubbard v. Ogden, 22 Kas. 363, it was said by this court that “where a husband and wife execute a mortgage on two separate pieces of real estate, one of which belongs to the husband and the other to the wife, and the mortgage is executed for the purpose of securing the individual debt of the husband, held, that the wife is surety of the husband to the extent of her separate property which she mortgages.” (See Jenness v. Cutler, 12 Kas. 500.) Applying this principle to the case at bar, Lizzie S. Burtis, by executing the mortgage upon her own real estate for the purpose of securing the individual debt of her husband, became surety of her husband, and within the terms of the bankrupt law, his discharge in bankruptcy did not release or discharge her from liability upon the mortgage. (In re Hartell, supra; Reed v. Bullington, supra; Meeks v. Whately 10 N.B.R. 498; Roberts v.Wood, 38 Wis. 60.)
The court did not err in allowing the amended reply to be filed. Granting leave to amend petitions is largely in the discretion of the court. (Code, §§ 139, 144; The State v. Marston, 6 Kas. 525; Kunz v. Grund, 12 id. 547; Railway Co. v. Kunkel, 17 id. 145.)
We perceive no error in the court reforming the mortgage as to the estate of Lizzie S. Burtis, deceased. There was sufficient evidence introduced upon the trial to sustain the findings of the court in that regard. (Miller v. Davis, 10 Kas. 541; Crane v. Chouteau, 20 id. 288.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
J. N. Roads brought suit before a justice of the peace of Neosho county, to recover the value of eight hogs belonging to him, which were run against and killed by the ■engine and cars of the Missouri Pacific Railway Company. The action was brought under the railroad stock law of 1874, and the plaintiff alleged in his bill of particular’s that the hogs were not killed near any public road or crossing, but without any fault on bis part they went upon the railroad track and were killed at a place where the railroad ought to have been but Avas not inclosed by any fence. It was also alleged that the hogs were killed by reason of the negligence of the railway company, its agents and servants. There was an averment that a demand was duly made by the plaintiff upon the railway company for the value of the hogs killed, but that payment was refused. In the justice’s court judgment was given in favor of the plaintiff, and the defendant prosecuted an appeal to the district court, where the case was tried without a jury, and a general finding made that the allegations of the plaintiff in his bill of particulars were true; that he was entitled to recover the sum of $75, the value of the hogs killed, and the further sum of $35, attorney’s fees; and judgment was rendered accordingly.
The railway company contends that this judgment is erroneous and cannot stand, because it was obtained under the railroad stock law, which it is claimed has no application to hogs, and imposes no obligation upon railroad companies to fence against them. This question, as well as most of the points raised in the case, have been decided adversely to the contention of the railway company in the recent case of Missouri Pacific, Railway Co. v. Bradshaw, ante, p. 533. There it was ruled that “the railroad company is required to fence against all animals against which a good and lawful fence would be any protection;” and that “where a good and lawful fence will protect a railroad track against, any "particular hogs, the railroad company is bound to fence as against such hogs; and if the defendant railroad company in such a case claims that it was not bound to fence its road as against the particular animal in question, it devolves upon the railroad company to show it.” In this case, no testimony was offered by the defendant; and the plaintiff’s testimony does not disclose how large the hogs were, but presumptively, a lawful fence would have prevented them from going upon the railroad track. (Mo. Pac. Rly. Co. v. Bradshaw, supra.)
About the only distinction between the Bradshaw case and the present one is, that in the former case the railroad ran through the premises of Bradshaw, and the animals in that case passed directly from the land of the owner upon the railroad track, where they were killed. In this case it does not appear that plaintiff’s land extended to the track, although the distance between the pen where the hogs were inclosed and the point where they went upon the railroad track and were killed was only from a quarter to half a mile. It is claimed that the plaintiff was negligent, in that the hogs were trespassers upon the adjoining land, and that the company cannot be held liable under the statute for killing animals that were unlawfully upon the adjoining land, and came therefrom upon its unfenced track, unless after the animals were discovered upon the track the company and its employés failed to exercise ordinary care to prevent injuring them. Upon this question the general rule appears to be that where a statute requiring railroad companies to fence their tracks is a general police regulation, intended to protect domestic animals generally, and also for the safety of persons and property passing over the road, and is not designed merely for the benefit of the adjoining land-owner, that the railroad company is held to be under a general obligation to the public, and is liable for animals injured and killed on its unfenced track, even though they were unlawfully upon the land from which they passed upon the railroad track. (Indianapolis &c. Rld. Co. v. Townsend, 10 Ind. 38; Railroad Co. v. Maiden, 12 id. 10; Railroad Co. v. McKinney, 24 id. 283;. Railroad Co. v. Guard, 24 id. 223; McCall v. Chamberlain, 13 Wis. 637; Curry v. Railroad Co., 43 id. 665; Fawcett v. Railway Co., 16 Q. B. 609; Pierce on Railroads, 414.)
This is the character and purpose of our statute, and it has been so construed by this court. It was said that "the fencing of the railroad track is a duty not merely for the protection of cattle, but for the protection of the lives and safety of persons on railroad trains, whether employés or passengers. The enforcement of this duty is the exercise of the police power of the state.” (Sherman, Adm’r, v. Anderson, 27 Kas. 335.) Under this construction of the statute, the mere fact that the animals were trespassing upon the land from which they went upon the unfenced railroad track, will not, where the plaintiff is without fault, defeat a recovery. Of course no recovery could be had for an injury arising from the failure of the railroad company to fence its track, where the owner purposely placed his animals in a position of danger. But there is nothing in the record of this case that would justify such a charge against the plaintiff. Indeed, the escape of the hogs from the pen in which they were inclosed appears to have been a mere accident, and no negligence can be properly attributed to the plaintiff therefor. The testimony shows that the hogs had been carefully inclosed in a strong pen made of posts and boards of proper height, and that on the morning of the accident a neighbor’s bull came along, and in attempting to jump into the pen broke it down in such a way that the hogs were allowed to pass out of it. They had never before escaped from this inclosure, and on this occasion the plaintiff discovered that they had gone within a few minutes after their escape, and immediately sent parties in pursuit of them, but befoi’e overtaking them they went upon the unfenced railroad track and were killed. It was no fault of the plaintiff that the hogs escaped from the inclosure, neither did they stray upon the railroad track by reason of any negligence of the plaintiff. "We must therefore hold that he is entitled to indemnity for their loss. (K. C. Ft. S. & G. Rld. Co. v. McHenry, 24 Kas. 503.)
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
HoktoN, C. J.:
The plaintiff in error has mistaken his remedy. He did not present to the defendant in error, as as-signee, his chattel mortgage securing his claim at the time and place designated by the assignee for adjusting and allowing demands against the estate. He seems to have contented himself with merely proving up his note before the assignee, and obtaining an allowance of the same and his pro rata share thereof, relying upon the verbal promise of the assignee to pay his claim as a first or prior lien. If he had presented his chattel mortgage at the time his demand was allowed, he could then have obtained an order making his claim a first lien. (Comp. Laws of 1879, ch. 6, §§ 21, 22, 23.) If the assignee had decided against the priority of his chattel mortgage, he could then have appealed from his decision to the district court.
Again, plaintiff in error might have retained in his possession the property described in the chattel mortgage, and satisfied his claim by a sale of the goods as permitted by the statute. (Comp. Laws of 1879, ch. 68, §17.) At the time that the assignee presented his application for a discharge from his duties, all of the claims examined and approved by him had been paid their pro rata share from the proceeds of the sale of the property of the estate. The exceptions as filed by the plaintiff in error to his discharge were properly ignored by the district court. If the assignee obtained the mortgaged property from the possession of the plaintiff in error upon the agreement to pay him his claim in full, and has failed so to do, his remedy is other than by filing objections to his discharge.
The judgment of the district court will be affirmed. ”
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
At an election held on November 4, 1884, the electors of Montgomery county voted upon a proposition to issue fifty thousand dollars in the bonds of that county, to be used in the building of a court house and jail. When the vote was canvassed the board of canvassers found that there had been 2,683 votes cast in favor of the proposition, and 2,652 against it, and accordingly declared that the proposition had been adopted. E. B. Clark, who is an elector of that county, for the purpose of contesting that election instituted this proceeding, and upon his verified petition and affidavits, applied to the judge of the district court for a temporary injunction restraining the board of county commissioners from issuing tbe bonds declared by them to have been voted. The application was refused, and the plaintiff assigns the refusal as error. The controversy in this case arises over 76 ballots cast in two election precincts, which the plaintiff claims should have been counted against the proposition, but which the election boards refused to count, because of their informality.
It will be noticed that the vote was taken upon the day of the general election. The ballots rejected by the election boards had printed thereon and at the bottom of the ballots and underneath the names of the candidates for national, state and county officers, the words “ Eor the bonds.” A pencil-line had been drawn through these words, and immediately beneath the words so marked was written in pencil the word “Against.” The order of the board of county commissioners submitting the question to the electors of the county, provided that all those voting in favor of the proposition should have written or printed on their ballots the words “ Eor the bonds,” and those voting against the proposition should have written or printed on their ballots the words “Against the bonds.” If the rejected ballots had been counted as negative votes, the proposition was defeated by a majority of forty-five votes.
On the hearing before the district judge it was agreed that the only question to be decided was, whether the ballots which were cast as above stated should be counted against the proposition; and this is the question submitted to us. The leading consideration, and the one on which the decision of the case must turn, is, what was the will of the electors casting these ballots? In determining the intention of voters, election boards as well as courts should be guided by the language of the ballots cast, interpreted in the light of the circumstances surrounding the election. If the terms used by the voter upon his ballot are so vague and uncertain as not to disclose his purpose, it should be rejected; but on the other hand, if the terms employed by him on his ballot, though not technically accurate, are such as to make known his will beyond a reasonable doubt, effect must be given to it. (The State, ex rel., v. Metzger, 26 Kas. 395, and cases cited; McCrary on Elections, ch. 7.)
It is conceded by counsel not to be imperative that an elector, in voting upon the proposition to vote bonds, should use the exact language prescribed in the order submitting the proposition ; and that any words of similar import, and which will show with a reasonable degree of certainty the intention of the voter, will be sufficient. The act of the elector in drawing a pencil-mark through the printed words which would make it an affirmative vote, clearly shows that his attention was specially called to the proposition, and that he had under advisement the question of whether he should favor or oppose it. It also shows, beyond question, that he did not desire that his vote should be recorded in favor of the bonds. After he had thus expressed his purpose not to favor the bonds, while he had the subject under consideration, he writes, presumably at the same time, and with the same pencil, and immediately underneath the canceled words, the word “Against.” The word used was the controlling one in the form prescribed by the order of the board of county commissioners to express opposition to the voting of the bonds, and in its ordinary signification means opposition. Opposition to what? Obviously it did not refer to the candidates whose names appeared on the upper part of the ticket: in that connection it would be meaningless. The action of the voter, in writing the word “Against,” was not only directly associated with his act in penciling the words relating to the bond proposition, but it was directly and closely connected with them upon the ticket.
In. view of these considerations, we cannot escape the conviction that the ballots were intended as negative votes upon the proposition. Common observation shows that this is the method usually adopted by voters in scratching a printed ticket. When a voter finds upon a ticket presented to him the name of a candidate to whom he is opposed, it is usual to cancel such name by a pencil-mark and write immediately under or near to the -name canceled the name of the candidate for whom he desires to vote. Her© the words to be used in expressing the elector’s concurrence or dissent to the proposition were “For” and “Against”; and we think there can be no reasonable doubt that it was the intention of the voter to only-scratch and cancel that which would make it an affirmative vote, and adopting the usual method in scratching a ticket, he wrote in close proximity, and in connection therewith, the word “Against,” and thereby it seems to us expressed his dissent to the subject in his mind, namely, the voting of the bonds.
We acknowledge the force of the defendant’s argument, and recognize that this is a “border” case; but under the facts in the record, we think the will of the electors who cast the disputed ballots is fairly apparent, and that they intended to vote against the bond proposition.
From the views herein expressed, it follows that the order and judgment of the district court must be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to recover damages for personal injuries. At the conclusion of plaintiffs evidence, the district court sustained defendant’s motion for a directed verdict and entered judgment for the defendant. The plaintiff has appealed.
The plaintiff, a 41-year-old housewife, resided in Wichita. The defendant, a Kansas corporation, operated a cafeteria-type restaurant at 1601 East Douglas, Wichita, under the name of South Seas. The restaurant was open to the public and patrons served food to themselves and carried it to the tables for consumption.
The following is a summary of the testimony of the plaintiff and her husband. On June 19, 1962, plaintiff and her husband arrived at the restaurant for dinner at approximately 7:30 p. m. Each took a plate and proceeded along the food line toward the south, helping themselves to the food. The plaintiff proceeded down the west aisle while her husband proceeded down the east asile. She partially served herself and observed there were only a few pieces of fried chicken, and was advised by a hostess at the food line “there is some on the way out now.” They waited a little while, and her husband then asked if she would mind if he went ahead and sat down. He then went into the dining area and sat down at a table. Ry this time, other people in the food line ahead of them had served themselves and had taken two tables to the northwest of the table where plaintiff’s husband was sitting. The plaintiff waited at the south end of the food line for some four or five minutes. She then helped herself to the fried chicken which had arrived, and proceeded toward the table where her husband was sitting. This table was located in front of or to the north of a post which was six or eight feet from where the plaintiff left the food line and directly west of the south end of the bamboo partition. There was a tile floor from the bamboo partition to the table, and the restaurant was dimly lighted.
Upon leaving the food line, plaintiff proceeded along the same route as her husband except he had gone behind the post to the west side of the table and she proceeded directly to the east side of the table. At the time, plaintiff was carrying her dinner plate in her right hand, a salad plate in her left hand and had her purse over her right arm. She was holding the plates in a “normal position” and was walking toward the table where she was going to sit. When the plaintiff got approximately halfway to the table she slipped on a pickle and twisted and almost went down. As she slipped, the assistant manager grabbed her by the arm and ‘held the upper part of her body secure while the lower portion was twisting and sliding.” The plaintiff did not know where the assistant manager was standing prior to the time she slipped and did not see him on her way to the table. Despite her near fall and the fact that the assistant manager grabbed her by the arm, she “did not spill any of the food off the plates she was carrying.” On his way to the table the plaintiff’s husband did not see a pickle.
After the plaintiff slipped, the assistant manager picked up a pickle from the floor and put it in a container and told a bus boy to clean up the pickle juice. There was nothing else on the floor. After the mashed pickle and juice had been cleaned up, the plaintiff sat down at the table with her husband and they started to eat their dinner. While eating, the plaintiff’s husband wanted more water. He held up his glass but received no response from the waitresses. There were three waitresses sitting in the back of the restaurant and the waitress who had waited upon him and his wife was in the front of the restaurant polishing some chrome. He went to the front of the restaurant and requested some water. The assistant manager told him, “you will have to excuse us, we are having help trouble, they are quarreling among themselves.” Plain tiff’s husband testified that “the little waitress that waited on us did good,” and that when he indicated his water glass was empty, she was at the front of the restaurant “shining on some chrome.” There was no testimony as to what the other waitresses were doing when the plaintiff slipped, or prior thereto. After they finished eating, the plaintiff and her husband left without anything further being said.
The district court announced the following reasons for sustaining the defendant’s motion for a directed verdict:
“1. That there is no evidence upon which a jury could find that the defendant, its agents, servants or employees had actual knowledge of the pickle on the floor.
“2. That there is no evidence upon which a jury could find that the pickle had been on the floor for such a length of time that in the exercise of reasonable care the defendant, its agents or employees should have known of it.
“3. That there is no evidence that this defendant did not use due care to keep in a reasonably safe condition those portions of its premises where the guests or customers may be expected to come and go and this court finds that this defendant did use due care to keep such premises in a reasonably safe condition for the guests and customers.”
In seeking reversal, the plaintiff contends she was a business invitee when she entered defendant’s cafeteria, helped herself to food and started to walk to a table in the dining area; that she had every right to assume the floor was suitable and safe to walk upon and that she could carry out her purpose without injury to herself, but she slipped on a pickle that had been carelessly left on the floor in a path she necessarily took to go to the table to eat. She further contends that, as an invitee, the defendant was bound to use due care to protect her from injury, not only from defects in the premises but also from other dangers arising from the use of the premises by its servants and invitees. She further contends that the defendant knew or should have known that in its self-service type restaurant, servants and patrons were going to spill or drop food on the floor used as a passageway to dining areas, and that dangerous conditions negligently created or maintained by the defendant or its agents are traceable to the defendant’s acts and omissions, and proof of notice becomes unnecessary.
It is the duty of a proprietor in the control of his business to use due care to keep those portions of the premises where guests or customers may be expected to come and go, in a reasonable safe condition, and he is hable to those who without their own fault are injured by his failure to do so. The true ground for liability is his superior knowledge over that of business invitees of any dangerous condition and his failure to give warning, of the risk. However, he is not an insurer-against all accidents which may befall them upon the premises. (Little v. Butner, 186 Kan. 75, 80, 348 P. 2d 1022, and cases cited.)
The plaintiff alleged that the defendant negligently failed to take precautions to keep the restaurant floor free from slippery substances that might cause invitees to slip thereon; that it maintained its floor in a slippery condition which was dangerous to walk upon. The other allegation of negligence was that defendant, its agents, servants, and employees, failed to keep a vigilant lookout for slippery substances on the floor and to reasonably warn plaintiff of the presence thereof when it knew or should have known by the exercise of reasonable care that persons would spill and drop foods on the floor where invitees, and particularly plaintiff, would walk when going to a table to eat.
In Little v. Butner, supra, it was said:
“. . . With respect to the necessity of proof that the proprietor of a store in which the plaintiff was injured in a fall on an interior floor had notice of the dangerous condition, the cases are divided into two classes: (1) injuries to customers caused by dangerous conditions negligently created or maintained by the proprietor or his servants (Reese v. Abels, supra; Bury v. Woolworth Co., 129 Kan. 514, 283 Pac. 917; Trimble v. Spears, 182 Kan. 406, 413, 320 P. 2d 1029; J. C. Penney, Inc. v. Kellermeyer, 107 Ind. App. 253, 19 NE 2d 882, 22 NE 2d 899; Brown v. Slack, 159 Nebr. 142, 65 NW 2d 382; Kroger Grocery & Baking Co. v. Diebold, 276 Ky. 349, 124 SW 2d 505), and (2) injuries due to dangerous conditions coming about through no active fault of the proprietor and not involving an instrumentality employed by him in the conduct of his business (Relahan v. F. W. Woolworth Co., supra; Glenn v. Montgomery Ward & Co., supra). Under the former, the condition is one which is traceable to the proprietor’s own act, that is, a condition created by him or under his authority, or is one in which he is shown to have taken action, and proof of notice is unnecessary. Under the latter, where the floor has been made dangerous by the presence of an obstacle which is traceable to persons for whom the proprietor is not responsible, absent a condition created by himself, proof that the proprietor was negligent with respect to the floor condition requires a showing that he had actual notice thereof, or that the condition existed for such a length of time that in the exercise of reasonable care he should have known of it (Anno: 61 A. L. R. 2d pp. 124, 125 and 62 A. L. R. 2d, p. 31). (Emphasis supplied.) (1. c. 81.)
We have carefully examined the record and find no evidence introduced by the plaintiff which tended to prove that the defendant failed to exercise reasonable care to keep its floor free from slippery substances, or that it failed to perform any practice or take any precautions which it or a similar place of business should reasonably take or perform, such as regular sweeping and cleaning of its floors, or that the defendant failed to use reasonable care for the safety of its invitees. Moreover, there is no evidence which tended to prove that the defendant or its agents or servants dropped the pickle on the floor, or, for that matter, how the pickle came to be on the floor. The plaintiff argues that a jury could find the pickle was on the floor “for a minimum of four to five minutes before plaintiff slipped on it.” There was no evidence bearing upon the issue of how long the pickle was on the floor, and we think a jury could not determine whether the pickle was on the floor for such a length of time that the defendant, its agents or servants, should have known it was there. The mere fact that the plaintiff stood at the south end of the food line for four or five minutes does not establish or tend to establish or infer how or when the pickle got on the floor. Obviously, it only established how long the plaintiff stood in a certain place.
The record has been carefully reviewed and it cannot be said that, under the facts and circumstances, the defendant could be charged with constructive knowledge of the pickle on the floor, and the district court did not err in its ruling.
The judgment is affirmed.
Wertz, J., dissents. | [
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The opinion of the court was delivered by
HortoN, C. J.:
In this case, the defendant in error — plaintiff below — claimed in-the district court that he was the owner and entitled to the immediate possession- of certain personal property described in his petition, consisting of saddles, harness, bridles, whips, curry-combs, etc., by virtue of a chattel mortgage executed to him by P. Q,. Davis, dated-November 4,1882, and duly filed in the office of the register of deeds of Shawnee county, November 8, 1882. Upon its face, the chattel mortgage purported to secure the payment of a promissory note of the same date of the mortgage, for the sum of one thousand dollars, executed to plaintiff below by Davis, payable thirty days from date. Plaintiff claimed that at the commencement of the action there was due and unpaid on the promissory note $443.75; that after the note became due, by an agreement between himself and Davis, the property in the mortgage was turned over to him by Davis, and thereupon he made an agreement with Davis, by which the latter was to remain in possession of the goods, as agent of the former, with authority to sell and dispose of the same in the ordinary course of business; to receive pay therefor, and account to the plain tiff below, daily, for all sales made — the accounting to be each evening after the close of the business of the day; that in pursuance of this agreement, Davis continued to sell the goods from time to time, until the 13th of December, 1882, each day accounting to plaintiff below for the property sold; that on said December 13th, the defendant, who was then acting as constable in the city of Topeka, by virtue of certain attachments placed in his hands against the property of P. Q,. Davis, levied upon and took possession of the mortgaged property that he has since sold and disposed of it; that plaintiff below made a demand for the property upon the defendant, before the commencement of the action, and that the defendant refused to deliver it to him. Plaintiff in error, defendant below, claimed that the note and mortgage of November 4,1882, were executed with intent to defraud, hinder and delay the creditors of Davis in the collection of their debts against him.
The transaction between the parties was substantially this about May 2, 1882, Davis was indebted to H. A. Lewis in the sum of one thousand dollars, for money received, and on that day he executed and delivered to Mrs. Clara Lewis, the wife of H. A. Lewis, his promissory note for $1,000, payable thirty days from date. At the same time, Davis executed to Mrs. Lewis a chattel mortgage on the property in controversy to secure the payment of the note. While Mrs. Lewis held this note and chattel mortgage, she received, as payment to-apply on the same, from Davis, about $550. She afterward transferred and indorsed the note to plaintiff below, there being, at the time, over $450 of principal and interest due upon the note. After the transfer and assignment of the note to plaintiff below, and on November 4,1882, Davis took up his original note and mortgage, and on that day executed to plaintiff below the note of $1,000 and the mortgage to secure the same on the property in controversy. In referring to the second chattel mortgage, the district court charged the jury:
“Now, with regard to the mortgage executed and delivered to Shull by Davis on November 4,1882, if you find from the evidence that the actual indebtedness for which the mortgage was given as security was only $450, and that in fact the mortgage was given to secure a note of $1,000, and if you further find from the evidence that $650 of the amount mentioned in the mortgage was for a fictitious or imaginary debt that did not exist, and was not an actual existing debt from Davis to Shull, then I instruct you that prima facie the mortgage would be fraudulent, and void as against the subsequent attaching creditors of P. Q,. Davis; and without explanation or further proof respecting the transaction between the parties, the defendant would be entitled to judgment, and the burden of proof is upon the plaintiff to show that in fact the transaction was honest, and a bona fide transaction, and not designed or intended by the parties — Davis and Shull — to cheat, defraud, hinder or delay the creditors of P, Q,. Davis in the collection of their debts. As I have stated to you before, the execution and delivery of the mortgage, under the circumstances I have suggested, would be prima facie evidence of such fraudulent intent, and the burden of showing the bona fides or good faith of the transaction, under such circumsta:ices, will rest upon the plaintiff in this suit.”
The court further instructed the jury as follows:
“Now, with respect to the transaction of the delivery of the mortgaged property by Davis to Shull, I instruct you that so-far as that transaction is concerned, if the mortgage transaction was bona fide and a lawful one, and that after the debt became due and before the levy of the attachments Davis in good faith surrendered and delivered the property to Shull for the purpose of paying and satisfying this indebtedness, and to be used by Shull for that purpose, and that in pursuance of such delivery it was further agreed between Shull and Davis that Davis should remain in possession of the goods as agent for Shull, with power to continue to sell and dispose of them in the ordinary course of business for the benefit of Shull, and with the understanding and agreement that the money derived from sales of the goods should be paid directly to Shull, and that this transaction before the attachment proceedings was carried out in good faith and not for any fraudulent purpose, that such transaction was legitimate and pi’oper, and the possession of Davis of the property, under such circumstances, would be the possession of Shull himself.”
Complaint is made of these instructions, and it is contended as it was shown upon the trial that there was due to plaintiff below from P. Q,. Davis, only the sum of $450 or $500 at the time the note and mortgage of $1,000 of November 4,1882, were executed, that fraud was thereby sufficiently shown, and the jury should have been instructed to find for defendant below. In support thereof, it is said that every person is presumed to have intended the natural and probable consequences of his own acts, and Wallach v. Wylie, 28 Kas. 152, is cited as conclusive that the mortgage of November 4,1882, was fraudulent and void. The court did instruct the jury that prima Jade the mortgage was fraudulent and void as against the subsequent attaching creditors of Davis, but permitted the jury to pass upon the bona fides of the transaction of the parties. This was proper, and therefore the instructions declared the law. (Frankhouser v. Ellett, 22 Kas. 127.)
The jury, by their verdict, found that the parties acted in good faith, and that there was no fraud committed or intended. In Wallach v. Wylie, supra, the chattel mortgage was held void in toto, because of the intention, participated in by all the parties to it to hinder, delay and defraud the mortgagor’s creditors. (Comp. Laws of 1879, ch. 43, § 2.) In this case, the overstatement of the amount secured by the chattel mortgage was not made with the fraudulent intent to hinder, delay and defraud the creditors of Davis. In this respect the case differs from Winstead v. Hulme, 32 Kas. 568. When the original note and mortgage were executed by Davis to Mrs. Lewis, the note was evidence of an actual existing indebtedness, and the chattel mortgage secured an actual existing indebtedness. When the remainder upon that note became past due, plaintiff below requested Colonel Lewis to have Davis execute a new note and mortgage. Lewis went to Davis, and the latter executed to plaintiff below a new note and mortgage of the same amount as the old note, the mortgage being upon the same goods. There was evidence introduced upon the trial tending to show that the second note and mortgage were executed for the amount of the old note and mortgage, because at the time, neither Lewis nor Davis had the old note, and did not have with them a list of the credits or dates of the credits upon the old note; and when the new note and mortgage were executed, it was with the express understanding that the plaintiff below should place all the credits that were upon the old note, upon the new note. Lewis communicated this understanding to plaintiff below when he delivered the new note and mortgage, and plaintiff below immediately placed all the proper credits upon the new note. Subsequently plaintiff below took possession of the mortgaged property, and was in possession of the same when the levies were made thereon.
• We have examined the other alleged errors, but on account of the special findings of the jury, it is unnecessary to refer particularly to them.
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
Valentine, J.:
This was an action brought by Robert Wagner against the Atchison, Topeka & Santa Fé Railroad Company, for damages for personal injuries alleged to have resulted from the negligence of the defendant. The case was tried before the court and a jury, and judgment was rendered in favor of the plaintiff and against the defendant for $2,000 and costs of suit; and from this judgment the defendant by petition in error appeals to this court.
It appears from the record brought to this court that on December 23, 1881, and prior thereto, Wagner was in the employment of the railroad company as a yard switchman at Nickerson, Kansas. His duties as switchman required him to couple and uncouple cars, make up trains, etc. Nickerson being the end of a division of the defendant’s railroad, it was customary at that place to take off a car or coach from the western-bound passenger train which arrived at that place each evening, and to put it on the eastern-bound passenger train the next morning. A switch engine was used for this purpose, and among the duties performed by Wagner were to couple and uncouple the passenger coach to and from this engine. The passenger coaches were equipped with a kind of draw-bars usually known as “the Miller coupling,” an invention by which coaches are coupled to each other automatically, without the use of links or pins. Links or pins, however, may be used in coupling rolling stock equipped with this kind of coupling, and are so used whenever a coach equipped with this kind of coupling is coupled to another coach or car or engine not so equipped. • The switch engine was equipped with an- oval-faced draw-head, with two or three--slots or shelves into which a link might be placed for coupling. One witness testified that this contrivance for coupling was called a “ Hinckley switch-engine draw-head.” In coupling or un-coúpling coaches equipped with thé Miller coupling to an engine equipped as this engine was, it was necessary to use á link and pins. On the morning of December 23, 1881, Wagner was ordered by J. W. Reed, the yard-master, to get on the switch engine, which had already been coupled to the passenger coach and was standing on the side track, and to place the passenger coach in the eastern-bound passenger train. Wagner got on the step or platform of the engine, and between, the engine and the coach, for the purpose of obeying this order. The engine and coach were then moved by the engineer in obedience to a signal from Wagner, and -when they arrived at the proper place Wagner endeavored to uncouple the engine from the passenger coach, and in doing so he attempted first to pull the pin from the draw-head on the engine, but finding that the head of the pin was broken and the pin difficult of removal, he then reached over to the draw-bar of the passenger coach and pulled that pin. The engine at the time was pushing against the coach, and the draw-bar of the coach slipped by the draw-head of the engine, and catching the plaintiff’s leg broke it about two or three inches above the knee. This incapacitated him for work for a long time, and he endured pain and incurred expense, but his leg finally got to be nearly as well and sound as before the accident. No negligence is imputed to the yard-master or to the engineer, and it is not claimed that the engine or the passenger coach was in any manner defective or out of order, except the defects in the coupling-pins, of which the plaintiff had full and complete knowledge, and the spring or appurtenances connected with the draw-bar of the passenger coach,- of which the plaintiff did not have any .notice or knowledge. • Indeed, no person is shown to have had any notice or knowledge of any'defect in such draw-bar, or in anything connected therewith; ánd it'is certainly at least very doubtful whether there was in' fact any such defect. The jury, however, upon very weak' evidence found that there was such a defect; and for the purposes of this case we shall assume that'there was. •'
The question then arises, is the defendant liable because of such defect, and upon the other facts of this case? ' We think not. It must be remembered that the question in this case does not arise between the railroad company and a passenger, or between the railroad company and some- third person having no connection 5r.contract relation with the railroad company; but it arises between the railroad company and one of its em-ployés, who by reason of his employment has assumed all the ordinary risks and hazards incident to his employment. A passenger pays to be protected from all the risks and hazards incident to the operation of a railroad, from which the railroad company can by the highest degree of skill and care protect him; while an employé of the railroad company is paid to assume all the risks and hazards incident to his employment; and a third person, having no connection ór contract relation with the railroad company, stands upon his original legal rights, being neither protected by the railroad company nor assuming any of the dangers, risks or hazards incident to the operation of the railroad; and while such third person may not be placed in the same highly favorable situation with regard to dangers, risks and hazards as a passenger is, yet he is placed in a much more favorable situation than a mere employé of the railroad company, who is paid to take the risks and hazards of his employment. Hence, differences in the rules governing these various relations must be expected.
Mr. Thompson, in his work on Negligence, uses the. following language:
“In an action by an employé against his employer for injuries sustained by the former in the course of his employment, from defective appliances, the presumption is that the appli- anees were not defective; and when it is shown that they were, then there is a further presumption that the employer had no notice or knowledge of this fact, and was not negligently ignorant of it.” (2 Thompson on Negligence, p. 1053, §48.)
Mr. Wood, in his work on Master and Servant, uses the following language:
“The servant seeking to recover for an injury, takes the burden upon himself of establishing negligence on the part of the master and due care on his own part. And he is met by two presumptions, both of which he must overcome in order to entitle him to a recovery: First, That the master has discharged his duty to him by providing suitable instrumentalities for the business, and in keeping them in condition; and this involves proof of something more than the mere fact that the injury resulted from a defect in the machinery. It imposes upon him the burden of showing that the master had notice of the defect, or that in the exercise of that ordinary care which he is bound to observe he would have known it. When this is established, he is met by another presumption, the force of which must be overcome by him, and that is that he assumed all the usual and ordinary hazards of the business,” etc. (Wood on Master and Servant, § 382.)
Shearman and Redfield, in their work on Negligence, use the following language:
“In actions brought by servants against their masters, the burden of proof as to the master’s knowledge or culpability in lacking knowledge of the defect which led to the injury, whether in the character of a fellow-servant or in the quality of materials used, rests upon the plaintiff.” (Shearman and Redfield on Negligence, § 99.)
Mr. Pierce, in his work on Railroads, uses the following language :
“ The company’s knowledge of a defect must be proved in order to make it liable for the consequences, but such knowledge may be shown by circumstances, as the length of time it existed before the injury, or by a notice given to an employé who had an express or implied authority to receive it. The fact that the servant complained of a defect in the road or its appointment is admissible in proof of the company’s knowledge.” (Pierce on Railroads, 373.)
“ The burden of proof is on the servant to show that the company was negligent, and that his own negligence did not contribute to the injury; and where the injury was caused by defects in the road or its appointments, that the company knew or ought to have known them, or negligently employed incompetent persons to construct or repair them; and where it is alleged to have been caused by the incompetency of fellow-servants, that the servant was incompetent, and the company knew or ought to have known of such incompetency; and he must show that he did not himself, before the injury, know of such defects or incompetency. The company’s negligence is not to be inferred from the fact of injury by a collision of trains, or by an explosion of engines, even in jurisdictions where negligence is implied from the collision or explosion in case of injuries to passengers or third persons.” (Pierce on Railroads, 382.)
The supreme court of Iowa, in a recent decision, uses the following language:
“As to driving in the draw-bar, there is no evidence whatever that any of the officers of the defendant had any knowledge that the draw-bar was in any way defective, or that it was defective in its original construction. Without some evidence on this question, there could be no recovery for that defect, if there was any defect.” (Skellinger v. C. & N. W. Rly. Co., 61 Iowa, 714, 715; same case, 12 Am. & Eng. Rld. Cases, 206, 207.)
There is a vast number of other cases announcing the same principles and sustaining the elementary works above cited, so far as we wish to apply them to this case, among which are the following: De Graff v. N. Y. C. & H. R. Rld. Co., 76 N. Y. 125; Warner v. E. Rly. Co., 39 id; 468; Elliott v. St. L. & I. M. Rld. Co., 67 Mo. 272; M. &c. Rld. Co. v. Thomas, 42 Ala. 672; C. C. & I. Rly. Co. v. Troesch, 68 Ill. 545; C. & A. Rld. Co. v. Platt, 89 id. 141; I. B. & W. Rld. Co. v. Toy, 91 id. 474; E. St. L. P. & P. Co. v. Hightower, 92 id. 139; Wonder v. The B. & C. Rld. Co., 32 Md. 411; Ballou v. C. M. & St. P. Rly. Co., 54 Wis. 257; same case, 5 Am. & Eng. Rld. Cases, 480, and note, 504; Smith v. C. M. & St. P. Rly. Co., 42 Wis. 520; Flannagan v. C. & N. W. Rly. Co., 50 id. 462; Ladd v. N. B. Rly. Co., 119 Mass. 412; Quincy Mining Co. v. Kitts, 42 Mich. 34; C. & I. C. Rly. Co. v. Arnold, 31 Ind. 174; M. P. Rly. Co. v. Lyde, 57 Tex: 505; same case, 11 Am. & Eng. Rld. Cases, 188.
We think the following principles are deducib’le from the foregoing authorities, aqd are s.ound law: (1.) An employé of a railroad company, by virtue of his employment, assumes all the ordinary and usual risks and hazards incident to his employment. ( 2'.) As between a Railroad company and its eni-plbyés, the railroad company is not an insurer of the perfection of any .of its machinery, appliances, or instrumentalities. for the operation of its railroad. (3.) As between a railroad company and its employés,' the railroad company is required to exercise reasonable and ordinary care and diligence, and only such, in furnishing to its employés reasonably safe machinery and instrumentalities for the operation of its railroad. (4.) It will be presumed, in the absence of anything to the contrary, that the railroad company performs its duty in such cases, and the burden of proving otherwise will rest upon the party asserting that the railroad company has not performed its duty. {5.) And where an employé seeks to recover damages for injuries resulting from insufficiency of any of the machinery or instrumentalities furnished by the railroad company, it will not only devolve upon such employé to prove such insufficiency, but it will also devolve upon him to show either that the railroad company had notice of the defects, imperfections or insufficiencies complained of, or that by the exercise of reasonable and ordinary care and diligence it might have obtained such notice. (6.) And proof of a single defective or imperfect operation of any of such machinery or instrumentalities resulting in injury will not of itself be sufficient evidence, nor any evidence, that the company had previous knowledge or notice of any supposed or alleged defect, imperfection or insufficiency in such machinery or instrumentalities. (7.) As between a railroad company and its employés, the railroad company is not necessarily negligent in the use of defective machinery, not •obviously defective, but it is negligent in such cases only where it has notice of the defects, or where it has failed to exercise reasonable -and, ordinary diligence in discovering them,. and in remedying them. . , ■
The decisions in this state are, so far as1 they go, in .consonance -with the .decisions elsewhere. (Kelly v. Detroit Bridge Works, 17 Kas. 558, 562; M. P. Rly. Co. v. Haley, 25 id. 35, 56, 62, 63; A. T. & S. F. Rld. Co. v. Holt, 29 id. 149.; Jackson v. K. C. L. & S. K. Rld. Co., 31 id. 761; same case, 3 Pac. Rep. 501.)
In the present case, as no negligence is imputed to the railroad company, except in using a passenger coach with a draw-bar connected with a defective spring, or with some other defective appliance, and as it is not shown that the railroad company, or any of its employés, or indeed any other person, had any knowledge or notice of such defect prior to the occurrence of the accident upon which the plaintiff's action is founded, it cannot be said that any negligence whatever upon the part of the railroad company has been shown; and the verdict and judgment in the court below should have been rendered in favor of the railroad company, but they were not; but, on the contrary, both were rendered against the railroad company. After the verdict was rendered the defendant moved the court to set it aside and for a new trial, upon various grounds, among which were the grounds that the verdict was not sustained by sufficient evidence, and was contrary to law; but the court overruled the motion, and rendered the judgment .aforesaid. Of course by this ruling the court approved the verdict of the jury. But as the verdict and judgment are not .sustained by sufficient- evidence, although approved by the trial court, it becomes the duty of this court to set them aside and grant a new trial. It has frequently been held in this -court that whenever the verdict of a jury, or any necessary and material, fact involved in the verdict, is not sustained by the -evidence, or by any sufficient evidence, the supreme court will set it aside and grant a new trial, although the verdict may have been approved by the trial court.- (Backus v. Clark, 1 Kas. 304; Ermul v. Kullok, 3 id. 499; Howe v. Lincoln, 23 id. 468; Irwin v. Thompson, 27 id. 643; U. P. Rly. Co. v. Dyche, 28 id. 200, 206; Johnson v. Burns, 29 id. 81, 86; Reynolds v. Fleming 30 id. 106; Babcock v. Dieter, 30 id. 172.)
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
O’Connor, J.:
This is a divorce action filed by Edward J. Zeller, plaintiff (appellee), against his wife Edith, defendant (appellant), on the grounds of gross neglect of duty and extreme cruelty. The defendant answered and filed a cross petition for separate maintenance on the grounds of adultery, gross neglect of duty and extreme cruelty.
After a complete hearing, the trial court, on June 9, 1964, granted a divorce to the plaintiff; awarded the defendant alimony in the amount of $5,900, $2,300 of which was made payable in a lump sum and the remainder payable at $300 per month; and ordered the defendant to pay her indebtedness amounting to $2,300—$2,000 of which was incurred for psychiatric treatment at The Menninger Clinic during the pendency of the action. The only property accumulated by the parties during the marriage consisted of household goods and furnishings, which the parties divided to their mutual satisfaction, and the division was approved by the trial court. The defendant filed a motion for new trial, which was overruled. From this ruling defendant appeals.
The plaintiff is a professor of geology at the University of Kansas and is engaged in research on various government contracts. The defendant is a graduate student at the same university where she expects to earn a master’s degree in anthropology and a doctor’s degree in psychology.
At the time of the trial the plaintiff was thirty-eight years of age and the defendant was thirty-five years of age. The parties were married July 3, 1961, at Miami, Oklahoma. Each had been married once before. The plaintiff was divorced from his first wife in 1960. The defendant was divorced June 27, 1961, after nearly thirteen years of marriage. She has one child, Kyra, born May 29, 1961, from her prior marriage. As a part of the prior decree defendant’s first husband was ordered to pay child support of $100 per month; however, the defendant has never seen fit to enforce the child support order. No children were born of the present marriage.
The parties began seeing each other during the defendant’s separation from her first husband and prior to the birth of her child. During this period the defendant received treatment from Dr. Rikales, a psychiatrist in Kansas City, and plaintiff had knowledge of this fact. Shortly after the parties’ marriage they went to live in Switzerland. Trouble did not develop until after the first year of marriage. They returned to Lawrence in September 1962. In 1963 the defendant commenced treatment at The Menninger Clinic and also saw Dr. Rikales. The marriage relation continued to deteriorate and finally resulted in separation in September 1963.
Prior to the marriage of the parties the plaintiff acquired by inheritance or gift certain real estate in Washington, Nebraska and Illinois having an approximate value of $93,189. In addition, the plaintiff owned a Mercedes automobile valued at $2,000, a Cessna airplane worth about $4,500, and had cash on deposit with various banks totaling approximately $2,000, all of which were owned by the plaintiff prior to the marriage or acquired from income received by him from his real estate. On the other hand, the defendant owned no property prior to the marriage except some common stock from which she received $2,233.32 from the sale thereof. She used a portion of this money to live on during her courtship by the plaintiff, and shortly after her present marriage defendant gave the remaining $1,000 from the proceeds of the sale to her first husband.
The plaintiff’s income in 1963 consisted of his salary from the University of Kansas in the amount of $11,250, income from his real estate of $5,487.02, and $3,449.94 from government research contracts.
The questions involved on appeal are adequately stated by the points raised by the defendant.
The defendant first contends the trial court erred in not requiring the plaintiff to pay child support for his stepchild. The trial court found the plaintiff should in no way be obligated for her support. Defendant’s contention presupposes that the court possesses statutory authority to order payment of child support by a stepfather; for in the absence of a statute a stepfather has no obligation to provide for support of a stepchild. (Smith v. Rogers, Ex'r., 24 Kan. 140.)
Defendant devotes her argument on this point to the proposition that under all of the circumstances of this case the trial court should have ordered the plaintiff to pay support for his stepchild pursuant to K. S. A. 60-1610 (a). Plaintiff, on the other hand, contends that the above-mentioned statute, and particularly the first sentence thereof, does not authorize a trial court to order payment of support for a stepchild. The provisions of the mentioned statute, insofar as the same are pertinent to this issue, are:
“The court shall make provisions for the custody, support and education of the minor children, . . .”
whereas the prior statute (G. S. 1961 Supp., 60-1510) provided:
“When- a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, . . .”
The latter statute has been before this court on numerous occasions and it has consistently been held that the plain wording of the statute required a trial court in granting a divorce to make not only an order for custody of the minor children but provisions for their support. (Grimes v. Grimes, 179 Kan. 340, 295 P. 2d 646.) There was nothing in the statute requiring that an order be made for support of stepchildren; the duty of support extended only to “minor children of the marriage” in the plain wording of the statute.
It is noted that in the first sentence of K. S. A. 60-1610 (a) the legislature saw fit to omit the words “of the marriage” as found in G. S. 1961 Supp., 60-1510. Does the deletion of these words compel a judicial pronouncement that it is now mandatory under K. S. A. 60-1610 (a) that a trial court, in granting a divorce, make an order providing for support of a stepchild of the parties? We think not.
Defendant argues that the second sentence of K. S. A. 60-1610 (a), which provides:
“In connection with any decree under this article, the court may set apart such portion of the property of either the husband or the wife, or both of them, as may seem necessary and proper for the support of all of the minor children of the parties, or of either of them.”
indicates a legislative intent that the words “of the minor children of the parties, or of either of them” should apply to the first sentence of the statute requiring the court to make provisions for the custody, support and education “of the minor children.” The answer to such an argument is that the addition of the words to the second sentence and their omission in the first sentence make even stronger the positive nature of the first sentence to the effect that the trial court is obligated to make provisions only for the minor children of the marriage. To say that the statute requires that stepchildren be included in a support order would necessitate the addition of words that have been obviously omitted. Had the legislature in tended that stepchildren be included in the first sentence, the words •of the parties, or either of them,” or words of similar import, could easily have been added. After examining other sections of chapter 60, article 16, we note the omission of such words. For example, see K. S. A. 60-1606.
Our holding that the first sentence of K. S. A. 60-1610 (a) does not authorize a trial court to require a stepfather to provide support is sound when measured by the difference in the common-law obligation of a natural father and stepfather to support a child. A natural father has a common-law duty to provide for support of his minor children. (Grimes v. Grimes, 179 Kan. 340, 295 P. 2d 646.) This duty, as well as the plain language of G. S. 1961 Supp., 60-1510, made mandatory the requirement that a trial court make provision for support of the minor children of the marriage. In the case of a stepfather, however, there was no duty of support imposed by the common law (Smith v. Rogers, Ex’r., supra; 39 Am. Jur., Parent and Child, § 62, p. 699); any contribution by him to a stepchild was voluntary in law and he could withdraw his support at any time. (Thomas v. Bone, 191 Kan. 453, 381 P. 2d 373.)
Thus we conclude that the trial court did not err in failing to require the plaintiff to pay support for the stepchild, Kyra, for the reason that the court had no authority under K. S. A. 60-1610 (a) to make such an order.
Although several of the points raised by the defendant on appeal are overlapping in nature, it appears that she next contends the court erred in refusing to consider her evidence in support of her answer to the plaintiff’s petition and her cross petition for separate maintenance, and further, that the corut erred in not finding that the plaintiff had committed adultery.
The trial court, as part of its memorandum decree, said:
“Before detailing any of the facts upon which the parties predicate their respective claims of marital fault on the part of the other it should be remembered that if the evidence warrants the conclusion that a divorce should be granted because of the defendant’s fault, it will be unnecessary to consider whether or not defendant is entitled to a decree of separate maintenance. . . .”
That portion of appellant’s argument to the effect that the trial court refused to consider her evidence in support of her cross petition for separate maintenance completely overlooks the fact that a divorce action is entirely different from an action for separate maintenance.
In King v. King, 185 Kan. 742, 347 P. 2d 381, this court said:
“An action for alimony, separate maintenance and property division pursuant to G. S. 1949, 60-1516, is an entirely different cause of action from one of divorce.” (Syl. f 2.)
A divorce, if granted, completely dissolves the marriage relation; whereas a decree of separate maintenance permits the continuation of the relation in a legal sense. When the trial court, after considering and weighing all of the evidence in this case, found that the plaintiff was entitled to a divorce, it had no reason to give consideration to the defendant’s evidence so far as her evidence pertained to her cross petition for separate maintenance. The granting of a divorce to one party precludes the granting of separate maintenance to the other.
We note from defendant’s brief that she does not seriously contend there was insufficient evidence for the trial court to find her at fault, but her chief complaint appears to be that the court failed to find that her husband committed adultery and thus should have been denied a divorce.
In order to establish adultery the proof must be clear, positive and satisfactory. (Burke v. Burke, 44 Kan. 307, 24 Pac. 466.) There was in the case at bar contradictory evidence concerning the defendant’s allegations, and under the circumstances our holdings in Preston v. Preston, 193 Kan. 379, 381, 382, 394 P. 2d 43, are peculiarly applicable. There it was stated:
“Admittedly, the defendant’s own testimony contradicts that of her husband in many respects. Furthermore, the record contains abundant evidence which, if credited by the trial court, would have supported a judgment awarding the defendant a divorce. However, it is not the function of this court to weigh conflicting evidence or to substitute its judgment for that of the judge by whom the case was tried. The reason underlying this salutary legal principle was well expressed in Hoppe v. Hoppe, 181 Kan. 428, 312 P. 2d 215, where the court said:
“ *. • • An able and experienced trial judge heard and saw the parties. This advantage enabled him to judge more fairly and accurately the credibility and probative value of their testimony than this court can. Much weight is to be given to the findings of the trial court in cases of this kind. . . .’ (P. 481.)
“On conflicting evidence, the trial court in the instant case determined that a divorce should be granted plaintiff on the basis of extreme cruelty. We cannot say, from a review of the record, that such decision was wholly lacking in evidentiary support. Accordingly, the trial court’s determination must stand.”
No useful purpose would be served in setting forth in detail the evidence of both parties concerning the alleged faults of each other. We have carefully examined the record and there is ample, competent evidence to support the findings of the trial court. Under such circumstances, the finding that the defendant was at fault and plaintiff should be granted a divorce will not be disturbed.
Defendant next contends the court should have allowed additional alimony to her, but that in order to make any alimony award the trial court would have had to find either the plaintiff was at fault or the parties were at equal fault. As nearly as we can determine the defendant is saying that since the trial court found that she was at fault no alimony could be awarded to her.
Defendant bases her argument on decisions of this court arising under G. S. 1949, 60-1511, which held that alimony could not be awarded to a wife when a divorce was granted the husband for her fault. (See Hendricks v. Hendricks, 136 Kan. 69, 12 P. 2d 804; Petty v. Petty, 147 Kan. 342, 76 P. 2d 850; and Hayn v. Hayn, 162 Kan. 189, 175 P. 2d 127.)
The defendant argues that chapter 60, article 16, of the code of civil procedure in no way changed the holdings of the above cases. She bases her argument on the third sentence of K. S. A. 60-1606, which provides:
“. . . If a decree of divorce, separate maintenance or annulment is denied other than for the equal fault of the parties the court may nevertheless make any of the orders authorized by this section [60-1610] for the benefit of the minor children of the parties or for the equitable division of the property of the parties.”
She contends that the statute does not provide for the allowance of alimony when a divorce, separate maintenance or annulment is denied other than for the equal fault of the parties. A plain reading of the statute dispells the defendant’s contention on this point. The third sentence of the statute presupposes that a decree of divorce, separate maintenance or annulment has been denied one of the parties only and that the other party has not sought affirmative relief by requesting a divorce, separate maintenance or annulment. This sentence has no application to a case such as here where a divorce has been granted to one of the parties. We therefore conclude that the third sentence of K. S. A. 60-1606 is not applicable where one party is granted a divorce, although the other party is denied separate maintenance.
In defendant’s argument that the trial court could not award alimony under its findings against her as to fault, she completely overlooks the force and impact of K. S. A. 60-1610, the pertinent portion of which provides:
“A decree in an action under this article may include orders on the following matters:
“(c) Maintenance. The decree may award to either party an allowance for future support, denominated as alimony, in such amount as the court shall find to be fair, just and equitable under all of the circumstances. . . .”
Under this statute alimony may be awarded to a party irrespective of which party is found to be at fault.
Before we discuss the adequacy of the alimony award we shall consider defendant’s last contention to the effect the court erred in not making a division of the property and in not ordering the plaintiff to pay the outstanding debts of the family. Our former statute, G. S. 1949, 60-1511, provided in part that when a divorce had been granted a husband because of the fault of the wife, the court should restore to her property owned by her before marriage or separately acquired by her after marriage. The statute also directed the corut to make division of property acquired jointly by the parties during their marriage, regardless of where title rested, in such manner as. might appear just and reasonable. Under the new code, however, K. S. A. 60-1610 (b) provides:
“The decree shall divide the real and personal property of the parties, whether owned by either spouse prior to marriage, acquired by either spouse in his own or her own right after marriage, or acquired by their joint efforts, in a just and reasonable manner, . . .”
The significant change in the law regarding division of property is that the court is no longer required to set aside to the wife the separate property which she brought to the marriage or acquired with her own funds after the marriage. The court now is given authority to divide all of the property owned by the parties, regardless of the source or manner in which acquired, in a just and reasonable manner.
In construing and applying that portion of G. S. 1949, 60-1511, which provided that if the divorce is granted by reason of the fault of the wife a trial court may make such division of property between the parties as shall appear just and reasonable, it has been the rule that an order for division of property will not be disturbed on appellate review unless it is made to affirmatively appear there was an abuse of judicial discretion by the trial court. (Goetz v. Goetz, 180 Kan. 569, 306 P. 2d 167; Preston v. Preston, supra.) From the record in this case we fail to find that the trial court abused its discretion in its order relating to division of property.
In giving consideration to the adequacy of the alimony award, we recognize the numerous decisions of this court holding the trial court is vested with considerable judicial discretion in making an award of alimony where a divorce has been granted the wife because of the husband’s fault, and absent manifest abuse thereof the judgment will not be disturbed on appeal. (Meads v. Meads, 182 Kan. 361, 320 P. 2d 830.) In discussing this rule, however, the court, in Longo v. Longo, 193 Kan. 386, 395 P. 2d 302, said:
“An allowance of alimony rests largely in the discretion of the district court, but it is a judicial discretion and such allowance is subject to review and correction if, under the circumstances of a particular case, it is clearly unreasonable, unjust and inadequate.” (Syl. ¶ 1.)
In reviewing the record in this case, the evidence discloses that the only jointly acquired property during the marriage consisted of household goods and furnishings. The plaintiff’s assets, comprised of real estate, an automobile, an airplane and cash, all totaling $101,689, were acquired prior to the marriage or from income received from his real estate. The only asset brought into the marriage by the defendant was $1,000 in cash, which she later gave to her first husband. The parties lived together approximately twenty-seven months. During 1963 prior to their separation the plaintiff paid $1,509 to The Menninger Clinic and Dr. Bikales for treatments for the defendant. Since their separation the defendant has incurred charges for psychiatric treatment at The Menninger Clinic in the sum of about $2,000, she has borrowed $200 from the Student Loan Fund for her school fees, and $100 from the Lawrence National Bank for other expenses. During the pendency of this action the plaintiff paid the defendant $3,063 as temporary alimony. The plaintiff had income totaling $20,176.96 for the year 1963.
The evidence further discloses that prior to the marriage the plaintiff was fully aware of the defendant’s mental illness and the fact that she had undergone psychiatric treatment. It also appears that the defendant will require further treatment in the future.
After considering all of the evidence, including the ages of the parties, the duration of the marriage, the property owned by the parties, their present and future earning capacities and the defendant’s need for further psychiatric treatment, we are of the opinion that the trial court abused its discretion in ordering the defendant to pay the indebtedness due The Menninger Clinic, the Student Loan Fund and the local bank totaling $2,300. The district court’s order, in effect, awarded the defendant net alimony of $3,600. Under all of the circumstances this sum was inadequate and unreasonable. The decree is therefore modified to the extent that the plaintiff is ordered to pay the defendant’s indebtedness to The Menninger Clinic, the Student Loan Fund and the local bank; the defendant is awarded alimony in the sum of $5,900, of which amount $2,300 is ordered paid upon the filing of the mandate, and the remainder to be paid at the rate of $300 each month thereafter.
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The opinion of the court was delivered by
Habman, C.:
Three alleged errors arising out of a jury trial comprise the subject matter of this appeal.
Appellee sued for and was awarded a monetary judgment for damages for loss of use of portions of his land by reason of pollution from oil and salt water, fence and gate damage, inconvenience, expenses incurred in mitigating damages, and for punitive damages, all as a result of appellant’s alleged wrongful conduct in operating and developing an oil and gas lease on appellee’s real estate. The land is a 160 acre farm used for stock raising and grazing purposes on which, pursuant to a written lease, appellant conducted operations over a period of approximately two years, drilling three producing oil and gas wells and three input wells with surface lead lines and pipe lines conveying oil and salt water.
Appellee sued for $4,000.00 actual damages and for $8,000.00 punitive damages.
The jury awarded appellee a recovery in the total sum of $2,-181.00, and in answer to special questions itemized the same as follows:
“1. Fence and gate damages............................. $90.00
“2. Damage for inconvenience suffered by plaintiff as a result of defendant’s acts.................................. 250.00
“3. Damages for temporary loss of use of plaintiff’s land..... 460.00
“4. Expense of the plaintiff in connection with his attempt to mitigate the damages ............................... 25.00
“5. Punitive damages ................................... lASO-OO’”
On voir dire examination of the jury, the prospective jurors were asked a series of general questions by the court and by counsel for both parties. The court inquired whether any of them actually thought they knew the real estate involved in the action, whether there were any who professed to know anything about the case or had heard or read anything about it, whether they would follow the court’s instructions as to the law of the case, and whether they knew of any reason why they could not serve as fair and impartial jurors, “to all of which questions proper answers were made by each juror.” Counsel for appellee then asked the prospective jurors whether or not they had ever “been involved in any similar litigation,” whether any had ever served on a jury in a similar case, and whether or not any of them had ever worked as a pumper or anything of that nature, “to all of which questions proper answers were given.” Counsel for appellant then asked whether any had ever been parties in “some type litigation which might prejudice you,” and whether or not they felt that they were possessed of a state of mind that they would like a juror to be in if sitting as plaintiff and someone else were sitting where they were as a jury, “to which questions proper answers were given.”
Upon hearing of a motion for new trial filed by appellant, one juror testified he had served as foreman of the jury; that he was a graduate chemical engineer and pharmacist, and that he had been a paid professional witness in a good many pollution cases. Further he testified:
“Q. So, in effect you possessed some considerable knowledge about what this particular law suit would be about?
“A. Oh, I would say that was a reasonable conclusion.
“Q. Mr. Childs, I have one additional question. How did the jury go about arriving at land damages?
“A. They took the pictures and went over the pictures and every one of them had a different idea on what the land damage was and I think that there was one of the instructions from the Judge to arrive at land damage, if my recollection is correct, and it was the judgment of the whole jury what the land damage was. That wasn’t put on paper. That was a discussion between all of us, there was a wide divergency about what the land damages was.
“Q. The issue in question I raise at this particular time is, did you, according to your particular information and knowledge, feel that this particular land might have been polluted and cause the plaintiff’s cattle to become ill and sick?
“A. Are you asking me for my personal conclusions?
“Q. Was this discussed?
“A. Yes, it was.
“Q. Was this the deciding factor?
“A. I don’t think so. I don’t know of any individual thing. I think the advantage we have with a lot of people, and I think this was a rather reasonable jury, we come from varied and different stratas of professional and educational training, some had college, some didn’t have, but we used ordinarily common sense in the arrival on the land damage and it was the arrival of the whole jury.
“Q. My question is, Mr. Childs, you undoubtedly possess knowledge the rest of the jury didn’t possess due to your training and qualifications.
“A. That could be a conclusion I would have some knowledge some didn’t have.
“Q. Mr. Childs, at the risk of repeating myself, it was the decision of the jury and they did determine from their deliberations that the land had been polluted?
“A. Right.”
Upon oral argument we are told that in individual questioning of the panel not recorded by the reporter the juror in question did state his occupation had been a chemist.
Appellant’s motion for new trial was overruled and it urges first that this was error because of misconduct of a juror.
Every litigant in a jury trial is entitled to a trial before an impartial jury but a jury verdict should not be set aside and a new trial ordered on account of partiality on the part of one of the jurors unless this is clearly made to appear. (Armer v. Nagels, 149 Kan. 409, 413, 87 P. 2d 574.)
Here there is no suggestion or indication in the record of any impropriety in the jury room, any consideration of independent facts or of any improper effect of the juror’s participation. In this regard it appears that nearly all of the jurors who sat in the case were subpoenaed into court by appellant at the time it presented its motion for new trial, yet nothing improper was developed and no partiality was shown.
Can it be said that the failure of the juror to state that he did have knowledge the rest of the jurors did not possess and that he was a graduate chemical engineer and had been a paid professional witness in a good many pollution cases misled and deceived the appellant and thereby impaired his right to challenge?
In Kerby v. Hiesterman, 162 Kan. 490, 178 P. 2d 194, this court held:
“When a prospective juror, on voir dire examination, gives a false or deceptive answer to a question pertaining to his qualifications with result that counsel is deprived of determine whether the juror is impartial, and the juror is accepted, a party deceived thereby is entitled to a new trial even if the juror’s possible prejudice is not shown to have caused an unjust verdict.” (Syl. ¶ 3.)
The questions asked the jury panel here were of a very general nature. One was whether any had ever “been involved in any similar litigation.” Was this of such a specific nature as to require disclosure as to experience as a witness? It is a fairly common practice for some attorneys and some courts, in order to determine whether a prospective juror may be prejudiced and therefore disqualified from serving, to inquire on the voir dire examination whether he has been involved as a party in prior litigation. (See anno. 63 A. L. R. 2d 1061; see, also, 4 Schweitzer, Trial Practice, § 667, p. 2024 [1954].) Emphasis seems to be upon involvement as a party. Here we can see that that interpretation would be placed upon the particular question both by lawyers and persons familiar with jury trials. This conclusion is further shown by the fact that the question under discussion was thereafter followed by a question whether “any had ever been parties in 'some type liti gation which might prejudice you.’” (Our italics.) Doubtless this latter question could only be designed to refer to some other type litigation than oil and gas pollution, and was a natural follow-up or extension of the previous question. Emphasis throughout seems to have been upon parties, and the conclusion is inescapable that the question under consideration was understood by all to refer to involvement as a party in any similar litigation. Hence we cannot say that deception was intended or that it resulted. At the least the questions asked were not sufficiently clear or specific to require our holding that the answers given were false or deceptive, or that the failure to answer in some other way was objectionable to the extent sought. We think this case falls within the purview of that which was said in Johnson v. Colorado Interstate Gas Co., 182 Kan. 474, 322 P. 2d 781, to the effect that:
“. . . a party cannot be heard to complain of misconduct of a juror when that party fails to make it appear that the juror lied in his answers to questions on his voir dire examination or that the party was deceived so as to be deprived of further opportunity to determine whether the juror was impartial.” (Syl. f 1.)
Appellant next urges that the trial court committed error in admitting, over objection, evidence which was in the nature of a compromise settlement. Both sides cite and rely on Kaull v. Blacker, 107 Kan. 578, 193 Pac. 182, in which it was said:
“An offer to compromise a difference is not admissible in evidence in an action between the parties concerning that difference, but if the offer to compromise contains an admission of fact, that may be properly introduced in evidence.” (Syl. fl.)
The testimony objected to consisted of conversations at various times between appellee and appellant’s foreman, area foreman and superintendent. In substance it appears that appellee made complaint of various items of damage soon after they occurred and was told that appellant would fix the gates, repair the fence, blade down ruts, furnish 100 pounds of grass seed for planting and eventually pay $50.00 besides, but that it wanted to wait until after all the wells were completed. Appellee testified that nothing was done and that in his last conversation he was told appellant “felt” he was owéd nothing and that if he got anything from appellant he would have to get it the hard way. We have reviewed this testimony carefully and cannot say that it simply represented an offer in behalf of appellant to buy peace or to compromise a disputed claim. There was no denial of liability in the conversations. We think that the offers made did contain factual admissions of responsibility for the acts complained of, especially in view of the close connection in point of time with the various items of damage complained of and the particular conversations, and the court committed no error in receiving the testimony. (See McComas v. Clements, 137 Kan. 681, 21 P. 2d 895.)
Appellant’s last contention is that the trial court erred “in not sustaining appellant’s demurrer to the evidence to the extent of the total damage testified to by the plaintiff.” The record does indicate that appellant demurred to appellee’s evidence, but it fails to show the grounds for this demurrer or the specific reasons presented to the trial court in support thereof. In its brief appellant makes substantially the following argument: Appellee sought damages for the temporary loss of use of his pasture land for a period of two years; he testified that a total of eleven acres of his land had been damaged as a result of appellant’s drilling operations and that such land would rent for $5.50 per acre; appellant argues appellee is bound by his own testimony, and therefore, the maximum land damage for eleven acres at $5.50 per year for two years would amount to only $121.00, whereas the jury awarded $460.00 for this item. By this argument we understand appellant contends its demurrer was intended to reach any amount beyond that to which it contends appellee thus limited himself. Appellee responds to this by pointing out that appellant has misconstrued his testimony in that he, appellee, testified that during the first year he tried to use his pasture, and that he was unable to use eleven acres by reason of appellant’s operation, such acreage having a reasonable rental value of $5.50 per acre per year, making $60.50 damages for the first year, and that during the second year, having lost three cows and a calf from drinking bad water, he was unable to use any of his 160 acres of pasture which at a rental value of $5.50 per acre would give him a damage of $880.00 for the second year, or a total for the two years of $940.50, more than twice the amount the jury allowed.
The record on appeal does not support the narrow interpretation appellant seeks to place on appellee’s testimony by virtue of two isolated answers, but rather it reveals the version contended for by appellee. Moreover, in addition to appellee’s own testimony, loss of use of a considerable acreage was also shown by the testimony of a veteran cattleman who testified in appellee’s behalf. Hence no error can be predicated in the ruling on appellant’s demurrer. Appellee’s evidence showed damage for loss of use of his land over a period of two years and the exact amount was a question of fact for the jury to determine under proper instructions.
Appellant’s statement of points contains two other purported trial errors which are not mentioned in any way in the brief and hence these are treated as abandoned.
No error appearing in any of the trial court’s actions, its judgment is affirmed.
APPROVED BY THE COURT. | [
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McAnany, J.:
Jason L. Jones’ girlfriend left her 4-year-old son in Jones’ care while she went to work. While in Jones’ care, the child suffered a multitude of injuries which resulted in the child’s death. The blows to the child’s body, which were characterized by a medical expert as an assault rather tiran an accident, resulted in the child’s skull being fractured and his liver being tom in half.
Jones was charged with felony first-degree murder and abuse of a child. He entered into a plea agreement in which he agreed to plead guilty to second-degree reckless murder and abuse of a child in exchange for the State’s agreement not to file a motion to terminate Jones’ parental rights to his son and to recommend a downward durational departure to 360 months’ imprisonment.
Before accepting Jones’ pleas, the district court thoroughly described all of the rights that Jones would waive by pleading guilty and confirmed that Jones understood those rights. Jones expressed his satisfaction with defense counsel. The district court accepted Jones’ guilty pleas and found him guilty.
After the plea hearing, but before sentencing, Jones informed the district judge that he wished to withdraw his pleas because he had been coerced by the State’s threat to remove his son from tire custody of Jones’ parents. He also claimed the State had threatened to terminate his parental rights to his son if he did not plead guilty.
The State informed Jones that if he attempted to withdraw his pleas at sentencing, the State would consider the plea agreement to have been breached and the State would no longer consider itself bound to recommend a downward durational departure sentence.
Following a hearing on Jones’ request, the court refused to permit Jones to withdraw his pleas. Jones requested a downward durational departure sentence. Contrary to the plea agreement, the State recommended that Jones be given the aggravated grid box sentences for his crimes and that they be served consecutively. The district judge stated that “without the recommendation by the State, I will not find that there [are] substantial and compelling reasons” for a downward departure. He sentenced Jones to a controlling sentence of 467 months’ imprisonment.
Jones appeals the district court’s decision denying his motion to withdraw his guiltypleas. He claims: (1) He was coerced into pleading guilty to avoid losing his parental rights and having his son removed from his parents’ care; and (2) die State violated the plea agreement by failing to recommend the agreed-upon sentence.
Jones had the burden of showing good cause to withdraw his pleas. K.S.A. 2010 Supp. 22-3210(d)(l). In ruling on the matter the district court had to consider whether Jones was represented by competent counsel; whether he was misled, coerced, mistreated, or unfairly taken advantage of; and whether Jones’ plea was fairly and understanding^ made. See State v. Plotner, 290 Kan. 774, 778, 235 P.3d 417 (2010). The court could consider any odier factors bearing on the issue of whether good cause has been shown. State v. Anderson, 291 Kan. 849, Syl. ¶ 2, 249 P.3d 425 (2011). On appeal, Jones has the duty of estabhshing that the district court abused its discretion in denying his request. See State v. DenmarkWagner, 292 Kan. 870, 875, 258 P.3d 960 (2011).
Jones claimed that the State put pressure on him by calling an emergency meeting regarding his son. But in fact it was Jones’ attorney who called the emergency meeting regarding Jones’ son, not the State. The district court was correct in determining that Jones’ allegation that the State held an emergency hearing to remove his son from the home of the child’s grandparents was not supported by the evidence.
Jones also argues his pleas were coerced by threats to terminate his parental rights to his son. As evidence he points to the plea agreement in which the State agreed not to file a motion to terminate Jones’ parental rights to his son in exchange for Jones’ pleas. But at the plea hearing, Jones failed to mention that he was under any type of coercion or pressure. In fact, when the district court asked Jones whether “anybody threatened you or pressured you in order to get you to plead today,” Jones responded, “No. No, Your Honor.” Jones expressed his satisfaction with defense counsel. Further, the district court made sure that Jones understood the rights he was waiving by entering a plea, and Jones has made no allegation that he did not understand his rights. Jones indicated that he wished to be sentenced as soon as possible.
Jones finds himself in circumstances similar to those of the defendant in Wippel v. State, 203 Kan. 207, 453 P.2d 43 (1969). There, the defendant alleged that he was pressured into pleading guilty in part because the plea was made “with the understanding” that his sentence would be short enough that his children would not be placed in foster care. 203 Kan. at 209. In rejecting the defendant’s claim that he was coerced into pleading guilty, the court concluded: “These personal considerations now being voiced by [defendant] may have been of some psychological influence on his decision to plead guilty; but personal considerations of this nature do not constitute the coercion required to vitiate an otherwise voluntary plea.” 203 Kan. at 209.
Jones fails to demonstrate that the district court abused its discretion in finding no good cause to withdraw his pleas.
Next, Jones argues that the State breached the plea agreement by failing to recommend the agreed-upon departure sentence. The standard of review for evaluating an alleged breach of a plea agreement is de novo. State v. Woodward, 288 Kan. 297, 299-300, 202 P.3d 15 (2009). Jones argues that because of the State’s breach, the agreement should be set aside and he should be allowed to withdraw his plea and proceed to trial.
As stated in State v. Boley, 279 Kan. 989, Syl. ¶ 1, 113 P.3d 248 (2005): “Application of fundamental contract principles is generally the best means to fair enforcement of a criminal plea agreement, although the constitutional implications of the plea bargaining process may require a different analysis in some cases.” The right to rescind a contract and thereby to be discharged of contractual duties does not arise from every breach. See In re Estate of Johnson, 202 Kan. 684, 691-92, 452 P.2d 286, modified on other grounds 203 Kan. 262, 452 P.2d 286 (1969). Quoting Johnson, 202 Kan. at 691-92, the court in City of Shawnee, Kan. v. AT&T Corp, 910 F. Supp. 1546, 1553 (D. Kan. 1995), stated:
“ ‘[T]he breach of contract must be material and the failure to perform so substantial as to defeat the object of die parties in making the agreement. A breach which goes to only a part of the consideration, which is incidental and subordinate to the main purpose of the contract, does not warrant a rescission.’ ”
The State had three primary considerations that were the basis of its decision to enter into the plea agreement: (1) Jones must admit guilt for his crimes, (2) the pleas must provide resolution and justice for tire victim and his family, and (3) the pleas must protect Jones’ son from hating to testify. Jones’ 11-year-old son apparently witnessed his father beating the 4-year-old child. The State argues that by Jones seeking to withdraw his plea, “[e]very tenet of the plea agreement that was bargained for by the State . . . was violated.” Thus, the State contends, Jones breached the agreement. But, as noted earlier, not every breach permits a rescission.
The State also argues, in essence, that there has been a frustration of purpose when it argues that “there is an implied condition in the plea agreement that the circumstances surrounding the agreement will remain substantially the same and that if there is a change then it is sufficient to relieve the State of its obligation under the plea agreement.” In Syllabus ¶ 3 and ¶ 4 of Boley, the court states:
“Where, after a contract is made, a party’s principal purpose is substantially frustrated without the party’s fault by the occurrence of an event the nonoccurrence of which was a basic assumption on which the contract was made, the party’s remaining duties to render performance are discharged unless the language or the circumstances indicate otherwise.”
“The Restatement (Second) of Contracts § 265 (1979) sets out the requirements which must be met in order for a party’s contractual duties to be relieved under the frustration of purpose doctrine. First, tire purpose that is frustrated must have been a principal puipose of that party in making the contract. Second, the frustration must be so severe that it is not fairly to be regarded as within die risks assumed under the contract. Third, the nonoccurrence of the frustrating event must have been a basic assumption on which the contract was made.” 279 Kan. 989, Syl. ¶¶ 3 and 4.
Thus, under either the breach of contract theory or the frustration of purpose theoiy, we must examine whether the breach or change in circumstances so undermined the contract as to excuse the State from its obligation to perform.
Jones acted to intentionally breach the contract and to reheve himself of all obligations under it. If he had his way, each of the State’s objectives in entering into the plea agreement would have been frustrated. Jones would not admit his guilt. The matter would not be resolved for the victim and his family. Jones’ son would have to testify against his father when the case went to trial.
But Jones did not have his way. The ruling of the court on Jones’ motion prevented Jones from withdrawing his plea and undermining the objectives of the State in entering into the plea agreement. Jones’ earlier admission of guilt remained; the victim and his family obtained the resolution they sought; and Jones’ young son was freed from the prospect of having to testify against his father. In keeping with In re Estate of Johnson, and despite Jones’ best efforts, Jones’ breach was not “so substantial as to defeat the object of the parties in making the agreement.” 202 Kan. at 691. And in keeping with Boley, the purpose of the contract was not frustrated by Jones’ actions, again despite his efforts to do so. Thus, the State improperly recommended a sentence contrary to the plea agreement, and the recommendation apparently affected the court in view of the sentencing judge’s statement that “without the recommendation by the State, I will not find that there [are] substantial and compelling reasons” for a downward departure.
Jones argues that this breach of the plea agreement by the State warrants setting aside his guilty pleas and remanding the case for trial. He relies on Woodward for the proposition: “If the State fails to perform its obligations under the bargained plea agreement, then the court must decide whether justice requires that the promise be fulfilled or whether the defendant should have the opportunity to withdraw his or her plea.” 288 Kan. 297, Syl. ¶ 2.
We note that in Woodward the court found that the State did not breach the plea agreement, so the court did not have to analyze whether withdrawal of tire plea would be an appropriate remedy. In Jones’ case, we have already determined that his pleas were freely and knowingly entered. The disruption that followed was entirely of Jones’ making. Jones’ substantial breach of the agreement and the frustration of the State’s purpose for entering into it remained real considerations up to the moment the court denied Jones’ motion. Having denied Jones’ motion to withdraw his plea, the court proceeded immediately to sentencing. Had the State had a few minutes to analyze the effect of the court’s ruling on the motion, it could have determined that the legal principle of “no harm, no foul” may have come into play. But that did not happen. We attribute the motivating force for the State’s error to be Jones himself. Justice would not be served by permitting Jones to now profit from his unsuccessful effort to frustrate the purpose of his plea agreement by setting aside the plea agreement for the State’s breach. Accordingly, Jones’ sentence should be vacated and the case should be remanded for resentencing with the State recommending the sentence it agreed to in the plea agreement.
Affirmed in part, sentence vacated, and case remanded with instructions for resentencing. | [
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Atcheson, J.:
In this case, the court must address the constitutionality of a sentence potentially subjecting Defendant Daniel Proctor to lifetime postrelease supervision and, in turn, to imprisonment for life without parole if he were later to commit any felony, including a property crime otherwise calling for probation. Proctor faces that prospect because he pled guilty to a sex offense — aggravated indecent solicitation of a child — for which he has received a permissible guideline sentence of probation. For Proctor, a man in his early 20’s, the statutory sentencing scheme could put him behind bars for 50 years if he were to shoplift a $1,000 ring or computer or to write a bad check for them. Given Proctor s circumstances and the peculiarly harsh result that could be inflicted on him, the sentence violates the protections against cruel and unusual punishment contained in § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. The punishment may be considered grossly disproportionate in that context and incompatible with the general purposes of incarceration as a sanction in the criminal justice system. We, therefore, vacate the sentence imposed on Proctor to that extent and remand to the Saline County District Court for resentencing.
The governing statutes create the prospect of an exceptionally severe punishment — life in prison without parole is second only to a death sentence in its extremity — for persons convicted of designated sex offenses who then commit property crimes. For Proctor, the disparity between his criminal conduct and that punishment reflects an imbalance of a magnitude implicating constitutional protections. The Kansas sentencing statutes permit probation for both his underlying offense in this case and property crimes amounting to felonies. But the commission of those two offenses in that order may lead to life in prison with no prospect for release. Controlling authority from the United States Supreme Court and the Kansas Supreme Court construing the federal and state constitutional prohibitions on cruel and unusual punishment cannot be reconciled with that result. The sentencing scheme exacts a punishment harsher than those for murder, kidnapping, and other crimes the Kansas Legislature has designated as more serious than Proctor s. It also appears to be more severe than similar statutes applied to sex offenders in the vast majority of other states. Those are the ingredients of an unconstitutionally disproportionate punishment.
I. The Facts and the District Court Proceedings
The facts about Proctor s offenses are limited based on the disposition of the case in the district court. In 2010, Proctor pled guilty to one count of aggravated indecent solicitation of a child in violation of K.S.A. 21-3511 and two counts of lewd and lascivious behavior in violation of K.S.A. 21-3508(a)(2). Aggravated indecent solicitation entails “enticing or soliciting” a child younger than 14 years old to engage in an unlawful sex act. It is a severity level 5 person felony. Lewd and lascivious conduct requires that the perpetrator, motivated by a sexual urge, expose his or her genitals in the presence of a nonconsenting person. If the nonconsenting individual is younger than 16 years old, the offense is a severity level 9 person felony.
At the time of the plea, Proctor was 19 years old and had no criminal history. The factual basis for the plea showed the crimes took place in 2009. The victim was T.C., a 12-year-old boy. Proctor had known T.C. and his family for some time. For reasons that are not entirely clear from the record, Proctor lived with T.C. and his family for several months in 2009 and committed the crimes during that time. Proctor apparently cajoled T.C. into having manual and oral contact with Proctor s penis. Proctor also had manual contact with T.C.’s penis, behind, and anus. The record indicates multiple occurrences of illicit contact, but the precise or approximate number was not specified.
T.C. suffered no physical injuries. He did, however, have ongoing emotional problems and was in counseling. Other than recurrent insomnia, those problems were not detailed in the record. T.C. did not attend Proctor’s sentencing, and nobody appeared on his behalf or submitted a written statement for the district court’s consideration.
Proctor was himself a victim of sexual abuse in his early adolescence but apparently never received counseling. He also had not been through any sort of treatment program for sex offenders. Information submitted to the district court at sentencing indicated Proctor would likely benefit significantly from such a program.
Given his lack of criminal histoiy, Proctor fell in a border box on the sentencing grid for the aggravated solicitation conviction and faced incarceration for between 21 and 34 months. The border box sentences are treated as calling for presumptive incarceration. K.S.A. 2009 Supp. 21-4704(f). But a district court may impose a nonprison sentence on a border-box defendant upon a finding that he or she is amenable to “an appropriate treatment program” and participation in the program would be more effective than incarceration in “reducing the risk of . . . recidivism” consistent with “community safety interests.” K.S.A. 2009 Supp. 21-4704(f)(l)-(3). The district court made that finding based on the availability of sex offender treatment for Proctor. The district court imposed a standard sentence of 32 months in prison on Proctor for the aggravated solicitation conviction, put him on a 36-month probation, and ordered that he be placed in community corrections and participate in the treatment program. The district court imposed other restrictions and requirements on Proctor, such as refraining from use of alcohol or illegal drugs, obtaining gainful employment, and reporting as required to court officers supervising his probation. The sentence is not considered a departure. K.S.A. 2009 Supp. 21-4704(f).
The lewd and lascivious convictions were presumptive probation offenses. The district court granted Proctor probation on them. The district court imposed a standard 6-month sentence on each of those counts and ordered that they be run consecutive to one another and to the aggravated solicitation count, yielding a controlling prison term of 44 months. At sentencing, the district court told Proctor that he would be required to register as a sex offender under K.S.A. 22-4901 et seq. and that he would be subject to lifetime postrelease supervision under K.S.A. 2009 Supp. 22-3717(d)(1)(G), (d)(2)(F).
Immediately before sentencing, the district court took up Proctor s motion requesting the lifetime postrelease supervision statute be held unconstitutional as applied to him because it amounted to cruel and unusual punishment under both the state and federal constitutions. Both sides submitted extensive written arguments to tire district court. At die hearing, the district court made findings of fact about Proctor and the offenses and concluded lifetime supervised release could be constitutionally imposed on Proctor. Proctor has timely appealed that ruling.
II. Statutory and Constitutional Provisions
The framework for lifetime postrelease supervision is principally set forth in two statutes. Under K.S.A. 2009 Supp. 22-3717(d)(1)(G), anyone convicted of a defined “sexually violent crime” committed after June 30, 2006, and “released from prison, shall be released to a mandatory period of postrelease supervision for the duration of the person’s natural life.” In K.S.A. 2009 Supp. 22-3717(d)(2), the legislature designated the sexually violent crimes requiring lifetime postrelease supervision, including aggravated indecent solicitation of a child. The legislature empowered the Kansas Parole Board to administer postrelease supervision and statutorily set forth certain procedural requirements for the Board in determining violations and specified consequences for particular violations. K.S.A. 2009 Supp. 75-5217. Particularly pertinent to Proctor’s appeal, the statute provides: “If the violation results from a conviction for a new felony . . . the inmate shall serve the entire remaining balance of the period of postrelease supervision even if the new conviction did not result in the imposition of a new term of imprisonment.” K.S.A. 2009 Supp. 75-5217(c). A violation based on a misdemeanor conviction permits the parole board to impose “a period of confinement” up to the full length of the postrelease supervision. K.S.A. 2009 Supp. 75-5217(d).
The statutory language seems plain enough. A defendant sent to prison for one of the statutorily designated sexual offenses is subject to lifetime supervision after his or her release from custody. In turn, a person convicted of any felony while on lifetime supervision must be returned to prison for the rest of his or her life. The return is mandatory, and there is no administrative basis for mitigation or early release.
Through Executive Reorganization Order No. 34, issued January 21, 2011, Governor Sam Brownback abolished the parole board and replaced it with the prison review board. The prison review board now performs all of the duties and functions of the parole board. The change has no direct bearing on the issue raised or the arguments presented in Proctor’s appeal.
Convicts on postrelease supervision are subject to various restrictions impairing their liberty to a lesser degree than incarceration. Those restrictions include traveling without permission of an assigned parole officer, consuming alcohol without permission, and giving advance consent to searches of residences and vehicles and for drug and alcohol testing. See wiuw. doc. ks.gov/victim-services/ information/conditions-of-post-release-superoision (accessed April 24,2012). Proctor mentions those restrictions but does not premise his argument on them. We do not find them dispositive and discount them for purposes of our review.
The Eighth Amendment to the United States Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” Section 9 of the Kansas Constitution Bill of Rights is identical in pertinent part except it prohibits “cruel or unusual punishment.” (Emphasis added.) The Kansas Supreme Court has interpreted the protections of § 9 to be the same as those in the Eighth Amendment notwithstanding the slight difference in wording. See State v. Scott, 286 Kan. 54, 93-94, 183 P.3d 801 (2008) (court notes cases so holding but acknowledges its prerogative to reexamine construction of the state constitutional protection in light of tire intentions of the framers of each provision). Proctor pins no argument on a suggestion that § 9 should be construed to afford individuals greater protection than the Eighth Amendment. We have no reason to assume such a variance and have no need to do so in addressing any of the parties’ assertions. We, therefore, follow the lead of Scott and treat the two provisions as substantively equivalent.
III. Standard of Review and Nature of Proctor’s Challenge
In reviewing the issue presented, we owe deference to the district court’s factual findings to the extent they are based on credibility determinations or the reconciliation of other conflicting evidence. This is not such a case. There were no material factual disputes presented to the district court, and no appellate argument rests on some discrepancy in the facts. This court must consider the undisputed facts and the sentencing statutes in light of the provisions in the Kansas and United States Constitutions prohibiting cruel and unusual punishments to determine if Proctor faces a sanction violating those protections. That presents a question of law over which appellate courts exercise unconstrained review. State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007). An appellate court must presume a statute to be constitutional and should reasonably construe its language in a way upholding its constitutionality if at all possible. State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009).
Constitutional challenges to penal sanctions as cruel and unusual punishment take one of two forms: categorical or case specific. A categorical challenge submits a type or categoiy of punishment to be inappropriate in an array of cases based on key characteristics common to them. Historically, categorical attacks have been directed at imposition of the death penalty for certain crimes or on certain groups of offenders. See Roper v. Simmons, 543 U.S. 551, 578, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (death penalty unconstitutional under the Eighth Amendment for defendants committing crimes as juveniles, i.e., under the age of 18); Coker v. Georgia, 433 U.S. 584, 592, 600, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977) (four justices hold death penalty for the crime of raping an adult woman violates the Eighth Amendment and are joined in the judgment by two justices who would find the death penalty unconstitutional in every instance). Expanding on that authority, the United States Supreme Court recently upheld a categorical challenge to the imposition of life sentences without the possibility of parole on juvenile offenders found to have committed offenses other than homicide. Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 2034, 176 L. Ed. 2d 825 (2010).
By contrast, a case-specific challenge contends the imposition of a given sentence, typically incarceration for a term of years or life, is grossly disproportionate to the circumstances of a particular criminal incident and offender and, therefore, violates the prohibition on cruel and unusual punishment. That sort of proportionality attack depends upon the facts of a given case and directly affects only the particular defendant. See Graham, 130 S. Ct. at 2021-22.
Proctor does not assert a categorical challenge and relies solely on the disproportionality of lifetime postrelease supervision as it might affect him based on the circumstances of this case. The criteria for establishing categorical unconstitutionality arguably are more rigorous than those for demonstrating disproportionality of a punishment in a particular instance. See Graham, 130 S. Ct. at 2023 (categorical challenge bottomed on “objective indicia of national consensus”); Roper, 543 U.S. at 602-03 (O’Connor, J., dissenting) (evidence fails to support categorical challenge to execution of juveniles, but capital punishment might be unconstitutional in given cases). We, therefore, neither consider nor decide the constitutionality of lifetime postrelease supervision outlined in the Kansas statutes as a category of punishment or as it might be applied to anyone other than Proctor. We also note that, in the main, cases addressing the death penalty as cruel and unusual punishment have little direct relevance here. The courts have consistently acknowledged death to be materially different from any punishment based on incarceration, whatever its duration, and have generally discounted capital cases as inapposite in deciding other Eighth Amendment issues. Solem v. Helm, 463 U.S. 277, 294, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983); Rummel v. Estelle, 445 U.S. 263, 271-72, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980); see Ring v. Arizona, 536 U.S. 584, 614, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) (Breyer, J., concurring) (“This Court has held that the Eighth Amendment requires States to apply special procedural safeguards when they seek the death penalty.”).
IV. Ripeness
A. The Problem
Before outlining and applying the requisite constitutional analysis, we turn to a matter lurking ever so slightly beneath the surface. Given the sentencing scheme and Proctor’s current circumstances, the challenge to that part of his sentence calling for lifetime post-release supervision seems, in many respects, premature. That is, this court has not really been presented with a concrete legal controversy founded on a fixed set of material facts so much as a hypothetical projection of what could happen. Courts typically refrain from deciding abstract issues because those decisions amount to advisory opinions. See State ex rel. Morrison v. Sebelius, 285 Kan. 875, Syl. ¶ 15, 179 P.3d 366 (2008) (A court will consider neither issues that have become moot nor issues that have yet to ripen into a “fixed and final shape” and, instead, “remain[] nebulous and contingent.”). The State has suggested as much and with fair reason. But, as we explain, we believe we are obligated to press ahead.
As of the oral argument in this court, Proctor remained on probation. So long as he continues as a probationer, he neither is on nor even faces lifetime postrelease supervision under K.S.A. 2009 Supp. 22-3717. That sanction goes into effect only when a convict has been released from prison. Proctor would have to violate the terms of his probation. The district court would have to revoke and refuse to reinstate the probation. Proctor would then have to serve his 44-month sentence and be released to trigger the postrelease supervision. The thrust of Proctor’s argument for unconstitutionality, however, goes to the mandatory life-without-parole penalty that would accompany a conviction for a new felony. So not only would Proctor have to wind up in prison, he would have to commit some felony after his release. None of that has happened.
As we discuss below, the nature of the new felony could have a significant effect on the constitutional analysis as Proctor presents the issue and might be outcome determinative. Accordingly, deciding the case in this posture is, to say the least, unusual and, in some respects, troubling because of the artificiality of the circumstances critical to the decision. An appeal would present a tangible, well-formed controversy if it were asserted following the defendant’s conviction on a new felony and the prison commission’s initiation of revocation of supervised release.
But we are reasonably sure Proctor cannot defer his challenge in light of setded authority requiring immediate appeal of sentencing issues. The Kansas appellate courts have recognized that defendants waive most potential legal challenges to their sentences if they do not appeal within the statutorily permitted time. See Bryant v. State, 280 Kan. 2, 8, 118 P.3d 685 (2005) (defendant “did waive a challenge to his sentence by not appealing the sentence”); Wilkerson v. State, 38 Kan. App. 2d 732, 734, 171 P.3d 671 (2007); see K.S.A. 22-3608(c) (defendant has 10 days after judgment to appeal). The statutory provisions establishing lifetime supervised release and mandating revocation plainly affix the resulting incarceration as a punishment for the underlying sexual offense and not for the new felony. See K.S.A. 2009 Supp. 21-4704(e)(2) (In a presumptive imprisonment case, the district court must “pronounce the complete sentence,” including the period of postrelease supervision.). In other words, the return to prison for life results from the violation of a condition subsequent — no new felony convictions — imposed as part of the sentence for the sexual offense. A legal attack on that punishment, however contingent and remote it may be, must be lodged at the time sentence is pro nounced. The return to prison for violation of postrelease supervision is not imposed as punishment for the new felony. See K.S.A. 2009 Supp. 75-5217(c) (revocation of supervised release and return to prison mandatory even if criminal receives probation on the new felony). In turn, the constitutionality of the postrelease supervision scheme could not be challenged on an appeal from the new felony regardless of how sensible that might be in developing a complete record of historical facts necessary to adjudicate the issue.
Defendants could not rely on habeas corpus relief under K.S.A. 60-1507 to attack their actual incarceration for life following the commission of a new felony while on supervised release. Because the incarceration arises from the punishment imposed for the original sexual offense and not the new felony, the attack could be considered untimely. See K.S.A. 60-1507(f). While a court might afford relief from the time bar, nothing would require that result. Federal habeas corpus offers a similarly rickety vehicle. Federal courts may deny habeas review to state prisoners based on procedural defaults, such as untimely or successive filings, in their state collateral attacks. See Martinez v. Ryan, 566 U.S. _, 132 S. Ct. 1309, 1316, 1320, 182 L. Ed. 2d 272 (2012) (noting procedural default rule and limited equitable exception if counsel for prisoner in initial state collateral proceeding proved ineffective and not merely negligent in failing to raise a substantial claim of ineffectiveness of prisoner s trial counsel).
Proctor could not attack the constitutionality of the lifetime post-release supervision in a motion to correct an illegal sentence under K.S.A. 22-3504(1), which may be filed “at any time.” State v. Edwards, 281 Kan. 1334, Syl. ¶¶ 1, 2, 135 P.3d 1251 (2006) (defining illegal sentence and holding it does not include “a sentence [that] fails to conform to constitutional requirements”).
In short, while we share the State’s expressed concern about the indefiniteness of Proctor’s challenge — events bearing directly on the resolution of the challenge have yet to take place — we also must conclude that Proctor would have no certain path for asserting his legal claim at a juncture when the essential historical facts will have become fixed rather than conjectural. JProctor cannot be required to consign his assertion that life in prison without parole amounts to constitutionally impermissible punishment to the vagaries of judicial discretion exercised, if at all, years from now.
We suppose this appeal could be stayed. Should Proctor successfully complete his probation, he would be discharged without having been sent to prison and, thus, would not be on postrelease supervision. The appeal would then be moot. If Proctor were to fail on probation, he would at some point be released from prison on lifetime postrelease supervision. Were he then to be convicted of a felony, his return to prison for life would be triggered. The controversy would then be concrete, although additional factfinding might well be in order. But, of course, this appeal could be stayed for decades or longer awaiting an event that might never happen. The appeal would become moot upon Proctor s death or legislative modification of the postrelease supervision scheme so that life in prison no longer loomed as an irrevocable consequence. The idea of holding an appeal for 40 years or more seems, in a word, unorthodox. Although it theoretically could be done here in a single-issue appeal, the approach would seem unworkable in a case raising multiple issues. We would not presume such a solution to be appropriate here in the absence of clear precedent to that effect.
B. The Solution
Having determined that resolution of Proctor’s attack cannot be deferred to a more opportune time, we must consider how to deal with the unknowable circumstances that have yet to occur. Obviously, a set of facts must be hypothecated — a fancy euphemism, in this instance, for making something up- — to fill the void. We could, of course, conjure a scenario in which Proctor or some similarly situated defendant kills two people in cold blood during an armed robbery and, thus, is convicted of capital murder as the new felony causing his return to prison. In considering a claim that life in prison without parole would be grossly disproportionate under those circumstances, a court could not very well find for the defendant. If we were to choose forensic facts favoring the State in that way, the issue would never be fairly joined in the sense the hypothetical would preordain the outcome. At the same time, we should not suppose a future legislature that, in a paroxysm of law- and-order run amok, criminalizes overtime parking as a felony demanding extended incarceration — a recurrent foil in the United States Supreme Court’s debate of cruel and unusual punishment. See Ewing v. California, 538 U.S. 11, 35, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003) (Stevens, J., dissenting); Harmelin v. Michigan, 501 U.S. 957, 963, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991); Rummel, 445 U.S. at 274 n.11. That would about as surely compel the opposite result.
To test the rule, the hypothesis must, instead, be constructed to favor the defendant consistent with existing law. We, therefore, assume that Proctor will do something that, while not criminal, violates the terms of his probation. Let’s say he consumes alcohol and admits the violation. The district court finds Proctor’s conduct unacceptable and requires him to serve the 44-month sentence. Proctor would then be released from prison in 2016. At that point, Proctor would be in his mid-20’s, and he would be on lifetime postrelease supervision. See K.S.A. 2009 Supp. 22-3716(e).
Completing the necessary hypothetical, we assume that 2 years later Proctor commits and pleads guilty to a low-level felony. We might say he shoplifted a ring worth $1,100. That would be a severity level 9 nonperson felony. See K.S.A. 2011 Supp. 21-5801(b)(3). Or suppose he forged a check for $100 — a severity level 8 nonperson felony. See K.S.A. 2011 Supp. 21-5823(b)(l). Even with his conviction for aggravated indecent solicitation, Proctor would be looking at presumptive probation sentences for those offenses. Or perhaps he continued to consume alcohol and picks up a third DUI, a felony requiring he be incarcerated for at least 240 hours and imposing other restrictions. Unlike the other offenses, however, the felony DUI entails no criminal intent. It is a strict liability offense.
But die demands of K.S.A. 2009 Supp. 75-5217(c) are unyielding. Proctor would have to go to prison for the rest of his life without any possibility of early release, save for executive clemency or a change in the law. Assuming a normal life expectancy, Proctor would spend almost 50 years behind bars with no meaningful chance of returning to freedom.
We might vary the facts some. Suppose Proctor served the 44 months and had no more brushes with the law for 20 years. In his late 40’s, he knowingly writes an insufficient funds check for $1,000 to a medical provider to clear up an arrearage so that he could receive immediate care for a family member. Proctor’s conduct would amount to a severity level 9 nonperson felony. See K.S.A. 2011 Supp. 21-5821(b)(2)(A). Although Proctor would be in line for probation on the bad check charge, the violation of his post-release supervision would mandate his return to prison for the rest of his life — conservatively, some 25 to 30 years.
A scenario of that sort, grounded in realistic possibilities, presents a legitimate forensic tool for evaluating the constitutionality of lifetime postrelease supervision coupled with mandatory incarceration for life for anyone committing a felony while on supervision. We, therefore, use that general model to complete our analysis in this case. Our approach does not conflict with the presumption of constitutionality that attaches to duly enacted legislation. The presumption applies in two ways. First, the party challenging the statute must present evidence demonstrating the constitutional defect. That is, the party attacking the statute bears the burden of proof. As we have outlined, we believe Proctor has come forward with evidence to the extent possible. Second, a reviewing court generally should interpret the statutory language in a way favoring constitutionality, including giving a “narrow” reading to operative words to avoid a finding of unconstitutionality. But a court may not rewrite a statute in the guise of rendering a constitutional interpretation. Here, the relevant language in K.S.A. 2009 Supp. 22-3717 and K.S.A. 2009 Supp. 75-5217 is plain and, thus, not susceptible of a restrictive reading that would avert the constitutional deficiencies asserted.
V. The Eighth Amendment
A. Supreme Court Jurisprudence on Noncapital Sentences
Apart from death-penalty challenges, the United States Supreme Court has considered a series of cases based on Eighth Amendment arguments against lengthy periods of incarceration, typically life, for crimes other than homicide. The resulting jurisprudence is, however, a fragmented one. Those cases have been decided over the past 30 years, often on 5-4 votes or with only plurality opinions. Most of the cases have looked at recidivist statutes — so-called three-strikes laws — imposing markedly increased prison terms on defendants with past criminal records convicted of new felonies. Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003); Ewing, 538 U.S. 11; Solem, 463 U.S. 277; Rummel, 445 U.S. 263. One case, however, considered a statute imposing life without parole for a first-time felon convicted of drug possession. Harmelin, 501 U.S. 957. And the most recent considered life sentences without parole for juveniles convicted of serious non-homicide felonies. Graham, 130 S. Ct. 2011. Those cases form the backbone of the controlling modem authority applying the Eighth Amendment to punishments short of death. In Van Dyke v. State, 31 Kan. App. 2d 668, 672-77, 70 P.3d 1217 (2003), this court ably surveyed some of that law, most notably Lockyer and Ewing, which had been decided only months earlier. Because the governing cases span 3 decades and do not speak in chorus, we review that progression.
1. Rummel and Weems
The United States Supreme Court ushered in the modem era of Eighth Amendment review of prison terms in Rummel in which a five-justice majority upheld the constitutionality of a mandatory life sentence imposed under Texas law on a defendant for a third felony conviction. Rummel had convictions for fraudulent use of a credit card and for forgery when he was convicted of felony theft. He received a life sentence based on a recidivist sentencing statute that increased punishments for second and third felony convictions. Rummel argued the life sentence violated the constitutional ban on cruel and unusual punishment.
In an opinion written by then-justice Rehnquist, the majority rejected that argument based on several considerations. The majority recognized a state legislature has the authority to impose increasingly lengthy terms of imprisonment on repeat offenders. The State’s interest extended beyond simply punishing specific criminal offenses but also reflected a distinct policy purpose “in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established in its criminal law.” Rummel, 445 U.S. at 276. The authority to determine if recidivists should be punished more harshly than first offenders and to determine the length of any prison term imposed on them rest “largely within die discretion of the punishing jurisdiction.” 445 U.S. at 285. The majority noted that the statute requiring a life sentence for Rummel did so “only after shorter terms of actual imprisonment . . . proved ineffective.” 445 U.S. at 278 n.17. The majority also found no constitutional violation even though all three convictions resulted from nonviolent property offenses. The majority observed: “If nothing else, the three-time offender s conduct supports inferences about his ability to conform with social norms that are quite different from possible inferences about first- or second-time offenders.” 445 U.S. at 283 n.27.
The majority also put considerable emphasis on evidence showing that offenders in the Texas prison system sentenced to life under the recidivist statute commonly received parole in as little as 12 years. While the majority recognized the sentence could not be treated as one for that term, given the uncertainty of parole, it also declined to presume Rummel would be incarcerated for life for purposes of any Eighth Amendment analysis. 445 U.S. at 280-81. And the majority distinguished a Mississippi sentencing statute imposing life without parole for certain recidivists convicted of at least one violent felony and two lesser felonies. 445 U.S. at 281.
Although the majority alluded to earlier caselaw considering punishments that might be fairly deemed “grossly disproportionate” to the offenses as indicative of an Eighth Amendment violation, the Rummel majority did not formally adopt that as a test or definition. 445 U.S. at 271-72. It did, however, acknowledge that “a proportionality principle” could “come into play in [an] extreme example,” such as criminalizing “overtime parking [as] a felony punishable by fife imprisonment.” 445 U.S. at 274 n.11. The ultimate inquiry ought to be guided by objective criteria to avoid judgments based on the “subjective views” or standards of individual justices. 445 U.S. at 275. The majority, however, discounted Rum mel’s comparison of his offenses to other conduct criminalized in Texas and recidivist statutes in other states. The majority characterized the interstate comparisons as subtle and not wholly convincing given the wide variance in those sentencing regimens and in classification of criminal offenses from jurisdiction to jurisdiction. 445 U.S. at 279-80. The majority, then, concluded Rummel’s sentence did not violate the Eighth Amendment. Rummel apparently was released from prison less than a year after the court ruled. See Solem, 463 U.S. at 297 n.25.
Writing for himself and three colleagues, Justice Powell dissented in what would serve as a template for his majority opinion 3 years later in Solem that struck down a South Dakota recidivist statute. Justice Powell would have disregarded any opportunity for parole as too speculative and, in turn, considered a mandatory life sentence grossly disproportionate to the circumstances, including Rummers criminal history. Rummel, 445 U.S. at 286-87 (Powell, J., dissenting). Justice Powell found proportionality to be a longstanding consideration in establishing and reviewing punishment under Anglo-Saxon law. In punishing recidivists, the concept of “disproportionality” embedded in the Eighth Amendment rests on “the relationship between the nature and number of offenses and the severity of the punishment inflicted upon the offender. 445 U.S. at 288. In turn, judicial review necessarily takes account of a collective “sense of justice” that asks whether the convict “deserves such punishment” and not simply whether it serves “a utilitarian goal.” 445 U.S. at 288.
Justice Powell identified three factors to be considered: (1) the nature of the offense, including circumstances specific to the offender and his or her criminal history, 445 U.S. at 295; (2) comparable sentencing schemes in other states, 445 U.S. at 296-99; and (3) punishments the same state metes out for other offenses, 445 U.S. at 300-01. Justice Powell viewed those factors and the standard of “gross disproportionality” as sufficient safeguards against excessive intrusion into a state’s legislative autonomy. 445 U.S. at 306. He submitted the courts could not shirk enforcement of the Eighth Amendment in the name of deference. 445 U.S. at 303-04. After applying those standards, Justice Powell concluded Rummel’s sentence rose to the level of cruel and unusual punishment. 445 U.S. at 307.
Before moving on, we pause for a historical digression to Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1910), something of an odd case cited in both the majority and dissenting opinions in Rummel and, in passing, in the developing law of proportionality of noncapital sentences under the Eighth Amendment. Weems was a government clerk in the Philippines sentenced under its laws for falsifying an official record to show payments to workers at two lighthouses. As the majority in Weems characterized the offense, it required only the making of a false entry in a government record without regard to any financial gain or loss. The clerk received a sentence known as cadena temporal requiring that he be imprisoned for 15 years, shackled continuously at both the hands and feet, and made to perform “hard and painful labor.” Upon release, he was subject to an array of civil disabilities.
Weems argued tire punishment violated the Philippine Constitution’s ban on cruel and unusual punishment, a provision that mirrored the Eighth Amendment. In reviewing the case, the United States Supreme Court drew on its own and other American authority. The majority declared the punishment to be impermissibly cruel and unusual and, in doing so, effectively considered the proportionality of the offense to the sentence. 217 U.S. at 366-67, 380-81. Thus, judicial proponents of Eighth Amendment challenges to terms of imprisonment cite Weems as longstanding authority recognizing the theory of proportionality. See Graham, 130 S. Ct. at 2021; Rummel, 445 U.S. at 289-90 (Powell, J., dissenting). But opponents of the theory or its application in a given case to strike down a sentence isolate Weems as a peculiarly unique decision in which the punishment entailed a significant term of imprisonment combined with conditions — the shackling and painful work — that partake of torture rather than merely deprivation of liberty. See Harmelin, 501 U.S. at 990-92; Rummel, 445 U.S. at 272-74. Ultimately, Weems contributes little to the modem debate and reflects more of a footnote than a point of reference.
2. Solem
Three years after deciding Rummel, the United States Supreme Court took up Solem, another recidivist case, challenging a life sentence without parole imposed on a repeat offender for negotiating a $100 check knowing the account to have been closed. The case, thus, took the possibility of parole out of tire constitutional calculus, a point the Rummel majority had weighed in upholding a life sentence. In Solem, a five-justice majority found the South Dakota statute amounted to unconstitutionally cruel and unusual punishment. 463 U.S. at 303. Justice Blackmun switched sides, providing the decisive vote in Solem. But he did so without writing separately, so he did not divulge his reasons. Justice Blackmun never authored an opinion addressing prison sentences under the Eighth Amendment. Between Rummel and Solem, Justice O’Connor replaced Justice Stewart. Each was a vote to uphold the constitutionality of the respective sentencing statutes.
Writing for the majority, Justice Powell largely followed tire path he had laid out in his dissent in Rummel. Defendant Plelm had been convicted of six nonviolent felonies between 1964 and 1979, including burglaiy, grand larceny, and a third DUI. In 1979, apparently during a drinking binge, he passed a check on an account he knew to be closed. Helm pled guilty. Under South Dakota’s recidivist statute, a defendant with three past felonies could be sentenced to life in prison for a fourth conviction. The life sentence carried no possibility of parole. Helm got life.
Justice Powell reiterated tire Eighth Amendment requirement that a punishment be proportionate to the offense and recounted the historical basis for that conclusion. Solem, 463 U.S. at 284-88. Based on that survey of the law, the Solem majority held that while a reviewing court owes “substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments,” the Eighth Amendment requires “a criminal sentence ... be proportionate to the crime for which the defendant has been convicted” and “no penalty is per se constitutional.” 463 U.S. at 290. To determine the constitutionality, Justice Powell reintroduced the three factors he outlined in his dissent in Rummel: (1) “the gravity of the offense and tire harshness of the penalty”; (2) sentences imposed for other crimes within the jurisdiction; and (3) sentences imposed in other jurisdictions for tire same offense. 463 U.S. at 292. As Justice Powell envisioned and applied those standards, a defendant’s personal characteristics and tire particulars of his or her criminal offenses would be folded into the mix. 463 U.S. at 296-97 & n.22, 303 n.32 (noting Plelm to be 36 years old and facing life in prison without parole).
Justice Powell dismissed criticism of the comparative elements as inexact and unwieldy. While applying the Eighth Amendment to punishments based on varied terms of imprisonment for varied offenses may involve line-drawing among less distinct categories than between capital and noncapital punishments, courts regularly undertake similarly challenging differentiation in other contexts. See 463 U.S. at 294-95.
At the time of Helm’s conviction, life without parole was tire harshest punishment that South Dakota could impose on a criminal defendant for any offense. And it was “far more severe” than the punishment considered in Rummel, 463 U.S. at 297. Justice Powell characterized the bad check conviction “as among the less serious offenses.” 463 U.S. at 296. Looking at other crimes in South Dakota, only a few warranted similarly harsh sentences. 463 U.S. at 298-99. And the Supreme Court concluded Helm would not have received as harsh a sentence in virtually any other state. 463 U.S. at 299-300.
Based on those circumstances, the majority found that Helm’s sentence of life without parole violated the Eighth Amendment’s prohibition on cruel and unusual punishment. As we discuss later, the majority’s method of analysis matches the one the Kansas Supreme Court first outlined in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), and continues to apply in determining the constitutionality of punishments under § 9 of the Kansas Constitution Bill of Rights.
In Solem, Chief Justice Burger dissented, writing for himself and Justices White, Rehnquist, and O’Connor. He characterized Rummel as rejecting proportionality review of prison sentences under the Eighth Amendment. 463 U.S. at 307. Chief Justice Burger suggested the majority’s position could not be justified if Rumrnel were accorded proper stare decisis effect. 463 U.S. at 311-12. And he suggested there were no material differences between the circumstances in Rummel and Solem. 463 U.S. at 315. History has plainly overtaken Chief Justice Burger’s position. In Harmelin, seven justices, including Justice White and Justice O’Connor, signed off on opinions recognizing some form of proportionality analysis in measuring prison sentences as cruel and unusual punishment. See Harmelin, 501 U.S. at 996-97 (Kennedy, J., concurring); 501 U.S. at 1013-14 (White, J., dissenting).
Chief Justice Burger’s characterization of Rummel appears strained. He cited a passage in Rummel, 445 U.S. at 274, in which Justice Rehnquist launched what appears to be a rhetorical foil declaring that “one could argue” that “the length of the sentence actually imposed is purely a matter of legislative prerogative” without being contradicted by any previous decision of the Court. Solem, 463 U.S. at 307. In other words, Justice Rehnquist submitted no United States Supreme Court decision had struck down a sentence as cruel and unusual punishment based only on its length. But that is a far ciy from holding the Eighth Amendment precludes such a determination. And in a footnote omitted from Chief Justice Burger’s discussion, Justice Rehnquist specifically recognized proportionality might well come into play in extreme circumstances. Rummel, 445 U.S. at 274 n.11; see Harmelin, 501 U.S. at 1013 (White, J., dissenting) (noting that Rummel, 445 U.S. at 272, 274 & n.11, “recognized that the Eighth Amendment contains a proportionality requirement. . . [that] would come into play in some extreme, nonfelony cases.”). To be sure, the thrust of the majority opinion in Rummel emphasized the extraordinaiy uncommonness of those circumstances.
3. Harmelin
In Harmelin, a majority of the United States Supreme Court found that a Michigan statute imposing a sentence of life without parole for possession of more than 650 grams of cocaine did not offend the cruel-and-unusual clause of the Eighth Amendment. Harmelin, 501 U.S. at 994-96. Harmelin received that punishment despite having no past felony convictions. The deeply divided Court produced only one brief rationale commanding five votes: For a serious crime, Michigan could enact a severe punishment that expressly declined to take into account any mitigating factors a particular defendant might present, such as the lack of any significant criminal history, without violating the Eighth Amendment. The State’s prerogative to criminalize and punish conduct that way was not diminished even though the penalty — life without parole— was the harshest short of death. 501 U.S. at 994-96 (Scalia, J.).
Justice Scalia, joined only by then-Chief Justice Rehnquist, took the position that even the harshest sentence of imprisonment could never be found cruel and unusual under the Eighth Amendment on the grounds it was disproportionate to the criminal offense. Harmelin, 501 U.S. at 965. He also argued that the standards for determining a disproportionate sentence were sufficiently indefinite and malleable that judges applying them had “an invitation to imposition of subjective values” through which they could improperly override otherwise appropriate legislative decisions. 501 U.S. at 986.
Writing for himself and Justices Souter and O’Connor, Justice Kennedy recognized what he termed a “narrow proportionality principle” in the Eighth Amendment governing noncapital sentences. 501 U.S. at 996-97 (Kennedy, J., concurring). He pointed out the marked deference that the courts must accord a state’s decision in determining conduct to be criminalized and punishment then to be administered. Those decisions may be shaped by differing penological theories, and it is not the courts’ business to direct, let alone dictate, a particular theory. The Eighth Amendment neither imposes some theory nor requires that a criminal sanction promote any particular mix of retribution, deterrence, incapacitation or rehabilitation. 501 U.S. at 999-1000.
In considering proportionality, the courts must be guided, to the greatest extent possible, by objective factors, according to Justice Kennedy. Ultimately, Justice Kennedy distilled those considerations and the developing jurisprudence into a conclusion that “[t]he Eighth Amendment does not require strict proportionality between crime and sentence.” 501 U.S. at 1001. But those “extreme sentences that are ‘grossly disproportionate’ to the crime” fail under the Eighth Amendment. 501 U.S. at 1001.
In applying drat standard, Justice Kennedy would first look at the crime committed and the sentence imposed to discern “an inference of gross disproportionality.” 501 U.S. at 1005. In what Justice Kennedy anticipated would be rare instances permitting that inference, tire Court should then consider how the particular state punishes crimes typically regarded as worse that the defendant’s crime of conviction. And the Court ought to consider how other states punish offenses that essentially match the crime of conviction. Those comparisons, drawn from Solem, would then test tire initial inference and validate it if the crime of conviction were punished substantially more harshly. 501 U.S. at 1005. In applying those standards, Justice Kennedy concluded, based on the seriousness of the drug offense alone, Harmelin’s sentence was not grossly disproportionate for Eighth Amendment purposes. 501 U.S. at 1004. He pointed out that the penalty reflected a studied legislative determination to impose an extremely harsh sentence and to deprive the sentencing court of any room to mitigate the result. 501 U.S. at 1006. He and his two colleagues joined in the judgment denying relief to Harmelin.
The four dissenting justices would have found Harmelin’s sentence of life without parole to have violated the Eighth Amendment. They, too, recognized an Eighth Amendment principle of proportionality applicable to sentences of incarceration. 501 U.S. at 1013-14 (White, J., dissenting). The dissenters would have applied the Solem factors, along with other case-specific considerations, including “the defendant’s personal responsibility and moral guilt.” 501 U.S. at 1022-23. The approach operated more in the nature of a totality-of-the-circumstances analysis than the segmented, sequential review of Justice Kennedy’s “narrow proportionality” test. Because Michigan had no death penalty, Justice White noted that life in prison without parole was the most severe penalty the state could inflict on a convicted criminal, although possession of even a large quantity of cocaine could not be placed on a par with the crimes of rape and murder. There appeared to be just one other state imposing such a harsh and unyielding sen tence for possession of cocaine and, then, only for quantities some 15 times greater than the Michigan statute. 501 U.S. at 1025-26.
Justice White’s dissent in Harmelin is also noteworthy for its endorsement of the proportionality methodology laid out in Solem, even though Justice White joined Chief Justice Burger’s dissenting opinion in Solem rejecting that approach. In his dissent in Harmelin, Justice White observed: “[T]he Solem analysis has worked well in practice.” 501 U.S. at 1015.
4. Ewing and Lockyer
The United States Supreme Court returned to the constitutionality of state recidivist statutes in Ewing, 538 U.S. 11, and Lockyer, 538 U.S. 63, companion cases challenging California's three-strikes law. A fractured majority in Ewing upheld a sentence of 25-years-to-life in prison for a defendant convicted of stealing three golf clubs worth just under $1,200 — a coda to a career in crime including a felony theft, several burglaries, a robbery, and a host of misdemeanors. Five justices held the sentence did not violate the Eighth Amendment. Justice Scalia reiterated his position from Harmelin that the Eighth Amendment permits no proportionality review of terms of imprisonment and any effort to engage in such review becomes an impermissible judicial foray into “evaluating policy.” Ewing, 538 U.S. at 31-32 (Scalia, J., concurring in judgment). In an aside, he observed, however, that the plurality’s reasoning “does not convincingly establish drat 25-years-to-life is a ‘proportionate’ punishment for stealing three golf clubs.” 538 U.S. at 31. Justice Thomas, who came on the Court after Harmelin had been decided, concluded “the Eighth Amendment contains no proportionality principle” and, therefore, joined in the judgment affirming the sentence. 538 U.S. at 32 (Thomas, J., concurring in judgment). He has essentially aligned with Justice Scalia in rejecting proportionality as a legitimate method of analysis in these cases.
In a plurality opinion, Justice O’Connor, joined by Chief Justice Rehnquist and Justice Kennedy, applied the “narrow proportionality” analysis Justice Kennedy used in Harmelin. Ewing, 538 U.S. at 23-24. The plurality concluded the sentence was not grossly disproportionate for an offender committing a third felony, even an expensive shoplifting. It was not, therefore, cruel and unusual. 538 U.S. at 30-31. The opinion relied on the historical recognition of “[rjecidivism ... as a legitimate basis for increased punishment.” Ewing, 538 U.S. at 25. Statutes imposing increased penalties for successive crimes reflect a legislative “policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct has not been deterred by more conventional approaches to punishment, must be isolated from society in order to protect the public safety.” 538 U.S. at 24.
The plurality also found the California sentencing provisions to be calibrated in ways that diminished any arguably excessive dis-proportionality. A defendant with one past conviction for a serious or violent felony would face a doubled sentence on a second felony conviction. Only on a third felony conviction would a defendant receive a sentence of the length imposed on Ewing for stealing the golf clubs. See 538 U.S. at 16. In addition, the plurality noted that under California’s criminal code, the prosecutor and the sentencing court had considerable latitude in classifying certain offenses so that they would not be treated as felonies counted as one of the strikes requiring enhanced punishment. 538 U.S. at 16-17, 29. Because the plurality found no inference of gross disproportionality, it did not survey punishments for other crimes in California or how other states treat recidivists comparable to Ewing.
In dissent, Justice Stevens would have found the sentence to be constitutionally prohibited cruel and unusual punishment based on “a broad and basic proportionality principle” underlying the Eighth Amendment. 538 U.S. at 35. He was joined by Justices Breyer, Ginsburg, and Souter in that view. Justice Souter’s appearance with the dissenters marked his defection from Justice Kennedy’s analytical approach outlined in Harmelin. Justice Breyer wrote an extended dissent applying the “narrow proportionality” test for forensic purposes and concluded, even under that analysis, the sentence violated the Eighth Amendment. 538 U.S. at 36, 53. He suggested the initial analytical swipe aimed at determining an inference of disproportionality ought to focus on: (1) the actual time the defendant likely will serve in prison; (2) the criminal conduct triggering the sentence; and (3) the defendant’s criminal history. 538 U.S. at 37.
In Lockyer, 538 U.S. at 77, a majority of the United States Supreme Court found a state prison inmate was not entitled to federal habeas corpus relief from his sentence under the California three-strikes law on the grounds it amounted to cruel and unusual punishment. The majority suggested the lower courts’ rulings affirming the sentence were neither contrary to nor an unreasonable application of clearly established federal law — gateway requirements for a habeas corpus action. The United States Supreme Court decided the case with the same 5-4 split as Ewing. Justice O’Connor’s majority opinion is most noteworthy, perhaps, for its understated characterization of the Court’s Eighth Amendment treatment of prison sentences as an “area [that has] not been a model of clarity.” 538 U.S. at 72. Those decisions, she observed, “have not established a clear or consistent path for courts to follow.” 538 U.S. at 72.
5. Graham and Miller
The United States Supreme Court again looked at a term of imprisonment as cruel and unusual punishment about 2 years ago in Graham. A majority of the court held that tire Eighth Amendment supported a categorical ban on sentencing juvenile offenders to life without parole for crimes other than homicide. In his majority opinion, Justice Kennedy discussed United States Supreme Court precedent addressing the constitutionality of noncapital sentences and reiterated his narrow proportionality analysis. 130 S. Ct. at 2021-23. He also noted that penological justifications for a punishment based on retribution, deterrence, incapacitation, and rehabilitation figure into an examination of disproportionality, picking up on a consideration he mentioned in Harmelin. 130 S. Ct. at 2028-30.
The decisive factor for Justice Kennedy lay in psychological and other scientific evidence demonstrating juveniles’ thought processes and brain functioning to be less fully developed than those of adults. And that lack of maturation affects the ability of the typical juvenile to assess and appreciate fully consequences of criminal activity. Juveniles generally are, then, less morally culpable than adults and have a greater capacity to reform their socially and legally unacceptable behaviors. 130 S. Ct. at 2026-27 (citing Roper, 543 U.S. at 569-70). Accordingly, the Court held a punishment banishing juveniles to lifetime incarceration for crimes other than homicide violates the Eighth Amendment. Justices Stevens, Ginsburg, Breyer, and Sotomayor joined in the opinion.
Because the majority decision turned on characteristics of juvenile offenders as a class and the categorical imposition of an especially harsh punishment on them for crimes less serious than homicide, it has only limited precedential application here, since we address a punishment imposed on an adult. But Graham is of interest in several respects. Chief Justice Roberts and Justices Alito and Sotomayor joined the Court after Ewing, the last major Eighth Amendment case challenging incarceration rather than the death penalty. Thus, Graham provided at least a veiled look at their views. And Justice Kennedy used Graham to actively promote his narrow proportionality test.
In voting with the majority, Justice Sotomayor recognized proportionality review as a component of Eighth Amendment jurisprudence. She and Justice Ginsburg also signed off on a brief concurring opinion from Justice Stevens effectively endorsing a broad proportionality test of the sort favored by the dissenters in Harmelin and Ewing. 130 S. Ct. at 2036 (Stevens, J., concurring). Justice Kennedy’s narrow proportionality test, therefore, failed to gamer unqualified support from a Court majority in Graham.
Chief Justice Roberts joined in the judgment of the Court but declined to decide the case as a categorical challenge. He wrote a separate opinion supporting reversal because the punishment of life without parole was unconstitutionally disproportionate as to Graham alone based on the circumstances of his crime and background. 130 S. Ct. at 2039 (Roberts, C.J., concurring in judgment). Chief Justice Roberts applied a narrow proportionality test of the sort Justice Kennedy has advanced. 130 S. Ct. at 2039. But he did not firmly commit himself, acknowledging both the “serious and thoughtful questions” from some of his colleagues about the propriety of any proportionality review for prison sentences and the lack of clarity in the Court’s jurisprudence addressing the issue. 130 S. Ct. at 2036-37. Despite his stated reservations, Chief Justice Roberts cited Solem with favor several times in outlining the applicable legal principles. 130 S. Ct. at 2037-39.
Justice Alito resisted venturing into that issue. Justice Alito viewed the question before the Court as presenting only a categorical attack on tire life sentence and declined to consider or comment on the as-applied proportionality doctrine. Graham, 130 S. Ct. at 2058 (Alito, J., dissenting). He joined in that portion of Justice Thomas’ dissent rejecting life without parole for juveniles as categorically disproportionate punishment for noncapital offenses, but he did not subscribe to Justice Thomas’ alternative rationale that proportionality amounts to an illegitimate method of analysis. 130 S. Ct. at 2058.
As noted, Justice Kennedy endeavored to advance his narrow proportionality test in Graham by citing his own plurality opinion in Harmelin as authoritative and characterized it as “the controlling opinion” in that case. 130 S. Ct. at 2021-22. But that appears to overstate the support for narrow proportionality. It has never garnered more than three votes in any given case. In Harmelin, Justice Souter signed off on that position only to step back from it in Ewing. And Justice Kennedy’s approach “controlled” the majority judgment only because other justices would not incorporate any form of proportionality into the Eighth Amendment as applied to sentences of imprisonment.
Justice Kennedy’s concept of proportionality set out in Harmelin reflects the narrowest ground supporting the judgment there and in Ewing and, thus, may be considered controlling in that limited sense. See Marks v. United States, 430 U.S. 188, 193-94, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977) (When no rationale commands five votes, the holding may be considered “ ‘that position taken by those [justices] who concurred in the judgment[] on the narrowest ground.’ ”). Whether Justice Kennedy’s position should be treated as binding authority is a matter of debate. The Marks approach presupposes the positions of the justices in the majority are compatible insofar as they recognize a common right or mode of analysis but disagree as to scope. 430 U.S. at 194 (When two justices would afford broad First Amendment protection to pornographic literature and would reverse a finding that a given book was legally obscene and three other justices adopted a more limited protection but would also reverse the judgment, the plurality of three reflects the controlling decision of the Court on the narrowest ground.). That cannot be said of the judgments in either Harmelin or Ewing, since two justices essential to the majority would reject any form of proportionality analysis, including the limited one Justice Kennedy espouses. See Nichols v. United States, 511 U.S. 738, 745-46, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994) (application of Marks to some divided decisions may prove difficult when a “lowest common denominator” is not readily apparent; resulting confusion of that sort suggests “a reason for reexamining” the substantive issue); United States v. Carrizales-Toledo, 454 F.3d 1142,1151 (10th Cir. 2006) (Marks inapplicable when plurality and concurring opinions “take distinct approaches” or “the various opinions supporting the Court’s decision are mutually exclusive”); United States v. Alcan Aluminum Corp., 315 F.3d 179, 189 (2d Cir. 2003).
At the close of its 2011 term, the United States Supreme Court issued a decision holding mandatory sentences of life without parole imposed on juveniles committing murder to be constitutionally cruel and unusual punishment. Miller v. Alabama, 567 U.S. _, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). The decision effectively expanded the principal rationale of Graham — that juveniles as a class are less criminally culpable and more susceptible to rehabilitation than adults — to require a judge or jury to take into account a juvenile offender’s individual characteristics before imposing a sentence of life without parole for murder. Miller, 2012 WL 2368659, at *11. As a categorical challenge built on that premise, Miller is, like Graham, largely uninformative as to how this case should be resolved.
The majority opinion, written by Justice Kagan, made passing reference to proportionality of punishment based on characteristics of the crime- and of the criminal as a component of Eighth Amendment analysis. Miller, 2012 WL 2368659, at *7 (citing Weems, 217 U.S. at 367); Miller, 2012 WL 2368659, at *17. But it tiren never fleshed out the attributes of that proportionality or how it should be measured. Rather, the opinion focused on the differences that set juveniles apart from adults, as outlined in Roper and Graham, and concluded those differences may warrant less severe punishment and necessarily require a tailored imposition of an extreme penalty such as life in prison without parole. Miller, 2012 WL 2368659, at *7-11. The majority, for example, distinguished Harrnelin precisely because that decision, upholding mandatory life sentences for certain drug traffickers, “had nothing to do with children and did not purport to apply its holding to the sentencing of juvenile offenders.” Miller, 2012 WL 2368659, at *13. Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined in the opinion.
Justice Thomas, joined by Justice Scalia, dissented, repeating his thesis that proportionality has no place in determining whether a given punishment violates the Eighth Amendment. Miller, 2012 WL 2368659, at *26 (Thomas, J., dissenting). In separate dissenting opinions, Chief Justice Roberts and Justice Alito struck common themes in suggesting the majority opinion rests more on the predilections of its supporting justices than sound Eighth Amendment precedent and due respect for legislative decisionmaking. Chief Justice Roberts argued that the sentencing statutes of the federal government and more than half the states impose mandatory sentences of life in prison for juveniles who kill in certain circumstances and more than 2,000 young people have received such a sentence, thereby evincing broad support for that punishment and undercutting any notion of a national consensus to the contrary. Miller, 2012 WL 2368659, at *20 (Roberts, C.J., dissenting). Absent such a consensus, a punishment cannot categorically violate the Eighth Amendment, according to Chief Justice Roberts’ analysis. 2012 WL 2368659, at *20. Justice Alito dissented because the majority rejected the sentencing determinations of a majority of state legislatures with regard to appropriate terms of incarceration for especially serious offenses, an approach he characterized as incompatible with the Eighth Amendment and fundamental democratic principles. Miller, 2012 WL 2368659, at *33 (Alito, J., dissenting). But Justice Alito’s dissent suggested little about how (or even if) he would apply proportionality in deciding a challenge such as Proctor’s.
It is hardly self-evident that Justice Kennedy’s narrow proportionality test would command five votes today given the fractured precedent and the changes on the Court since Ewing, the last time the issue was directly addressed in a noncategorical challenge to a prison sentence imposed on an adult. The Solem decision actually reflects the most recent decision in which five justices agreed on a clear rationale disposing of a case dealing with a term of imprisonment as cruel and unusual punishment of an adult. It is also less than self-evident that Solem would garner five votes today. But Solem has never been overruled, and as Chief Justice Roberts’ separate opinion in Graham suggests, the decision remains at least a viable part of Eighth Amendment law.
B. Settled Principles
From the United States Supreme Court precedent, we may distill some settled principles guiding the evaluation of Proctor’s claim. First and foremost, in applying the Eighth Amendment to punishment entailing incarceration, the courts owe great deference to legislative determinations, especially allowing for differing views on penological policy. The theme of deference runs throughout the authority and was most recently recapitulated by Chief Justice Roberts: The Court has “emphasized the primacy of the legislature in setting sentences.” Graham, 130 S. Ct. at 2037; see Solem, 463 U.S. at 290 (“Reviewing courts . . . should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes.”); Van Dyke v. State, 31 Kan. App. 2d 668, Syl. ¶ 3, 70 P.3d 1217 (2003). But, as both Graham and Solem illustrate, judicial deference has limits; it is not merely a euphemism for blind adherence. The ultimate test for judging incarceration as cruel and unusual punishment does not depend on a closely calibrated relationship between the offense and the prison term. That sort of proportionality would contravene the broad authority properly accorded legislatures in setting punishments for crimes based on particularized penological policies and public-safety goals. From a practical standpoint, a constitutional test based on a tailored proportionality between crime and punishment would be difficult to administer given the often significant variations in sentencing schemes and classifications of crimes across jurisdictions. The constitutional test, then, requires a “gross disproportionality.” See Van Dyke, 31 Kan. App. 2d 668, Syl. ¶ 1.
In evaluating tire constitutionality of a sentence of imprisonment, those members of the United States Supreme Court recognizing the concept of proportionality generally consider three broad categories of information. First, die Court considers the circumstances of tire convict, the offense, and the punishment. This includes background information on the particular individual being punished. See Graham, 130 S. Ct. at 2037-38 (Roberts, C.J., concurring); Solem, 463 U.S. at 296-97 & n.22. The Court looks at how the particular state punishes offenses it considers more serious. And, finally, the Court looks at how other states punish comparable offenses. Those are considered objective criteria measuring the challenged punishment against intrajurisdictional and interjurisdictional standards.
The United States Supreme Court, however, has not presented a clear statement as to how those criteria should be applied. Justice Kennedy’s narrow proportionality test would treat the initial comparison of crime to punishment in the given case as a threshold standard. Only if that review strongly suggested a gross disproportionality — something he characterizes as a rarity — would the judicial inquiry advance to the comparative criteria of punishments for other crimes within the jurisdiction and the punishments for similar crimes outside the jurisdiction. But, as we have noted, that analytical model has never commanded a majority of sitting justices of the Court. The Solem analysis, the last approach supported by a Court majority, would consider essentially the same three factors together in a totality-of-the-circumstances view.
The United States Supreme Court treats a sentence of life without the possibility of parole differently from imprisonment for a term of years in assessing the constitutionality of the punishment under the Eighth Amendment. See Solem, 463 U.S. at 297 (noting the severity of the punishment). Life without parole does not inherently violate the Constitution, at least when applied to an adult offender, as Harmelin demonstrates. But life without parole re- fleets a policy determination that tire offender should be treated as incapable of rehabilitation and, thus, beyond redemption. The punishment, therefore, abandons one of the established purposes for criminal sanctions in a way that incarceration for a fixed term does not. See Graham, 130 S. Ct. at 2029-30; Ewing, 538 U.S. at 52 (Breyer, J., dissenting). Sentences for terms of years, even lengthy ones, presuppose at least some offenders will be returned to society. Although a life sentence without parole necessarily amounts to a variable term — actuarially, it will be much longer for a 30-year-old offender than a 60-year-old offender — it reflects a value judgment that is far harsher than virtually any fixed term. It is a legislative determination that the recipient has relinquished any legitimate claim to liberty and is no longer fit for or deserving of freedom and never will be. In that respect, the punishment bears some similarity to the death penalty in a way that a fixed sentence does not. Those circumstances should be reflected in the constitutional assessment of life without parole as a punishment, particularly under recidivist statutes.
There is, of course, an incontrovertible difference separating the death penalty from any punishment by incarceration: The death penalty, having been administered, is irrevocable. For an inmate serving life without parole there is some possibility, slim though it may be, for executive clemency or a change in the law. Graham, 130 S. Ct. at 2021 (“To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to ‘ “the evolving standards of decency that mark the progress of a maturing society.” ’ ”) (quoting Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct. 285,50 L. Ed. 2d 251 [1976]); 130 S. Ct. at 2036 (Stevens, J., concurring) (“Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time.”). But those possibilities are too remote and uncertain to “mitigate” the punishment for Eighth Amendment purposes. Graham, 130 S. Ct. at 2027 (executive clemency); Solem, 463 U.S. at 303 (clemency).
In considering the current state of Eighth Amendment jurisprudence, the Kansas Supreme Court has acknowledged the viability of proportionality analysis for terms of incarceration. State v. Gomez, 290 Kan. 858, 863, 235 P.3d 1203 (2010). And the Gomez decision suggests, without formally deciding, that Justice Kennedy’s narrow test may be the appropriate application of proportionality review. 290 Kan. at 863-64. The narrow proportionality test draws on the same factors outlined in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), but it applies them differently. If application of that test were to render a punishment cruel and unusual, that result would be, at the very least, compatible with how the Kansas Supreme Court views the federal constitutional protection.
C. The Principles Applied
Before applying the United States Supreme Court’s precepts for measuring the constitutionality of a term of imprisonment under the Eighth Amendment, we resolve two threshold matters. First, we apply Justice Kennedy’s narrow-proportionality test. We do so not because we have been persuaded that it is necessarily the better test or truer to the principles embodied in the Eighth Amendment but because it is the more restrictive test accepted among those members of the Court recognizing proportionality as a proper method of analysis. That is, if the lifetime postrelease supervision imposed on Proctor is unconstitutional under Justice Kennedy’s approach, it necessarily must also fail under the broader standard applied in Solem and since promoted by a plurality of the Court. See Ewing, 538 U.S. at 35 (Stevens, J., dissenting) (“[T]he Eighth Amendment’s prohibition of ‘cruel and unusual punishments’ expresses a broad and basic proportionality principle . . . .”). We use Justice Kennedy’s approach for forensic purposes only, much as Justice Breyer did in his dissent in Ewing, 538 U.S. at 36, to test the constitutionality of the punishment at issue in that case.
Second, lifetime postrelease supervision is really neither an invariable determinate sentence set through legislative elimination of judicial discretion of the sort at issue in Harmelin nor a recidivist statute imposing enhanced punishment for the most recent crime committed by a repeat offender of the sort at issue in Rummel, Solem, and Ewing. The distinction would appear to make some difference in that the Harmelin Court upheld a statutorily man dated sentence of life without parole for possession of more than 650 grams of cocaine, while the Solem Court struck down the same sentence imposed under a recidivist statute on a repeat felon for knowingly writing a check on a closed account.
On balance, lifetime postrelease supervision operates more in the nature of a recidivist punishment than a procrustean initial sentence. As this case illustrates, a district court retains considerable discretion, even without imposing a departure sentence, in punishing a first-time offender convicted of aggravated indecent solicitation of a child. The legislative design in designating the crime as a severity level 5 offense builds in judicial discretion to consider probation as a nondeparture punishment for some defendants. That is markedly different from tire inflexible sentence challenged in Harmelin. The mandatory punishment in Harmelin — to be imposed without judicial discretion for a demonstrably serious crime — was the product of “die collective wisdom of the Michigan Legislature” in attempting to combat illegal drug use and trafficking. Harmelin, 501 U.S. at 1006-07 (Kennedy, J., concurring). The legislature could and did reasonably conclude that the social ills posed by the possession of large quantities of cocaine to be “momentous enough to warrant the deterrence and retribution of a life sentence without parole.” 501 U.S. at 1003 (Kennedy, J., concurring). That conclusion, thus, comported with the Eighth Amendment despite its undeniable harshness, according to the Hanmelin majority. See 501 U.S. at 994 (“Severe, mandatory penalties . . . are not unusual in the constitutional sense.”).
The potential for life in prison without parole that Proctor challenges does not operate that way. And we are not presented with the same sort of legislative determination. Had the Kansas Legislature required a mandatory sentence of life in prison without parole for aggravated indecent solicitation, we would be looking at a Harmelin-like issue. But the Kansas Legislature has not punished the crime in that manner; it has established a substantially lesser punishment that may, in some instances, permit probation.
Rather, the legislature has provided that if a person sent to prison for aggravated indecent solicitation of a child and then released commits any felony, he or she must be returned to prison for life without ever getting out again. That punishment is triggered not by the original crime but by a later felony that may be a comparatively minor property offense. The sentencing scheme effectively functions no differently from a statute requiring a sentence of life in prison without parole for anyone convicted of a felony if he or she has a past conviction for a “sexually violent crime.” Revocation of lifetime postrelease supervision, then, functionally behaves like a recidivist statute and may be best analyzed that way for Eighth Amendment purposes.
1. Threshold Comparison of Offense and Sentence
The crime of conviction here is a serious one, more so than those the United States Supreme Court reviewed in the three-strikes cases. Whether it is on some moral plane with the drug offense in Harmelin is hard to say. It is arguably worse. Proctor’s conviction was for an offense classified as a violent sexual felony but which, by definition, required solicitation or enticement for an illicit purpose — conduct preparatory to physical contact. But the factual basis for Proctor’s plea included the admission of sexual contact with the victim, a I2-year-old boy. The victim suffered no physical injury but understandably has experienced psychological trauma of an unspecified dimension, though apparently not so extreme as to be debilitating or to require inpatient care.
Proctor was 19 years old when he abused the victim. He has no other criminal record. Before sentencing, Proctor had not received any counseling for sex offenders. That counseling was available. He was willing to participate. And there was substantial information indicating the counseling could be effective.
The Kansas Legislature permits a first-time offender convicted of a severity level 5 person felony, as Proctor was, to receive probation if counseling is available and the public interest would be served with a nonprison punishment. The district court made that finding in this case, imposing strict limitations on Proctor and requiring he complete sex offender counseling. If Proctor successfully completes the 36-month probation period, he will not be subject to further direct supervision through the court system. He has registered as a sex offender and must continue to do so until at least 2020. If he fails on probation and is sent to prison, he will be placed on lifetime postrelease supervision. A conviction for any felony will automatically return him to prison for the rest of his life without any possibility for early release. That punishment renders the sentencing scheme constitutionally suspect as cruel and unusual, especially insofar as the triggering offense may be a low-level felony.
But as we have acknowledged, Proctor or someone else could commit an especially violent or otherwise heinous offense while on supervised release. If the felony triggering an offender’s return to prison for life were a homicide or kidnapping that would weigh strongly against a finding of cruel and unusual punishment as applied to that offender in those circumstances. In other words, we envision realistic scenarios in which the constitutionality of the punishment measured by a grossly disproportionate standard could pose a much closer question or might plainly favor die State.
In Solem, the United States Supreme Court found a recidivist statute unconstitutional when the defendant received a sentence of life in prison without parole for intentionally writing a check on a closed account. If Proctor were on lifetime postrelease supervision, the same would happen to him for writing such a check. The South Dakota statute at issue in Solera did not prescribe life without parole until a third felony conviction, and the defendant actually had twice that many convictions before he received that sentence. The Court characterized all of those offenses as nonviolent, although some were residential burglaries. But the “triggering” offense directly bringing about the challenged punishment would be equivalent — a felony bad check in Solera and the felony theft we have postulated for Proctor. That suggests a gross disproportionality. The punishments upheld in Rummel and Ewing were constitutionally distinguishable because they entailed tangible prospects for release from prison.
In addition, Proctor’s overall record, as we have constructed it for purposes of resolving the case, would not be indicative of a repeat sex offender or an incorrigible recidivist. As we have indicated, the United States Supreme Court has given considerable weight to incorrigibility as a reason for upholding the constitution ality of statutes punishing repeat offenders harshly. See Ewing, 538 U.S. at 24; Rummel, 445 U.S. at 276 (The interest undergirding enhanced and severe punishment for recidivists lies “in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal laws.”). But that interest does not appear to infuse the lifetime postrelease supervision that would be imposed on Proctor. As we have pointed out, he could write a felony bad check 20 years from now with the automatic result of spending the rest of his life in prison. That does not evince incorrigibility of the sort constitutionally justifying the lesser, though undeniable harsh, punishments upheld in Rummel and Ewing, let alone tire identical punishment struck down in Solem.
Under the circumstances here, two offenses that individually permit probation combine to result in lifetime incarceration without possible release. The United States Supreme Court has never upheld that sort of recidivist sentencing scheme and even in Rummel, 445 U.S. at 282 n.27, cast doubt on such a result. Moreover, the Kansas sentencing protocols, reflected in the grid, incorporate enhanced punishments based on criminal histoiy, thus accounting for recidivist behavior. An individual with a person-felony conviction who is then sentenced for felony theft, a severity level 9 offense, should presumptively receive 12 months’ probation with an underlying prison sentence of 12 months. The deviation between the customary punishment the legislature has adopted and the result here seems, at least on its face, startlingly anomalous. A defendant first committing a sexually based person felony and later a low-level nonperson felony, such as theft or forgery, may not be deserving of praise, but the conduct reflects a de-escalation of criminality and antisocial behavior. Why that should result in life behind bars begs an obvious explanation, particularly when the reverse behavior does not have anywhere near the same penal consequences.
Someone with a conviction for felony theft who then commits aggravated indecent solicitation would face presumptive incarceration for a standard term of 41 months and would be on lifetime postrelease supervision after serving the time. But that person would have to commit yet another felony — his or her third — to be returned to prison for life. Despite escalating from a property crime to a person felony, that defendant would be substantially more favorably treated than someone committing the same offenses in the reverse order. That also reflects a constitutionally suspect disconnect between offense and punishment.
The result cannot be explained because Proctor s initial offense has been classified as and considered to be sexually violent and, therefore, deserving of stern punishment. If that were so, the Kansas Legislature presumably would have enacted stiffer penalties for aggravated indecent solicitation to be imposed at the outset rather than as the result of a condition subsequent triggered by a new felony conviction. Because any felony triggers revocation of the postrelease supervision and a return to prison for life, the scheme does not punish a continuing disposition to commit sexually violent offenses but general criminality. As such, there is no apparent reason for deviating from the usual sentencing protocols. And, as we have said, the overall criminal history of a defendant convicted of aggravated indecent solicitation followed sometime later by a nonperson property offense fails to display the chronic criminality constitutionally necessary for especially harsh punishment of recidivists.
The Kansas Legislature has adopted special sentencing provisions aimed at repeat sex offenders. K.S.A. 2009 Supp. 21-4704(j); K.S.A. 2009 Supp. 21-4642. Under K.S.A. 2009 Supp. 21-4704(j), a “persistent sex offender,” a person with a conviction for a sexually violent crime who is later convicted of another sexually violent crime, shall receive a sentence double the maximum otherwise provided for the new offense. That recidivist statute already applies to Proctor, since it requires only conviction rather than actual incarceration. If Proctor were to complete his probation and again commit aggravated indecent solicitation or another sex offense, he would have to receive a doubled sentence.
Lifetime postrelease supervision applies to Proctor only if he serves prison time on die first offense. The difference in punishments arising from a second conviction — life in prison for violation of the postrelease supervision and doubled prison time for a new sex crime — appears to turn on the fact of incarceration for the first conviction. That is, the sentencing scheme would lock up for life a person committing aggravated indecent solicitation if that person serves time and then commits any felony, but it would merely double the sentence of a person committing the same offense, completing probation, and then committing another sexually violent crime. The distinction lies in one offender going to prison and then reoffending in some way and the other avoiding prison but reoffending in a serious way consistent with his or her past criminal behavior. If the fact of past incarceration warrants such a huge increase in punishment upon a convict’s commission of a new felony, we might presume die legislature would have taken a similar approach with felons other than those committing sexual offenses. But it has not.
The recidivist provisions in K.S.A. 2009 Supp. 21-4704(j) also overlap with the operation of lifetime postrelease supervision in a curious way. If a sex offender serves time in prison for a first offense and then reoffends by committing a new sexually violent offense, both provisions apply. The return to prison for life attaches to the first conviction but is triggered by the second. The second conviction is punished with a doubled term of years, a punishment largely superfluous given the revocation of supervised release. Why the legislature would not simply mandate a sentence of life in prison for a person convicted of a second sexually violent offense when it has mandated that a person serving time for a single such offense who then commits any felony should go to prison for life seems peculiar.
The Kansas Legislature has similarly determined to impose a punishment of life in prison without parole for a third conviction for a sexually violent offense under K.S.A. 2009 Supp. 21-4642. But a first offender, having served time, faces the same punishment for then stealing a $1,000 necklace or writing a bad check for over $1,000. Escalating punishment for repeat sex offenders culminating in life in prison reflects an orderly and understandable penological response to a serious social and criminal problem. But imposing the same sentence — the second harshest possible — for a single sex offense followed by any felony conviction looks to be unfocused, especially operating simultaneously with the recidivist statutes targeting repeat sex offenders.
All of that suggests something short of the studied legislative determination the United States Supreme Court recognized in Harmelin as constitutionally permitting an initial life sentence without parole for possession of large quantities of cocaine. Harmelin, 501 U.S. at 1002-03 (Kennedy, J., concurring). The Kansas statutes appear far less coherent and measured, however harshly, in addressing offenders situated as Proctor. The harshness of the punishment without an apparent countervailing legislative design suggests gross disproportionality indicative of unconstitutionality. See 501 U.S. at 1007-08 (Michigan’s mandatory penalty reflected “a recent enactment calibrated with care, clarity, and much deliberation to address a most serious contemporary social ill.”).
Finally, we look briefly at how imposition of lifetime postrelease supervision on Proctor and its revocation for any felony conviction would further retribution, deterrence, incapacitation, and rehabilitation — the recognized penological goals for criminal sanctions. The inquiry bears on Justice Kennedy’s proportionality analysis of prison terms under the Eighth Amendment. See Graham, 130 S. Ct. at 2029 (“A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense.”); Ewing, 538 U.S. at 25, 29-30 (California recidivist statute imposing sentence of 25 years to life may be justified by government “interest in incapacitating and deterring recidivist felons”); Harmelin, 501 U.S. at 999 (Kennedy, J., concurring); see Van Dyke, 31 Kan. App. 2d at 673-74.
If Proctor were on lifetime postrelease supervision for the aggravated indecent solicitation offense, sending him to prison as the result of a felony theft conviction decades later seems to lack targeted retribution. Assuming the indecent solicitation offense warranted substantial retribution that purpose becomes wholly diluted and arguably lost if it is deferred until the offender commits another felony — something that might never occur. Retribution typically would be served through the immediate, certain penalty exacted for the offense. In that context, retribution expresses society’s collective opprobrium for the criminal conduct and imposes a sane tion specifically to punish. As we have discussed, retribution for the triggering felony, if it were a low-level offense like theft, could not justify a sanction of life in prison even coupled with the underlying aggravated indecent solicitation conviction. Living under the restrictions of lifetime postrelease supervision may itself serve a retributive function. But that purpose does not require that violations result in lifetime incarceration as opposed to some shorter period of imprisonment or more restrictive conditions of supervision.
Deterrence, apart from incapacitation, serves to prevent the commission of an offense in the first place. In theory, knowing of a harsh punishment for a particular crime, people will not engage in that wrongful conduct. Nothing suggests lifetime postrelease supervision and the consequence for violating its terms are so well known that they effectively deter conduct of the sort Proctor engaged in. To the extent a defendant, such as Proctor, learns of lifetime postrelease supervision as part of the disposition of the case, it comes too late to deter the underlying offense. It might well serve to deter an offender from committing a felony that would trigger his or her imprisonment for life. But if it were to fail in that purpose and an offender were to commit a theft or pass a bad check, deterrence alone would not justify an otherwise unconstitutionally cruel and unusual punishment of life in prison for someone in Proctor’s circumstance. In other words, a life sentence without parole to deter felony theft would be grossly disproportionate, even for someone who had already committed a felony.
Revocation of lifetime postrelease supervision incapacitates but in an untargeted way. A person imprisoned is incapacitated from committing additional crimes against the general populace for the duration of that incarceration. To the extent a person guilty of aggravated indecent solicitation ought to be incapacitated that incapacitation presumably would be made part of a prison term to be served immediately. Just why an extraordinaiy period of incapacitation would be required if the offender later committed a dissimilar nonperson felony, such as theft or forgery, is hardly clear. Those property offenses would not evince some continuing or enhanced danger to the public beyond the circumstances of the crimes themselves. And justifying incapacitation for the rest of the offender s life, likely measured in decades, is similarly incompatible with how those crimes are usually treated. Incapacitation for life without parole resulting from tire commission of a single property crime, even after a conviction for aggravated indecent solicitation, would be difficult to reconcile with Solem and the other recidivist cases. Conversely, tire serial commission of sex offenses, given the nature of tire crimes, would constitutionally justify extended incapacitation.
The final consideration is rehabilitation. As the United States Supreme Court has pointed out, the government abandons rehabilitation as a penological goal when it imposes punishment of life in prison without parole. Graham, 130 S. Ct. at 2030 (“The penalty forswears altogether the rehabilitative ideal.”); Ewing, 538 U.S. at 52 (“ ‘rehabilitation’ is obviously beside the point” in considering the penological interests supporting a recidivist statute imposing sentence of 25 years to life) (Breyer, J., concurring). This would be precisely such a situation.
Considering the circumstances, tire punishment exacted if Proctor were placed on lifetime postrelease supervision and then revoked for a nonperson felony conviction would be grossly disproportionate to the triggering offense and to the whole of his criminal history. This would be one of those rare instances in which the operation of the statutoiy scheme would call into question the constitutionality of the resulting punishment as cruel and unusual. In Justice Kennedy’s method of analysis, that determination requires a review of how Kansas punishes more serious crimes and how other jurisdictions punish similar crimes.
Before turning to those considerations, we take note of State v. Baber, 44 Kan. App. 2d 748, 753, 240 P.3d 980 (2010). This court’s decision in Baber, upholding the lifetime supervised release provision against a cruel and unusual punishment challenge, does not control here. In that case, Baber argued only that the duration of the supervision violated his constitutional rights. The court rejected that argument, at least in part, based on his failure to produce sufficient evidence. 44 Kan. App. 2d at 751-52. While the duration of the term of supervision is a component of Proctor’s argument, it is only part of that argument. Proctor also points to the unconstitutionahty of imposing mandatory imprisonment for life based on any new felony conviction. Baber asserted no such challenge, and the court didn’t presume to deal with that argument. The Baber decision, therefore, neither addresses nor controls on that score.
2. Proctors Sentence Compared to Sentences for Other Kansas Offenses
The current sentencing regimen in Kansas permits a reliable comparison of the relative severity of criminal offenses and their usual punishments. To impose a degree of uniformity in sentencing, the State’s system rests on a grid constructed to measure the severity of the crime of conviction on one axis and a defendant’s criminal histoiy on the other, thus yielding a statutorily presumptive punishment, expressed in months of incarceration, at their intersection. Offense severity and past convictions are directly proportional to the presumptive term of incarceration. Thus, a defendant with an extensive criminal history generally will receive a substantially longer sentence than a first-time offender for the same crime of conviction. And between two defendants with the same criminal history, the one committing the more severe offense will spend more time in prison. The legislature has assigned crimes severity levels corresponding to their relative wickedness. Two crimes with the same severity level are in the legislature’s view rough moral (or immoral) equivalents.
Proctor’s crime of conviction is a severity level 5 person felony and would be comparably contemptible to offenses similarly classified and less so than offenses assigned higher levels. Some of the worst crimes are “off grid” and carry the harshest sentences. A separate grid governs drug-related offenses. But those refinements do not undercut a comparison based on severity level for Eighth Amendment purposes. We look at one off-grid crime and others on the sentencing grid for nondrug offenses. We presume no dis-positional or durational departures and discard possible reductions in the actual amount of time a defendant might serve based on credit for good behavior in prison. A “good time” reduction would be added to and extend the period of postrelease supervision. K.S.A. 21-4722(b).
There are a number of person felonies with higher severity levels than aggravated indecent solicitation, including second-degree intentional murder, severity level 1, K.S.A. 21-3402; voluntary manslaughter, severity level 3, K.S.A. 21-3403; intentional aggravated batteiy causing great bodily harm, severity level 4, K.S.A. 21-3414(a)(1)(a); kidnapping, severity level 3, K.S.A. 21-3420; aggravated kidnapping, severity level 1, K.S.A. 21-3421; and aggravated robbery, severity level 3, K.S.A. 21-3427. There are a number of others that are severity level 5 felonies, including aggravated burglary (person felony), K.S.A. 21-3716, and smuggling illegal drugs into a jail or prison (nonperson felony), K.S.A. 21-3926. The mandated period of postrelease supervision for felonies with a severity level of 4 or higher is 36 months. K.S.A. 2009 Supp. 22-3717(d)(1)(A). For severity level 5 felonies generally, the period is 24 months. K.S.A. 2009 Supp. 22-3717(d)(l)(B). If the sentencing court were to rely on a specific finding the crime had been sexually motivated, the period of postrelease supervision could be extended to 60 months.
As we have noted, Proctor would be on lifetime postrelease supervision, and any felony conviction would require he be returned to prison for life without parole. Thus, if he committed a felony theft shortly after serving the sentences imposed for the aggravated indecent solicitation offense and the lesser charges, he could be back in prison at age 28 or 29 with no prospect for release.
We compare how sentencing would work with a couple of the other offenses. Premeditated first-degree murder is an off-grid felony cariying a life sentence. K.S.A. 21-3401. Absent a finding of aggravating circumstances, the murderer would become parole eligible after 25 years. K.S.A. 2009 Supp. 22-3717(b)(l). A defendant sentenced at age 20 could be released at age 45. By contrast, Proctor, having served his time on the aggravated solicitation conviction and then committing a felony theft, could never be released from prison. At age 45, he would have served roughly 20 years in prison, some less than the murderer, but he would face another 33 years in prison before death might metaphorically set him free. While moral equivalence is a tricky business, someone committing a premeditated murder generally seems more blameworthy than someone engaging in aggravated indecent solicitation of a minor and then writing a bad check for over $1,000. In considering Eighth Amendment issues, the United States Supreme Court has consistently recognized murder, as a type of crime, to evince greater depravity than other crimes precisely because it takes the life of the victim. Graham, 130 S. Ct. at 2027 (“Although an offense like robbeiy or rape is ‘a serious crime deserving of serious punishment,’ those crimes differ from homicide crimes in a moral sense.”) (quoting Enmund v. Florida, 458 U.S. 782, 797, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 [1982]).
We also look at examples of crimes included on the sentencing grid. Assume Proctor committed second-degree murder and was sentenced at age 20. Without a downward departure, he could not receive probation on the murder charge. We presume he would not. The standard sentence for a person with no criminal record would be 155 months in prison (just about 13 years) with 36 months’ postrelease supervision. Proctor would be released from prison at age 33 and would be free of any supervision at age 36. Assume he waits a year, gets in a bar fight, and kills again. He pleads guilty to second-degree murder. With one past person felony on his record, Proctor would face a standard sentence of 253 months in prison (just over 21 years) and another 36 months’ post-release supervision. Proctor would be released from prison at age 58 and off supervised release at age 61. If he then committed a felony theft, would he go to prison for the rest of his life? No. Based on the grid, with two person felonies, he would serve a standard sentence of 14 months and be on postrelease supervision for 12 months. He would again be without restrictions in time to celebrate his 64th birthday. Actuarially, he could expect to enjoy another 17 birthdays of freedom before his ultimate judgment day.
Suppose Proctor beat someone with a tire iron, causing the victim great bodily harm and a prolonged recuperation. Proctor would not be eligible for probation absent a downward durational departure. The standard sentence would be 41 months with postrelease supervision of 36 months. Proctor would be free of all restrictions in less than 6Vz years — well before he turned 30 years old. If he were then to commit a felony theft of $1,000, he would face a standard sentence of 12 months with a presumption for 12 months’ probation. Another felony theft would call for exactly the same punishment. In theory, based on the sentencing grid, each successive felony theft of that magnitude would similarly require a presumptive probation punishment. At some point, however, a sentencing court presumably would impose an upward dispositional departure to send an aggravated batterer turned chronic thief to prison.
We could repeat this sort of exercise with the other crimes we have identified with similar results. As tire examples illustrate, a defendant committing an offense the legislature has ranked by severity level as worse than Proctor’s crime of conviction does not entail a punishment requiring a return to prison for life without parole based on a later felony conviction. Even murderers are not treated so harshly. A person committing successive second-degree murders could be released and then commit a low-level felony without spending the rest of his or her life in prison.
On the whole, the comparison between Proctor’s circumstances if he were on lifetime supervised release for a severity level 5 offense and those of persons committing crimes with higher offense levels supports the gross disparity between offense and punishment indicative of an Eighth Amendment violation. Whether we treat the result as a means of confirming that disparity, in keeping with Justice Kennedy’s methodology, or as an integrated part of an overall analysis of the sentence’s constitutionality, as the Solern majority and the Kansas Supreme Court have done, we arrive at the same point. This factor weighs against the State.
The State argues that the Kansas Supreme Court has upheld lengthy sentences and 60-month periods of postrelease supervision against constitutional challenges. The authority, however, is unpersuasive.
The State cites State v. McCloud, 257 Kan. 1, 891 P.2d 324, cert. denied 516 U.S. 837 (1995), and State v. Tyler, 251 Kan. 616, 644-46, 840 P.2d 413 (1992), as demonstrating tire court has rejected constitutional challenges to prison sentences with minimum terms approaching or in excess of 100 years. Those sentences effectively amounted to life in prison for the respective defendants. But the lengthy duration resulted from sentences on multiple criminal acts imposed consecutively. For example, in McCloud, tire defendant committed 12 separate aggravated robberies during a 4-month crime spree. He received a statutorily proper sentence of 8 years to life on each and was ordered to serve them consecutively, resulting in a minimum sentence of 96 years. The aggregate incarceration of 111 to 330 years imposed in Tyler resulted from consecutive sentences on multiple convictions, including second-degree murder of a police officer executing a search warrant, arising from a single episode and enhanced under a habitual criminal statute then in effect allowing doubling or trebling of prison time for repeat felons. Tyler, 251 Kan. at 644-47. Those cases do not speak to penalties permitted for a single criminal offense more serious than Proctor s — the real point of the comparison. If Kansas imposed a 96-year sentence for one count of aggravated robbery or 100 years for one second-degree murder, those cases, or more particularly those statutory penalties, would have relevance to the inquiry regarding comparative punishments.
The State also cites State v. Cullen, 275 Kan. 56, 60-61, 60 P.3d 933 (2003), and State v. Anthony, 273 Kan. 726, 729, 45 P.3d 852 (2002), for the proposition that an enhanced 60-month postrelease supervision is constitutional. In both cases, the Kansas Supreme Court held that because the factual findings necessaiy to support the enhancement were either found by a jury or admitted by the defendant in entering a plea, the punishment did not violate the Sixth Amendment right to jury trial. The court had no occasion to consider the sentences under the Eighth Amendment. The decisions are, therefore, legally irrelevant.
3. Proctors Sentence Compared to Sentences for Similar Offenses in Other States
Proctor submits that 18 states impose mandatory lifetime post-release supervision for at least some convicted sex offenders. But he says only four, including Kansas, have no mechanism for terminating the supervision. Proctor identifies the other three as Col orado, Nebraska, and Oklahoma. Two other states permit the supervision to be lifted under certain conditions. According to Proctor, the remaining 12 states impose lifetime postrelease supervision for more serious offenses than he committed or reserve that punishment for repeat offenders or offenders displaying characteristics making them likely recidivists. In its brief, the State does not dispute the results of Proctor’s survey. The State agrees Kansas is one of only four states without any possibility for early termination of lifetime postrelease supervision for convicted sex offenders.
The State’s rejoinder is to argue that tire conditions of post-release supervision are a matter of legislative prerogative. That, of course, is true until the exercise of that prerogative contravenes a citizen’s constitutional rights. And, as all would agree, those instances arise only rarely. But invoking legislative prerogative neither informs the issue of comparative sentencing practices in other jurisdictions nor decides it. If it did, there would be no point to the analysis, since any result could be trumped with the government’s claim of prerogative.
To the extent the parties have joined the issue, we cannot say the result obviously favors the State and certainly not to the degree that it would overcome the substantial considerations militating for a finding of unconstitutionality. In a study of this sort, one state or group of states necessarily will impose the harshest punishment and some other the most lenient. That cannot be decisive. If all the states were to take a similar approach with only minor variances, an argument for unconstitutionality would be more difficult to press. A single state out of step with that commonality might be susceptible to constitutional challenge for a substantially more severe punishment. The parties have not presented that picture to us. A substantial number of states do not seem to have coalesced around a single approach and certainly not the one Kansas has chosen. Had the numbers been reversed, with 46 states adopting irrevocable lifetime postrelease supervision, we would be looking at a materially different assessment on this factor.
The parties have not zeroed in on the most significant aspect of the Kansas scheme: What triggers a violation of the supervision and what consequence follows? They have not indicated whether other states conform to Kansas’ requirement that a felony conviction for someone on lifetime supervised release automatically results in imprisonment for life without any possibility of reprieve. Even were we to assume the three other states identified as having irrevocable lifetime postrelease supervision follow that course, we would not be disposed to treat that outcome any more or less favorably for constitutional purposes.
4. Conclusion
As the discussion to this point foreshadows, the imposition of lifetime postrelease supervision on Proctor violates the Eighth Amendment as cruel and unusual punishment. That is true under both the “narrow proportionality” test Justice Kennedy has formulated and the more holistic proportionality review Justice Powell outlined for the majority in Solem and the Kansas Supreme Court applied in Freeman.
We do not belabor or repeat that discussion. The comparison of Proctor’s hypothecated criminal history with a punishment of life in prison without parole depicts gross disproportionality. The United States Supreme Court has never approved a recidivist statute imposing that sentence for a second conviction and has often discussed the necessity for demonstrable incorrigibility — an ongoing inability to conform to the criminal law — to warrant lengthy imprisonment for repeat offenders. The regimen for lifetime post-release supervision does not satisfy those standards.
The Kansas criminal and sentencing statutes punish other offenses and combinations of offenses more harshly. Particularly telling, we think, if Proctor first committed a felony property offense and then aggravated indecent solicitation, he would not face nearly so unyielding a punishment as he does for committing those crimes in reverse order. Persons released from prison after committing homicide offenses would be treated far more leniently upon committing a felony property crime. And, to the extent the parties have addressed comparable sentences in other states, the evidence places Kansas in a distinct minority. The intrastate and interstate comparisons point toward a constitutionally defective scheme whether considered as criteria intended to confirm or discount an initial finding of gross disproportionality or as ingredients in an overall determination of unconstitutionality.
The presumption of constitutionality fails to aid the State on lifetime postrelease supervision. The presumption typically applies as a canon of construction to lend a reading to statutory language that avoids constitutional issues or defects. Clark v. Martinez, 543 U.S. 371, 380-82, 125 S. Ct. 716, 160 L. Ed. 2d 734 (2005) (As between “plausible statutory constructions,” a court should reject one that “would raise a multitude of constitutional problems.”); St. Louis S. W. Ry. Co. v. Arkansas, 235 U.S. 350, 369-70, 35 S. Ct. 99, 59 L. Ed. 265 (1914); Planned Parenthood of Central New Jersey v. Farmer, 220 F.3d 127, 135-36 (3d Cir. 2000). A court, for example, may apply a narrow construction to an otherwise potentially vague statute to supply sufficient specificity to avert a constitutional deficiency. Boos v. Barry, 485 U.S. 312, 330-31, 108 S. Ct. 1157, 99 L. Ed. 2d 333 (1998); United States v. Sutcliffe, 505 F.3d 944, 953 (9th Cir. 2007). Here, the language of tire critical statutes is plain rather than ambiguous or vague. A court may not construe a statute in a way that is irreconcilable with its words to trowel over a constitutional defect. Salinas v. United States, 522 U.S. 52, 60, 118 S. Ct. 469, 139 L. Ed. 2d 352 (1997) (court may not engage “disingenuous evasion” in guise of statutory construction to deflect constitutional challenge); Boos, 485 U.S. at 330-31 (The judicial construction of the statutory language must be “fairly possible.”).
We, therefore, find lifetime postrelease supervision as applied to Proctor to be cruel and unusual punishment violating die Eighth Amendment.
VI. Section 9 of the Kansas Constitution Bill of Rights
The Kansas Supreme Court has consistently held that § 9 of the Kansas Constitution Bill of Rights permits proportionality challenges to die duration of incarceration for specific offenses. State v. Gomez, 290 Kan. 858, 863, 235 P.3d 1203 (2010); State v. McDaniel & Owens, 228 Kan. 172, 185, 612 P.2d 1231 (1980). And die Kansas Supreme Court has so recognized notwithstanding its expressed doubts in the past about the viability of those challenges under the Eighth Amendment. McDaniel, 228 Kan. at 184-85. In McDaniel, the Kansas Supreme Court questioned whether Eighth Amendment proportionality review of prison terms survived Rummel. 228 Kan. at 184. Regardless of the accuracy of that assumption, the Kansas Supreme Court found such protections for state citizens in § 9, thereby unequivocally recognizing the scope of the Kansas constitutional provision as a source of rights independent of the Eighth Amendment. 228 Kan. at 185. In light of Graham, 130 S. Ct. at 2021, the Kansas Supreme Court reaffirmed the viability of proportionality challenges to noncapital sentences under the Eighth Amendment. Gomez, 290 Kan. at 863. The two provisions, therefore, afford comparable protections, given how the United States Supreme Court and the Kansas Supreme Court respectively construe the federal and state constitutions today. But it is not because the state constitutional prohibition inherently depends upon the measure of the Eighth Amendment for its own metes and bounds.
In State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), the Kansas Supreme Court construed § 9 of the Kansas Constitution Bill of Rights to prohibit “punishment... if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” The court recognized three factors to be considered in assessing the constitutionality of a given punishment. 223 Kan. at 367. The first factor examines “the nature of the offense and the character of the offender . . . with particular regard to the degree of danger present to society.” 223 Kan. at 367. The examination should take into account the “facts of the crime” and “violent or nonviolent nature of the offense” along with “the extent of [the defendant’s] culpability for” any resulting injuries and the way the punishment serves recognized “penological purposes.” 223 Kan. at 367. The second factor entails comparison of the punishment with sentences for more serious offenses in Kansas. 223 Kan. at 367. If more serious crimes were punished less harshly, then the challenged punishment would be constitutionally “suspect.” 223 Kan. at 367. The final factor requires comparison of the punishment to sentences in other jurisdictions for the same offense. 223 Kan. at 367.
The Kansas Supreme Court continues to rely on the Freeman factors as the core component in analyzing disproportionality. Gomez, 290 Kan. at 867. The factors are to be considered collectively, and no one alone looms as outcome determinative. 290 Kan. at 867. The Freeman factors and their application essentially parallel the analysis the United States Supreme Court used in Solem. See Solem, 463 U.S. at 292. But application of the complete narrow-proportionality test Justice Kennedy favors — which we have used for forensic purposes — covers the same territory.
The Kansas appellate courts’ discussion and application of the Freeman factors over the years have shed little light on the issue here. Many of the initial cases, including Freeman, upheld a provision in an earlier version of the criminal code requiring mandatory incarceration for defendants using firearms to commit crimes, a readily distinguishable issue. See, e.g., State v. Coleman, 224 Kan. 447, 452-53, 580 P.2d 1329 (1978). The use-of-a-firearm provision did not lengthen the terms of incarceration for the offenses but effectively eliminated probation as a sentencing option. Those cases afford no meaningful guidance in applying tire Freeman factors to the significantly different factual setting here.
In State v. Harder, 8 Kan. App. 2d 98, 103, 650 P.2d 724 (1982), this court rejected an Eighth Amendment challenge to a recidivist provision increasing a second possession-of-marijuana offense from a misdemeanor to a comparatively serious felony. But the court did so in a single paragraph without any developed rationale or any reference to case authority construing the Eighth Amendment or § 9 of the Kansas Constitution Bill of Rights.
Notwithstanding its detailed compilation and discussion of federal and Kansas authority on cruel and unusual punishment, Van Dyke v. State, 31 Kan. App. 2d 668, 672-77, 70 P.3d 1217 (2003), does not directly aid in deciding this case because the underlying facts were markedly different, and the analysis of proportionality is distinctly fact-bound. In that case, a 79-year-old man pled guilty to one count of attempting to rape his 10-year-old granddaughter and challenged his 55-month sentence as cruel and unusual pun ishment. Not surprisingly, this court found no gross disproportionality between the offense and the sentence. Van Dyke, 31 Kan. App. 2d at 677. The sentence was neither “extraordinary” nor “extreme” and could not be characterized as “inhumane, shocking, barbarous” or otherwise incompatible with the protections of the Eighth Amendment or § 9. Van Dyke, 31 Kan. App. 2d at 677, 679. As a result, the court didn’t consider any comparative information on penalties for other crimes in Kansas or the treatment of similar offenses in other jurisdictions. But the decision in Van Dyke upholding the constitutionality of a mainstream sentence helps little in resolving this case.
More recently, the Supreme Court has declined to address life sentences for designated sex crimes or lifetime postrelease supervision because the defendants either failed to develop a sufficient record below or failed to raise the issue at all at the trial level. See State v. Roberts, 293 Kan. 1093, 1095-96, 272 P.3d 24 (2012) (declining to consider challenge); State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010) (remanding for further proceedings). Some of those cases include general observations about the Freeman factors of which we have taken note, but none of them applied the factors to resolve a constitutional challenge.
Before deciding Freeman, the Kansas Supreme Court upheld various iterations of habitual criminal statutes against cruel and unusual punishment challenges. See Cipolla v. State, 207 Kan. 822, 824-25, 486 P.2d 1391 (1971). Those statutes commonly permitted a court to double or treble the sentence of an offender if he or she had one or two previous felony convictions. Those cases obviously did not apply Freeman or the United States Supreme Court authority of the modem era. As a result, they are not especially persuasive or illuminating. But the results would be compatible with, for example, the 25-years-to-life sentence upheld for the recidivist offender in Ewing. See Cipolla, 207 Kan. at 824 (citing sentence of 20 to 42 years imposed on a habitual offender for robbeiy in Scoggins v. State, 203 Kan. 489, 454 P.2d 550 [1969], and the same sentence imposed for the same offense on a second-time felon in State v. Shaw, 201 Kan. 248, 440 P.2d 570 [1968], as illustrative of constitutionally permissible punishment). In short, there is little Kansas appellate authority directly applicable to the issue before us.
In concluding Proctors sentence violates § 9 of the Kansas Constitution Bill of Rights, we do not replicate the Eighth Amendment analysis here. Because of the common components in the narrow proportionality test and the Freeman factors, the rationale finding Proctor’s punishment cruel and unusual under the Eighth Amendment is sufficient to require the same result under § 9 of the Kansas Constitution Bill of Rights. We do, however, emphasize that we have separately reviewed and applied the Kansas constitutional prohibition of cruel or unusual punishment in arriving at that conclusion.
VII. Conclusion
We vacate Proctor’s sentence to the extent it calls for lifetime postrelease supervision. That portion of the sentence violates the protections against cruel and unusual punishment in the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. The result requires remand to the district court so that Proctor may be resentenced to a fixed period of postrelease supervision consistent with Kansas law apart from those statutes pertaining to or requiring lifetime postrelease supervision.
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Marquardt, J.:
Robert Lynn Bellinger (Robert) was convicted of aggravated assault and criminal threat. On appeal, Robert claims that the district court erred in denying his request for jury instructions on self-defense and defense of property. We affirm.
Brothers Robert and Michael Bellinger owned adjoining farms in Pottawatomie County, which they used primarily for grazing cattle. The brothers had a contentious history with each other. Prior to the incident that caused the filing of criminal charges against Robert, the brothers had a dispute because Katheryn Bellinger (Michael’s ex-wife and current business partner) burned some of Robert’s pasture. Another problem occurred when two of Robert’s bulls and a cow wandered into Michael’s pasture, and Michael put them in his catch pen.
At approximately noon on June 4, 2009, Michael, Katheryn, and their son, Matthew, drove to Robert’s farm to retrieve Katheryn’s grain truck that she had loaned to Robert. Michael testified that he did not want to talk with Robert, so he sent Matthew, who was able to get along with Robert, to find Robert to ask if they could get the truck. Michael and Katheryn waited in a truck on the public road until they were told that it was okay with Robert to get the truck. When Matthew located Robert, he asked if “we” could get the truck. Robert told Michael it was okay. According to Robert, he assumed that the “we” meant Matthew and Katheryn.
Matthew returned to Michael’s truck and the three drove to Robert’s hay shed, where the grain truck was stored. When Robert drove up to the hay shed on his tractor, he saw Michael and Katheryn sitting in their truck. Robert then proceeded to help Matthew move a piece of equipment that was blocking access to the grain truck.
After moving the piece of equipment, Robert walked up to the driver s side window of Michael’s truck, where Michael was sitting. Up to that time, there had been no exchange of any kind that day between Robert and Michael. Robert testified that he initiated the contact with Michael when he said, “Why did you leave my cows in the catch pen?” Michael responded that Robert needed to keep his cattle out of Michael’s pasture. On cross-examination, Michael was asked:
“Q. You agree that you told Bob if his cows got in your pasture again you were going to take them to the sale barn?
“A. Yeah, that is what you’re supposed to do when your cattle or somebody else’s cattle get in your pasture. By law you’re supposed to get ahold of the Sheriff, or take them to the sale bam.”
When Robert’s cattle got into Michael’s pasture, he put them in a catch pen. Michael testified that he tried to call Robert on his cell phone to tell him about the cattle, but Robert would not take the call, so he called the sheriff.
After Robert approached Michael, both brothers testified that the argument escalated from there. Michael testified that it turned into a “yelling match” until Robert walked away, said “I’ll Mil you,” and got the rifle.
The following exchange took place when Robert was cross-examined:
“Q. Now, when you approached Mike — Let’s go back to June 4th, and you know he’s mad and you come up to the truck and you’re talking to him about the cows. What did you think was going to happen when you guys started in and about the cows?
“A. I thought they would tell me why he did that.
“Q. Was there anything in your history that would lead you to believe that he would do that calmly?
“A. Well, no, but I hoped he would.
"Q. Okay. That’s — but — okay.
“And then you go up to him and you — I think you tell me that the whole time you two are talking, he’s yelling and cussing and you’re talking with him calmly like you are now?
“A. He’s not yelling to be yelling, he’s belligerent and he was not yelling like standing up and screaming across the city street, but he’s got a strong loud voice that he was using and it was similar to being belligerent.
“Q. And you would agree your brother does have a pretty booming voice; right?
“A. Yes.
“Q. And that’s on a normal level?
"A. No. No. When he talks to people he’s more quiet.
“Q. Okay. So tiren you’re saying right now when you guys are discussing the cows, about taking them to the sale bam, shooting them, stabbing them, he was belligerent or not angry?
“A. He raised his voice tiren but he was angry. He wasn’t mad. He was just angiy.
“Q. Okay. But at some point you say — Okay.
“You testified on direct that he was so angry he was getting angrier, he’s yelling at you, he says, Til shoot the cows’, and he says, ‘Go get your gun,’ and you felt that he was going to come out of that truck and all of a sudden you felt your personal safety was in jeopardy; isn’t that what you testified to on direct; right?
“A. Yes.
“Q. Okay. But now you’re saying, well, he wasn’t mad, he was belligerent?
“A. As we were discussing tire food [sic] of discussion he heated on up and at the end of the discussion he was ready to kill me. You could see that he had his jaw set and he was ready to come get me.
“Q. And yet he never got out of the track; did he?
‘‘A. I went and got —
“Q. Did he get out of the truck, Mr. Bellinger?
“A. No, sir. No, Ma’am.
“Q. In fact, you were able to turn away from him, walk over to this other truck — because you can’t run apparently, so you walked over to the other truck and you had to pry the gun out, according to your testimony, and he never got out of the track; did he?
“A. Because I left the truck. If I had stood there —
“Q. Did he get out of the truck?
“A. No.”
Robert testified that he threatened to shoot or ldll Michael, to which Michael responded, “Go ahead.” Robert also testified that Michael told him, “Go get your gun.”
Robert testified that Michael was belligerent, and he believed that Michael was “ready to come out of that cab and beat the hell out of [him].” Robert also testified that he thought that Michael might set his hay shed on fire, but there is no evidence to support this assertion. While Michael sat in the truck, Robert walked away and got the .22 caliber rifle that was on the floor of another truck parked nearby.
Robert came back to the truck where Michael remained, put the rifle within 26 to 28 inches from Michael’s head, and ordered Mi chael to leave his property. Although Robert testified that he did not believe the rifle was loaded, he moved it slightly, in case he was wrong, then pulled the trigger. Robert testified that he wanted to scare Michael. The rifle fired. Miraculously, the bullet missed both Michael and Katheryn but shattered the back window of the truck cab. Katheryn and Michael testified that Robert fired the rifle within seconds after telling Michael to leave. Robert did not dispute this fact.
Robert was somewhat equivocal when asked whether he intended to fire the rifle. On direct examination, he testified he “touched” the trigger, but on cross-examination he testified that the rifle accidentally fired when he intended to pull the trigger to make it dry fire.
That caused Michael to get out of the truck and confront Robert. Although the details differed depending on who was giving the testimony, Michael was shot during the struggle. However, Michael did manage to take the rifle away from Robert and hit him at least once with the butt of the rifle. Matthew got between the two and stopped the fight. Then, Michael, Katheryn, and Matthew drove away.
Robert called 911 after the shooting. The Riley County Police Department dispatcher asked if the shooting was accidental, to which Robert replied, “No.” Indeed, he repeatedly told the dispatcher, “I shot my brother.” Robert later testified he was terrified and confused when he called to report the shooting. Also, while police drove Robert to the county jail, Robert commented, without being questioned, that he and Michael constantly argued and never got along.
The State filed a four-count information against Robert, alleging attempted premeditated murder against Michael, in violation of K.S.A. 21-3301 and 21-3401(a); aggravated battery against Michael, in violation of K.S.A. 21-3414(a)(l)(A); aggravated assault against Katheryn, in violation of K.S.A. 21-3410(a); and criminal threat against Michael, in violation of K.S.A. 21-3419(a)(l).
Robert requested jury instructions on self-defense and defense of property, both of which the trial court ultimately denied. On May 21, 2010, the jury convicted Robert of aggravated assault and criminal threat but acquitted him on the other charges. The court granted Robert 24 months of probation, with underlying sentences of 12 months’ and 6 months’ incarceration, respectively, for the aggravated assault and criminal threat convictions. Robert timely appeals the district court’s denial of his requested instructions.
Self-Defense Jury Instruction
A defendant is entitled to instructions on the law applicable to his or her theory of defense if there is evidence to support the theory. State v, Hendrix, 289 Kan. 859, 861, 218 P.3d 40 (2009). However, there must be evidence which, viewed in the light most favorable to the defendant, is sufficient to justify a rational fact-finder finding in accordance with the defendant’s theory. 289 Kan. at 861.
When the trial court refuses to give a requested instruction, an appellate court must review the evidence in the light most favorable to the party requesting the instruction. State v. Ransom, 288 Kan. 697, 713, 207 P.3d 208 (2009). In arguing that the trial court erred in denying his request for a self-defense instruction, Robert claimed that since the jury acquitted him of attempted first-degree murder, its lesser-included offenses, and aggravated battery, it demonstrates that the jury concluded he did not intend to shoot Michael.
K.S.A. 2010 Supp. 21-3211, the self-defense statute, was enacted to apply retroactively and so applies to this crime, see K.S.A. 2010 Supp. 21-3220, and it states:
“(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such use of force is necessary to defend such person or a third person against such other’s imminent use of unlawful force.
“(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm, to such person or a third person.
“(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person.” (Emphasis added.)
At trial, in discussing whether a self-defense juiy instruction should be given, the court stated:
“As defense counsel candidly pointed out. . . [Hendrix requires] there has to be physical force applied by the defendant in defense of his person before he can claim a self defense, and the only time when it comes remotely close to an argument being made that physical force was applied [was] when there was a brief struggle over the firearm. And the Court’s recollection is that there wasn’t testimony from the defendant that he was applying force, trying to grab the gun away from Mr. Michael Bellinger.”
When Robert learned of the passage of House Substitute for Senate Bill 381 (L. 2010, ch. 124), he argued in a posttrial motion that the revised legislation permits self-defense when threats of force are uttered and not only when actual force is used. House Substitute for Senate Bill 381 became effective on April 29, 2010, and states:
“(1) ‘Use of force’ means any or all of the following directed at or upon another person or thing: (A) Words or actions that reasonably convey the threat of force, including threats to cause death or great bodily harm to a person; (B) the presentation or display of the means of force; or (C) the application of physical force, including by a weapon or through the actions of another.” L. 2010, ch. 124, sec. 2; K.S.A. 2010 Supp. 21-3221(a)(l).
Robert claims that under the revised statute, the jury might have found in his favor, and he should be granted a new trial. The trial court overruled the motion without explanation.
Although the court did not discuss this revised statute, the court did not err, because a reasonable juror could not conclude that Robert acted in justifiable self-defense. First, there is no evidence that any of Michael’s words or actions conveyed a threat of force to cause death or great bodily harm to Robert. There was no evidence of a means of force displayed by Michael. Finally, Michael displayed no physical force by actions or by a weapon against Robert.
“To establish that a use of force is a justifiable defense, . . . the party claiming immunity must pass both a subjective and an objective test.” McCracken v. Kohl, 286 Kan. 1114, Syl. ¶ 3, 191 P.3d 313 (2008).
Even though Robert testified that he believed Michael posed a threat to him, Robert walked away from the truck where Michael remained, returned to the truck with the rifle, and shot into the truck. Robert’s actions were not reasonable and were not the actions of a reasonable person defending himself against an imminent use of unlawful force. Robert’s actions were neither objectively nor subjectively justified and did not merit a self-defense instruction. Under McCracken, we are to consider whether a reasonable person in the claimant’s circumstances would have believed that a use of force — here using a gun — was necessary. 286 Kan. at 1119-20.
The dissent would have us believe Robert was acting as a reasonable person when he calmly walked away, got his gun, and shot into Michael’s track. The dissent focuses only on Robert’s subjective belief and ignores the objective facts. The dissent makes many “presumptions” and “indications” concerning facts that are not in evidence. This appellate court does not consider presumptions or indications, does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence; we deal with the facts in the record. State v. Ward, 292 Kan. 541, Syl. ¶ 12, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Even though the dissent claims that the issue of whether the court erred in failing to give the self-defense instruction is a legal issue, the dissent mostly discusses and reweighs the facts and questions the credibility of the witnesses. The dissent focuses on the physical attributes of the brothers, ignoring the fact that their physical attributes were obviously before the jury to assess when they testified at trial.
It is disturbing when the dissent implies that only Robert was telling the truth, stating that Robert took an “oath to tell the truth,” while ignoring the fact that all of the witnesses took an oath to tell the truth. The dissent also states that tire sincerity of Robert’s subjective belief should have been left to the jury. Robert’s subjective belief was decided by the jury.
Robert stated that Michael acted violently after Robert shot into Michael’s truck, shattering the back window, while Michael and Katheryn were sitting in the truck. Arguably, this is a nonissue because Robert had already committed aggravated assault and criminal threat before Michael ever got out of his truck.
Other evidence strongly undermines Robert’s assertion that Michael posed an imminent threat to him. Initially, Michael was non- confrontational when he came to retrieve the grain truck — he asked Matthew to get Robert’s permission while he waited in the truck off of Robert’s property. More importantly, as the State observes, Michael never left his truck until Robert shot at him. Michael also did not brandish a weapon or threaten to hurt Robert, verbally or by action. Michael had ample opportunity to exit his truck and physically confront Robert, but he did not. These facts are evidence that there was no imminent threat to Robert that would justify Robert’s request for a self-defense instruction. See State v. Brown, 46 Kan. App. 2d 210, 213, 262 P.3d 1055 (2011).
Moreover, even though Robert claims that he and Michael had a history of confrontations, our court has stated that a “history of violence between the defendant and the victim does not transform an incident into a situation of imminent danger.” State v. Rivera, No. 98,501, 2008 WL 5134688, at *5 (Kan. App. 2008) (unpublished opinion). Therefore, a reasonable person would not find Robert’s assertion that Michael posed an imminent threat to him sufficient to justify Robert threatening to shoot Michael, retrieving and waiving his rifle, and then, ultimately, shooting into the truck cab where Michael was sitting. The evidence suggests that all of Robert’s actions were not those of an individual acting in self-defense but were those of an aggressor.
Under K.S.A. 2010 Supp. 21-3214, the self-defense instruction under K.S.A. 2010 Supp. 21-3211 is not available to an individual who:
“(b) Initially provokes the use of any force against such person or another . . . ; or
“(c) Otherwise initially provokes the use of any force against such person or another, unless:
(1) Such person has reasonable grounds to believe that such person is in imminent danger of death or great bodily harm, and such person has exhausted every reasonable means to escape such danger other than the use of deadly force; or
(2) In good faith, such person withdraws from physical contact with the assailant and indicates clearly to the assailant that such person desires to withdraw and terminate the use of such force, but the assailant continues or resumes the use of such force.”
Robert’s actions fall squarely within the actions proscribed in K.S.A. 2010 Supp. 32-3214 for an individual to whom the self-defense instruction is not available.
Robert suggested that the shooting was an accident, and if believed, this would undermine Robert’s assertion that he acted intentionally in self-defense. See State v. Stallard, No. 99,365, 2009 WL 596536, at °4 (Kan. App. 2009) (unpublished opinion). Robert testified he intentionally pulled the trigger of the rifle. Similarly, a Riley County dispatcher testified that Robert repeatedly told the dispatcher, “I shot my brother,” and when asked whether the shooting was an accident, Robert responded, “No.”
The trial court did not err in refusing to give the self-defense instruction.
Defense-of-Property Instruction
The same standard of review of a denial to give a requested self-defense instruction applies to the denial of a defense-of-property instruction. When the trial court refuses to give a requested instruction, an appellate court must review the evidence in a light most favorable to the party requesting the instruction. Ransom, 288 Kan. at 713. A defendant is entitled to instructions on the law applicable to his or her theory of defense if there is evidence to support the theory. Hendrix, 289 Kan. at 861. But there must be evidence which, viewed in the light most favorable to the defendant, is sufficient to justify a rational factfinder finding that a defense-of-property instruction should be given. 289 Kan. at 861.
Robert argues the trial court also erred in failing to grant his request for a defense-of-property jury instruction in accordance with K.S.A. 2010 Supp. 21-3213. Robert claims the trial court should have allowed him to present more evidence regarding the pasture burning incident because the evidence was relevant to support his defense-of-property issue.
Robert claims that the trial court erred by not allowing him to testify further about the pasture burning incident. Even if Robert had been allowed to testify further, the exclusion did not prejudice Robert’s defense. Michael, Katheryn, and Robert all testified about the pasture burning incident, suggesting that Katheiyn, not Michael, was responsible for the burning. Robert testified that he had no problem with Katheryn. Therefore, even if the court erred in sustaining the State’s objection, it is not reversible error. Robert was not prejudiced because die incident did not involve Michael.
K.S.A. 2010 Supp. 21-3213 articulates the justifiable force an individual may use in defending one’s property:
“A person who is lawfully in possession of property other tiran a dwelling, place of work or occupied vehicle is justified in the use of force against another for the purpose of preventing or terminating an unlawful interference with such property. Only such use of force as a reasonable person would deem necessary to prevent or terminate the interference may intentionally be used.” (Emphasis added.)
The statute for defense of property, like K.S.A. 2010 Supp. 21-3211, is subject to die provisions of K.S.A. 2010 Supp. 21-3214. Robert’s actions fall squarely within the actions that bar an individual from claiming a defense-of-property defense.
In rejecting Robert’s request for a defense-of-property jury instruction, the trial court assumed that Robert did not initially know Michael was accompanying Matthew and Katheryn when he gave permission to Matthew to retrieve the grain truck. Assuming that Michael did not obtain permission to enter Robert’s property, Robert did not order Michael off of his property when he approached Michael’s truck. Robert claims he was duped into giving Matthew permission to enter his property; therefore, Michael was a trespasser, and he had an “absolute right” to force Michael to leave. It is interesting to note that Robert did not tell Michael to leave his property during their argument. It was not until Robert came back to die truck with the rifle that he told Michael to leave. Robert shot the rifle within seconds after telling Michael to leave. There is no evidence that Michael did any act to interfere with any of Robert’s property or posed an imminent threat to Robert’s property or cattle.
The questions then are: Was Robert defending his property and, more importantly, was he acting reasonably when he shot at Michael? The State articulates several arguments in support of the trial court’s ruling that are consistent with our analysis above on the self-defense instruction issue concerning Robert’s lack of a reasonable belief that he needed to use such force against Michael.
We find that the district court did not err in denying Robert’s request for either a self-defense or a defense-of-property jury instruction.
Affirmed.
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Marquardt, J.:
Matthew M. Merrill appeals the district court’s refusal to remove Patrick Nichols as the case manager and its assessment of Nichols’ fees and costs against Merrill. We affirm in part, reverse in part, vacate in part, and remand with directions.
Matthew and Nancy Merrill filed cross-petitions for divorce in mid-2004. The district court granted the divorce on October 12, 2004, but retained jurisdiction over child custody, child support, and division of marital property. Throughout these proceedings, Nancy Merrill is referred to as Nancy Jadlow because she had remarried.
On April 21, 2005, the district court ordered the parties to participate in mediation with Larry Rute of Associates in Dispute Resolution (ADR) for unresolved issues. Following a hearing on August 3, 2005, the district court entered two separate journal entries, one concerning a parenting plan, child custody, and child support and the other resolving shared child expenses, division of property, and debt allocation.
On July 15, 2010, the district court ordered the parties to participate in case management with Patrick Nichols, as provided for in K.S.A. 23-1001 et seq. Nichols is a business partner of Larry Rute’s at ADR.
K.S.A. 23-1002(a) states: “The court may order case management, when appropriate, of any contested issue of child custody or parenting time at any time, upon the motion of a party or on the court’s own motion.” The statute enumerates when case management is appropriate. Even though the parties had only sought child custody modification on one occasion since the divorce 6 years earlier, the court ordered case management because of the parties’ “lack of constructive communication.” Lack of constructive communication is not one of the statutorily enumerated reasons for ordering case management.
When case management is ordered, a neutral case manager is appointed “to assist the parties in negotiating a plan for child custody, residency, or visitation or parenting time.” The court’s order required the parties to participate and cooperate with Nichols in resolving any parenting, custody, or financial issues related to the children.
On July 27, 2010, Nichols sent a letter to Merrill and Jadlow outlining, among other things, his expectation on the payment of fees. When Jadlow failed to pay Nichols’ $5,000 retainer, on September 1, 2010, Nichols wrote a letter to the court stating:
“Unfortunately, it appears tire case management will not be an effective conflict resolution technique in this matter for tire reasons outlined below.
“Nancy Jadlow, and more recently her husband Todd Jadlow, have communicated in no uncertain terms to tire Case Manager that they simply cannot afford this process. . . .
“Nancy Jadlow has stated repeatedly that she simply cannot afford case management. She protests that she had incurred huge legal bills and other expenses which simply make it not feasible for her to pay. High conflict is extremely expensive. Since she cannot pay the retainer, it is unlikely she will pay ongoing case management expenses. As such, case management is likely to simply become another flashpoint in the conflict between parties.
“Case management is intended to serve a rehabilitative function, guiding the parties into a better process by which they can raise their children. Since Nancy Jadlow cannot afford this process, and certainly if she cannot pay her retainer, it is unlikely that she will pay ongoing expenses. Therefore, case management is not appropriate.
“I recommend tire Court confirm the status quo as set forth in your Order, eliminate the contingencies that will occur if, as and when Mrs. Jadlow and her husband reestablish a permanent residence in Lawrence, Kansas. I recommend this for several reasons.
“1. It is important that there be a decision-maker. The parties have virtually no capacity to communicate in any way without escalating the conflict. As such, there is no cooperation between them. Absent case management, there is no likelihood that they will learn to cooperate. As such, one or the other must have the ability to make decisions about parenting time and parenting access.
“2. The problems in communication and decision-making are detailed in the report and your opinion. For the reasons set forth in your opinion, as between the two, Mr. Merrill is the more appropriate individual to receive decision-making authority in this case.
“3. If further difficulties arise between the parties, I would recommend that the Court grant sole custody to one of the parents. Based on the statements above, as between these two parents, it would appear that Mr. Merrill is the more appropriate parent to receive full custody. Full custody will allow one parent to make the essential decisions regarding the children. While this is a disfavored custody arrangement, it does provide an opportunity to protect the children from further conflict around day-to-day decisions.
“I appreciate the appointment. However, in this matter it does not appear that case management services are appropriate.”
Jadlow responded with a letter to tire court on September 3, 2010, stating that Nichols had told her and her husband that he initially
“was not interested in being the Case Manager in this case but that he had agreed to the appointment as a favor to Judge Shepherd. As such, it is concerning that Mr. Nichols initially had a lack of interest in providing services in this case and then provided a harsh recommendation to the Court based on a financial issue rather than on legitimate grounds in determining child custody.” (Emphasis added.)
Jadlow testified that Judge Shepherd’s administrative assistant contacted her, informing her that she would be permitted additional time to pay the retainer.
Nichols continued as the case manager and, in November 2010, he filed his first case manager’s report, recommending a shared parenting plan. In that report, Nichols noted that “both parties are strong-willed, intelligent and capable of litigious conduct.”
On February 3, 2011, Merrill wrote a letter to Jadlow stating that he intended to move to Kansas City and offering options for primary residential custody of the children. In pertinent part, the letter read:
“As for future school-years, it is my opinion that it would be in the children’s best interest for me to have primary residential custody during their remaining school years. If you agree, then I will agree to enroll them at The Pembroke Hill School, oversee their education there throughout high school and pay for their tuition. As you may be aware, .Pembroke Hill is a nationally-renowned college preparatory school. Here’s the website: http://www.pembrokehill.org. Please take a look at the school’s website, imagine the life that the girls could lead with me devoting 100% of my attention to them in a stable environment while they attend this premier school, and seriously consider this option. My entire family is now in the Kansas City area and would provide a support network. I would agree to drive the girls to you on your weekends after school on Friday and then pick them up from your house on Sunday evenings at 8:00 p.m. so that you would not need to drive into Kansas City. I implore you to choose this option. I ask for your agreement on this.
“If you don’t agree, then the alternative is for the girls to stay here in Lawrence with [A.S.M.] to attend Southwest and then Free State, and [A.M.M.] to finish Quail Run, attend West and then Free State. All the while having your attention divided among seven daughters and step-daughters in a chaotic environment that includes constant fighting between you and your husband, you and your parents and sister, your family and your husband, your husband and his ex-wife and her husband, and the girls with one-another.”
Merrill sent a copy of the letter to Nichols to inform him of his custody proposal and to provide Nichols with his new address. Nichols promptly sent a letter to Merrill and Jadlow, asking them to participate in a case management meeting within 2 weeks. Merrill sent an e-mail message to Nichols essentially stating that Nichols’ assistance was not required because there was no custody dispute.
Nichols responded with an e-mail message to Merrill which stated, “Matt, did you really send this to me? Really?” Merrill sent another letter to Nichols explaining that there was no dispute between himself and Jadlow concerning custody and, therefore, they did not need Nichols’ assistance. Merrill also claimed that Nichols’ case management was unprofessional and requested his resignation as the case manager.
Nichols prepared a proposed case management report with custody recommendations and sent it to the parties, ostensibly for their review and comment. Merrill then sent an e-mail message to Nichols suggesting a few changes. Merrill suggested that Nichols delete his suggestion that Merrill pay 75% of Nichols’ fees, which at that point totaled $1,312.51. Nichols responded to this e-mail message indicating no reservations about most of Merrill’s suggestions, except Merrill’s request that he delete the request for this payment. Nichols’ response stated:
“I decline your proposal here. My offer to you was to allow you to avoid presenting the issue to the court. If you do not agree that is your right. You have the right to seek to remove me, I have the right to be paid for those efforts which you chose to begin but not pursue. The offer was a courtesy to you since to explain the cost and reasons for the reccomendation [sic] I will need to include your letters, emails, motions etc along with my responses which some would conclude reflect negatively on you. If you change your mind about having that aired in court let me know. The report will be filed by Monday.”
Nichols filed this report with the court on March 10,2011, which recommended that the parties have joint custody of their children, with Jadlow as the primary residential parent. The report contained most of the changes that Merrill had suggested but included the request that Merrill be ordered to pay the $1,312.51.
On March 14, 2011, Merrill wrote a letter to tire court objecting to the payment of Nichols’ fee, and he also filed a motion to reassign tire case manager. Nichols responded by filing another case manager’s report on March 16, 2011, with six attachments and asked for an additional payment of $2,650 from Merrill. Merrill objected and moved to strike Nichols’ reports of March 10, 2011, and March 16, 2011. Nichols sent a letter to Merrill on March 18, 2011, stating: “I am concerned that you don’t understand the nature of the Case Management process.”
On April 8,2011, Nichols wrote a letter to the court and attached a motion asking the court to allow him to withdraw as case manager. On May 23, 2011, Judge Huff held a hearing on Merrill’s motion to reassign the case manager and Nichols’ motion to withdraw. During the hearing, the court stated that the case manager’s “position is important to me and he does have standing in the case manager decision in family law. . . . [T]his is how case manager works in Douglas County.” In replying to the court’s suggestion that Nichols withdraw his motion, Nichols replied that he “was in the process of reconsidering the motion to withdraw.” Nichols went on to say:
“I think the Court’s first question is should there be case management here. Second question is should I be the case manager. . . . And so if there’s someone else the Court can see that could do this job, boy, I’d be more than happy to go home, but I don’t know of anyone who could do this. As you can see at one point I wasn’t sure I could do it, so I’d like to just let that sit if you don’t mind. If you need me to formally withdraw it, I will.” (Emphasis added.)
At the conclusion of the hearing, Judge Huff took the motions under advisement and on August 5, 2011, issued a memorandum decision ordering Nichols to continue as case manager and assessing $7,575 against Merrill for Nichols’ fees. Merrill filed a timely notice of appeal. Nichols is not a party to this appeal.
Case Manager’s Motion to Withdraw
On appeal, Merrill’s first claim is that the district court erred in refusing to grant Nichols’ unopposed motion to withdraw as case manager. Merrill contends that K.S.A. 23-1003(b) gives a case manager an absolute right to withdraw from a case. Jadlow claims that Nichols either withdrew or abandoned his motion; therefore, the withdrawal issue is not properly before the appellate court. In his reply brief, Merrill contends that Nichols’ motion was never withdrawn and that the district court ruled on the motion, ordering Nichols to continue as case manager.
During the motion hearing on May 23, 2011, the court stated, “Okay. The next motion is a motion for withdrawal by you Mr. Nichols, which I’m hoping that you will withdraw at this point.” Nichols’ responded, “I would prefer to defer it until we conclude. I am not asking to withdraw at this time. ... If you need me to formally withdraw it, I will.” The court then stated, “It can sit for now.” The court’s August 2011 decision stated: “The court has requested that Mr. Nichols remain on the case. Mr. Nichols has expressed a willingness to do so, and the Court hereby orders that he continue serving as case manager.” Nichols, in essence, withdrew his motion by agreeing to continue as the case manager. However, the court also effectively overruled his motion by ordering Nichols to continue to serve.
Under K.S.A. 23-1003(b), a case manager “may withdraw at any time following the initial order.” The statute has a nonexclusive list of “sufficient reasons” for a case manager to withdraw. Among the reasons listed are nonpayment by a parly, lack of cooperation by a party, or “any other reason which shall be stated to the court in writing and considered adequate and sufficient reason by the court.” K.S.A. 23-1003(b).
The trial court made no findings of fact concerning Nichols’ reasons for requesting he be allowed to withdraw. An appellate court reviews the district court’s findings of fact to determine if the findings are supported by substantial competent evidence and are sufficient to support its conclusions of law. See Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). Here, the court made no findings of fact, it only made a statement that it wanted the case manager to continue.
In general, a litigant must object to inadequate findings of fact before the trial court to preserve the issue for appeal. Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006). When no party objects before the trial court, this court presumes that the trial court found tire facts necessary to support its judgment. Gilkey v. State, 31 Kan. App. 2d 77, 77-78, 60 P.3d 351, rev. denied 275 Kan. 963 (2003). Neither party objected to the lack of findings of fact; therefore, we affirm the district court’s ruling on the unopposed motion to withdraw.
Motion to Reassign the Case Manager
Merrill claims the district court abused its discretion in denying his motion of March 14, 2011, to reassign the case manager. When a motion is filed to reassign a case manager, the district court is required to review the request. See K.S.A. 23-1003(c). The decision to grant or deny such a motion is clearly committed to the discretion of the district court. In re Marriage of Gordon-Hanks, 27 Kan. App. 2d 987, 991, 10 P.3d 42, rev. denied 270 Kan. 898 (2000).
The party seeking removal of a case manager has the burden of proving that removal is necessary. See In re Marriage of Gordon-Hanks, 27 Kan. App. 2d at 994-95. In support of his motion, Merrill cites the following as evidence of Nichols’ bias and loss of neutrality: (1) Nichols’ threat to recommend sole custody of the chil dren to Merrill unless Jadlow paid the $5,000 retainer; (2) Nichols’ acrimonious comments and threats to grant sole custody of the children to Jadlow in his November 30, 2010, case management report; (3) Nichols’ unwarranted interference in Februaiy to Merrill’s suggested options for a change in custody and Nichols’ unprofessional responses to him; (4) Nichols’ use of derogatory language in his motion to withdraw and during the subsequent hearing; (5) Nichols’ threat to inform the court of Merrill’s conduct as litigious because of Merrill’s refusal to pay Nichols $737.50 for time spent responding to Merrill’s objections to two of the case manager’s reports; and (6) Nichols’ claim of $7,575 in fees for responding to Merrill’s attempts to remove Nichols as the case manager.
The district court’s memorandum decision does not address each of Merrill’s allegations of Nichols’ bias and loss of neutrality. It concluded only that
“evidence adduced at the hearing failed to show actual bias or a probability of bias. The case manager has often supported Mr. Merrill’s position; indeed, this is the first major disagreement. Notwithstanding Mr. Merrill’s claims of bias and the regrettable invective inflaming this case, the objective facts do not support any claim of actual or perceived bias.”
The district court’s decision constitutes a negative finding. When a district court finds a party has not carried his or her burden of proof, an appellate court reviews the record for evidence that the court arbitrarily disregarded undisputed evidence and abused its discretion or that the court’s finding was motivated by bias, passion, prejudice, or some other extrinsic consideration. Hall v. Dillon Companies, Inc., 286 Kan. 777, 781, 189 P.3d 508 (2008). Merrill suggests that the district court’s characterization of the evidence at tire hearing ignored clear evidence of Nichols’ bias, and the court abused its discretion in overruling his motion to reassign the case manager. An abuse of discretion occurs when the court’s action is arbitrary, fanciful, or unreasonable. Abuse of discretion means that no reasonable person would have made the decision that was made. Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009).
1. $5,000 Retainer
Merrill claims that Nichols initially demonstrated a lack of neutrality and objectivity by recommending that the court award sole custody to Merrill if Jadlow failed to pay Nichols’ $5,000 retainer.
Jadlow responded to Nichols’ letter, stating:
“On August 31st, both Todd [Jadlow] and I informed Mr. Nichols that we will have the $5,000 retainer paid by September 20th. Specifically, Todd and I indicated that we will provide him with two post dated checks (one post dated to September 5th in the amount of $2,500.00 and a second check post dated to September 20th in the amount of $2,500.00). Unfortunately, Mr. Nichols was unwilling to accept this arrangement and then submitted his letter to the Court indicating that case management was not appropriate.
“While I understand the fact that Mr. Nichols expects and rightfully so needs to be paid for his services, I have learned that other case managers do not require a $5,000.00 initial retainer. In fact, there is a large disparity in what Mr. Nichols is requesting per party versus what other case managers, including his own office partner (Mr. Larry Rute), request per party for the initial retainer. Specifically, the following five quotes have been provided as initial retainer fees for case management: (1) Bill Ebert $450.00 per parly; (2) Katherine Kirk $500 to $1,000.00 per party; (3) Nancy Caviar $1,000.00 per party; (4) Wes Crenshaw maximum $2,500.00 per party; (5) Larry Rute $500 to $2,500 per party.”
Jadlow expressed concern that Nichols would suggest a harsh custody result based solely upon Nichols’ personal financial concerns. Jadlow asked the court to appoint a new case manager; however, she did not pursue her reassignment request.
2. November 30, 2010, Report
After Jadlow paid Nichols’ retainer, Nichols continued as tire case manager and recommended that the parties have shared custody of the children. Merrill did not challenge this custody recommendation, which was entered as the order of the court on December 28, 2010. However, Merrill claims that Nichols’ comments in the report characterizing his conduct as litigious were unwarranted because he had agreed to the custody and parenting plan and had affirmed his intention not to litigate child custody matters.
Under K.S.A. 23-1003(d)(6), a party who disagrees with a case manager’s recommendations may file a motion for review of the recommendations by the court. The statute does not specify what kind of review the court is to make. When the court made this report its order, it merely stated: “There are no objections to the recommendations; therefore, pursuant to K.S.A. 23-1003, tírese recommendations shall become the orders of the court.”
Even though Nichols’ report stated that both parties were strong-willed and capable of litigious conduct, he devoted almost a full page in his report, in the section entitled “Litigious Conduct,” to criticizing Merrill. Nichols made no comments about Jadlow’s conduct. Nichols criticized Merrill because he filed “[bjriefs, objections, requests for findings of fact, interrogatories, etc. not contemplated as part of the case management process.” There is nothing in tire case management statutes that prohibits a party from fifing pleadings, and the parties are specifically allowed to file objections to a case manager’s report. Nichols’ statements are especially objectionable because tire parties were not experiencing disagreements regarding their children. Nichols concluded this section by stating:
“If Mr. Merrill or Ms. Jadlow [Dodik] are unable to work cooperatively with one another without excessively litigious conduct, tiren shared parenting may, in fact, not be the best placement opportunity for these minor children. Continued behavior of a litigious nature is not viewed favorably by the Case Manager or die Guardian Ad Litem. Both agree that this type of approach is not going to increase the likelihood of a favorable outcome in the future.”
Among Nichols’ recommendations was a request that his recommendations become the order of the court “immediately upon issuance.” Nichols stated:
“While the parties have an opportunity to object to tire Case Manager’s opinions and recommendations, and may be bound to do so by their own interests, the Case Manager’s recommendations should not be forestalled as a result of the litigation process. Each party here is ably represented. Botii have the capacity to be litigious when diey desire to do so. The prospect of the Case Manager’s recommendation[s] being delayed for weeks or months while the matter is in litigation undercuts the philosophy of case management, the speedy determination of the best interests of the children and the implementation of those recommendations without delay. It would be a mistake to allow either party to prevent implementation of the Case Manager’s recommendations in the future by filing objections, requesting hearings, presenting evidence and otherwise defeating tire benefits of case management.”
The district court’s order that all of the case manager’s reports become the order of the court immediately upon filing violates a party’s statutory right to object and to have the court review the objections prior to implementation. An order depriving the parties of the right to object to a case manager’s recommendations deprives the parties of due process and has the effect of the court abdicating its decision-making authority to the case manager. Although a case manager is to assist the court in carrying out its responsibilities, the case manager is not authorized to perform a judicial function. We find that the district court abused its discretion and erred in ordering immediate implementation of the case manager’s recommendations when they are filed.
3. Nichols’ Responses to Merrill’s Change of Custody Proposal
Merrill also contends that Nichols’ responses to Merrill’s February 3, 2011, letter to Jadlow demonstrated animosity and bias. Merrill’s argument contains two components. First, he contends that Nichols’ attempt to interject himself into an issue where there was no disagreement between the parties somehow demonstrates bias. Second, he argues that Nichols’ response to his request that Nichols cease his involvement demonstrates bias.
K.S.A. 23-1001 provides, in pertinent part:
“Case management under this act is the process by which a neutral case manager appointed by the court... assists the parties by providing a procedure, other than mediation, which facilitates negotiation of a plan for child custody, residency or visitation or parenting time. In the event that the parties are unable to reach an agreement, the case manager shall make recommendations to the court.”
When the court ordered case management, it stated:
“1. The parties shall resolve all child custody, parenting time matters not in the jurisdiction of the juvenile court, with the direction and assistance of the case manager appointed by the court. No motion may be filed without first referring the matter to the case manager for attempted resolution between the parties. . . .
“6. The case manager shall make recommendations to the parties and the court on the following types of issues if the parties cannot reach agreement: “c. changes of custody and parenting time due to change of residence location of a party.”
Merrill’s position is that because the parties had no disagreement on custody and no motion had been filed to change custody, there was no dispute and no reason for Nichols to be involved. While the statute implies a case manager’s recommendation regarding custody is only required when the parties cannot reach agreement, nothing in K.S.A. 23-1001 or the district court’s case management order excludes the case manager from involvement in facilitating a custody agreement. See In re Marriage of Gordon-Hanks, 27 Kan. App. 2d at 992.
Even though the court’s order anticipated the case manager’s involvement in “all child custody [and] parenting time matters,” the statute states that case management “is the process by which a neutral case manager appointed by the court... assists the parties by providing a procedure, other than mediation, which facilitates negotiation of a plan for child custody, residency or visitation or parenting time.” (Emphasis added.) K.S.A. 23-1001.
Merrill believed that the case manager was only to make a recommendation when the parties did not agree on custody. Nichols apparently was relying on the district court’s order that, as the case manager, he was to participate in all child custody issues. Because Merrill’s proposed change of residence had the potential to affect the existing custody arrangement, a modified child custody order might be required. There is a basis for both Merrill’s belief under the wording of the statute and Nichols’ interpretation of the trial court’s order. However, the communications between Merrill and Nichols require some scrutiny.
After Merrill wrote to Nichols expressing a belief that Nichols did not need to be involved in the custody matter, Nichols responded with an e-mail message that read: “Matt, did you really send this to me? Really?” Nichols’ response to Merrill was confrontational and more likely to facilitate conflict rather than cooperation, and it tends to support a finding of bias.
4. Nichols’ Derogatory Comments about Merrill
Merrill also contends that Nichols’ derogatoiy statements about him in Nichols’ motion to withdraw as case manager and during the subsequent court hearing demonstrated Nichols’ animosity and bias against him. In Nichols’ motion to withdraw, he characterized Merrill’s actions as “unrelenting [and] aggressive,” “spurious,” and “litigious.” At trial, Nichols admitted that he had characterized Merrill’s behavior in those terms when he discussed with his wife the stress this case was causing him. Nichols claims he did not discuss the facts of this case with his wife. The record on appeal shows that Nichols’ wife is tire Dr. Nichols who had been a counselor for some of the parties involved in this case.
According to K.S.A. 23-1001, the case manager is required to be a neutral person. As this court noted in In re Marriage of Gordon-11 anks, conflict between a party and the case manager does not, by itself, establish a lack of objectivity. 27 Kan. App. 2d at 992. Nichols claimed that Merrill lacked the ability to understand his position as case manager and labeled Merrill’s conduct as aggressive, litigious, and spurious. Merrill claimed that Nichols was acting in his own self-interest and was officious. Merrill and Nichols clearly exhibited antagonism toward each other. It is obvious that this antagonism damaged Nichols’ objectivity. We find that this loss of objectivity supports Merrill’s claim of bias.
5. Offer to Refrain from Filing Report
Merrill next claims that Nichols showed a lack of objectivity and bias when he offered to refrain from filing a report that would reflect negatively on Merrill if Merrill would pay Nichols $737.50. When Merrill objected to Nichols’ request for fees in the March 10 management report, Nichols refused to delete the fee request, explaining:
“I decline your proposal here. My offer to you was to allow you to avoid presenting the issue to the court. If you do not agree that is your right. You have the right to seek to remove me, I have the right to be paid for those efforts which you chose to begin but not pursue. The offer was a courtesy to you since to explain tire cost and reasons for the reccomendation [sic] I will need to include your letters, emails, motions etc [sic] along with my responses which some would con- elude reflect negatively on you. If you change your mind about having that aired in court let me know.”
Under K.S.A. 23-1001, Nichols was required to be a neutral case manager. Also, we recognize that Nichols had a statutoiy right to receive payment for his time spent on case management issues. See K.S.A. 23-1003(a)(6). However, Nichols threatened to file a negative report unless Merrill paid Nichols the costs and fees he requested. We view Nichols’ offer to refrain from reporting Merrill’s response to his e-mail as a threat and a demonstration of a lack of objectivity and neutrality.
The case manager should not attempt to coerce payment with a threat of filing a negative report. Because of the history of this case, the statements of the court, and the actions of the case manger, we find that this case should be sent back to a different district court judge for a determination of whether there are issues involving the children that still require a case manager’s involvement. If the court determines that a case manager is needed, a different case manager should be appointed.
6. $7,575 Bill
Finally, Merrill contends that Nichols’ billing him for $7,575 shows a bias and lack of objectivity because these fees were only incurred by Nichols in responding to Merrill’s various e-mails about the fee, the motion to reassign the case manager, and Nichols’ motion to withdraw as case manager. Jadlow claims she was “desirous of using the case management process, and wanted a meeting facilitated by Nichols to discuss the proposed parenting time change.” Jadlow does not identify any custody dispute that she and Merrill were having. And yet, she supports having a case manager involved.
We question whether Nichols’ request for payment under K.S.A. 23-1003 is appropriate. The case management procedure anticipates that the case manager’s fees will be paid by the parties and may be equitably apportioned. See K.S.A. 23-1003(a)(6) (authorizing the case manager to seek judicial assistance in collecting fees); K.S.A. 23-1003(b)(2) (listing nonpayment of fees as a basis for case manager’s withdrawal). K.S.A. 23-1003(d)(7) authorizes the court to assess costs and professional fees against a party who objects to a case manager’s recommendation. The court should not “rubber stamp” the request. The district court must make findings as to the reasonableness of the charges, taking into consideration whether the fees were incurred for services involving custody decisions or whether they were incurred for responding to a motion for reassignment or withdrawal of the case manager. All of these circumstances should be considered by the district court before ordering payment of the charges.
Fees Assessed Against a Party Who Filed a Motion to Reassign the Case Manager
Merrill next contends that the district court improperly assessed Nichols’ costs for time Nichols spent in preparing and filing his motion to withdraw and in defending against Merrill’s motion to reassign the case manager. Merrill argues that an award of the case manager’s costs and fees in responding to a motion to reassign the case manager would have a chilling effect on a party’s willingness to seek removal of a case manager. Second, Merrill urges this court to conclude that the district court lacked the statutory authority to award Nichols his fees for responding to the motion to reassign the case manager. Third, Merrill notes that the case manager requested reimbursement for inappropriate activity. Finally, Merrill contends that the case manager’s request for fees was filed after the hearing on the motion to reassign the case manager and Merrill was never given the opportunity to challenge the charges before they were ordered by the district court.
1. Chilling Effect
Without providing any authority for his assertion, Merrill argues, as a matter of law, that a case manager should not be permitted to recover the costs of defending an action to remove him or her as case manager because a party may forego a valid reason for removing a case manager for fear of incurring additional costs. While independent research has revealed no authority specifically related to K.S.A. 23-1003, the body of caselaw regarding the chilling effect of awarding attorney fees or costs after exercising a statutory right is instructive.
In Pinkerton v. Schwiethale, 208 Kan. 596, 601, 493 P.2d 200 (1972), the Kansas Supreme Court upheld a statute authorizing the recovery of attorney fees only to a prevailing plaintiff in a small claims motor vehicle negligence action against an argument that the statute violated due process and equal protection. The court recognized a rational basis for a distinction between plaintiffs and defendants because the plaintiff bears the burden of selecting the appropriate forum, bringing the proper parties into that forum, and establishing the basis for relief. K.S.A. 23-1003(d)(7) also creates a disparate classification that is justified. Assessing the costs and fees associated with an unsuccessful challenge to a case manager s recommendations on a custody issue has the effect of discouraging a party from challenging the recommendations. If K.S.A. 23-1003(d)(7) is applicable, the statute has a legitimate goal of discouraging a party from seeking reassignment of a case manager without justification.
Moreover, under K.S.A. 23-1003(d)(7), a district court is not ^required to assess costs. Even though the statute appears to have a chilling effect on a challenge to any part of a case manager’s report, Merrill has provided no evidence that the statute had any demonstrable chilling effect upon his decision to challenge Nichols’ request for fees. The question then is whether the statute even applies to time the case manager spent on a motion to reassign or remove a case manager.
2. Statutory Authority
Merrill contends that the district court lacked the statutory authority to award the case manager’s costs and fees incurred by responding to Merrill’s motion to reassign the case manager. Jadlow responds that the statutory language in K.S.A. 23-1003(d)(7) provides that fees “may be otherwise assessed by the court.” In awarding the requested fees, the district court reasoned:
“K.S.A. 23-1003(d)(7) provides that costs of the procedure and professional time may be assessed to the party who objected to the recommendations ‘or may be otherwise assessed by the court.’ Mr. Merrill’s challenges to the recommendations lack merit and are not supported by substantial evidence. It is not an insubstantial fee, but the Court finds it to be reasonable given the work Mr. Nichols did. The fees submitted by the case manager are approved. Other than the fees for the meeting about the new custody plan which involved both parties, the fees of $7,575.00 are assessed against Mr. Merrill who brought the objections.” (Emphasis added.)
Because K.S.A. 23-1003(d)(7) does not explicitly authorize the court to assess a case manager s fees against the party who has filed a motion to remove the case manager, this issue requires interpretation of K.S.A. 23-1003. Statutory construction involves a question of law over which an appellate court possesses unlimited review. See Unruh, 289 Kan. at 1193. The fundamental rule of statutory construction is that the court must give effect to the legislative intent if such intent may be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). The courts apply a presumption that the legislature intended the result effected by the plain language of the statute, and if the statute is unambiguous, the court will not resort to legislative history or canons of construction. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009).
In pertinent part, K.S.A. 23-1003(d) provides:
“(1) If parties have been ordered by the court to attempt to settle tire party’s disputes with tíre assistance of a case manager, and are unable to settle such disputes, the parties are to follow the recommendation or recommendations of the case manager as ordered by the court.
“(6) If a disputant party disagrees with a recommendation such party may file a motion before the court for a review at which time an order shall be made by the court. The case manager shall explain to the court either by report or testimony the reasons for such recommendation or recommendations.
“(7) Costs of the procedure and professional time may be assessed to the party who objected to the recommendations in the journal entry or may be otherwise assessed by the court.”
Here, the costs and fees were incurred because Merrill filed a motion asking the court to reassign the case manager and Nichols filed a motion to withdraw. A plain reading of K.S.A. 23-1003(d)(7) suggests that the costs awarded under K.S.A. 23-1003(d)(7) pertain exclusively to challenges to the case managers recommendations regarding disputes between the parties, not disputes between a party and the case manager or to the propriety of the case manager s continued participation in the case. Jadlow argues for an expansive interpretation of K.S.A. 23-1003(d)(7), saying:
“There is nothing statutorily constricting the nature of the fees incurred, at least as far as Petitioner suggests. Logically, the fees and costs of the procedure would almost always consist of the case manager’s time related to the objections. The caveat ‘or may otherwise be assessed by the court,’ also supports the notion that tire award may consist of whatever fees tire court deems appropriate, whether the fees relate to the objections or not.”
Jadlow’s argument is unpersuasive. The plain language of the statute permits the district court to assess the costs “of the procedure and professional time” against the party who challenged a case manager s recommendations. K.S.A. 23-1003(d)(7). In other words, the statute permits the court to fashion an award suitable to the circumstances of the particular case. Nevertheless, nothing in K.S.A. 23-1003(d)(7) authorizes the court to assess costs against a party for professional time wholly unrelated to the challenged custody and parenting recommendations.
Several facts disfavor Jadlow’s reading of the statute. First, the provision related to assessment of costs is a subsection of K.S.A. 23-1003(d), which pertains solely to case manager recommendations and related challenges. Subsection (c) allows a party to ask for removal of a case manager. If the legislature intended the cost-assessment provision to encompass any of the case manager’s time, it could have created an entirely new subsection within K.S.A. 23-1003, which would then presumably apply to all of K.S.A. 23-1003. Second, the legislature could have refrained from limiting recovery to costs associated with the objections to tire case manager’s recommendations. In K.S.A. 60-1610(b)(4), the legislature provided broad authority to assess costs, utilizing the following language: “Costs and attorney fees may be awarded to either party as justice and equity require.” Similarly, the legislature authorized a court to assess costs of court-ordered mediation “as equity and justice require.” K.S.A. 23-607. If the legislature had intended to grant the court similarly broad discretion in the case management context, it could have employed similar language.
Nevertheless, a broad reading of K.S.A. 23-1003(d)(7) does not necessarily conflict with K.S.A. 23-1003(c), which provides:
“A disputant party may request reassignment of a case manager by filing a motion with the court. The court shall consider such requests upon review. Repeated requests may raise a presumption of lack of parental cooperation and the court may. consider sanctions against tire uncooperative parent or parents.”
The imposition of costs and attorney fees is probably the most common sanction, especially in the context of child custody and parenting time disputes under K.S.A. 23-1001 et seq. Unlike a discovery violation, a court could not conscientiously strike a motion to reassign a case manager as a sanction for abuse of the reassignment procedure without first considering the merits of the motion. K.S.A. 23-1003(c) implicitly requires the court to make a finding that a party made repeated requests for reassignment of the case manager before assessing fees against that party. Merrill has not made repeated requests. If K.S.A. 23-1003(d)(7) authorizes a court to assess fees and costs against a party for seeking the removal of a case manager without considering the facts supporting the motion or making a finding that he made repeated requests, the court is unlikely to rely on K.S.A. 23-1003(c), which requires the additional finding.
For all of these reasons, we hold that K.S.A. 23-1003(d)(7) does not authorize a trial court to assess the case manager s fees spent in defending against a party’s motion seeking reassignment of the case manager without factual findings to support the decision. The district court abused its discretion in assessing costs against Merrill under K.S.A. 23-1003(d)(7).
Under K.S.A. 23-1003(a)(6), a case manager has the implicit authority to apportion costs between the parties to the extent that the time is related to his or her case management duties. A case manager clearly has an obligation to provide the court with recommendations pertaining to child custody, residency, or visitation or parenting time issues. See K.S.A. 23-1001; K.S.A. 23-1003(a)(3). We do not find that this duty logically extends to recommendations in favor of, or in opposition to, a motion to reassign or terminate case management.
The issue of the fee for responding to a motion to reassign the case manager does not involve an objection to a custody recommendation. The question then is whether the trial court has the authority to order those fees to be paid by one of the parties. Generally, a court may not award attorney fees absent such statutory authority. Without that authority, a trial court’s equitable powers do not extend to the awarding of attorney fees. Unruh, 289 Kan. at 1200. Under the facts of this case, we find that the trial court erred in assessing the $7,575 fee against Merrill.
In addition, it is troubling that a case manager would abandon his role as a neutral party and adopt an adversarial role against a party’s request to have the case manager reassigned, as occurred in the instant case. The case manager’s role is not to debate the necessity of case management with the parties; the court ordered case management and could enforce its order against uncooperative parties by appropriate means. Instead of becoming emotionally engaged in Merrill’s responses, the case manager should have submitted recommendations to the court regarding the proposed custody changes and/or reassignment of case management. For that reason, the entire $7,575 fee award is not justified under an implied authorization of the case manager to apportion the case management costs between the parties. Nichols’ involvement in disputing Merrill’s request to reassign a case manager went beyond the statutorily authorized role of a case manager when he became an adversary in the litigation.
Similarly, because a motion to withdraw is not advancing the statutorily defined role of case manager, a case manager’s time spent preparing a motion to withdraw as case manager and time spent defending against a motion to reassign the case manager are not appropriate bases for assessing fees to either party. The district court’s assessment of Nichols’ $7,575 costs and fees against Merrill constituted an abuse of judicial discretion. The case is remanded to the district court for a determination of the amount of fees appropriately attributable to Nichols’ role as a case manager and not the time spent in justifying his continued employment as the case manager.
3. Reimbursement for Inappropriate Activity
Merrill also challenges the trial court’s assessment of Nichols’ costs associated with allegedly inappropriate responses to his objection over the fees. Merrill classifies the activities for which Nichols should not receive reimbursement into four broad categories: (1) the $2,650 in fees related to Merrill’s request that Nichols voluntarily withdraw as case manager and to Nichols’ preparation of unnecessary reports that reflected negatively on Merrill; (2) the $2,512.50 in fees related to opposing the motion to reassign the case manager; (3) the $2,412.50 in costs related to opposing Merrill’s request for a continuance and opposing the motion to reassign the case manager, including contact with the guardian ad litem; and (4) the $737.50 in fees demanded by the case manager to forestall submission of his March 16 report pertaining to Merrill’s conduct.
In view of the foregoing discussion about the court’s authority for assessing these costs and fees against Merrill, further discussion of the fees is not necessary. See Rodarte v. Kansas Dept. of Transportation, 30 Kan. App. 2d 172, 183, 39 P.3d 675, rev. denied 274 Kan. 1113 (2002) (holding that an issue is moot where its resolution would have no practical effect on an existing controversy). Moreover, this court is not in a position to make factual determinations concerning the purpose of Nichols’ actions for which he is attempting to bill Merrill. See Hodges, 288 Kan. at 65. On remand, the district court should make factual determinations regarding Nichols’ conduct and award costs and fees only for Nichols’ time that was spent in dealing with a child custody, residency, visitation, or parenting dispute between the parties.
4. Evidence of Case Managers Time
Finally, Merrill contends that the district court erred in adopting Nichols’ request for fees when the only supporting evidence was filed on May 26, 2011, three days after the hearing on the motion to withdraw and the motion to reassign the case manager. Merrill suggests this was a due process violation because he never had the opportunity to cross-examine Nichols about the charges or otherwise challenge the evidence adopted by the court.
Again, we find that the district court lacked authority to assess Nichols’ fees against Merrill. The record clearly shows that Nichols filed his report regarding fees and accompanying invoices on May 26, 2011. Although Merrill objected to Nichols’ fee report, the district court did not hold a hearing to resolve the dispute. See In re Marriage of Gordon-Hanks, 27 Kan. App. 2d at 994-95 (reading into K.S.A. 23-1103[d][6] the right to a hearing on a disputed case management recommendation). The district court is required to hold a hearing on the issue of a case manager’s fees when an objection has been filed by one of the parties. The trial court abused its discretion in adopting Nichols’ fee request without a hearing.
We remand this case to a different district court judge; affirm the district court’s decision on the case manager’s motion to withdraw; reverse the district court’s denial of Merrill’s motion to assign a new case manager; charge the district court with determining whether a case manager is necessary, and if a case manager is required, appoint a different case manager; and vacate the fee award with instructions to hold an evidentiary hearing for the purpose of determining the amount, if any, of Nichols’ billable time was legitimately based on his role as a case manager. | [
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] |
Atcheson, J.:
Plaintiff Brenda Golden purchased dental veneers — porcelain overlays meant to improve the appearance of teeth — that Defendant Den-Mat manufactured and marketed and Defendant Dr. Carissa M. Gill, a dentist, put in place. Golden contends the veneers became discolored and stained despite representations from Den-Mat and Dr. Gill that they would retain their appearance. So she sued them in Sedgwick County District Court on the grounds the veneers breached implied warranties applicable to goods sold under Article 2 — -Sales of the Uniform Commercial Code (UCC), K.S.A. 84-2-101 et seq., and the transaction entailed deceptive acts and practices and improper limitations of those warranties in violation of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq. The district court granted summary judgment to Den-Mat and Dr. Gill. Golden has timely appealed. We reverse and remand the case for trial, except for one claim under the KCPA on which summary judgment was properly entered.
The district court relied primarily on arguments that Golden failed to file suit within the appropriate statutes of limitations. After setting out the factual history and procedural development of the case, we first address those bases for summary judgment. The district court improperly characterized Golden’s claims as torts and, therefore, applied the incorrect limitations period. The evidence does not support summary judgment on the proper limitations for UCC and KCPA claims.
The district court also determined summary judgment to be proper on substantive grounds related to some of Golden’s claims. Dr. Gill made additional arguments in the district court and again on appeal that she contends would warrant summary judgment. To a lesser extent, Den-Mat has asserted alternative arguments. We address those contentions as well.
Because of the breadth of the issues, this opinion delves into the law governing express and implied warranties under the UCC, de ceptive and unconscionable acts and practices under the KCPA, and the interplay of those two statutory schemes as they apply to contracts for the sale of goods to consumers. The unusual nature of the goods involved — dental veneers — has required an especially searching inquiry regarding the UCC. That search turned up no other directly analogous cases. Nonetheless, settled principles developed under the UCC and the KCPA undercut summary judgment based on the substantive grounds the district court actually cited and on the substantive grounds the defendants suggest as legal backstops.
We conclude that factual disputes remain as to: (1) the application of the UCC to the transaction; (2) the scope and breach of express warranties regarding the veneers; (3) the scope and breach of implied UCC warranties of merchantability and fitness of the veneers for a particular purpose; (4) whether Den-Mat or Dr. Gill engaged in deceptive acts or practices in violation of the KCPA; and (5) whether Den-Mat or Dr. Gill improperly attempted to limit those implied UCC warranties in violation of the KCPA. We conclude the district court properly granted summary judgment on Golden’s claim that any attempt to limit the UCC warranties amounted to an unconscionable act or practice under K.S.A. 50-627 in violation of the KCPA. That’s only because such an attempt specifically violates K.S.A. 50-639 and is outside the scope of K.S.A. 50-627.
Factual and Procedural History
Because the district court entered summaiy judgment against Plaintiff Golden, we review the facts in the light most favorable to her. So our narrative presents the events that way. Before turning to that recitation, we note that Defendants Den-Mat Corporation, Cerinate Corporation, and Den-Mat Holdings, LLC appear to be united in interest and are represented by the same counsel. Neither the facts, as we understand them, nor the legal issues on appeal require we distinguish among those defendants. We refer to them collectively as Den-Mat.
In late 2004, Golden wanted to replace the veneers on her teeth with new ones that would give her smile what she described as a “super white” appearance. Veneers are synthetic panels cemented to the front of a person’s teeth, thereby covering discoloration or other imperfections in the natural dentition. Golden saw a magazine advertisement for Cerinate veneers, a proprietaiy product Den-Mat manufactures. In response to her telephone call to the number in the advertisement, Den-Mat sent Golden a brochure describing the Cerinate veneers as “thin porcelain shields . . . bonded to the front of’ the teeth “to create dramatic changes in your smile.” The brochure touted “long-term clinical research” showing the Cerinate veneers would last up to 16 years “with no discoloration” and “100% retention.” The brochure also explained that the porcelain veneers “are stronger and more durable” than comparable products made from plastic. According to the brochure, “[sjometimes plastic composites stain and discolor with age, whereas, Cerinate Veneers maintain their beautiful luster and vitality.” The brochure referred several times to the durability of the veneers and promoted the “strong, patented adhesive” used to attach them. The brochure, however, contained no unequivocal statement that the veneers would not come loose or crack.
Golden decided to get the Cerinate veneers and contacted Den-Mat for a dentist in the Wichita area. Den-Mat supplied Golden with Dr. Gill’s name and contact information as the nearest professional authorized to apply Cerinate veneers. Dr. Gill worked in Wellington, some 35 miles south of Golden’s home.
Golden first met with Dr. Gill on November 8, 2004, and they discussed Golden’s desire for “really white” teeth. Golden wanted the whitest veneers Den-Mat produced. Golden showed Dr. Gill the Den-Mat brochure and specifically asked about the durability of the veneers and the potential for discoloration. (Dr. Gill contends she first saw the brochure in April 2007, when Golden complained about the veneers. But the conflict is of no moment on summary judgment because the evidence must be taken favorably to Golden as the party opposing the motions.) Apparently without referring specifically to the Cerinate veneers, Dr. Gill assured Golden that porcelain would not discolor. Dr. Gill recalled telling Golden that the whitest veneers might not be the best choice cos metically because they could look artificial rather than natural. But Golden was adamant she wanted the whitest shade.
Dr. Gill removed the old veneers, took impressions of Golden’s teeth, and ordered the new veneers from Den-Mat. On January 10, 2005, Dr. Gill attached the Cerinate veneers to Golden’s upper teeth. At the end of that visit, Dr. Gill gave Golden a written warranty for the veneers. The document is entitled “Five Year Limited Warranty” and states the Cerinate porcelain is “warranted against defects in workmanship and materials for a period of five (5) years from delivery date.” The warranty covers the “repair or replacement” of the veneers but expressly excludes the costs for “removal or reinsertion,” any cash refund, and consequential damages such as lost wages or pain and suffering. The warranty card states in small print that it “is in lieu of all other warranties, whether expressed or implied.” The warranty card was filled in with Golden’s name and address. Dr. Gill signed the card and a certification that tire veneers had been applied using Den-Mat’s bonding cement and appropriate preparation techniques.
Golden later testified in her deposition that she felt the veneers seemed darker or less white as soon as they had been affixed to her teeth. Nonetheless, Golden returned to Dr. Gill 3 weeks later and had the remaining veneers applied to her lower teeth. By then, one of the upper veneers had come loose and another appeared to have a crack in it. Dr. Gill ordered replacement veneers and later applied them; she did not charge Golden for that work.
Golden paid $9,875.25 for the Cerinate veneers. The payment was made to Dr. Gill. The record on appeal is unclear as to whether Golden made a single payment or paid a portion of the cost as a deposit. The record does not indicate when Golden tendered any payments. Neither a bill nor an invoice has been included among the evidentiaiy materials.
Another veneer came off about 6 months later. Dr. Gill reapplied the veneer, again at no cost to Golden. In late March 2007, another veneer came off. Dr. Gill ordered a replacement veneer from Den-Mat. The replacement veneer was considerably whiter than the veneers Golden already had. On April 23, 2007, Dr. Gill spoke with a Den-Mat representative who said it was possible that Golden’s veneers had become stained or had darkened over time. Dr. Gill recounted the conversation to Golden the same day.
Later on April 23, 2007, Golden wrote a letter to Dr. Gill expressing her dissatisfaction with the veneers and her belief they had developed “a gray cast” in the 15 months since they were placed on her teeth. Golden asked for Dr. Gill’s help in obtaining a new set of veneers from Den-Mat at no cost. Dr. Gill’s staff noted the letter in her office chart a week later. Den-Mat declined to replace Golden’s veneers.
In the first part of 2008, Golden went to her regular dentist to have the Cerinate veneers removed from her upper teeth and replaced with a similar product from another manufacturer. The replacements cost about $4,500. In the summary judgment materials, Golden submitted a close-up photograph of her teeth after die upper veneers had been replaced. In the photograph, the lower teeth, with the Cerinate veneers, are noticeably duller than the replacement veneers and seem to have what could be stains.
On January 9, 2008, Golden filed a petition against the Den-Mat entities and Dr. Gill alleging breach of express warranties regarding the veneers and breach of implied warranties of merchantability and fitness for a particular purpose. She also alleged violations of the KCPA for a deceptive act or practice based on statements regarding the characteristics of the veneers and an unconscionable act or practice based on an attempt to limit the implied warranties in violation of K.S.A. 50-639. Golden alleged the veneers had become stained and discolored and some of them came off or cracked. Den-Mat and Dr. Gill duly filed separate answers denying liability. The parties conducted significant discovery. In the final pretrial order, Golden sought to recover the cost of the Cerinate veneers; the cost of the replacement veneers she got in 2008; and $5,000 for lost time, inconvenience, and pain and suffering. Den-Mat and Dr. Gill filed separate motions for summary judgment with supporting memorandums and exhibits. Golden responded. The district court requested and received additional briefing on issues related to sales under the UCC.
The district court granted summary judgment to the defendants on all of Golden’s claims. In a short letter ruling issued on August 17, 2009, without citing supporting statutes or caselaw, the district court found that warranty claims against Den-Mat were torts filed beyond the 2-year statute of limitations. The district court held that the 3-year statute of limitations on the KCPA claims against Den-Mart expired in September 2007. As to Dr. Gill, the district court found die claims to be for professional negligence and, thus, governed by a 2-year statute of limitations that expired before Golden filed suit. The district court ruled that if the claims were brought under the UCC, Golden failed to give timely notice as required under the UCC. The district court found the KCPA inapplicable to Dr. Gill because the transaction was one for professional services rather than goods. And the district court found that the warranty card Dr. Gill gave to Golden did not limit implied warranties of merchantability or fitness for a particular use and did not otherwise violate the KCPA.
Golden has timely appealed. In their briefing to this court, the parties address an array of issues. Both Den-Mat and Dr. Gill reiterate other grounds they advanced in their motions and contend those grounds support summary judgment on the notion the district court may have reached the proper legal result, although not necessarily for the right reasons. See Rose v. Via Christi Health System, Inc., 279 Kan. 523, 525, 113 P.3d 241 (2005) (“If a trial court reaches the right result, its decision will be upheld even though the trial court relied upon the wrong ground or assigned erroneous reasons for its decision.”).
Legal Issues Standards of Review
We have alluded to the standards of review on an appeal from summary judgment. They are well settled, and the parties are familiar with them so we outline them only briefly. A party seeking summary judgment has the obligation to show, based on appropriate evidentiary materials, there are no disputed issues of material fact and judgment may, therefore, be entered in its favor as a matter of law. Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009); Korytkowski v. City of Ottawa, 283 Kan. 122, Syl. ¶ 1, 152 P.3d 53 (2007). In essence, the movant argues there is nothing for a jury or a trial judge sitting as factfinder to decide that would make any difference. The party opposing summary judgment must then point to evidence calling into question a material factual representation made in support of the motion. Shamberg, 289 Kan. at 900; Korytkowski, 283 Kan. 122, Syl. ¶ 1. If the opposing party does so, the motion should be denied so a factfinder may resolve that dispute. In addressing a request for summary judgment, the trial court must view the evidence most favorable to the party opposing the motion and give that party the benefit of every reasonable inference that might be drawn from the evidentiary record. Shamberg, 289 Kan. at 900; Korytkowski, 283 Kan. 122, Syl. ¶ 1. An appellate court applies the same standards in reviewing the entry of a summary judgment. Because entry of summary judgment amounts to a question of law- — it entails the application of legal principles to uncontroverted facts — an appellate court owes no deference to the trial court’s decision to grant the motion and review is unlimited. See Adams v. Board of Sedgwick County Comm'rs, 289 Kan. 577, 584, 214 P.3d 1173 (2009).
Statutes of Limitation and UCC Notice
The defendants asserted and the district court relied on multiple statute of limitations arguments to defeat Golden’s claims. The district court recast Golden’s statutory claims against both defendants under the UCC and her claims against Dr. Gill under the KCPA as common-law torts and granted summary judgment because, so treated, they were filed outside the governing limitations period. The district court also ruled that the KCPA claims against Den-Mat were filed after the 3-year statute of limitations had run. Both Dr. Gill and Den-Mat additionally argue that Golden failed to give timely notice under the UCC that die veneers failed to perform as warranted and, therefore, those claims should be barred. See K.S.A. 84-2-607(3)(a). While not strictly a statute of limitations, the requirement for timely notice that goods sold fail to conform to the contract creates a condition precedent for bringing suit under Article 2 of the UCC and, thus, would be applicable here. The district court erred in granting summary judgment on the grounds that Golden’s suit was filed after the governing statutes of limitation had expired or that the notice of breach was untimely for UCC purposes.
Before turning to those issues, we settle some procedural skirmishing between Golden and the defendants. Dr. Gill argues that Golden did not assert UCC claims in her petition. And Golden argues the defendants failed to properly preserve their statute of Hmitations defenses. Neither side presents a convincing procedural bar.
Golden did not specifically cite the UCC in her petition. But a plaintiff is not required to categorize causes of action or cite statutory or common-law bases for the suit. See Berry v. National Medical Services, Inc., 41 Kan. App. 2d. 612, Syl. ¶¶ 1, 2, 205 P.3d 745 (2009), aff'd on other grounds 292 Kan. 917, 257 P.3d 287 (2011). A plaintiff must simply set forth “a short and plain statement of the claim showing that the pleader is entitled to relief,” coupled with a demand for appropriate relief. K.S.A. 60-208(a). In her petition, Golden alleged misrepresentations about the Cerinate veneers, her reliance on those misrepresentations in purchasing the veneers, and their failure to maintain their appearance. She also characterized the veneers as “goods,” the term used to describe items subject to Article 2 of the UCC, citing K.S.A. 84-2-101 et seq.; see K.S.A. 84-2-102 (Article 2 applies to “transactions in goods”); K.S.A. 84-2-105(1) (defining goods). She alleged breaches of an express warranty and of warranties of merchantability and fitness for a particular purpose. Those allegations satisfy the notice requirements of an opening pleading. The legal theories may, but need not, be expressly identified in the petition; they can be fleshed out during the discovery process. Here, the UCC claims were plainly included in the final pretrial order. See K.S.A. 60-216. And the parties had full opportunity to address those claims on summary judgment. See Nelson v. Nelson, 288 Kan. 570, 584, 205 P.3d 715 (2009). The UCC claims are properly in the case.
Golden contends neither Den-Mat nor Dr. Gill preserved statute of limitations defenses in the pretrial order and Dr. Gill failed to affirmatively plead them in her answer. The record supports Golden’s assertion about the omissions. Ordinarily, those failures would amount to waivers of an affirmative defense. See McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, Syl. ¶ 8, 61 P.3d 68 (2002) (issue omitted from pretrial order generally should not be considered); Estate of Belden v. Brown County. 46 Kan. App. 2d 247, 266, 261 P.3d 943 (2011) (failure to plead affirmative defense results in waiver). But Den-Mat and Dr. Gill both presented statute of limitations defenses in their summary judgment motions. Golden responded on the merits without also arguing the defenses had been waived and, therefore, relinquished the procedural challenge to them. See 46 Kan. App. 2d at 266; Herrington v. Pechin, 198 Kan. 431, 434, 424 P.2d 624 (1967) (When the proponent argues or offers evidence on an affirmative defense without objection from the opposing party that the defense had not been pled, the court may consider die defense.). As to Dr. Gill, Golden mentioned in passing that die defense had not been stated in the pretrial order but made no argument it has been lost as a result. The statute of limitations defenses are properly in the case.
District Court Erred in Applying the 2-Year Limitations Period for Torts
We now turn to the district court’s characterization of Golden’s assertions against Den-Mat as tort claims and against Dr. Gill as professional negligence claims subject to a 2-year statute of limitations. See K.S.A. 60-513(a)(3), (a)(4), and (a)(7). We are handicapped in trying to discern die district court’s rationale because neither die letter ruling nor the journal entry reflecting die rulings contains any detailed explanations for the conclusions. Given the pleadings, the summary judgment briefing, and the pretrial order, we find the district court’s approach erroneous. Golden consistentiy described the wrongful conduct here as misrepresentations about the qualities of the Cerinate veneers — particularly that diey would not stain or discolor over time. On the summary judgment record, those purported misrepresentations arguably became part of the basis of the bargain embodied in the sale of the veneers. That sort of conduct potentially gives rise to a range of claims with differing limitations periods. The conduct could be fraudulent, a tort with a 2-year limitations period. Osterhaus v. Toth, 291 Kan. 759, 787-788, 249 P.3d 888 (2011). It may violate the KCPA, a statutory action with a 3-year limitations period under K.S.A. 60-512(2). Alexander v. Certified Master Builders Corp., 268 Kan. 812, 824, 1 P.3d 899 (2000); Haag v. Dry Basement, Inc., 11 Kan. App. 2d 649, 650, 732 P.2d 392, rev. denied 241 Kan. 838 (1987). It may amount to common-law breach of contract with either a 3-year or 5-year limitations period depending on whether the agreement was oral or written. See K.S.A. 60-511(1); K.S.A. 60-512(1). It may violate Article 2 of the UCC, which has a 4-year limitations period. K.S.A. 84-2-725(1).
A plaintiff may advance multiple theories of liability based either on a unitary course of conduct by a defendant or on a single legal injury. Price, Administrator v. Holmes, 198 Kan. 100, 103-04, 422 P.2d 976 (1967) (plaintiff may plead causes of action in contract and in tort arising from a single transaction); Marshel Investments, Inc. v. Cohen, 6 Kan. App. 2d 672, 679-80, 634 P.2d 133 (1981); see, e.g., Osterhaus, 291 Kan. at 760-61 (plaintiff brings claims under the KCPA, for fraud, and for breach of contract arising from a single transaction). A plaintiff may assert some available theories but not others. And the plaintiff may pick and choose at his or her discretion so long as the defendant has been fairly apprised of the circumstances. To the extent a defendant cannot determine the theories from the petition, he or she may pursue discovery, including interrogatories, to clarify the legal grounds or request clarification at a pretrial conference.
Golden sought to exercise her prerogative to define the claims she wished to assert. She plainly intended to rely on violations of the KCPA and the UCC based on representations about the veneers and implied warranties either created or protected under those statutory schemes. Golden was not asserting a tort-based products liability claim against Den-Mat, as by arguing the particular veneers she received were manufactured in a substandard way causing her physical harm. Nor was she contending Dr. Gill improperly applied them in a manner falling below standards for appropriate dental practice, a tort claim for professional negligence. Golden says the veneers did not hold up as promised — they stained and turned grey so she didn’t have the really white teeth she requested — and they were unfit for their intended use or purpose.
The district court had no legal basis to recast those claims into torts so they could be dismissed on statute of limitations grounds. On appeal, Den-Mat attempts to justify the district court’s treatment of Golden’s claims as torts because she listed pain and suffering damages in the pretrial order along with other relief. Recovery for pain and suffering typically is a tort remedy. But the notion that a plaintiff s requested monetary damages define the cause of action rather than the stated cause of action defining the appropriate monetary remedies borders on the nonsensical. If that were so, had Golden requested treble damages, the district court could have treated her claims as alleged violations of federal antitrust laws, 15 U.S.C. § 15 (2006), or the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1964(c) (2006), since they permit such a recovery. And, of course, the petition did not state claims under either of those federal statutory schemes. But the district court would have had no more business dismissing tire suit on that basis than it did in declaring the claims to be torts filed past the limitations deadline because Golden asked for pain and suffering damages. The proper approach is to disallow damages inconsistent with a party’s stated claim. The district court should have conformed the monetary damages to the claims, not the other way around. In short, the district court erred in dismissing Golden’s claims by treating them as torts filed beyond the statute of limitations.
In explaining why the district court erred in transforming Golden’s claims from ones under the KCPA and the UCC into common-law torts, we do not decide tire scope of legally permissible remedies provided in those statutes. For analytical purposes, we have simply assumed the noneconomic damages Golden has outlined in the pretrial order would be unavailable as a matter of law because that is how Den-Mat sought to explain the district court’s ruling. But we also note that Golden has indicated she has abandoned or intends to abandon any claim for pain and suffering. Because we are setting aside the summary judgment and remand ing for further proceedings, the parties and the district court will need to resolve the status of the nonecomomic damages.
Dr. Gill tries to bolster the district court’s treatment of the claims against her as ones for professional negligence by arguing she was not involved with the sale of the veneers. The argument lacks traction on summary judgment. The record, viewed favorably to Golden, contains evidence enmeshing Dr. Gill in the sale of the Cerinate veneers. Den-Mat referred Golden to Dr. Gill. Dr. Gill actually ordered and received the veneers. Golden paid Dr. Gill rather than Den-Mat for the veneers. The summary judgment record does not indicate that Golden made separate payments for the veneers and for Dr. Gill’s services in applying them. Dr. Gill presented Golden with the warranty card. Dr. Gill repaired and replaced individual veneers without any additional charge to Golden. All of those circumstances appear to involve Dr. Gill in the sale, although she offers different explanations for at least some of her conduct. Jurors sort out varied facts and their implications at trial. Summary judgment is not a vehicle for the courts to usurp that duty.
As important at this stage, Golden does not assert Dr. Gill’s conduct in applying the veneers was below accepted standards of care for dentists, a claim that would be tort based. She contends Dr. Gill joined in the misrepresentations about how the Cerinate veneers would not stain or darken, thereby inducing her to purchase that particular product to meet her stated desire for an exceptionally white smile. The harm Golden alleges lies in the statements of Den-Mat and of Dr. Gill fostering an inaccurate belief on her part about the attributes of goods in a consumer transaction, not in Dr. Gill’s having ineptly performed a dental procedure. Golden has not presented her claims as torts, and nothing requires that they be treated that way. The facts, taken favorably to her, outline warranty claims related to the sale of goods covered under the UCC. Neither defendants nor courts may remake colorable claims of plaintiffs into something drey are not so a defense that otherwise could not get off the ground soars to a summary judgment victory.
Statute of Limitations on UCC Claims and Untimely Notice of Breach
The UCC contains a 4-year statute of limitations for contract claims based on the sale of goods under Article 2 of the Code. K.S.A. 84-2-725(1) (“An action for breach of contract for sale must be commenced within four years after the cause of action has accrued.”). The UCC provides that the cause of action accrues when the breach occurs. The injured party need not know of the breach to trigger the limitations period. K.S.A. 84-2-725(2). Of particular importance here, given the facts, a breach of a contractual warranty under the UCC “occurs when tender of delivery is made.” K.S.A. 84-2-725(2). If the warranty includes a promise of future performance of the goods, a breach does not occur until the recipient discovers or should have discovered the deficient performance. K.S.A. 84-2-725(2). Consistent with those statutes, the Kansas Supreme Court has recognized the limitation period for a breach of warranty typically begins running when the goods are delivered or installed. Atlas Industries, Inc. v. National Cash Register Co., 216 Kan. 213, 221, 531 P.2d 41 (1975) (citing Val Decker Packing Co. v. Corn Products Sales Co., 411 F.2d 850, 851 [6th Cir. 1969]). That reflects the general rule. See RCI Contractors & Engineers v. Joe Rainero Tile, 677 F. Supp. 2d 914, 917 (W.D. Va. 2010); Ouellette v. Clinton Lindberg Cadillac Co., 60 S.W.3d 618, 621 (Mo. App. 2001).
Here, the veneers were delivered under the contract on January 10,2005, when Dr. Gill applied them to Golden’s upper teeth. The 4-year limitations period began to run then at the earliest. Golden filed suit on January 9, 2008, well within the limitations period in K.S.A. 84-2-725(1), (2). Assuming the UCC otherwise applies to the transaction, an issue we take up later, Golden asserted those claims against Den-Mat and Dr. Gill within the limitations period.
But Den-Mat and Dr. Gill also argued to the district court that Golden failed to provide timely notice that the veneers performed in a way that breached the sales contract and, therefore, her UCC claims should be dismissed as a matter of law. The notice requirement appears in K.S.A. 84-2-607(a)(3). The district court accepted that argument as an alternative basis for granting summary judgment on the UCC claims. The district court erred in doing so.
As we have indicated, Article 2 of the UCC governs the sale of goods and, thus, essentially reflects a codification of contract principles to be applied to transactions within its scope. See K.S.A. 84-2-101, Kansas Comment 1 (1996); K.S.A. 84-2-102. If the buyer of goods covered under the UCC “discovers or should have discovered” a breach of the contract after accepting the goods, the buyer “must within a reasonable time” notify the seller. K.S.A. 84-2-607(3)(a). A failure to give timely notice, as required in K.S.A. 84-2-607(3)(a), bars the buyer from any remedy. K.S.A. 84-2-607(3)(a). The purpose, in part, is to allow a seller a chance to look into the transaction and correct any deficiency, thereby giving the parties an opportunity to avert potentially expensive, time-consuming litigation. See K.S.A. 84-2-607, Kansas Comment 2 (1996); Smith v. Stewart, 233 Kan. 904, 909, 667 P.2d 358 (1983). The notification also permits the seller to prepare for negotiation or litigation, as by gathering and preserving documents and other evidentiary materials relevant to the transaction. 233 Kan. at 909.
Den-Mat and Dr. Gill argued that Golden failed to give timely notice of the problems with the veneers. They point to the letter Golden sent to Dr. Gill in late April 2007 as the first notification she was dissatisfied with the veneers and believed the sales contract had been breached. Assuming the letter to be the first notice of potential breach, Golden made her position known about 27 months after the veneers were delivered and applied and some 20 months before the UCC limitations period would have expired. Neither Den-Mat nor Dr. Gill suggests the delay compromised any defenses they might have had to the suit or otherwise resulted in the loss of evidence. They do not claim they might have been able to negotiate a resolution without litigation had Golden given notice sooner — suit was not filed for another 8 months after Dr. Gill received the letter.
Basically, Den-Mat and Dr. Gill contend Golden’s 27-month delay in giving notice was unreasonable as a matter of law under K.S.A. 84-2-607(3)(a). The district court apparently accepted that rationale. We do not. The statute requires notice within “a reason able time.” In turn, the UCC expressly recognizes that a reasonable time for acting “depends on tire nature, purpose and circumstances” of the required or contemplated action. K.S.A. 84-1-204(2). The Kansas Comment to K.S.A. 84-2-607 points out that the courts do not apply the notice-of-breach obligation as stringently in cases involving consumers as in those between commercial entities. And, according to the Comment, a relaxed notice requirement is particularly appropriate when the consumer-buyer’s delay neither prevented remediation of the breach nor prejudiced the seller in defending against the suit. K.S.A. 84-2-607, Kansas Comment 2 (1996).
The Kansas Supreme Court took that approach in Smith, recognizing that the reasonableness of the notice from a consumer-buyer under K.S.A. 84-2-607(3)(a) should be assessed “[ujnder the totality of the circumstances” rather than with “blind adherence to the generally appropriate ‘condition precedent’ concept,” especially when any claimed delay compromised none of the purposes to be furthered through timely notification. See Smith, 233 Kan. at 914. The court pointed out that the notice requirement aims “ ‘to defeat commercial bad faith, not to deprive a good faith consumer of his remedy.’ ” 233 Kan. at 914 (quoting Official UCC Comment 4 to K.S.A. 84-2-607). Other courts have taken the same view. Wal-Mart v. Wheeler, 262 Ga. App. 607, 611, 586 S.E.2d 83 (2003); Fitl v. Strek, 269 Neb. 51, 54-56, 690 N.W.2d 605 (2005) (2-year delay in giving notice of breach after consumer sale not unreasonable under Nebraska UCC 2-607); Maybank v. Kresge Co., 302 N.C. 129, 135-36, 273 S.E.2d 681 (1981) (3-year delayby consumer in giving notice of breach in sale of goods under UCC is not unreasonable as a matter of law on facts presented); see Hays v. General Elec. Co., 151 F. Supp. 2d 1001, 1012-13 (N.D. Ill. 2001) (In a case between commercial entities, the court recognizes that timeliness of notification under UCC 2-607 typically presents a jury question, especially if the buyer communicates before filing suit and without causing demonstrable prejudice to the seller.).
The circumstances here preclude a finding as a matter of law that Golden’s letter amounted to untimely notice under K.S.A. 84-2-607(3)(a). Given Golden’s status as a consumer and the lack of claimed prejudice from Den-Mat and Dr. Gill, the timeliness of the notice is a matter of fair debate and, hence, a question for the juiy. The courts commonly consider determinations of reasonable time under 2-607(3)(a) and under the UCC generally to be within the province of the factfinder. La Villa Fair v. Lewis Carpet Mills, Inc., 219 Kan. 395, 401-03, 548 P.2d 825 (1976) (rejection of goods within reasonable time under K.S.A. 84-2-602(1) question for fact-finder); Inter-Americas Ins. Corp. v. Imaging Solutions Co., 39 Kan. App. 2d 875, 885-86, 185 P.3d 963 (2008) (reasonable time under UCC “usually a question of fact for the jury”); see Sherkate Sahami Khass Rapol v. Henry R. John & Son, 701 F.2d 1049, 1051 (2d Cir. 1983) (rejection of goods under New York UCC 2-602); Hays, 151 F. Supp. 2d at 1012-13 (notice under Illinois version of UCC 2-607); Fitl, 269 Neb. at 54-56 (notice under Nebraska version of UCC 2-607). This is such a case. Whether Golden provided notice of breach within a reasonable time under K.S.A. 84-2-607(3)(a) should have been left for the jury.
Statute of Limitations on KCPA Claims
The district court also found that the KCPA claims against Den-Mat were barred by a 3-year statute of limitations period. See K.S.A. 60-512(2). In the letter ruling, the district court indicated it was “persuaded by Den-Mat” that any such claims should have been filed no later than September 2007. The summary judgment papers present an argument that Golden’s KCPA claims arose when she received the brochure from Den-Mat, but the date is nowhere established in the memoranda. Given the chronology of events, we can safely conclude that Golden received the brochure before Dr. Gill applied the veneers on January 10, 2005, and probably before their first consultation on November 8, 2004. Even within that time frame, however, we conclude the district court erred in dismissing the KCPA claims on limitations grounds.
As outlined in the final pretrial order, Golden makes a couple of claims under the KCPA. First, she contends representations the Cerinate veneers would not stain or darken and about their overall durability induced her to purchase them. She says those representations amounted to a deceptive act or practice that violated the KCPA, see K.S.A. 50-626. Second, she contends the written limited warranty she received violated the KCPA by diluting implied warranties under the UCC. See K.S.A. 50-639 (prohibiting limitation of implied UCC warranties and providing remedy for such limitation). She also characterizes the dilution of the warranties as an unconscionable act or practice independently violating K.S.A. 50-627.
Den-Mat’s limitations argument for dismissing the KCPA violation for diminution of the UCC warranties may be disposed of quickly. Golden received the written warranty that purported to exclude all other implied or express warranties on January 10,2005. So any violation arose then. Golden filed her petition on January 9, 2008. That is within the 3-year limitations period for KCPA claims, albeit with no time to spare.
The KCPA aims to protect consumers from unscrupulous business practices and, as remedial legislation, should be read liberally to further that objective. See K.S.A. 50-623; Moore v. Bird Engineering Co., 273 Kan. 2, Syl. ¶ 3, 41 P.3d 755 (2002); Stair v. Gaylord, 232 Kan. 765, 775, 659 P.2d 178 (1983) (KCPA should be liberally construed to protect consumers from deceptive or unconscionable practices and from unilateral warranty disclaimers). The KCPA prohibits deceptive acts and practices “in connection with a consumer transaction,” as described in K.S.A. 50-626. In turn, a “consumer transaction” has been broadly defined under the KCPA to mean “a sale ... or other disposition for value of property or services ... or a solicitation by a supplier with respect to any of these dispositions.” K.S.A. 50-624(c).
Den-Mat argues the alleged KCPA violation occurred when Golden received the brochure containing the statements she describes as deceptive. That happened more than 3 years before she filed her suit. Broadly reading the statutory language, a supplier might violate the KCPA by making a false or deceptive representation in an advertisement such as the brochure because that would be a solicitation for a sale and, thus, a consumer transaction within the meaning of the Act. And it would be such a transaction even if nothing more happened. So Den-Mat arguably violated the KCPA with the delivery of the brochure to Golden. The Kansas attorney general or the Sedgwick County district attorney might have been able to move against Den-Mat at that point to cut off any further dissemination of deceptive advertising. See Finstad v. Washburn University, 252 Kan. 465, 472-73, 845 P.2d 685 (1993) (K.S.A. 50-632 gives the attorney general and county or district attorneys authority to bring a KCPA enforcement action even though no “loss or injury result[s] from a violation.”). But the Kansas Supreme Court has construed the KCPA to require that a consumer must be “aggrieved” by a violation and “suffer[ an injury or] loss as the result of the publication” of an advertisement or other deceptive statement to create a private cause of action. Finstad, 252 Kan. at 471-72. A statute of limitations cannot begin to run absent circumstances arguably satisfying the legal requirements for a claim. Based on Finstad, Golden had no claim when she received the brochure or first met with Dr. Gill, since she had suffered no loss. The limitations clock could not have started ticking at that point, contrary to Den-Mat’s argument. Golden would not have suffered a loss until she paid for and received tire object of the consumer transaction.
Even if delivering the brochure did amount to a violation, that is not the violation Golden has alleged or sued upon. Golden has based her claims on the sale of the Cerinate veneers — a sale is a covered consumer transaction under the KCPA. Golden contends she entered into the sale based in no small part on the representations in the brochure. Those representations, therefore, were made “in connection with” the sale and, if deceptive, would taint the sale in violation of the KCPA. See Campbell v. Hubbard, 41 Kan. App. 2d 1, 7, 201 P.3d 702 (“[T]he time limit for bringing a claim under the KCPA begins when the KCPA violation occurs.”), rev. denied 286 Kan. 1176 (2008). The sale plainly did not occur when Golden received tire brochure. For purposes of the KCPA, the sale took place no earlier than the delivery of the veneers to Golden — when Dr. Gill applied them to Golden’s teeth on January 10, 2005.
The KCPA does not define “sale.” In many consumer transactions, though by no means all of them, the buyer and seller exchange payment for goods simultaneously. The exchange marks a sale. Even if the buyer and seller had earlier agreed to the terms of the transaction, that would not be a sale but a bilateral contract for sale — a promise of an agreed payment in exchange for a promise to deliver described goods. The swap or performance of the contract creates the sale. When the consumer pays before delivery, the sale takes place when the seller delivers the goods or performs his or her promise. That is consistent with the meaning of “sale” under the UCC. K.S.A. 84-2-106(1) (sale “consists in the passing of title from the seller to the buyer for a price, as outlined in K.S.A. 84-2-401); K.S.A. 84-2-401(2) (“Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods.”). Given the cross-pollination of the KCPA and the UCC, see, e.g., K.S.A. 50-624, Kansas Comment 3 (1973); K.S.A. 50-627, Kansas Comment 1 (1973); K.S.A. 50-639, Kansas Comment 1 (1973) (all citing and incorporating UCC concepts, definitions, and statutory provisions), use of the UCC definition makes sense for transactions that do not involve goods for which written documents of title typically exist.
We conclude that the sale of the veneers, the consumer transaction Golden contends entailed a deceptive act violating K.S.A. 50-626, took place no earlier than January 10,2005, and the statute of limitations period for her KCPA claim began to run no sooner. Arguably for KCPA purposes, the sale was not completed until Golden received delivery of the last of the veneers in late January 2005. We need not and do not consider that possibility, since the action was otherwise timely. Accordingly, Golden filed suit within the 3-year limitations period for her claim based on the deceptive sale of the veneers.
We do not mean to suggest that a consumer entering into a contract based on the seller s deceptive practices and making full or partial payment before delivery would have no KCPA claim at that stage. A deceptive practice by the seller inducing the payment would be made “in connection with a consumer transaction” — the sale — and, thus, a violation of K.S.A. 50-626(a), although the sale had not been completed. The consumer would have sustained a financial loss necessary for a private cause of action. But those circumstances are not the circumstances of this case, as outlined in the summary judgment record, because Golden relies on the sale itself. Nothing in the language of the KCPA suggests a buyer would have to await the completion of a covered transaction to have a legally viable claim for a deceptive act. Consistent with a broad or liberal construction of tire KCPA furthering its purposes, a buyer could have KCPA claims both upon making payment and upon completion of the sale, if those occurred at different times.
Dr. Gill made no argument to the district court that the 3-year limitations period under the KCPA barred Golden’s claims. And she does not attempt to do so on appeal. As we have noted, Dr. Gill argued that the claims should have been treated as ones for negligence and, thus, subject to a 2-year statute of limitations. We have found that argument unpersuasive.
The district court erred in relying on any of the statute of limitations grounds and on untimely notice of breach under the UCC to grant summary judgment to Den-Mat and Dr. Gill.
Application of UCC
Dr. Gill has fired a veritable broadside at the substance of the UCC claims Golden has asserted. Despite the numerous arguments Dr. Gill asserts, we do not find any that would support summary judgment on the factual record in this case. We address the points sequentially.
UCC Coverage
Dr. Gill contends there was “no transaction in goods” between her and Golden and, therefore, the UCC does not apply. Beneath that overstatement of the circumstances lurks an actual controversy that should be left for the jury. As we have said, Article 2 of the UCC regulates the sale of goods. The UCC defines goods expansively as meaning “all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale,” except for the money to be paid under the contract for the goods, investment securities, and legal rights to things or property. K.S.A. 84-2-105(1).
Goods — the Cerinate veneers — were plainly involved in and integral to the transaction involving Golden and Dr. Gill, as we have already indicated. Golden met with Dr. Gill, as Den-Mat’s recommended dentist, and ordered the veneers through her. Dr. Gill received the veneers and then applied them to Golden’s teeth. Golden paid Dr. Gill. But a sale does not come within the scope of the UCC merely because the contract includes the transfer of goods. Many contracts also entail services associated with the goods. The arrangement here was of that sort, and Dr. Gill provided services essential for Golden’s use of the veneers. In UCC parlance, those transactions involving goods and services are commonly known as mixed or hybrid contracts.
The UCC does not address mixed contracts as such. So courts have created common-law rules to determine if those transactions should be treated as sales of goods covered under the UCC or service contracts outside the Code’s regulation. Some 30 years ago, the Kansas Supreme Court adopted the “predominant purpose” test for classifying mixed contracts. Care Display, Inc. v. DiddeGlaser, Inc., 225 Kan. 232, 238-39, 589 P.2d 599 (1979). The predominant purpose test has become the commonly accepted, if not the near universal, standard. See 1 White & Summers, Uniform Commercial Code, ch. 9, § 9-2, p. 606 (5th ed. 2006). As the name suggests, the test attempts to discern the principal nature of the transaction: Is the buyer seeking services to which the goods are incidental, or is the buyer acquiring goods to which the services are auxiliaiy? Care Display, 225 Kan. at 238 (“ ‘The test for inclusion or exclusion [of mixed contracts under the UCC] is . . . whether their predominant factor, their thrust, their purpose, reasonably stated, is the rendition of service, with goods incidentally involved ... or is a transaction of sale, with labor incidentally involved.’ ” [quoting Bonebrake v. Cox, 499 F.2d 951, 960 [8th Cir. 1974]). The Bonebrake case, on which Care Display relied, has come to be viewed as the archetypal statement of the predominant purpose test, see Hensley v. Ray’s Motor Co. of Forest City, Inc., 158 N.C. App. 261, 265, 580 S.E.2d 721 (2003); 1 White & Summers, Uniform Commercial Code, ch. 9, § 9-2, p. 606. Thus, Kansas fits comfortably 'within the mainstream in applying the UCC to contracts in which goods reflect the focus or predominant purpose of the bargain.
The predominant purpose test, however, is not especially predictive in the abstract. It looks at and depends upon the factual circumstances of the transaction being litigated. Care Display, 225 Kan. at 238 (“[E]ach case must be determined on an individual basis[,] and... broad statements of principles are of little assistance in deciding a particular [case].”). The Kansas appellate courts have developed some general considerations in looking at mixed contracts. Apart from Care Display, involving a contract for creative design and production of a promotional program and exhibit for a national trade show, the Kansas cases have dealt with sales of computer software and related services. All of them have reaffirmed the predominant purpose test. See, e.g., Wachter Management Co. v. Dexter & Chaney, Inc., 282 Kan. 365, 369, 144 P.3d 747 (2006); Inter-Americas Ins. Corp. v. Imaging Solutions Co., 39 Kan. App. 2d 875, 885, 185 P.3d 963 (2008); System Design v. Kansas City P.O. Employees Credit Union, 14 Kan. App. 2d 266, 270-71, 788 P.2d 878 (1990).
In drat context, the Kansas Supreme Court recognized that the UCC should be applied if the services would have been unnecessary without the purchase of tire software. Wachter Management, 282 Kan. at 369. Reiterating the need to look at each contract individually under the predominant purpose test, this court held that the sale of a commercial off-the-shelf software program was covered under the UCC, even though the seller also provided installation and training services as part of the contract. System Design, 14 Kan. App. 2d at 272. The court noted divided case authority from other jurisdictions on contracts for custom designed software. Some decisions hold those to be contracts primarily for goods, tire software itself, covered under the UCC, but others hold them to be primarily for the design services in creating the programs and, thus, outside the UCC. 14 Kan. App. 2d at 271-72. In Care Display, the Kansas Supreme Court found the contract to be predominately for the creative services in developing the themes and substantive content for the sales presentation rather than for the materials used to construct the physical exhibit. 232 Kan. at 239. We have uncovered no more apt Kansas appellate authority. And we have discovered no cases from any other jurisdiction addressing transactions involving dental veneers. Dr. Gill cites two comparatively old cases involving contracts for the manufacture and fitting of dentures that do not consider or apply the predominant purpose test. See Carroll v. Grabavoy, 77 Ill. App. 3d 895, 396 N.E.2d 836 (1979); Preston v. Thompson, 53 N.C. App. 290, 280 S.E.2d 780 (1981). As we discuss later, those cases are distinguishable and, ultimately, unpersuasive.
Courts have split over whether the predominant purpose of a mixed contract presents an issue of law for the court or a question of fact for the jury. See Higgins v. Lauritzen, 209 Mich. App. 266, 269-70, 530 N.W.2d 171 (1995) (question of fact); Valley Farmers’ Elevatorv. Lindsay Bros., 398 N.W.2d 553, 556 (Minn. 1987) (generally question of law), overruled on other grounds Hapka v. Paquin Farms, 458 N.W.2d 683 (Minn. 1990); MBH, Inc. v. John Otte Oil & Propane, 15 Neb. App. 341, 348, 727 N.W.2d 238 (2007) (“whether goods or nongoods predominate a contract is generally a question of law”); Quality Roofing v. Hoffmann-La Roche, 302 N.J. Super. 163, 166, 649 A.2d 1077 (1997) (question of fact). The Kansas appellate courts apparently have not directly addressed the point.
The Nebraska Court of Appeals suggested the issue should be treated as a matter of law because contract interpretation commonly presents legal rather than factual determinations. MBH, Inc., 15 Neb. App. at 348. That is true when the language of a written contract is unambiguous. But determining whether goods or services predominate in a mixed contract necessarily looks beyond the contractual language. It includes the reasons the buyer purchases the goods and the nature and extent of the integration of those goods with the related services. It likely requires detailed information about the goods and the services over and above what may be described in the contract. Given the case-specific inquiry and the factually driven nature of the determination, essentially considering all of the circumstances bearing on the transaction, we conclude the issue of predominance of goods or services in a mixed contract is fundamentally one of fact. As such, it typically should be left for the trier of fact rather than resolved on summary judgment.
But, of course, a court may decide an issue of fact if the material circumstances are undisputed in a given case. Absent a factual dispute, the question presented effectively becomes one of law. See, c.g., St Clair v. Denny, 245 Kan. 414, 417, 781 P.2d 1043 (1989); Lay v. Kansas Dept. of Transportation, 23 Kan. App. 2d 211, 215, 928 P.2d 920 (1996), rev. denied 261 Kan. 1085 (1997). By the same token, even if the predominate purpose of a mixed contract were a question of law, any conflicts in the material historical facts would have to be resolved at trial with the jury providing answers to special interrogatories to inform the court’s legal determination. See Grosshans & Petersen, Inc. v. Givens, 191 Kan. 650, 652, 383 P.2d 959 (1963) (explaining bifurcation of functions of judge and jury in determining existence of a partnership: what constitutes a partnership is a question of law for the court, but resolution of conflicting facts relevant to the nature of the business relationship is for the jury).
Having concluded the predominant purpose of a mixed contract to be a question of fact, we turn to whether the transaction here, nonetheless, must be considered one principally for services rather than goods based on the summary judgment record. If so, the UCC would be inapplicable, as Dr. Gill argues.
Unlike most medical or dental procedures, Golden’s acquisition of the veneers was purely for cosmetic purposes. She was not seeking treatment for some illness or injury. The transaction was materially different from, for example, a dentist filling a cavity. In that instance, the patient or buyer has a malady, perhaps a painful one, and seeks a cure from the dentist. The dentist may drill and fill the cavity, though there might be other treatment options, such as installing a crown or pulling the offending tooth. The patient has received services in the form of a diagnosis, a recommended course of care, and actual treatment. The patient has also received whatever material the dentist used to fill the cavity. The filling itself would likely be a form of goods under the UCC, and the contract between the patient and dentist would be a mixed one. But the services would plainly seem to predominate. The patient wanted treatment for the cavity and principally sought diagnostic and therapeutic services from the dentist to accomplish that purpose. The patient had no particular interest in what the dentist used to fill the cavity and likely left the decision to the dentist’s professional judgment. We think that would be true of the vast majority of transactions between a patient and a healthcare provider for treatment of illness or injury in which there were a single contract.
Golden, however, suffered from no malady and sought no professional diagnosis or treatment. She simply wanted whiter teeth and sought replacements for the veneers she had been wearing. Golden had received information from Den-Mat containing representations about the characteristics of its Cerinate veneers making them appear to be a satisfactory choice. Although disputed in the record, there is evidence Golden shared that information with Dr. Gill and received some assurance from her as to the accuracy of a critical characteristic — the veneers, being made of porcelain, would not stain or dull over time. Golden then purchased Den-Mat’s Cerinate veneers through Dr. Gill, who applied them to Golden’s teeth.
Viewing the record favorably to Golden, as we must in considering her opposition to summary judgment, she did not go to Dr. Gill with a problem — dull or aesthetically unappealing teeth- — for which she wanted a professional consultation about various corrective options. Golden wanted Cerinate veneers and understood from Den-Mat that Dr. Gill could provide and apply that product. To be sure, Dr. Gill also provided services in that she removed tire existing veneers, sized and ordered the Cerinate veneers, and applied the new veneers to Golden’s teeth. But a jury could fairly conclude Golden wanted the veneers, while the services were simply part of the means of accomplishing that purpose. That would be consistent with the notion that but for the buyer’s acquisition of the goods, the services would have been unnecessary, making the contract predominately one for the goods, as the Kansas Supreme Court has suggested. Wachter Management, 282 Kan. at 369.
The predominance of the veneers as goods also seems plausible and, thus, within a jury’s reasonable consideration when the trans action is compared with orthodontics, another form of dentistry often used for largely cosmetic purposes. To straighten the patient’s teeth, tire orthodontist applies braces and other devices, often over an extended time period. The goods, those devices, are an integral part of the process. But the orthodontist makes a professional judgment about the types of braces to achieve the ultimate purpose of realigning the patient’s teeth. Again, the contract is a mixed one for goods and services. But the patient’s purpose is not the acquisition of braces but of straight teeth. The braces are temporary appliances, used by the orthodontist, for achieving that end. In those circumstances, the orthodontist’s services would seem to predominate over the goods.
The same degree of professional skill and judgment is lacking here in that Golden essentially selected the goods independently, though she sought affirmation of that selection from both Dr. Gill and representatives of Den-Mat regarding particular characteristics of the goods. And, unlike braces, the veneers themselves, once applied, provided the desired cosmetic result. The result continued only so long as the veneers remained in place and performed as Golden understood they would.
Finally, nothing in the record evidence shows Dr. Gill contracted separately with Golden for professional services apart from the purchase of the veneers. The parties do not argue there were separate or distinct contracts for the veneers, on the one hand, and Dr. Gill’s services, on the other. The transaction was unitary, combining goods and services. Likewise, there is no evidence Golden was charged separately for the veneers and for Dr. Gill’s services or that the services were even broken out as a distinct component or cost in the contract or in any billing. See 1 White & Summers, Uniform Commercial Code, ch. 9, § 9-2, p. 606 (relative costs of goods and services and undifferentiated or itemized billing of them frequently considered in assessing predominant purpose of mixed contract); Van Sistine v. Tollard, 95 Wis. 2d 678, 685, 291 N.W.2d 636 (1980) (contract primarily for services where property owner supplied some of the siding to be installed on home and installer’s labor costs exceeded cost of siding and other materials installer provided).
Dr. Gill presents the Carroll and Preston decisions, the sale-of-denture cases, as requiring summary judgment in her favor. We disagree.
In Carroll, decided more than 30 years ago, the plaintiff purchased a set of full dentures from a dentist who manufactured and fit them. Carroll claimed the dentist promised the dentures would fit properly. The dentist denied making that sort of guarantee. Carroll sued for her money back because the dentures did not fit and irritated her mouth. She alleged violations of express and implied warranties under the UCC. The Illinois Court of Appeals held the UCC inapplicable because the dentist was not selling the dentures but providing skill and knowledge in making and fitting the dentures. 77 Ill. App. 3d at 898-99. The court’s characterization of the transaction seems to be something of a legal fiction and certainly more metaphysical than practical. The court did not analyze the transaction under the predominant purpose test for UCC coverage as the Kansas courts would have done even then. The Illinois courts have since applied that test to mixed contracts. See, e.g., Dealer Management Sys. v. Design Automotive, 355 Ill. App. 3d 416, 421-22, 822 N.E.2d 556 (2005).
The Preston case fits the same fact pattern as Carroll-, the plaintiff sued a dentist who manufactured and supplied her with a set of full dentures because they fit poorly, contrary to what she said the dentist promised her. The North Carolina Court of Appeals affirmed summary judgment for the dentist. 53 N.C. App. at 296-97. The court found the claim barred under a state statute prohibiting suits against health care providers, including dentists, based on warranties or assurances as to any treatment unless memorialized in writing. Preston claimed no such writing. 53 N.C. App. at 292, 294.
The Preston court also analyzed the suit as one for breach of warranty under the UCC and found that claim would not lie, in part, because the dentist provided both goods (the dentures) and services (the manufacture and fitting of the dentures). The court opined the UCC applies only to merchants paid for products alone, while physicians and other health care providers offered professional services and skill. 53 N.C. App. at 295. The court cited Car roll as supporting authority for the proposition the sale of dentures did not come within the scope of Article 2 of the UCC and concluded the Code should not apply because “plaintiff paid for and received a course of health care treatment and services, not merely a piece of merchandise.” 53 N.C. App. at 296-97.
Apart from the UCC analysis likely being dicta in Preston, the court did not consider or apply the predominant purpose test to the transaction. Rather, the court found the combination of goods and services sufficient in and of itself to remove the contract from the UCC. 53 N.C. App. at 296-97. That alone is inconsistent with Kansas law and renders Preston, like Carroll, inapposite. North Carolina did not formally recognize the predominant purpose test for another 20 years. See Hensley, 158 N.C. App. at 265-66.
In short, the record evidence fails to support a finding as a matter of law for Dr. Gill that the transaction with Golden was one in which acquisition and use of services predominated over the purchase of goods so that the UCC would not apply. Summary judgment could not be granted to Dr. Gill on the UCC claims on that basis or on any KCPA claims dependent upon an exclusion or dilution of otherwise applicable UCC warranties.
Express Warranty
Dr. Gill contends that even if the UCC applies in this case, she made no express warranty to Golden about the veneers and could not breach any such warranty. The Kansas courts treat the creation and breach of warranties in transactions for goods as questions of fact. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009) (breach of implied warranty of merchantability question of fact); Stair v. Gaylord, 232 Kan. 765, 770, 659 P.2d 178 (1983) (whether seller breached express warranty may be taken from the jury only if there is no evidence supporting the claim); Black v. Don Schmid Motor, Inc., 232 Kan. 458, 467, 470, 657 P.2d 517 (1983) (breach of implied warranty of merchantability properly submitted to jury whether dealer extended express warranty to buyer is question for jury); Christopher & Son v. Kansas Paint & Color Co., 215 Kan. 185, 197, 523 P.2d 709 (1974) (breach of implied warranty of fitness for particular purpose for jury); Young & Cooper, Inc. v. Vest- ring, 214 Kan. 311, 325-27, 521 P.2d 281 (1974); see Transamerica Oil, Corp. v. Lynes, Inc., 723 F.2d 758, 762 (10th Cir. 1983) (applying Kansas law). To prevail at the summaiy judgment stage, Dr. Gill would have to demonstrate the absence of any facts supporting Golden’s legal position.
Under K.S.A. 84-2-313(l)(a), an express warranty entails “any affirmation of fact or promise” a seller makes to a buyer related to the goods that “becomes part of the basis of the bargain.” See Young & Cooper, 214 Kan. 311, Syl. ¶ 1. The seller need not label the representations as guarantees, warranties, or the like or even intend to create such an affirmation. K.S.A. 84-2-313(2); Young & Cooper, 214 Kan. 311, Syl. ¶ 3. A seller’s oral representation may constitute an express warranty. Young & Cooper, 214 Kan. 311, Syl. ¶ 4 (“representations of fact made in the course of negotiations . . . are warranties”); see Transamerica Oil, 723 F.2d at 762. And statements in advertising brochures or other promotional materials may create express warranties. 723 F.2d at 762. To be warranties, the statements must be of a factual nature about the characteristics or utility of tire goods. Young & Cooper, 214 Kan. 311, Syl. ¶ 4. Mere opinions or general, though unquantifiable, expressions of quality or superiority cannot form the basis of an express warranty. 214 Kan. 311, Syl. ¶ 4. A seller’s representations that goods are “first rate” or “the finest around” are examples of sales talk or puffing that would not create an express warranty. See Malul v. Capital Cabinets, Inc., 191 Misc. 2d 399, 402-03, 740 N.Y.S.2d 828 (2002) (statement that kitchen cabinets were built to “last a lifetime” amounted to puffing, not express warranty). An express warranty once created generally cannot then be limited because, by definition, it has become part of the agreed-upon contract or bargain. Young & Cooper, 214 Kan. at 324; see Transamerican Oil, 723 F.2d at 762; see also Christopher & Son, 215 Kan. at 191-92 (UCC warranties cannot be limited through a seller’s statements made after the formation of the sales contract). The limited written warranty Dr. Gill gave Golden on January 10, 2005, after applying the upper veneers, cannot negate any express warranty created through the earlier affirmations about the veneers. When Golden received the written warranty, the sale contract had already been finalized and at least partly performed, so the terms of the written warranty would not modify the contractual agreement.
The summary judgment record contains sufficient evidence,' albeit disputed in material particulars, that Dr. Gill made an express warranty to Golden. Golden testified that she showed Den-Mat’s brochure to Dr. Gill and discussed at least some of the contents with her. According to Golden, Dr. Gill assured her that porcelain, the substance used in the veneers, would not discolor. Those discussions took place before the sale was finalized. Dr. Gill’s statement, if made, was sufficiently factual that a jury could find it to be a warranty. And a juiy could conclude Dr. Gill essentially endorsed or affirmed the representations in the Den-Mat brochure. The brochure’s statements about the durability and immutable appearance of the Cerinate veneers could be construed as an express warranty, especially because they were tied to the clinical studies supposedly corroborating the affirmations. A juiy, therefore, could reasonably find that Dr. Gill did make representations rising to the level of an express warranty. The summary judgment record also suggests a jury could find otherwise. But that means a jury ought to be making the call.
The circumstances here are roughly analogous to those regarding the express warranty in Black, 232 Kan. at 469-70. In that case, Black bought a Peugeot from Don Schmid Motors that had been used by a representative of the automobile manufacturer. The sales agent for Don Schmid Motors told Black the vehicle would come with a new car warranty, and the purchase order, signed by a Don Schmid Motors manager, so stated. The Peugeot turned out to be a lemon. After numerous unsuccessful attempts to have problems with the car fixed, Black alleged Don Schmid Motors breached the new car warranty — an express warranty. Don Schmid Motors defended that claim on the grounds that the express warranty came from Peugeot, as the manufacturer, and not from it. But the Kansas Supreme Court held die evidence sufficient for a jury to reasonably conclude Don Schmid Motors was bound by the warranty. 232 Kan. at 470.
Golden’s evidence has Dr. Gill reviewing the brochure from Den-Mat before finalizing the sale of the veneers and telling Golden that porcelain dental appliances won’t stain or discolor. That course of conduct is comparable to the communication between Black and Don Schmid Motors regarding the warranty. In that case, the warranty terms were briefly noted in writing. But the notation was silent about who would honor the warranty. The absence of a writing in this case goes to the weight of the evidence, something the juiy considers, rather than the legal sufficiency of the evidence in its uncontradicted state as the court must view it on summary judgment.
Dr. Gill also submits Golden has presented no “objective evidence” the Cerinate veneers discolored or stained. But nothing requires so-called objective evidence to establish a submissible breach of warranty claim. Golden says the veneers became stained and dull. That’s enough to get to the jury. Testimony need not come from a disinterested witness to demonstrate breach. Again, what the jurors may make of Golden’s testimony is for them to decide- — -not for the court to conjecture as a matter of law. Golden, of course, may call witnesses who will corroborate deterioration of the veneers’ appearance.
Dr. Gill argues a claim for breach of the express warranty does not lie at least as to chipping and cracking of the veneers because she replaced them. But that misses the point of die express warranty claim. Golden contends Den-Mat and Dr. Gill represented to her that the veneers would not chip or crack. But they did. If the affirmation created an express warranty, the failure of the veneers to perform to the described level constituted a breach. Dr. Gill’s efforts to repair or replace the veneers go to the harm the breach caused and the scope of remedy that might be appropriate for Golden now.
Implied Warranties
Dr. Gill contends that the evidence taken favorably to Golden fails to establish either a breach of an implied warranty of merchantability under K.S.A. 84-2-314 or a breach of an implied warranty of fitness for a particular purpose under K.S.A. 84-2-315. In turn, the district court would have been correct to enter summary judgment on those grounds, according to Dr. Gill. As we have noted, the scope and breach of those implied UCC warranties typically present questions for the jury.
An implied warranty of merchantability essentially requires that goods sold by a merchant satisfy basic standards of quality or acceptability. See K.S.A. 84-2-314, Official UCC Comment 2. As outlined in the pretrial order, Golden specifically claims the veneers fell short of the implied warranty requirement they be “fit for the ordinary purpose for which such goods are used.” K.S.A. 84-2-314(2)(c). Based on that warranty, a buyer may reasonably expect an item to be something more than “worthless,” though not “the finest of all possible goods of that kind.” Black, 232 Kan. at 467. As in Black, the purchaser of a used car from a dealer reasonably may expect the vehicle to “provide dependable transportation.” 232 Kan. at 467; see Dale v. King Lincoln-Mercury, Inc., 234 Kan. 840, 843, 676 P.2d 744 (1984) (Consistent with an implied warranty of merchantability, the buyer of a used, low-mileage sedan represented to be in excellent condition may expect the vehicle to “contain a motor and transmission which will give . . . more than a few days’ service.”). As one court recently stated, a UCC warranty of merchantability “ ‘does not impose a general requirement that goods precisely fulfill the expectation of the buyer,’ ’’ but “ ‘it provides for a minimum level of quality.’ ” Green v. Green Mountain Coffee Roasters, Inc., No. 11-2067 (SDW) (MCA), 2011 WL 6372617, at *6 (D.N.J. 2011) (unpublished opinion).
The seller’s obligation under an implied warranty of merchantability “depends upon the circumstances of the transaction.” Hodges, 288 Kan. at 67. Courts consider the “reasonable expectations of the ordinary user or purchaser,” something based on general “consumer expectations” regarding the goods rather than the subjective beliefs of the particular buyer. See Koken v. Black & Veatch Const., Inc., 426 F.3d 39, 52 (1st Cir. 2005). In an often cited case, the New York Court of Appeals stated the fitness of goods for ordinary purposes under the implied UCC warranty depends upon “the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners.” Denny v. Ford Motor Co., 87 N.Y.2d 248, 258-59, 639 N.Y.S.2d 250, 662 N.E.2d 730 (1995).
To establish a breach, tire buyer must show the ordinary purpose for goods of the type involved in the transaction and the lack of fitness of the goods actually purchased for that purpose. Hodges, 288 Kan. at 62. If the goods fall short, they are considered “defective” under the UCC. Denny, 87 N.Y.2d at 258-59; see Miller v. Lee Apparel Co., 19 Kan. App. 2d 1015, 1031, 881 P.2d 576 (1994) (coveralls that caught fire not defective or unfit for ordinary purposes as work clothing under K.S.A. 84-2-314 because buyer had no reasonable expectation they would be flame resistant), rev. denied 256 Kan. 995 (1994). Dr. Gill contends the veneers, as a matter of law, were not defective in a way that would breach an implied warranty of merchantability.
But a warranty of merchantability entails some expectation of durability, depending on the circumstances of the transaction and the goods involved. Goods satisfy the warranty of merchantability under UCC 2-314 when they do “what they were supposed to do for as long as they were supposed to do it.” Prohaska v. Sofamor, S.N.C., 138 F. Supp. 2d 422, 449 (W.D.N.Y. 2001). Thus, a buyer of a handblown glass vase could not reasonably expect it to survive a fall to a tile floor. But tire buyer of the car in Dale had a reasonable expectation it would run for some time without the engine, transmission, or other principal mechanical systems quitting. Dale, 234 Kan. at 843; see Glyptal, Inc. v. Engelhard Corp., 801F. Supp. 887, 897 (D. Mass. 1992) (juiy question whether durability of exterior paint breached implied warranty of merchantability under UCC 2-314).
Dr. Gill reads too much into the summaiy judgment record in suggesting the absence of evidence to support a claim for breach of an implied warranty of merchantability. Veneers are uncommon goods, so there is little in the way of tightly analogous case authority-on this issue. Veneers do not particularly resemble used cars or computer software. But the broad principles set out in those and other UCC warranty cases can be adapted to this case. And the more refined application of those principles to the specific facts of this case moves from the realm of legal determination appropriate for summary judgment to factfinding reserved for jury trial.
Given the nature of veneers as permanent dental appliances intended to improve the cosmetic appearance of the user’s teeth, a jury could rationally conclude a buyer would reasonably expect the veneers to remain in place and hold their appearance for some period of time after the sale. That is, like a late model used car, veneers ought to have some degree of durability when used as intended. Nobody has suggested Golden somehow misused the Cerinate veneers or subjected them to unusual conditions.
Based on her experience in wearing other veneers, Golden has some frame of reference to assess reasonable expectations for the performance of the Cerinate veneers. An expectation so formed from actual experience differs from a purely speculative or subjective belief about veneers or any goods subject to UCC warranties. For example, a regular purchaser of computers for personal or business use has a set of factually based expectations for how a newly purchased unit should perform. That reflects some evidence of the sort of objective consumer expectation implicated in a warranty of merchantability in contrast to an entirely subjective expectation of a first-time user of a tablet. Golden obviously considered the Cerinate veneers to be substandard, and her conclusion appears, in part, to be based on her actual experience with other veneers. Because the scope of the implied warranty of merchantability depends upon the expectations of the objective, reasonable consumer or buyer of veneers and not what Golden personally believed at the time she purchased the Cerinate veneers, her experience with both the veneers she wore earlier and the veneers she bought to replace the Cerinate veneers would be relevant in establishing reasonable consumer expectations.
The weight to be afforded Golden’s conclusion would be for the jury, at least as the evidence shapes up in the summary judgment record. We venture no suggestion about the comparative strength of the evidence, since that will depend in no small part on the details of Golden’s testimony and the jury’s assessment of her credibility. Neither of which we can or should presume to evaluate. We suggest the need for surgical questioning of Golden at trial to differentiate her subjective expectations about the Cerinate veneers in particular from the more experience-based consumer expecta tions she had about veneers as a type of goods and the need for similarly precise instructions to the jury about the relevance of such testimony.
Other summary judgment evidence supports the breach of an implied warranty of merchantability, suggesting the Cerinate veneers performed below what might be reasonably expected of veneers generally. If credited by the jury, Golden’s testimony that Dr. Gill told her porcelain dental products would not discolor or stain reflects some measure of what would be reasonably expected. In other words, if used as intended, porcelain dental appliances ought to retain their general color or appearance. As a practitioner in the field, Dr. Gill reasonably could be viewed as knowledgeable about standard characteristics of those sorts of goods.
Courts sometimes point out that warranties of merchantability apply to the fundamental functions or core attributes of the goods rather than matters of aesthetics or appearance. See, e.g., Carey v. Chaparral Boats, Inc., 514 F. Supp. 2d 1152, 1156 (D. Minn. 2007) (cracking of a boat’s finish amounts to a “cosmetic problem” that “in no way affects” the boat’s ordinary use and, therefore, does not breach an implied warranty of merchantability); Testo v. Russ Dunmire Oldsmobile, 16 Wash. App. 39, 44-45, 554 P.2d 349 (1976); see Dale, 234 Kan. at 843 (low-mileage used car breaches warranty of merchantability if “major component,” such as engine or transmission, fails shortly after sale). Those cases would be factually inapposite here given the ordinary use of dental veneers. The veneers are, by their very purpose, cosmetic. If certain veneers fail of that purpose in a manner atypical of that product generally, they likely would not meet standards of merchantability under the UCC.
Dr. Gill also argues the veneers were not covered by and, in any event, conformed to any implied warranty of fitness for a particular purpose under K.S.A. 84-2-315. When a seller “has reason to know [of] any particular purpose for which the goods are required” and should understand that the buyer “is relying on the seller’s skill or judgment to select or furnish suitable goods,” the transaction includes “an implied warranty that the goods shall be fit for such purpose.” K.S.A. 84-2-315. Unlike an implied warranty of merchantability, an implied warranty of fitness for a particular purpose depends upon communication between the buyer and seller regarding a specific transaction. A warranty for particular purpose is narrower, based on a tailored use of the specific goods known to the seller rather than on an ordinary characteristic or suitability common to goods of that general type. See Smith v. Stewart, 233 Kan. 904, 907-08, 667 P.2d 358 (1983); Chase v. Kawasaki Motors Corp., U.S.A., 140 F. Supp. 2d 1280, 1289 (M.D. Ala. 2001) (citing 1 White & Summers, Uniform Commercial Code § 9-10 [4th ed. 1995]). For example, an implied warranty of fitness for a particular use arises if the buyer of shoes informs the seller he or she intends to go mountain climbing and elicits the seller’s help in selecting appropriate footwear. See Smith, 233 Kan. at 907-08 (citing that example from the Official UCC Comment as illustrative of an implied warranty of fitness for particular purpose).
As we have noted, whether the parties engaged in communication or otherwise created an implied warranty of fitness for a particular purpose in a given transaction typically presents a jury question. Circle Land & Cattle Corp. v. Amoco Oil Co., 232 Kan. 482, 486, 657 P.2d 532 (1983). The buyer “need not bring home” or emphasize to the seller the particular purpose intended for the goods or the reliance on the seller’s skill in choosing among goods to meet that purpose, so long as the seller reasonably should understand the buyer’s special use and reliance. 232 Kan. at 486. The buyer, however, must actually rely on the seller’s input. 232 Kan. at 486.
A jury could conclude that Golden relied on Dr. Gill to keep her from purchasing goods that would fail to meet her expressed desire for exceptionally white teeth, a particular purpose or use. See Lohmann & Rauscher, Inc. v. YKK (U.S.A.) Inc., 477 F. Supp. 2d 1147, 1155 (2007) (jury question whether commercial buyer relied on commercial seller’s expertise in selecting goods suitable for a particular purpose when it requested welded straps for use in orthopedic braces). While Golden had identified the Cerinate veneers as the product she believed would best fit her needs, she had not already contracted to purchase them when she met with Dr. Gill. According to Golden, they discussed her desire for very white teeth. Dr. Gill recalled suggesting Golden might prefer a more natural shade for the veneers, since the whitest ones might look artificial. Golden, nonetheless, asked Dr. Gill to order the brightest veneers Den-Mat made.
The evidence would support a jury determination that Golden had a particular purpose in mind beyond simply some cosmetic improvement in the appearance of her teeth. She wanted strikingly white teeth, even if some people, apparently including Dr. Gill, might find them unnatural and unflattering. On its face, that looks to be a particular purpose in contrast to a generic characteristic of veneers. Dr. Gill certainly knew of that purpose and knew of Golden’s plan to buy Cerinate veneers. In turn, Golden’s request of Dr. Gill for some assurance that the veneers would satisfy that purpose and Dr. Gill’s purported response that porcelain dental appliances do not discolor or stain could be construed as creating an implied warranty of fitness for a particular purpose. Golden made clear a specific need she wanted the veneers to satisfy and sought affirmation from Dr. Gill the Cerinate veneers would work. The communication may not have been pointed, detailed, or extended. But, as the Circle Land & Cattle Corp. case recognizes, the circumstances giving rise to the warranty may be fairly casual. The jury should be permitted to make the call on whether there was an implied warranty of fitness for a particular purpose under K.S.A. 84-2-315 and whether the veneers breached that warranty.
Breaches of implied warranties of merchantability and of fitness for a particular purpose are not mutually exclusive. Lohmann & Rauscher, 477 F. Supp. 2d at 1154 (construing Kansas version of UCC). That is, depending on the facts, a seller may be liable for breaching both in a single transaction, although a buyer may not recover duplicative damages. For example, a pair of shoes sold to a person requesting footwear for mountain climbing may have a claim for a breach of warranty for a particular purpose if they fall apart halfway up Denali. If the sole on one of them starts flapping while the person walks through KCI airport to get on a flight to Alaska, tire shoes likely breach an implied warranty of merchantability for footwear generally and necessarily breach the more specific and more demanding warranty for the particular purpose of mountain climbing. Here, the claims for breach are more closely connected. The asserted warranty of merchantability related to durability, including resistance to chipping, retention in place, and constancy of color and appearance. The warranty of fitness for a particular purpose appears to depend on constancy of color and appearance alone. That overlap, however, does not impose a legal bar to either claim. The jury, properly instructed, ought to determine the existence and scope of the warranties and any concomitant breach.
Application of KCPA
The district court ruled that some of Golden’s claims under the KCPA failed as a matter of law on substantive grounds apart from any statute of limitations bar. Both Den-Mat and Dr. Gill also argue those claims fail on substantive grounds on which the district court did not rely. Because the district court erred in entering summary judgment on statute of limitations grounds, we must address those alternative bases that arguably support the ruling for Den-Mat and Dr. Gill. We now turn to that task and of necessity outline the general scope of the KCPA.
The KCPA applies to both goods and services. K.S.A. 50-624(h) (“property” subject to the Act includes “goods”); K.S.A. 50-624(i) (services defined for coverage under the Act). The Act regulates the conduct of “suppliers,” a term including sellers and manufacturers. K.S.A. 50-624(j). Under K.S.A. 50-626(a), a supplier may not engage in deceptive acts or practices in connection with a consumer transaction. The statute provides a nonexclusive list of types of conduct constituting deceptive acts or practices, including representations made knowingly or with reason to know that property or services have “characteristics” they, in fact, do not. K.S.A. 50-626(b)(1)(A).
Under K.S.A. 50-627, a supplier may not engage in unconscionable acts or practices. Broadly viewed, unconscionability reflects a gross disparity in the value of a transaction favoring the supplier resulting, at least in part, from unequal bargaining power or knowledge, often tied to the buyer’s physical or mental infirmity, illiteracy, or lack of fluency in the language used to make the sale. See K.S.A. 50-627(b)(l), (2). One of the enumerated unconscionable acts entails the exclusion or modification of implied warranties or remedies for their breach, except as otherwise provided in K.S.A. 50-639. K.S.A. 50-627(b)(7).
In turn, K.S.A. 50-639 pertains to consumer transactions involving property and precludes any modification or dilution of implied warranties of merchantability or of fitness for a particular use under the UCC, as adopted in K.S.A. 84-2-314 and K.S.A. 84-2-315. Any such impairment of the warranties cannot be enforced. K.S.A. 60-639(e). If a supplier has attempted to dilute those warranties and a consumer proves a breach of warranty, he or she may recover attorney fees and a civil penalty in addition to actual damages. K.S.A. 50-639(e). The statute also eliminates any requirement that suppliers be in direct privity with consumer-buyers to be bound by the implied UCC warranties. K.S.A. 50-639(b). Some property and some transactions have been excluded from the provisions of K.S.A. 50-639. Those exclusions are not pertinent here. Basically, K.S.A. 50-639 creates a free-standing KCPA violation when a supplier attempts to limit either a UCC warranty of merchantability or a UCC warranty of fitness for a particular purpose and then breaches the warranty in connection with a consumer transaction involving property.
Apart from the statute of limitations issues under the KCPA, the district court held that Dr. Gill could not be liable because she provided services rather than goods to Golden. The premise appears to be doubly incorrect. As with the UCC issues, Dr. Gill rendered services that were inextricably related to and made necessaxy only because of Golden’s purchase of the veneers. Those services included consultation with Golden and, on the facts presented, discussion about the characteristics of porcelain dental appliances. Based on the services alone, a jury could find a deceptive act or practice under K.S.A. 50-626. In addition, however, Dr. Gill was directly involved in the sale of the veneers, since she ordered them, took delivery of them, and received the payment for them. Those circumstances present a jury question whether Dr. Gill engaged in a deceptive act or practice based on the goods alone. The combination of Dr. Gill’s involvexnent in the sale of the veneers and the provision of the related services only fortifies the conclusion that a jury question has been presented.
Dr. Gill points to a snippet of Golden’s deposition testimony in which she acknowledges she does not have “any allegation that [Dr. Gill] was trying to deceive [me] in any way” as an alternative basis to grant summary judgment on the deceptive act or practices claim. But the argument stretches the testimony too far. Golden appears to be conceding only that she has no personal knowledge of Dr. Gill’s intention or state of mind. Summary judgment is not typically proper merely because a given witness has no firsthand evidence on a point. For a violation of K.S.A. 50-626(b), the supplier need only have “reason to know” that a representation about characteristics or qualities of the goods or services is inaccurate or misleading. Golden’s testimony simply does not speak to what Dr. Gill ought to have known about the veneers, especially as a professional involved in their sale and physical application. In the absence of more pointed evidence, Dr. Gill has not met the substantial burden for entitlement to summary judgment on the argument she advances.
The district court also held that Dr. Gill could not be liable for limiting any implied warranties because the warranty card she presented to Golden did not impose limitations. The card purported to provide a 5-year limited warranty superseding “all other warranties, whether expressed or implied.” Given that language, an interpretation of tire warranty card as anything other than a modification or elimination of the implied UCC warranties is untenable. See Stair v. Gaylord, 232 Kan. 765, 776, 659 P.2d 178 (1983). In Stair, the Kansas Supreme Court rejected the very argument the district court appears to posit. In that case, the court held that an express warranty purporting to exclude any implied warranties violated K.S.A. 50-639 because such language “obviously” marked “an attempt[ ] to limit implied warranties imposed by K.S.A. 84-2-314 and -315.” 232 Kan. at 776. The district court in Stair, therefore, committed reversible error in finding no violation of K.S.A. 50-639 as a matter of law. The Kansas Supreme Court reiterated the point in Dale, 234 Kan. at 843, holding that a seller may offer a limited express warranty but that warranty “cannot limit the im plied warranties of merchantability” and of fitness for ordinary purposes. Here, the district court failed to explain the reasoning behind its conclusion, failed to show just how the warranty card ought to be viewed as something other than a limitation of implied warranties in violation of K.S.A. 50-639, and failed to suggest why Stair and Dale did not control. The district court erred in ruling the card did not run afoul of K.S.A. 50-639.
Dr. Gill argues that her involvement with the warranty card itself was limited to handing the document to Golden so she can’t be held to the contents. But that mischaracterizes the evidence. Dr. Gill signed the warranty card and was directly involved in the sales transaction to which it applied. Dr. Gill also points to Golden’s testimony as a basis for summary judgment on the limitation of warranties. Again, the evidence misses the mark. A violation of K.S.A. 50-639 requires no misleading or deceptive actions — only a dilution of implied warranties. So Golden’s view one or way or the other on any effort by Dr. Gill to mislead her would be legally irrelevant. Whether Dr. Gill should be accountable under K.S.A. 50-639 for the improper limitations contained in the warranty card must be left for the juiy.
Dr. Gill has another path of escape, as we have noted. If the jury were to find that services predominated over goods in the contract, the UCC would not apply, and, as a result, no implied warranties would arise under the UCC. Absent any UCC warranties, K.S.A. 50-639 does not pertain to the transaction. So if a jury were to find the contract to be outside the scope of the UCC, Golden’s claim under K.S.A. 50-639 would necessarily fail.
Den-Mat argues that K.S.A. 50-639 does not apply because Golden’s UCC warranty claims were untimely and, thus, barred. To obtain a remedy under K.S.A. 50-639, a consumer-buyer must prevail on an implied warranty claim and show the supplier’s wrongful limitation of the warranty. K.S.A. 50-639(e). A properly lodged defense to the warranty claim would preclude relief under the KCPA. But we have found jury questions prevent summary judgment on the implied warranty claims on statute of limitations grounds. Accoi'dingly, Den-Mat’s argument to jettison Golden’s claim under K.S.A. 50-639 similarly fails.
Finally, Golden has argued that the dilution of the implied UCC warranties also amounts to an unconscionable act or practice in violation of K.S.A. 50-627. In this respect — and this respect only — ■ the district court correctly granted summary judgment to Den-Mat and Dr. Gill. A supplier’s attempt to limit implied warranties may be an unconscionable act or practice other than in those circumstances covered in K.S.A. 50-539 dealing with UCC warranties. Because Golden relies on UCC warranties, she presents a claim under K.S.A. 50-639 and does so with sufficient evidentiary support to require the claim be submitted to a jury. By the same token, however, Golden then necessarily comes within the provision in K.S.A. 50-627 excepting claims based on limitations of the UCC warranties. See K.S.A. 50-627(b)(7) (unconscionable act or practice to limit warranties “except as provided by K.S.A. 50-639”). Golden does not argue the implied warranties in this case derive from some legal source other than the UCC. Golden, therefore, has no claim for a separate violation of K.S.A. 50-627.
The plain language of K.S.A. 50-627(b)(7), containing the exclusion for implied UCC warranties, requires that result. The wording is clear and unmistakable. The courts, therefore, must give meaning to the legislative choice set out in the statute. See Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008). Second, the provisions of K.S.A. 50-639 dealing with UCC warranties reflect a specific or narrow statute in contrast to the more general terms used in K.S.A. 50-627(b)(7) addressing limitations of warranties generally. The common canons of construction require that a specific statute control over the more general, suggesting that any limitation of implied UCC warranties in a consumer transaction be adjudicated under K.S.A. 50-639 rather than under K.S.A. 50-627. See In re K.M.H., 285 Kan. 53, 82, 169 P.3d 1025 (2007), cert. denied 555 U.S. 937 (2008); cf. Bulova Watch Co. v. United States, 365 U.S. 753, 758, 81 S. Ct. 864, 6 L. Ed. 2d 72 (1961).
Here, taking the evidence in the best light for Golden and given her description of her claim, we conclude she has neither presented nor supported an unconscionable act or practice under K.S.A. 50-627. Because the relevant facts are undisputed and unconscionability under the KCPA presents a question of law, this court may properly decide the point in reviewing a grant of summary judgment. K.S.A. 50-627(b) (the unconscionability of an act or practice presents “a question for the court”); see Adams v. Board of Sedgwick County Comm’rs, 289 Kan. 577, 584, 214 P.3d 1173 (2009).
We conclude, as a matter of law, the legislature intended consumers to pursue claims for dilution of implied UCC warranties of merchantability and of fitness for a particular purpose through K.S.A. 50-639 exclusively and not as proscribed unconscionable acts or practices. Golden’s claim for a violation of K.S.A. 50-627 fails as a matter of law. The district court is affirmed on that point.
Application of KPLA
Dr. Gill argues that Golden’s claims against her under both the UCC and the KCPA are subsumed or preempted by the Kansas Product Liability Act (KPLA), K.S.A. 60-3301 etseq. Dr. Gill suggests the KPLA, therefore, provides an alternative ground for summary judgment. The argument is misguided, since Dr. Gill has not shown the KPLA applies to her.
We need not engage in a detailed analysis of the substantive provisions of the KPLA. In short, the KPLA imposes certain limits on the liability of manufacturers and sellers resulting from defects in design or construction of products or deficiencies in instructions for use, packaging, or advertising. K.S.A. 60-3302(c) (defining product liability claim); K.S.A. 60-3306 (outlining limitations on liability of product seller). In addressing Dr. Gill’s argument, we focus on whether she is among the persons and entities covered under tire KPLA rather than on the protections extended to them.
The KPLA covers both “product sellers” and “manufacturers,” while distinctly defining them. K.S.A. 60-3302(a), (b). A manufacturer “designs, produces, makes, fabricates, constructs, or remanufactures the relevant product.” K.S.A. 60-3302(b). Dr. Gill would not be a manufacturer of the veneers, and the definition does not include an installer or similar language that would more aptly describe her role. A product seller is a person or entity “in tire business of selling products, whether the sale is for resale, or for use or consumption.” K.S.A. 60-3302(a). But the definition of product seller expressly excludes “a health care provider . . . who utilizes a product in the course of rendering professional services.” K.S.A. 60-3302(a). Dr. Gill agrees she afforded Golden professional services, and the veneers were inextricably tied to those services. Dr. Gill, therefore, would be unable to invoke the KPLA in this case if she were an excluded health care provider. Certain dentists licensed to administer local or general anesthetics are among the excluded health care providers. K.S.A. 60~3302(a) (incorporating by reference those providers identified in K.S.A. 2011 Supp. 40-3401[{]; some dentists included as health care providers).
As the proponent of the KPLA as a defense, Dr. Gill has an obligation to come forward with evidence on summary judgment that would allow a jury to find those facts necessary to show the Act applies to her in this case. In other words, Dr. Gill must point to record evidence reasonably supporting the argument she is a product seller within the meaning of the KPLA, since coverage of the Act would amount to an avoidance on which she bears the burden of proof at trial. See Mickelson v. New York Life Ins. Co., 460 F.3d 1304, 1311 (10th Cir. 2006) (if defendant bears ultimate burden of persuasion on issue, defendant must come forward with facts on summaiy judgment that would allow a jury finding in its favor); Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997) (When advancing an affirmative defense on summary judgment, a defendant has the burden to establish a factual basis for the defense.); see also Hartman v. Stumbo, 195 Kan. 634, 638-39, 408 P.2d 693 (1965) (noting federal authority to be instructive on summary judgment under Kansas Code of Civil Procedure and recognizing that summary judgment could be granted on statute of limitations where defendant offered plaintiffs deposition testimony and other evidence demonstrating untimeliness of action).
On appeal, Dr. Gill has identified no evidence of that type and relies solely on the bare assertion the KPLA applies to her. In particular, Dr. Gill has failed to provide facts showing she is not among the health care providers excluded from the KPLA. We, therefore, reject her assertion that the KPLA provides as an alternative ground supporting summaiy judgment in her favor.
We secondarily come to that conclusion because the KPLA does not apply to claims for “direct or consequential economic loss.” K.S.A. 60-3302(c) (product liability claim entails “harm”); K.S.A. 60-3302(d) (“harm . . . does not include direct or consequential economic loss”). Golden has represented that she has abandoned or intends to abandon any request for pain and suffering or allied noneconomic damages. If she adheres to that representation and promptly withdraws her demand for those damages following remand to the district court, the only damages remaining would entail economic loss outside the scope of the KPLA.
Conclusion
The judgment for Den-Mat and Dr. Gill is reversed, except as to Golden’s claim based on an unconscionable act or practice violating K.S.A. 50-627(b)(7), and remanded for further proceedings, including trial. Golden may proceed with her claims for breach of express warranty, for breach of implied warranty of merchantability under K.S.A. 84-2-314, for breach of implied warranty of fitness for a particular purpose under K.S.A. 84-2-315, for deceptive acts and practices under K.S.A. 50-626, and for improper limitation of implied warranties under K.S.A. 50-639.
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Green, J.:
In this civil enforcement action, Lindemuth, Inc., appeals the trial court’s decision to enforce the administrative order entered by the Kansas Department of Health and Environment (KDHE). On appeal, Lindemuth argues that the trial court erred in finding that die term “accounting” is synonymous with the term “invoice.” We disagree. Accordingly, we affirm.
Administrative Action
On July 23, 2004, KDHE issued an Administrative Order that required Lindemuth to reimburse “Response Costs” to KDHE within 30 days from receipt of an accounting. The Order defined “Response Costs” as follows: “[A]ll costs, including direct costs, indirect costs, enforcement costs and accrued interest incurred by (or on behalf of) KDHE to perform or support response actions at the Site. Response costs include, but are not limited to, the costs of overseeing work at the Site, such as the costs of reviewing plans, reports and/or other items pursuant to this Order and costs associated with verifying the implementation of this Order.” The Administrative Order allowed for Lindemuth to request a hearing to appeal the Order, which Lindemuth did not do.
KDHE periodically sent Lindemuth invoices for these response costs. Lindemuth complied with the Order from 2004 through 2007 and paid each invoice without any objection. After Lindemuth failed to pay the invoices from January 1, 2008, through August 15, 2009, KDHE sent demand letters to get Lindemuth to comply with the Order. KDHE and Lindemuth attempted to negotiate a payment plan, but Lindemuth failed to comply with the plan. As a result, on October 21, 2009, KDHE filed a petition for civil enforcement of final agency action.
Trial Court Action
KDHE filed a brief in support of its petition on March 26,2010. Lindemuth filed a response brief on April 21, 2010, and KDHE filed a reply on April 27, 2010. Lindemuth argued that KDHE failed to provide proper accounting as required by the Order and, therefore, KDHE should not be allowed to collect based on the invoices alone. Lindemuth maintained that the invoices it received did not qualify as an accounting, which it was entitled to under the Order. The trial court disagreed with Lindemuth and ordered Lindemuth to pay the outstanding invoices. The trial court found that based on the plain language of the Order, the term “accounting,” as intended by KDHE, was synonymous with the term “invoice.” Lindemuth timely appealed the trial court’s memorandum decision and order.
Whether the Term Accounting” Is Synonymous with the Term “Invoice”
Lindemuth argues that it was entitled to an accounting based on the Order and that the additional information that KDHE provided did not comply with the Order. Lindemuth contends that the invoices contained contradictions and were inconsistent, and, therefore, they could not meet the standard of an accounting as required by the Order. Lastly, Lindemuth maintains that the trial court did not have enough evidence to reach a conclusion based on the record alone and that it should have conducted an evidentiary hearing.
When an appellate court reviews a trial court’s decision reviewing an agency action, it must first determine whether the trial court followed the requirements and restrictions placed upon it and then make the same review of the administrative agency’s action as the trial court. See Johnson Co. Developmental Supports v. Kansas Dept. of SRS, 42 Kan. App. 2d 570, 577, 216 P.3d 658 (2009). Neither the appellate court nor the trial court may try the case de novo and substitute its judgment for that of KDHE. See In re Certif. of Need App. by Community Psychiatric Centers, Inc., 234 Kan. 802, 806, 676 P.2d 107 (1984). An appellate court should grant deference to an agency’s interpretation of its own regulations and will not disturb the agency’s interpretation unless it is clearly erroneous or inconsistent with the regulation. See Tonge v. Werholtz, 279 Kan. 481, 484, 109 P.3d 1140 (2005).
The issue before us is the interpretation of the term accounting, as used in the Administrative Order, and whether the invoices sent by KDHE comply with the meaning of that term.
Although no recent Kansas case has specifically addressed this issue, a similar situation arose in Jones v. Kansas State University, 279 Kan. 128, 106 P.3d 10 (2005), where the parties were arguing over the interpretation of the terms “gross misconduct.” The terms were not defined in the statute so our Supreme Court declined to adopt a single definition for the terms. Our Supreme Court held that although the definition might be one factor to consider, the terms are best defined by their dictionary meanings, within the context of the civil service statute, by reviewing other cases inter preting similar terms, and by examining the totality of circumstances. 279 Kan. at 148-51.
As no recent Kansas case discusses or interprets the term “accounting” or “invoice,” we examine all of the resources set forth in Jones in resolving this issue. No question exists as to whether Lindemuth received an invoice for KDHE’s services; rather, the critical issue is whether those invoices constitute an accounting of KDHE’s services, as stated in the Order.
In support of its argument, Lindemuth directs us to Leslie v. Pine Crest Homes, Inc., 388 So. 2d 178, 182 (Ala. 1980), which cites to Kansas City v. Burns, 137 Kan. 905, 22 P.2d 444 (1933), and Black’s Law Dictionary 17,18 (5th ed. 1979). Bums, however, cites to a Webster’s dictionary definition of the term “accounting” that is no longer current. See Kansas City, 137 Kan. at 912. Because the definition in Bums is outdated, Lindemuth’s reliance on Kansas City and Leslie is misplaced.
Currently, Black’s Law Dictionary 22 (9th ed. 2009) defines “accounting” as “[t]he act or a system of establishing or settling financial accounts; esp., the process of recording transactions in the financial records of a business and periodically extracting, sorting, and summarizing the recorded transactions to produce a set of financial records. . . . More broadly, an action for the recovery of money for services performed, property sold and delivered, money loaned, or damages for the nonperformance of simple contracts.” Webster’s defines “accounting” as “[t]he bookkeeping methods involved in malting a financial record of business transactions and in the preparation of statements concerning the assets, liabilities, and operating results of a business.” Webster’s II New Riverside University Dictionary 72 (1984).
In addition, Black’s Law Dictionary 904 (9th ed. 2009) defines “invoice” as “[a]n itemized list of goods or services furnished by a seller to a buyer, usu. specifying the price and terms of sale; a bill of costs.” Webster’s defines “invoice” as “[a]n itemized list of goods shipped or services rendered, with an account of all costs.” Webster’s II New Riverside University Dictionary 642 (1984).
Application of the dictionary definitions, the caselaw listed earlier, and an examination of the Administrative Order, all support the conclusion that the trial court correctly interpreted the term “accounting” to be synonymous to the term “invoice.”
Additionally, we draw further guidance from the decision of Johnson Co. Developmental Supports (JCDS), 42 Kan. App. 2d 570, dealing with an agency interpretation. In JCDS, there was a dispute over the agency’s interpretation of the term “known.” 42 Kan. App. 2d at 582. The trial court determined that JCDS was attempting to substitute its interpretation for that of the agency’s. This court affirmed the trial court’s conclusion that in giving deference to the agency’s interpretation, as it was required to do, the trial court properly found the agency’s interpretation to be rational and appropriate. 42 Kan. App. 2d at 583.
Our case is similar to JCDS. Like JCDS, Lindemuth is attempting to substitute its interpretation of the term “accounting” for that of KDHE’s interpretation. Also, like JCDS, the trial court gave deference to the agency’s interpretation, when it ruled in KDHE’s favor.
Based on the plain language of the Order, the dictionary definitions, and the relevant caselaw, we conclude that the trial court properly upheld KDHE’s interpretation of the term “accounting” in the Administrative Order.
Moreover, KDHE’s argument that Lindemutli is estopped from objecting to the invoices has merit. “Estoppel involves an assertion of rights inconsistent with past conduct, silence by those who ought to speak, or situations where it would be unconscionable to permit persons to maintain a position inconsistent with one in which they have already acquiesced.” Schraft v. Leis, 236 Kan. 28, 36, 686 P.2d 865 (1984).
Lindemuth acquiesced to the form of the invoices by paying them for years without objection. Lindemuth paid the invoices for 3 years before raising an issue to the adequacy of the invoices. Based on Lindemuth’s past conduct of paying the invoices, it is now estopped from objecting to the invoices.
In addition, we reject Lindemuth’s argument that the trial court should have conducted an evidentiary hearing for two reasons: (1) the issue was not raised below; and (2) the parties agreed in the case management order that no additional discovery would be allowed and that the case would be decided on the record.
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Greene, C.J.:
The State of Kansas perfects this interlocutory appeal of the district court’s order suppressing evidence resulting from a warrantless search of a vehicle incident to a traffic stop, which evidence led to charges against Kala Jones for possession of cocaine and possession of drug paraphernalia. Concluding that there was no reasonable suspicion to justify further detention of the suspect and that the detention for a drug dog to arrive unreasonably extended the suspect’s detention, we affirm the district court’s suppression of evidence found after the drug dog alerted on the suspect’s vehicle.
Factual and Procedural Background
In the early morning hours of November 16, 2010, Officer Bill Powers of the Garden City Police Department observed a vehicle driven by Kala Jones and stopped the vehicle for “driving erratically” or “the actions of driving odd.” These actions included the failure to use a turn signal. When the officer approached Jones, he noticed that “she was angry. She was upset that I had stopped her. Her mouth appeared to be dry, to me, like she had cotton mouth. And her words were slurred.” He did not smell alcohol or drugs on the driver’s person or in the vehicle. The officer’s testimony sometimes also mentioned bloodshot eyes, but his testimony was not consistent on this, and his written report failed to mention this observation. The officer also observed the comer of an empty plastic sandwich bag inside the vehicle.
Based upon these observations, the officer did not proceed with an investigation for driving under the influence of dmgs or alcohol, but rather sought the driver’s identification and then asked her to step from the vehicle. When the driver denied the officer permission to search the vehicle, the officer contacted his supervisor, Sergeant Martinez, who arrived at the scene “probably 15 minutes after” the vehicle was stopped. After the officer conferred with his supervisor, they decided to ask all vehicle occupants to exit the car and to call for a K-9 unit. The precise time that elapsed waiting for the K-9 unit is in dispute, but the elapsed time was apparently somewhere between 20 and 40 minutes based upon the competing testimony of the officer and Jones. (We also note that the officer’s testimony regarding the elapsed times during various stages of his detention of Jones were not consistent.) The vehicle stop occurred no earlier than 12:40 a.m. and no later than 2 a.m., and Jones was booked at the detention center about 3 a.m.
At the traffic stop, the K-9 unit alerted on the vehicle, and drugs and paraphernalia were ultimately found, leading to die charges against Jones. The district magistrate judge initially denied the suppression motion, but the district court granted the suppression motion. The district court’s memorandum opinion made no findings on the elapsed time of the detention, but it related the conflict in the evidence as noted above. The key findings or conclusions of the district court were:
“13. It is this Court’s finding, based upon the testimony, that the officer was playing a hunch and the traffic stop and the ticket for no use of a turn signal was merely a pretext to hold the Defendant illegally for as long as necessary to get a K-9 unit there in the hope of securing a probable cause finding for searching the vehicle.
“14. If a traffic citation was justified, the officer had only as long as it was reasonably necessary to write the ticket and then release the Defendant to go on her way. Obviously since no ticket was ever wrote, it adds weight to the claim that the stop was only a pretext and that the officer violated the Defendant’s constitutional right against unreasonable search and seizure! ].”
The State timely appeals this ruling.
Standards of Review
In reviewing an order suppressing evidence, an appellate court generally reviews the factual findings underlying the district court’s suppression decision using a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by applying a de novo standard. This court does not reweigh the evidence. State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009). This court ordinarily presumes the district court found all facts necessary to support its judgment, unless the record on appeal fails to support that presumption. State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009); Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). The State has the burden of proving that a search or seizure was lawful. State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006).
Whether reasonable suspicion exists is a question of law and is reviewed de novo. In reviewing an officer’s belief of reasonable suspicion, this court determines whether the totality of the circum stances justified the detention. State v. Walker, 292 Kan. 1, Syl. ¶¶ 5, 6, 251 P.3d 618 (2011).
Did the Court Err in Suppressing the Evidence Resulting from the K-9 Alert During the Detention of Jones?
The State challenges the district court’s suppression decision, arguing that the officer “had developed independent reasonable suspicion to extend the duration of the traffic stop and investigate a possible drug violation.” We review the general principles governing traffic stops and the development of reasonable suspicion as a part thereof.
General Principles
The Fourth Amendment to the United States Constitution provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.” U.S. Const, amend. IV. A traffic violation provides an objectively valid reason for conducting a traffic stop; thus, an initial seizure of the driver is not deemed unreasonable, even if the stop is pretextual. State v. Moore, 283 Kan. 344, 350, 154 P.3d 1 (2007).
During a routine traffic stop, a law enforcement officer may request a driver’s license, proof of insurance, and vehicle registration; run a computer check; and issue a citation. When the driver has produced a valid license and proof that he or she is entitled to operate the car, tire driver must be allowed to proceed on his or her way, without being subject to further delay by the officer for additional questioning. In order to justify a temporary detention for further questioning, the officer must have either consent or reasonable suspicion of the presence of illegal drugs or of some other serious crime. See State v. Mitchell, 265 Kan. 238, Syl. ¶ 4, 960 P.2d 200 (1998).
An officer’s inquiries or actions unrelated to the justification for an initial traffic stop do not convert the stop into an unlawful seizure so long as they do not measurably extend or prolong the stop. In the absence of consent, an officer may expand the duration of the detention beyond the initial stop when the responses of a detainee and the circumstances relating to the stop give rise to suspicions of a crime unrelated to the traffic offense. The officer may then satisfy those suspicions, graduating the police response to the demands of the situation. See State v. Morlock, 289 Kan. 980, 995-96, 218 P.3d 801 (2009). But an officer may expand the detention beyond the purposes of the initial stop only if there is an objectively reasonable and articulable suspicion that criminal activity was or is taking place. See State v. Thomas, 291 Kan. 676, Syl. ¶ 8, 246 P.3d 678 (2011).
Reasonable suspicion is a less demanding standard than probable cause and requires a showing of considerably less than a preponderance of the evidence, but the United States Constitution requires at least a minimal level of objective justification. The officer must be able to articulate more than an inchoate and unparticularized suspicion or hunch of possible criminal activity. Thomas, 291 Kan. at 688. In assessing factors articulated to support reasonable suspicion, we do not prioritize or pigeonhole each factor, but rather determine whether the totality of the circumstances justifies further detention. State v. DeMarco, 263 Kan. 727, 734-45, 952 P.2d 1276 (1998) (pigeonholing prohibited); see State v. Thompson, 284 Kan. 763, Syl. ¶ 20, 166 P.3d 1015 (2007) (no one factor legally dispositive). Quantity and quality are considered in the totality of the circumstances or “the whole picture” that must be taken into account when evaluating whether there is reasonable suspicion. DeMarco, 263 Kan. at 735.
Application
Here, the officer was asked a direct question about the basis of any suspicion. At the initial suppression hearing before the magistrate judge, he stated, “She had cotton mouth, dry mouth. . . . Her eyes were bloodshot. Her words were slurry. I saw a clear plastic baggy inside of the truck.” At the suppression hearing before the district court, however, when asked what he observed that was “out of the ordinary” about Jones, he indicated, “[J]ust slurred speech and the cotton mouth” and then added his observation of “a clear plastic baggy.” At no time did the officer indicate that his reasonable suspicion was based in part on the driving violations that formed the basis of his vehicle stop. Based on these factors, the officer believed “there was the presence of controlled substances within the truck.” He did not proceed with a DUI investigation.
Were these articulated factors sufficient to create a reasonable suspicion that there were controlled substances within the truck? Critical to our analysis is the fact that we are not examining whether these factors would have supported reasonable suspicion of DUI, but rather whether they supported reasonable suspicion of transporting controlled substances. Also critical to this determination is that we cannot consider the other factors urged by the State such as bloodshot eyes or erratic driving because they were not articulated by the officer to the district court as a basis for his extended detention of Jones. See State v. Johnson, 293 Kan. 1, Syl. ¶ 4, 259 P.3d 719 (2012) (officer must be able to articulate reasonable suspicion beyond hunch of criminal activity); State v. Blaylock, No. 104,146, unpublished opinion filed January 28, 2011 (State cannot bootstrap different bases for reasonable suspicion beyond those articulated by the officer making the stop).
Although our dissenting colleague would apparently remand for the arresting officer to clarify his testimony regarding the story of Jones’ erratic driving — a fact that he failed to mention as a basis for his stop — we respectfully disagree that any remand is appropriate. Our refusal to consider Jones’ alleged erratic driving does not convert our analysis into a subjective test, nor does it somehow constitute “de novo fact finding.” We have made no findings on the issue, and we simply adhere to three important rules in such cases: (1) The State has the burden of proof in these matters, and we decline to provide it with a second bite of the apple if the officer has had adequate opportunity to explain the basis for a vehicle stop and has failed to articulate other facts that might have supported the stop. See State v. Greener, 286 Kan. 124, 133, 184 P.3d 788 (2007); (2) We have always focused on the officer’s “ability to articulate” his or her basis for the stop; i.e., no post-hoc bootstrapping is permitted. See Blaylock, slip op. at 3; and (3) Analysis of the officer’s articulation of the factual basis has nothing to do with the subjectivity that we seek to avoid; we look at the purported factual basis in determining whether an objective officer would have a reasonable and articulable suspicion — and we avoid the specific officer’s subjective thought process. See United States v. Foreman, 369 F.3d 776, 781 (4th Cir. 2004). We must also avoid embelhshing the officer’s account after the fact or remanding with clear directions or implication that the erratic driving fact should be articulated on a second attempt by the arresting officer.
The observation of slurred speech and “cotton mouth” may — to an experienced officer — indicate that alcohol or drugs have been recently consumed. We have often found that slurred speech— coupled with other factors — may support reasonable suspicion that one is intoxicated or has been driving under the influence. See, e.g., State v. Kendall, 274 Kan. 1003, 1013, 58 P.3d 660 (2002) (slurred speech is an indicator suspect is intoxicated); State v. Wahweotten, 36 Kan. App. 2d 568, 591, 143 P.3d 58 (2006), rev. denied 283 Kan. 933 (2007). The State cites no caselaw, however, to suggest that either of these factors would tend to support a suspicion that the vehicle is transporting controlled substances. Our review of applicable caselaw has revealed only some indication that the factor of intoxication may be considered in determining probable cause the person may be possessing drugs on his or her person. See State v. Ramirez, 278 Kan. 402, 407-08, 100 P.3d 94 (2004). We view this as distinct from a factor indicating transportation of drugs within the vehicle.
The observation of the empty plastic sandwich baggy is not an impressive factor. See Ramirez, 278 Kan. at 408 (quoting 2 LaFave, Search and Seizure § 3.6, pp. 299-301 [1996] [observation of person in possession of certain packaging which on other occasions has been found to conceal narcotics does not, standing alone, constitute probable cause]). Granted, contraband is frequently transported in such baggies, but the State cites no caselaw to suggest that the presence of an empty plastic baggy in a vehicle may be considered a factor tending to support a reasonable suspicion that the vehicle is transporting other controlled substances. We are to evaluate such factors employing common sense and ordinary human experience (see United States v. Wood, 106 F.3d 942, 946 [10th Cir. 1997]); such plastic sandwich baggies have a multitude of innocent uses and are frequently utilized in packing innocent substances for travel purposes. Moreover, if we accord reasonable deference to a law enforcement officer’s ability to distinguish between innocent and suspicious activity (see Walker, 292 Kan. 1, Syl. ¶ 6), we believe that tire empty baggy to a trained law enforcement officer would tend more often to support the fact that drugs had already been consumed or thrown out of the vehicle rather than a suspicion that other controlled substances were still in the vehicle. Again, we are not impressed with this factor. See State v. Armstrong, No. 93,941, 2006 WL 1668767, at *6 (Kan. App. 2006) (unpublished opinion) (citing State v. Schneider, 32 Kan. App. 2d 258, 264, 80 P.3d 1184 [2003] [courts have been reluctant to place too much stock in the possession of items which are legal to possess]).
The State has also urged us to consider how reasonable suspicion is “strengthened by Officer Powers’ extensive training and experience in investigating drug crimes.” Although we have been willing to give some degree of deference to the officer’s ability to distinguish suspicious activity, we will not abdicate our role in making a de novo legal determination of reasonable suspicion. As our Supreme Court has cautioned:
“We do not advocate a total, or substantial, deference to law enforcement’s opinion concerning the presence of reasonable suspicion. The officers may possess nothing more than an ‘inchoate and unparticularized suspicion’ or ‘hunch’ of criminal activity. [Citation omitted.] Such a level of deference would be an abdication of our role to make a de novo determination of reasonable suspicion.” Moore, 283 Kan. at 359.
Evaluating the factors within the totality of the circumstances, they may have been sufficient to support a further investigation for DUI. This is not the question before us, however, and it was not the course chosen by this officer; instead, he chose to abandon any investigation of DUI and detain Jones for further investigation of transporting controlled substances — including the employment of a drug-sniffing dog to examine the vehicle. We simply cannot conclude that the factors articulated would support reasonable suspicion, especially given the State’s burden in the matter. For this reason alone, the district court did not err in suppressing the evidence.
Even If Reasonable Suspicion Had Existed, Did the Officer Unreasonably Extend the Detention?
Even if we had found that reasonable suspicion existed to support the extension of Jones’ detention, the next step would have necessarily been to determine whether the detention was reasonably extended or was of a lawful duration. See State v. Coleman, 292 Kan. 813, 821, 257 P.3d 320 (2011). For purposes of avoiding remand for consideration in the event that our views on reasonable suspicion do not prevail, we turn to this inquiry.
Our dissenting colleague suggests this issue was not raised in district court or on appeal and should not be considered. Again, we respectfully disagree. The argument first appears in Jones’ motion to suppress, where her counsel stated that “[e]ven if the initial contact was appropriate, the detention exceeded the initial scope of the stop when Officer Powers continued to detain Ms. Jones At the initial motion hearing, Jones’ counsel stated, “At that point Officer Powers should have let my client go home. However, . . . we’re not sure exactly how long she was held. . . . This was a very long detention.” At the second suppression hearing, Jones’ counsel stated, “An officer cannot detain a person once they provide these valid documents on a mere hunch or a suspicion. There has to be something more. ... It wasn’t just a short stop either.” On appeal, the State argues that “the amount of time that elapsed under either Officer Powers’ or the Defendant’s version of event did not impermissibly extend the duration of the traffic stop beyond its lawful scope.” Jones’ appellate brief responded that “[w]hether she was held almost an hour or two hours is not the issue. Without reasonable suspicion that a crime was being committed, Officer Powers had no right under the law to detain her at all . . . .” Clearly, this issue was raised below and has been argued on appeal.
A traffic stop may not exceed the duration necessary to cany out the purpose of the stop. Morlock, 289 Kan. at 988-89. Detaining a driver for even a few minutes in order to allow a drug-sniffing dog to arrive unreasonably extends the detention when the officer did not need additional time to ask exploratory questions or to write a traffic citation. See Coleman, 292 Kan. at 822; Mitchell, 265 Kan. 238, Syl. ¶ 3.
Here, according to the officer’s initial testimony, Jones’ detention was extended at “5 to 10 minutes” for the arrival of the officer’s supervisor, and “maybe 15 to 20 minutes” for the arrival of the drug dog, or at least 20 to 30 minutes. Our dissenting colleague cannot find support for these facts and prefers to rely on the officer’s second version of the timing, wherein the officer stated that the entire time of detention was “15, 20 minutes tops.” The dissenter then suggests once again that we have engaged in “de novo fact finding.” We respectfully disagree. We have simply taken the officer at his word and analyzed the encounter based on the best possible scenario for law enforcement: Jones was detained for at least 20 to 30 minutes. If this detention cannot survive scrutiny, there is little reason to remand for further fact finding, especially because the State has conceded that “the traffic stop of the defendant’s truck was extended beyond the time normally allotted for a traffic stop for failure to use a turn signal.”
A detention of 20 to 30 minutes is within 5 minutes of the duration of the unlawful detention in Coleman, which was 35 minutes “while he waited for backup officers and, eventually, a parole officer to arrive.” 292 Kan. at 822. Again, there our Supreme Court clearly and unequivocally stated that “[detaining a driver for even a few minutes in order to allow a drug-sniffing dog to arrive unreasonably extends the detention when the officer did not need additional time to ask exploratory questions or to write a traffic citation.” 292 Kan. at 822. Here, the officer did not need to nor did he ask further questions of Jones, and he elected to abandon an investigation for DUI or to write a citation for a traffic offense— he detained Jones while he waited for his supervisor and then the drug-sniffing dog to arrive. Under the controlling precedent of Coleman, we hold that the detention of Jones was unreasonably prolonged and this alone would justify suppression of the evidence ultimately discovered through use of the K-9 unit, even if the officer had gained reasonable suspicion that the vehicle may have contained controlled substances. Here, we note with respect that our dissenter overlooks the fact that even if there was any reasonable suspicion developed at all, it may have supported an investigation for DUI, but not for possession of controlled substances, and DUI is not generally pursued by using a drug-sniffing dog.
The State has cited two federal cases to support its argument that the time that elapsed awaiting the drug dog did not impermissibly extend the duration of the traffic stop beyond its lawful scope. Federal Circuit Court of Appeals cases are not binding on this court, but they can be considered persuasive. Thompson, 284 Kan. at 801. In United States v. Rosborough, 366 F.3d 1145 (10th Cir. 2004), a canine unit arrived approximately 45 minutes into a consensual search of the vehicle; but this is to be distinguished from the case before us both because that search was consensual and the officers were in the process of searching during the entire time while awaiting the canine unit. In United States v. White, 42 F.3d 457 (8th Cir. 1994), a canine unit arrived 1 hour and 20 minutes after being summoned during a consensual search of a vehicle, but — again—the search was consensual and was also supported by a specific reasonable suspicion that boxes found in the vehicle contained drugs. We are not persuaded that either of these cases should cause this court to depart the controlling precedent of our own Supreme Court in Coleman.
We note that this outcome is identical to that of the district court, albeit for different reasons. The district court apparently relied in part — if not entirely — on the pretextual nature of the initial stop. This was error because a pretextual stop is not improper so long as there is an objectively valid reason to effectuate it. See Anderson, 281 Kan. at 901. Therefore, we affirm the district court’s judgment on somewhat different grounds, as is our prerogative. See State v. Murray, 285 Kan. 503, 533, 174 P.3d 407 (2008).
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Buser, J.:
Thomas Joseph Stawski, Jr., was convicted of aggravated intimidation of a witness or victim, K.S.A. 21-3833(a)(l), and criminal threat, K.S.A. 21-3419(a)(l). Stawski appeals the district court’s granting of the State’s motion to impose upward dispositional departure sentences for these convictions. He contends the district court erred when it ordered his commitment to the Secretary of Corrections when the presumptive sentence for both convictions was probation. In particular, Stawski claims there was insufficient evidence to prove that his offenses were motivated in whole or in part by the race or skin color of his victims. We affirm.
Factual and Procedural Background
George Carter is a black man who, at the time of these proceedings, was a member of the Kansas National Guard. On October 1, 2008, he opened an envelope mailed to his family residence by an anonymous sender. Affixed to the envelope was an upside down “purple heart stamp.” Inside the envelope were three sheets of paper which had content printed from one or more Internet websites.
One sheet of paper showed the picture of a man hanging by the neck from a scaffold. It was entitled, “Hanging Black Soldier.” Below the picture was a reference to a “negro soldier” who purportedly “was accused of desertion and was hung” at Petersburg, Virginia, in 1864. Another sheet of paper showed 20 small photographs, many of which were of black soldiers being hung. These pictures had individual labels such as “1908 lynching 4 hanging” and “Claims of the Negro.” The third sheet of paper showed an etching of a black man hanging from a scaffold. This etching was entitled, “A Negro Hung Alive by the Ribs to a Gallows.” On each one of the three sheets of paper “KKK” was handwritten in large letters.
Carter suspected his neighbor, Stawski, of sending the anonymous mailing to his home because Carter had filed 16 complaints in 2008 with the local police department about Stawski’s dogs running at large. In fact, Stawsld was scheduled to appear for trial in the municipal court to answer one of those complaints in November 2008.
Carter also thought Stawski was responsible for the mailing because every time he called the police to complain about Stawski’s dogs, Stawski would respond in some manner which Carter considered provocative. After the first complaint, Stawsld placed a beware of dog sign in his yard facing Carter s yard. The next time, Carter’s wife found nails on their driveway. After another complaint, Stawsld placed a simulated grave in his yard with a rest in peace sign. On the next occasion, Stawsld placed a very large yellow sign in his yard stating, “[D]ogs don’t bite, people do.” That sign was changed after the next complaint to “Beware of people and dogs bite here.”
Following an investigation by law enforcement officers, Stawski was identified as the sender of the offensive materials after DNA recovered from the envelope matched his DNA profile. As a result, Stawsld was charged with aggravated intimidation of a witness or victim and criminal threat.
At the preliminary hearing, Carter testified he felt threatened upon receiving the mailing “[b]ecause it showed soldiers being hung, and it said the KKK on there, so I felt it was threatening either me, or all of [my family].” Carter’s family also is black. According to Carter, tire mailing “[m]ade me feel pretty scared, getting ready to deploy, and knowing my family is there, alone; not knowing what’s going to happen to them. I felt that they were at a bigger risk than I was, in Iraq, to be, actually honest with you.”
Later, under terms of a plea agreement, Stawski pled guilty to an amended information which charged aggravated intimidation of a victim, Carter, and criminal threat against Carter’s wife. In return, the State dismissed another count of criminal threat against Carter and agreed not to refer the case for federal prosecution. The plea agreement included an acknowledgement that the State had filed a motion for an upward dispositional departure, but Stawski was free to request probation. After a thorough inquiry, the district court accepted Stawski’s pleas and found him guilty.
Prior to sentencing, Stawski filed a motion for probation asserting he was “not a menace to society” and that society “would be better served by ordering him to probation, allowing him to maintain employment” and pay fines and court costs.
The State’s motion for upward dispositional departure, however, alleged that Stawski’s offenses were “motivated entirely or in part by the race, color, and/or ethnicity, of the victims which is a statutory factor under [K.S.A. 21-4716(c)(2)(C)] in support of a departure.” The State argued:
“This case is not simply a dispute between two neighbors. If the defendant was angry at his neighbors and chose to ‘send a letter/ he could have done so. However, the defendant chose to obtain pictures of black hanging soldiers knowing Mr. Carter was a black soldier. The defendant chose to write ‘KKK’ on the pictures knowing that referencing the Ku Klux Klan terrorizes most if not all African-Americans given the group’s history of terrorism in this country.... He also chose to send [the pictures] anonymously which would heighten the victims’ fear since they would have no way of knowing who was targeting them.... [Carter’s] actions demonstrated he is willing to terrorize other people and target them based on their race or color.”
At sentencing, the State and defense presented several witnesses. In particular, Carter testified:
“I came home, opened up that first letter, and saw KKK at tire top, followed by all the little, small pictures of hanging black soldiers. I just could not believe my eyes .... This is something that, regardless how many times you’ve heard people being in a situation, you can never imagine that until you physically feel it for yourself. The rest of the time I was at home, I didn’t sleep at night. Scared. ... It was very disturbing for me, my family.”
Stawski testified on his own behalf. At the outset, he stated, “I’d like to apologize to everybody for my mistake.” He related the difficulties he had encountered in containing his dogs within his yard. In particular, Stawski denied that any signs on his property were directed at Carter. Stawsld concluded, “Only thing, I got mad, and I made a mistake, and I paid for it dearly. . . . But nothing with the prejudice thing. It’s just — I made a mistake. I got mad and I did it.”
The district court imposed the standard terms (after upward departure) of 18 months’ imprisonment for aggravated intimidation of a witness and 6 months’ imprisonment for criminal threat. Both sentences were to be served concurrently with each other. Given Stawsld’s overall criminal history classification of I and the Kansas Sentencing Guidelines, the presumptive sentences for both felony offenses (severity levels 6 and 9, respectively) were probation. See K.S.A. 2008 Supp. 21-4704.
The sentencing court, however, granted the State’s upward dis-positional departure motion on grounds the offenses were motivated entirely or in part by race or skin color. In making its ruling, the sentencing court relied on the testimony presented at sentencing, the preliminary hearing, and the envelope and its contents which were admitted as exhibits.
In granting the State’s upward dispositional departure motion, the sentencing judge stated:
“The dog issue is secondary. . . . Mr. Carter wasn’t a victim of running dogs . . ., Mr. Carter was a victim of what seems to be pretty invidious discrimination, to the Court. The aggravating factor, of course, that does apply, is number (c) of 21 — K.S.A. 21-4716(c)[(2)(C)] which states: The Court should consider in determining whether substantial and compelling reasons for departure exists, and it lists about seven or eight factors the Court may consider. The one that the Court will consider in this case is that the offense was motivated by the defendant’s belief or perception entirely or in part of tire race, color, religion, et cetera. . . .
“Now, what occurred here was something that cannot be tolerated in diis society.
“I know you know that, Mr. Stawski.”
Stawski replied, “Yes, sir.”
Stawski was ordered to serve his sentences with the Kansas Department of Corrections. He filed a timely appeal.
Did Substantial and Compelling Reasons Exist for Granting the' Upward Dispositional Departure Sentences?
For the first time on appeal, Stawski contends the sentencing court erred in ruling that his offenses were motivated entirely or in part by the Carter family’s race or skin color. As a result, Stawski claims there was not a substantial and compelling reason for granting the upward dispositional departure sentences.
Appellate review of a departure sentence involves a mixed standard:
“Generally, a reviewing court first examines the record to see whether there is substantial competent evidence in support of the sentencing court’s articulated reasons for granting a departure. The appellate court then determines, as a matter of law, whether the sentencing court’s reasons for departure are substantial and compelling reasons justifying a deviation from the presumptive sentence defined by the legislature.” State v. Blackmon, 285 Kan. 719, Syl. ¶ 1,176 P.3d 160 (2008).
K.S.A. 21-4716(a) authorizes a district court, under appropriate circumstances, to depart from a presumptive sentence of probation and impose an upward dispositional departure sentence of imprisonment. A departure is permitted when the sentencing court finds “substantial and compelling reasons for the departure.” K.S.A. 21-4716(a). In the determination of “whether substantial and compelling reasons for a departure exist,” K.S.A. 21-4716(c)(2), the sentencing court may consider a nonexclusive list of aggravating factors, including that “[t]he offense was motivated entirely or in part by the race, color, religion, ethnicity, national origin or sexual orientation of the victim.” (Emphasis added.) K.S.A. 21-4716(c)(2)(C). The two statutory aggravating factors at issue in the present case are the victims’ race and skin color.
Stawski claims error because “[although the means Mr. Stawski used to threaten and/or intimidate Mr. Carter [were] racially offensive, there was no substantial and competent evidence that Mr. Stawski’s motivation to commit the crime was in any way related to race.” (Emphasis added.) He argues his motivation for the crimes was solely retaliation as a result of Carter’s complaints that Stawski’s dogs were running at large. According to Stawski, race may have factored into the means of the intimidation, but it did not evidence his motivation as to why he committed the crimes.
Stawski also argues
“[t]he images were effective in intimidating Mr. Carter because he was a black soldier and the first photograph was of a black soldier being hung. Yet, it would be absurd to say that Mr. Stawski’s motivation for the crime was, even in part, because Mr. Carter was a soldier. Similarly, all of the images were of black men. But there is no indication that Mr. Stawski was motivated by a gender bias against men. Accordingly, that Mr. Stawski used images of men the same race as Mr. Carter does not mean he was motivated to do so because of Mr. Carter’s race.”
The State counters that the photographs depicting black soldiers being hung with the letters “KKK” handwritten next to them exemplify the why or motivation behind the crime because the anonymous photographs would not have conveyed the same meaning to a white person. According to the State, this “is the very reason why someone like Stawski would do it, and hence the means are demonstrative of the motivation ‘entirely or in part (Emphasis added.)
At tire outset, K.S.A. 21-4716(c)(2)(C) clearly provides that a defendant’s motivation for committing an offense is not required to be exclusively based on a victim’s race or skin color. The plain meaning of the words “entirely or in part” (emphasis added) explicitly allows a sentencing court to consider if any aspect or portion of the defendant’s motivation was based on race or skin color.
Moreover, as a general rule of statutory construction, we give common words their ordinary meaning. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). The word “motivation” is commonly understood as “something within a person (as need, idea, organic state, or emotion) that incites him to action.” Webster’s Third New International Dictionary 1475 (1971). This common definition is consonant with the legal definition of “motive”: “Motive is the moving power that impels one to action for a definite result. Motive is that which incites or stimulates a person to do an action.” State v. Jordan, 250 Kan. 180, Syl. ¶ 8, 825 P.2d 157 (1992).
Our review of the evidence shows that a part of Stawski’s motivation for committing aggravated intimidation of a victim against Carter and criminal threat against Carter’s wife was an attempt by Stawski to deter Carter from the filing of complaints for dogs running at large and assisting the city in the prosecution of those complaints. There was, however, other evidence to support the sentencing court’s finding that “[t]he dog issue is secondaiy.”
Substantial competent evidence showed that Stawski’s offenses also were motivated in part by the Carters’ race and skin color. In this regard, both of Stawski’s convictions shared a common element — a threat to commit violence. In particular, aggravated intimidation of a victim requires an act “accompanied by an expressed or implied threat of force or violence,” K.S.A. 21-3833(a)(l), and criminal threat requires communication of a threat “[t]o commit violence ... in reckless disregard of the risk of causing such terror,” K.S.A. 21-3419(a)(l).
Kansas caselaw is replete with the typical ways that criminal defendants have threatened to commit violence against their victims. Usually, the threats have involved ordinary, spoken or written words or gestures that simply described the threatened act of violence. State v. Woolverton, 284 Kan. 59, 61, 159 P.3d 985 (2007) (defendant told victim, “ 1 will [expletive deleted] kill you’ ”); State v. Cope, 273 Kan. 642, 648, 44 P.3d 1224 (2002) (defendant said he would “ whack as many people as possible’ ” in attack on courthouse); State v. Quinones, 42 Kan. App. 2d 48, 50, 208 P.3d 355 (2009), rev. denied 290 Kan. 1101 (2010) (defendant made slashing motion across her throat while witness was testifying against defendant’s son); State v. Hoskins, No. 99,802, 2009 WL 2499274, at ° 1 (Kan. App. 2009) (unpublished opinion) (defendant told victim he would shoot her and her four children if she did not drop charges). In short, these threats of violence were characteristically generic, nonexclusive, and universally applicable to victims regardless of their race or skin color.
This case is different. Stawski did not communicate an ordinaiy, run-of-the-mill threat to commit violence. Here, the threat to commit violence was unspoken, unwritten, and uncommon. It consisted of three pieces of paper containing images upon which were scrawled three capital letters. Yet, it sent an unmistakable and powerful message — a message to commit violence uniquely and especially understood by the Carters and members of their race with similar skin color. In short, the threat of violence communicated by Stawski revealed, in part, a motivation that had less to do with dogs running at large and more to do with racism.
As the Nebraska Supreme Court has written:
“The Ku Klux Klan’s history and notoriety give it, and its symbols, influence and meaning greatly disproportionate to its remaining membership. The Ku Klux Klan has been characterized as ‘ “ ‘[t]he world’s oldest, most persistent terrorist organization.’ ” ’ There is little doubt that the Ku Klux Klan’s main objective remains to establish a racist white government in the United States. The Ku Klux Klan, like the burning cross that is its most dramatic and visible sign, is a symbol of organized violence, physical as well as verbal, directed against blacks. ‘[N]o single group more starkly demonstrates the endurance of dark social forces in the United States — -racism, religious bigotry, extralegal vigilantism, moral authoritarianism — than the Klan, a hooded, secret order now well into its second century of existence.’ ” State v. Henderson, 277 Neb. 240, 256-57, 762 N.W.2d 1 (2009).
It is an understatement to observe that Ku Klux Klan activities have resulted in lawlessness and terrorism against black persons in the United States. Justice Clarence Thomas, for example, has described the Klan “as a terrorist organization, which, in its endeavor to intimidate, or even eliminate those it dislikes, uses the most brutal of methods.” Virginia v. Black, 538 U.S. 343, 389, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003) (Thomas, J., dissenting). These brutal methods have included murders, bombings, beatings, shootings, stabbings, and mutilations. 538 U.S. at 355.
In his brief, Stawski acknowledges that he used “one of the most intimidating images to a black man: a black man being hung alongside the invocation of the Ku Klux Klan.” In essence, Stawski concedes the unique and powerful relevance the images and the “KKK” references had to the Carters and other black persons- — a fear of physical violence bom of the historical notoriety of the KKK in fomenting racism in the United States.
The unique and purposeful means by which Stawski chose to communicate his threats of violence revealed, at least in part, his underlying motivation for those threats. As the sentencing court found, Stawski engaged in “pretty invidious discrimination.” Accordingly, we conclude there was substantial competent evidence to support the sentencing court’s finding that Stawski’s offenses were motivated in part by the statutory factors of the Carters’ race and color. See K.S.A. 21-4716(c)(2)(C).
Finally, we consider whether the sentencing court’s reasons for departure were substantial and compelling reasons justifying a deviation from die presumptive sentences in this particular case. See State v. Martin, 285 Kan. 735, Syl. ¶ 1, 175 P.3d 832 (2008). “The term ‘substantial’ refers to something real and of substance and not imagined or ephemeral, while the term ‘compelling’ implies that the court is forced by the facts of a case to go beyond what is ordinary or to leave the status quo.” State v. Rodriguez, 269 Kan. 633, 646, 8 P.3d 712 (2000).
Ordinarily, Stawski’s offenses would have resulted in presumptive sentences of probation. Two considerations, however, convince us that the sentencing court did not err in granting the upward dispositional departure sentences of imprisonment.
First, given the racist nature of the offenses, Stawski caused great emotional distress to the Carters. Carter testified that he was scared. He also described the physical manifestation of this fear— difficulty with sleeping. Carter s consternation was heightened because he was scheduled for deployment to Iraq with the Kansas National Guard. He testified that leaving his family alone under the circumstances was “very disturbing for me, my family.” Moreover, as emphasized by the State, Stawski failed to demonstrate any appreciation for the serious emotional suffering he caused the Carter family.
Second, although Stawski apologized for making “a mistake,” his denial that tire offenses were related to “the prejudice thing” failed to show a simple understanding that his threats — given their racist context — were especially heinous. As the sentencing judge concluded, “[W]hat occurred here was something that cannot be tolerated in this society.”
Given the totality of the evidence in this case, we hold the sentencing court’s reasons for departure were both substantial and compelling. Accordingly, the sentencing court did not err is granting die State’s motion for imposition of upward dispositional departure sentences of imprisonment.
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Ward, J.:
Scott Douglas challenges recent efforts to collect the court costs imposed in his 1991 Sedgwick County criminal case. In 2010 Douglas filed a motion asserting that the collection of these costs was barred by operation of several Kansas statutes. The district court disagreed and denied his motion. Douglas appeals. We reverse and remand with directions.
Factual and Procedural Background
In 1991 Scott Douglas pled guilty to the crime of indecent liberties with a child. He was sentenced to an indeterminate term of 5 to 20 years in prison. The written plea agreement included language expressing Douglas’ understanding that the court “will order the payment of court costs against me.” At the time of sentencing, the trial judge specifically ordered Douglas to pay the costs of the action. The journal entry of judgment memorialized this order by stating that Douglas “shall pay the costs of this action to the Clerk of this Court, including witness fees and miscellaneous expenses.” The journal entry did not, however, specify the amount of court costs or fees to be paid by Douglas.
In 1992 this court affirmed by summary opinion Douglas’ sentence as well as the trial court’s denial of his motion to modify sentence. The issue of court costs was not raised by Douglas in his direct appeal. State v. Douglas, No. 67,558, unpublished opinion filed December 11, 1992, rev. denied 252 Kan. 1093 (1993).
In 2010 Douglas filed the instant motion seeking dismissal of his court costs, which by then had been turned over to a collection agency. Douglas asserted in his motion that the costs in his case were no longer collectable by the district court or its collection agency because he had never been provided with an itemized statement of the costs pursuant to K.S.A. 22-3803 and because the statute of limitations found at K.S.A. 60-512 bars the collection of court costs after 3 years. Although asserting that he had never been provided an itemized cost statement, his motion states: “[T]he original order (verified by the court clerk) was ordered at $127.00 as of 1991.” This amount appears to be the statutory docket fee in effect at that time. See K.S.A. 28-172a. The record is silent as to when or how Douglas may have obtained this information regarding his court costs.
The State filed a response to Douglas’ motion but did not directly address the statutory arguments Douglas had put forth. Instead, the State argued that K.S.A. 75-719(d) authorized Kansas judicial districts to use outside agencies for collecting court debts and that pursuant to K.S.A. 22-3801(a) the district court has no authority to waive a defendant’s obligation to pay court costs. In a minute order filed May 24,2010, the trial judge adopted the State’s response and denied Douglas’ motion to dismiss costs.
Do One or More Statutes Prevent the Collection of Court Costs in This Case?
This case involves the interpretation of several statutes. As such, the scope of appellate review is unlimited. The intent of the legislature is presumed to be expressed in the statutory language. And the legislative intent shall govern if it can be determined from the statute. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). The court should look first at the statute’s express language and give ordinary words their ordinary meaning. State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). If the statute is ambiguous or lacks clarity, statutory construction becomes appropriate, and a court must move outside the text of the provision at issue, utilizing legislative history and the canons of statutory construction. Board of Leavenworth County Comm'rs v. Whitson, 281 Kan. 678, 685, 132 P.3d 920 (2006).
K.S.A. 22-3801(a) and K.S.A, 22-3803: The Assessment and Itemization of Court Costs
K.S.A. 22-3801(a) states: “If the defendant in a criminal case is convicted, the court costs shall be taxed against the defendant and shall be a judgment against the defendant which may be enforced as judgments for payment of money in civil cases.” K.S.A. 22-3803 provides in pertinent part: “At the conclusion of each criminal case the court shall tax the costs against the party responsible for payment and shall cause to be delivered to such responsible party a complete statement of the costs, specifying each item of service and the fee assessed for such service.”
The State first argues in this appeal that Douglas waived the right to challenge the imposition of court costs when he failed to raise the issue as part of his earlier direct appeal, citing State v. Conley, 287 Kan. 696, 698, 197 P.3d 837 (2008). The State acknowledges, however, that it did not make this argument at the trial court level. This waiver argument by the State will not be addressed further because it misconstrues Douglas’ arguments. Douglas does not challenge the imposition of court costs in his case. His motion makes that clear, and for good reason. K.S.A. 22-3801(a) mandates the assessment of court costs against the convicted criminal defendant. And as this court noted in State v. Dean, 12 Kan. App. 2d 321, 323, 743 P.2d 98, rev. denied 242 Kan. 904 (1987), for well over a century Kansas law has required that a convicted defendant be responsible for the court costs in his or her case.
Although not challenging the imposition of court costs, Douglas does challenge the collection of the court costs 19 years later. He asserts that he was never provided an itemized statement of the costs in this case, and the record before us does not include such a statement. He therefore argues that K.S.A. 22-3803 forbids efforts to collect the court costs. This court disagrees.
Although as Douglas correctly notes, K.S.A. 22-3803 provides that a convicted defendant “shall” be provided with a complete itemized statement of the court costs, the meaning of the word “shall” is not always readily determined. It can be either directory or mandatory. In State v. Raschke, 289 Kan. 911, 914-15, 219 P.3d 481 (2009), our Supreme Court engaged in an extensive and detailed discussion of the directory/mandatoiy issue, citing numerous instances in which the word “shall” had been interpreted as directoiy or mandatory. It then listed factors to be considered in deciding whether a statute’s use of the word “shall” was intended to be directory or mandatory. These factors include the context and history of the legislation, the effect upon a party’s rights, the existence of a consequence for noncompliance, and the subject matter of the statute. Raschke, 289 Kan. at 915-21.
Regarding subject matter, K.S.A. 22-3803 is one of several statutes dealing with court costs in criminal cases. It provides a general procedure by which a court notifies the defendant of his or her court costs. Although it does not state precisely how or when the cost statement is to be provided to a convicted defendant, it has been interpreted as allowing “the parties to be notified of the taxation of costs through a statement served at the end of all proceedings in the criminal case, i.e., after the sentencing and any other proceeding.” This can be in the form of a journal entry of judgment, or in some other form. State v. Phillips, 289 Kan. 28, 40, 210 P.3d 93 (2009). It is one of those statutes our courts have described as designed for the “proper, orderly, and prompt conduct of business,” in this case the business of tire court. As such, it is the land of statute generally regarded by our Supreme Court as directory in nature. See Raschke, 289 Kan. at 917.
Concerning noncompliance with the statute, K.S.A. 22-3803 does not state that failure to provide an itemized cost statement bars collection of the court costs. There is no specific consequence for noncompliance. Thus, the failure to strictly observe the statute does not in and of itself render the underlying action (assessment of court costs) void. See Raschke, 289 Kan. at 917.
And with respect to the rights of Douglas, the failure to provide him with a statement of costs has not substantially affected his rights. As already stated, K.S.A. 22-3801(a) requires the assessment of costs against the convicted defendant. Just as die trial judge has no discretion in whether to assess the docket fee, the trial judge also has no discretion in the amount of die docket fee. No hearing is required, and no findings need to be made in order to impose die same. Phillips, 289 Kan. at 42. Douglas cannot genuinely argue tiiat his rights have been substantially affected by the lack of a cost statement when the assessment of costs is required and the amount of the docket fee is set by statute.
The court in Raschke held that a statute’s lack of a penalty for noncompliance, as well as the lack of effect upon the essential rights of the defendant from noncompliance, both indicate that a statute is directory rather than mandatory. Raschke, 289 Kan. at 918. We view K.S.A. 22-3803 in that light, and we interpret it as directory rather than mandatory. The failure of the State to provide a complete statement of costs to Douglas does not make the collection of court costs unenforceable.
K.S.A. 60-512: Statute of Limitations
Douglas next argues in this appeal that collection of his court costs is time barred by K.S.A. 60-512. This statute provides that certain types of civil actions shall be brought within 3 years. Among such actions are those “upon a liability created by a statute other than a penalty or forfeiture.” Douglas argues that the imposition of court costs is a liability created by statute, namely K.S.A. 22-3801(a), and any action to enforce that liability must therefore be brought within 3 years. He concludes that because the State waited 19 years to try and collect the court costs, such efforts are now barred by K.S.A. 60-512.
The State responds that K.S.A. 60-512 has no bearing upon the assessment or collection of court costs in a criminal case. This court agrees. This is not a statute of limitations issue. Statutes of limitation establish deadlines by which lawsuits must be commenced in order to obtain judgment based upon a recognized cause of action. K.S.A. 22-3801(a) does not simply create a liability. It imposes judgment upon that liability. A separate independent civil action is not required in order to obtain a judgment for court costs in a criminal case. Our Supreme Court has held that the assessment of court costs against a criminal defendant constitutes a civil judgment for the payment of money and is enforceable as such. Such judgment carries with it the same protections and exemptions applicable to other civil judgments and may be collected whenever a defendant has sufficient property to satisfy the judgment. State v. Higgins, 240 Kan. 756, 760, 732 P.2d 760 (1987). Execution and levy upon the property of the defendant may issue following the entry of a judgment for court costs. State v. Shannon, 194 Kan. 258, 263, 398 P.2d 344, cert. denied 382 U.S. 881 (1965). We thus agree with the State that K.S.A. 60-512 does not apply here. However, the court costs in Douglas’ case may be uncollectable for a different reason.
K.S.A. 60-2403: Dormancy
Although Douglas did not use the term “dormancy” in his pro se motion to dismiss his court costs, he essentially made what amounts to a dormancy argument. His basic assertion is that because the State waited so long (19 years) to try and collect the court costs, it should be barred from now doing so because of the passage of time. He called this a statute of limitations issue, which it is not, rather than a dormancy issue, which it is.
Because neither party specifically addressed the subject of dormancy in their original briefs, this court issued a show cause order asking for supplemental briefing on that issue. These supplemental briefs have been received and considered. An appellate court will not ordinarily consider an issue not raised at the trial court level or by the parties on appeal, absent exceptional circumstances. State v. Puckett, 230 Kan. 596, Syl. ¶ 1, 640 P.2d 1198 (1982). When an appellate court chooses to do so, the parties should be given fair opportunity to brief the issue and present their positions to tire appellate court. 230 Kan. 596, Syl. ¶ 2. In this case, Douglas did raise the issue of dormancy in the trial court. He just did not call it that. And both sides have had fair opportunity to brief the issue. We choose therefore to address the dormancy issue.
K.S.A. 60-2403(a) provides in pertinent part that judgments, even those in favor of the State, become dormant 5 years following the date they are entered, unless within that time execution efforts occur or a renewal affidavit is filed. When a judgment becomes dormant and remains that way for 2 years, the trial judge is required to release the judgment when requested to do so. In Long v. Brooks, 6 Kan. App. 2d 963, 966, 636 P. 2d 242 (1981), this court explained the dormancy statute as follows: “[Pjursuant to K.S.A. 60-2403, judgments grow dormant in five years, if not enforced by execution, garnishment or proceeding in aid of execution; and, if not revived, as provided in K.S.A. 60-2404, such dormant judg ments become absolutely extinguished and unenforceable two years thereafter.”
And more recently, our Supreme Court again addressed the issue of judgments being extinguished by virtue of dormancy in the case of Associated Wholesale Grocers, Inc. v. Americold Corporation, 293 Kan. 633, 270 P.3d 1074 (2011). There the court engaged in an exhaustive discussion of both K.S.A. 60-2403 and K.S.A. 60-2404 and reminded us that dormancy and revivor statutes are different than statutes of limitation and that they demand strict compliance. The end result in that case was the declared extinguishment of over $58,000,000 in consent judgments. Americold Corporation, 293 Kan. at 646-47.
Although no Kansas case has squarely addressed the issue of whether court costs in criminal cases can become dormant and extinguished under K.S.A. 60-2403(a), several cases have addressed a similar issue with respect to restitution under K.S.A. 60-2403(d). That statute provides that if 10 years lapse following the entry of a judgment of restitution in a criminal case and no renewal affidavit is issued or execution occurs within that time, then the judgment, including court costs and fees, shall become dormant. And when the restitution judgment remains dormant for 2 years thereafter, it is the duty of the trial judge to release the same upon request.
K.S.A. 60-2403(d) was first interpreted by this court in State v. Morrison, 28 Kan. App. 2d 249, 14 P.3d 1189 (2000), rev. denied 271 Kan. 1040 (2001). In that case the defendant was ordered to pay $63,737 in restitution as a condition of probation. The order was entered on February 4, 1987. The defendant’s initial 5-year probation was later extended an additional 5 years. In February 1996 the defendant’s probation was terminated. The order terminating probation stated that the defendant had agreed to pay $100 per month until the balance of his restitution was paid in full. The defendant did make his restitution payments until February 5, 1999,12 years and a day after the order of restitution was entered, at which time he filed a motion to release himself from any further restitution liability. The Morrison court essentially held that K.S.A. 60-2403(d) meant what it said, and although the legislature extended the time for criminal restitution judgments to be active beyond regular civil judgments, it did not change the need for filing executions and revivors in order to keep such a judgment alive. Even though the defendant had made regular payments toward restitution, because no execution had occurred and no revivor had been filed within the 10 plus 2 years following the entry of the restitution judgment, this court ordered that it be released by the trial court. 28 Kan. App. 2d at 235-55.
In the later case of State v. Robards, 31 Kan. App. 2d 1138, 1141, 78 P.3d 825 (2003), rev. denied 277 Kan. 927 (2004), the defendant was sentenced to prison for the crime of aggravated robbery and was ordered to pay restitution of $18,000 as a condition of early release or parole. This occurred on February 13,1985. In 2001 the defendant filed a motion to void restitution, arguing that the restitution order was dormant and became unenforceable on February 13, 1997. The Robarás court distinguished Morrison, holding that calculation of the dormancy period with respect to a judgment for restitution does not begin while the defendant is imprisoned. The court noted that a trial judge may not sentence a defendant to prison and order the payment of restitution simultaneously, and accordingly any period of dormancy with respect to an order of restitution should not begin to run until the defendant is placed on probation or granted conditional release. Since the earliest date for conditional release was October 21,1994, the State had until October 21, 2004, to file a renewal affidavit. The trial court’s denial of the defendant’s motion to void restitution was affirmed. 31 Kan. App. 2d at 1140-41.
Court costs are not restitution, and unlike restitution, the trial court must order that a convicted defendant pay the court costs, even if he is going to prison. State v. DeHerrera, 251 Kan. 143, 155, 834 P.2d 918 (1992); see Robards, 31 Kan. App. 2d 1141. As such, any calculation of dormancy would logically begin on the date that the order and judgment of court costs was entered and would continue running even while the defendant is in prison.
This court finds no provision in Kansas law that excepts judgments for criminal court costs from the requirement that execution thereon must timely issue or dormancy occurs. The legislature clearly could have chosen to do so, but it did not. Judgments for restitution to crime victims become dormant if not timely executed upon. Multi-million dollar civil judgments become dormant if not timely executed upon; so it also goes with judgments against criminal defendants for the court costs in their case.
Conclusion
The trial court’s order denying Douglas’ motion to dismiss costs is reversed. This case is remanded to the trial judge for a determination as to whether the State’s judgment for court costs in this case has become dormant and unenforceable pursuant to K.S.A. 60-2403(a). If so, the trial judge should file an order releasing the same. If not, the trial judge should file an appropriate order once again denying Douglas’ motion to dismiss costs. | [
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Greene, C.J.:
The Quivira Council of the Boy Scouts of America (BSA) appeals from the denial by the Kansas Court of Tax Appeals (COTA) of its application for an ad valorem tax exemption for its 3,575-acre ranch in Chautauqua County, arguing that COTA erred in holding the ranch was not regularly used by a community service organization for the predominant purpose of providing humanitarian services, and that COTA also erred in holding the nonexempt use of the ranch was not minimal in scope and insubstantial in nature when compared to any exempt uses. Concluding that COTA’s decision is fraught with error, we reverse and remand with directions to restore exempt status to the ranch.
Factual and Procedural Background
BSA is a tax-exempt organization that qualifies for federal income tax exemption under Internal Revenue Code § 501(c)(3). BSA was originally incorporated as a not-for-profit corporation in 1924. All property and assets are irrevocably dedicated to the charitable and educational purposes of carrying on the program of the Boy Scouts of America. The directors of BSA serve without pay, and no officers, directors, or members of BSA have a financial interest in the ranch.
From 1960 through 1974, BSA obtained seven contiguous parcels of largely unimproved land — approximately 3,100 acres of land and a 500-acre lake — in Chautauqua County. The ranch is operated as the Quivira Scout Ranch and has been exempt from ad valorem taxation since its acquisition under the provision exempting property used “exclusively for educational, charitable and/or benevolent purposes.” See K.S.A. 2010 Supp. 79-201 Second.
In 2009, the Chautauqua County Appraiser put the ranch back on the tax rolls, effective January 1, 2009, and no longer recommended the tax exemption because BSA had leased a portion of the land for cattle grazing and allowed guided turkey and deer hunts on the property during hunting season. In addition to these non-Scouting uses, fishing was permitted under limited circumstances. Private individuals (approximately 30 people per year) were allowed to fish at the ranch during a 1-year period as recognition for contributions/donations to the Boy Scouts of $1,000. Finally, BSA entered a lease with Kansas Electric Power Cooperative, Inc., allowing placement of communication equipment on a water tower located on the ranch for annual payments of $840. The Appraiser apparently deemed these uses rendered the property ineligible for exemption.
BSA submitted applications to COTA requesting tax exemption under K.S.A. 2010 Supp. 79-201 Second and Ninth.
After an evidentiary hearing, COTA denied BSA’s requests for exemption from ad valorem taxation under K.S.A. 2010 Supp. 79-201 Second and Ninth. Regarding the request for tax exemption under K.S.A. 2010 Supp. 79-201 Second, COTA determined BSA’s use of the ranch was not exclusively for an exempt purpose because the cattle grazing and guided hunts on the property could not be considered minimal in scope and insubstantial in nature because they occurred “on all portions of the property” and during 50-70% of the year. COTA further reasoned the payments received for nonexempt uses and BSA’s decision to enter a federal environmental incentive program indicated the ranch was an investment tool, which is prohibited under K.S.A. 2010 Supp. 79-201 Second.
Regarding BSA’s request for tax exemption under K.S.A. 2010 Supp. 79-201 Ninth, COTA first determined BSA was not a community service organization organized for the purpose of providing humanitarian services because it was specifically organized for charitable and educational purposes and failed to show that it served a demonstrated community need. Second, COTA found BSA was not the sole operator of the ranch in light of the grazing lease and the guided hunts. Citing In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. 737, 973 P.2d 176 (1999), COTA ruled these ranch lessees were co-operators of the ranch and could “never” meet the organizational requirements under K.S.A. 2010 Supp. 79-201 Ninth. Finally, even if they were not cooperators, COTA found the lessees’ use of the ranch was not minimal in scope or insubstantial in nature.
BSA timely filed a petition for reconsideration regarding the exemption under K.S.A. 2010 Supp. 79-201 Ninth, thereby abandoning the request for a tax exemption under K.S.A. 2010 Supp. 79-201 Second. After COTA denied the petition for reconsideration, BSA timely petitioned for judicial review.
Standards of Review
COTA made no separately numbered findings of fact, and to the extent tire facts were critical to its decision, BSA does not challenge these facts. Instead, BSA contends COTA erred in applying the applicable statutory exemption to these facts. Judicial review of COTA orders is governed by K.S.A. 2010 Supp. 77-621. We may reverse COTA’s decision only if “the agency has erroneously interpreted or applied the law.” K.S.A. 2010 Supp. 77-621(c)(4). Because the issue presented in this appeal concerns the application and interpretation of K.S.A. 2010 Supp. 79-201 Ninth, a question of law, this court has unlimited review and owes no deference to COTA’s statutory interpretation. See Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010); In re Tax Exemption Application of Kouri Place, 44 Kan. App. 2d 467, 471-72, 239 P.3d 96 (2010). The taxpayer has the burden of proving the invalidity of COTA’s action. See K.S.A. 2010 Supp. 77-621(a)(l).
While statutes imposing a tax must be interpreted strictly in favor of the taxpayer, statutes granting exemptions are interpreted strictly in favor of the tax and against allowing the exemption. This rule of strict construction does not warrant unreasonable construction. In re Tax Exemption Application of Mental Health Ass’n of the Heartland, 289 Kan. 1209, 1211, 221 P.3d 580 (2009).
Did COTA Err in Concluding BSA Was Not Organized for the Predominant Purpose of Providing Humanitarian Services?
COTA’s decision was multifaceted in arriving at the conclusion that BSA was not organized for humanitarian services under K.S.A. 2010 Supp. 79-201 Ninth. First, COTA concluded that BSA was not so organized because its articles of incorporation stated that it was organized “exclusively for charitable and educational purposes.” Next, COTA concluded that BSA’s organizational purpose required that BSA’s eligibility for exemption must be determined under K.S.A. 2010 Supp. 79-201 Second, which COTA held was mutually exclusive from K.S.A. 2010 Supp. 79-201 Ninth. Finally, COTA concluded that BSA failed to show that it was serving a demonstrated community need, so it had not met the requirements of K.S.A. 2010 Supp. 79-201 Ninth in any event. We respectfully disagree with COTA on all three conclusions.
The relevant statutory language provides an exemption for:
“All real property and tangible personal property actually and regularly used by a community service organization for the predominant purpose of providing humanitarian services, which is owned and operated by a corporation organized not for profit under the laws of the state of Kansas or by a corporation organized not for profit under the laws of another state and duly admitted to engage in business in this state as a foreign not-for-profit corporation if:
“(d) the corporation is organized for the purpose of providing humanitarian services.” K.S.A. 2010 Supp. 79-201 Ninth.
The Statement of Purpose in BSA’s Articles of Incorporation Is Consistent with Providing Humanitarian Services.
COTA’s decision was based in part on its conclusion that BSA was not organized for humanitarian services, but rather for “charitable and educational purposes.” COTA held:
“The applicant is a not-for-profit corporation organized ‘exclusively for charitable and educational purposes.’ The Court finds that the applicant is not a community service organization organized for the purposes of providing humanitarian services, but is a corporation organized for charitable and educational purposes. K.S.A. 79-201 Second specifically provides an exemption for property used exclusively for charitable and educational purposes. K.S.A. 79-201 Ninth was created by the Legislature for humanitarian uses that did not qualify as charitable or educational.”
From this language, we perceive that COTA believed that in determining an organization’s purpose, one need look no further than an organizational statement in that corporation’s articles of incorporation. We disagree. We are unaware of any statutory or caselaw authority for this proposition, and COTA cites none. Our appellate courts have often determined the organizational purpose of an entity for purposes of ad valorem tax exemption, and we have never held that the articles of incorporation were the singular definitive source for this determination. See, e.g., National Collegiate Realty Corp. v. Board of Johnson County Comm’rs, 236 Kan. 394, 690 P.3d 1366 (1984). As we note below, consideration of BSA’s bylaws would have supported a humanitarian purpose for the organization.
Additionally, we disagree that a stated purpose of “charitable and educational activities” cannot be inclusive of “humanitarian purposes.” The common dictionary definition of “charitable” is “[g]enerous in giving financial or other aid to tire needy.” Websters II New Riverside University Dictionaiy 250 (1984); see Black’s Law Dictionaiy 266 (9th ed. 2009). This is entirely consistent with the statutory definition of “humanitarian,” which includes activities “which improve the physical, mental, social, cultural or spiritual welfare of others or the relief, comfort or assistance of persons in distress or any combination thereof. . . .” See K.S.A. 2010 Supp. 79-201 Ninth. We believe that COTA’s apparent understanding of humanitarian to include services that are not otherwise charitable or educational would undermine legislative intent for these exemption statutes “to broaden the scope of property that is exempt by virtue of its charitable or humanitarian use.” See Mental Health Ass’n of the Heartland, 289 Kan. at 1217.
In short, the formal statement of purpose in a corporation’s articles is not the sole and definitive source for determining whether that corporation may be organized for the providing of exempt services. Moreover, the humanitarian services referenced in K.S.A. 2010 Supp. 79-201 Ninth have never been interpreted to be exclusive of either charitable or educational purposes. COTA erred in so holding.
K.S.A. 2010 Supp. 79-201 Second and K.S.A. 2010 Supp. 79-201 Ninth Are Not Mutually Exclusive.
COTA expressly or impliedly held that these two statutory subsections are mutually exclusive, stating:
“K.S.A. 79-201 Second specifically provides an exemption for property used exclusively for charitable and educational purposes. K.S.A. 79-201 Ninth was created by the Legislature for humanitarian uses that did not qualify as charitable or educational. The Court does not believe that K.S.A. 79-201 Ninth, with its predominant use requirement, was created to allow an exemption for a property used only in part for educational purposes in lieu of the used exclusively requirement of K.S.A. 79-201 Second.”
Citing Mental Health Ass’n of the Heartland, BSA correctly notes that COTA’s apparent application of the more-specific-statute rule of construction was improper. In Mental Health Ass’n of the Heartland, the Board of Tax Appeals (BOTA), the forerunner of COTA, denied a tax exemption on property operated as an apartment building for homeless low-income people who suffered from men tal handicaps and other physical disabilities. BOTA determined the property could fit under the terms of 79-201 Second and Ninth; however, 79-201b Fourth specifically controlled tax exemptions for specialized uses of property. Because the property at issue did not fit all the statutory requirements of 79-201b Fourth, BOTA denied the application. Our Supreme Court found BOTA improperly applied the more-specific-statute rule of construction, holding there was no conflict between these statutes. See 289 Kan. at 1215-18. Specifically, the court held that “it is possible . . . for property to qualify under the former statutes [79-201 Second ox Ninth] without qualifying under [79-201 Fourth], and vice versa.” 289 Kan. at 1217. Significantly, the court noted “the legislative history of the three statutes in question shows a clear intent on the part of the legislature to broaden the scope of property that is exempt by virtue of its charitable or humanitarian use.” 289 Kan. at 1217. Clearly, these exemption statutes are not intended to be mutually exclusive but rather cumulative.
Additionally, the legislative history of K.S.A. 2010 Supp. 79-201 Ninth indicates it was passed in response to the restrictive “exclusive use” limitations of K.S.A. 2010 Supp. 79-201 Second, as well as BOTA decisions that narrowly interpreted this exemption. Our Supreme Court has acknowledged that passage of 79-201 Ninth marked a major shift in policy. Organizations that cannot demonstrate their property was used exclusively for charitable, educational, scientific, or religious purposes can potentially qualify for a tax exemption under 79-201 Ninth even if their purpose is either charitable or educational. See Univ. of Kan. School of Medicine, 266 Kan. at 756-57, 768-69. COTA erred in holding K.S.A. 2010 Supp. 79-201 Second and K.S.A. 2010 Supp. 79-201 Ninth to be mutually exclusive.
BSA Was Organized for the Predominant Purpose of Providing Humanitarian Services and to Meet a Community Need for such Services.
Finally, COTA held that BSA had not provided evidence to indicate that it was serving a demonstrated community need, stating:
“Even if the applicant were found to be a community service organization as required by K.S.A. 2009 Supp. 79-201 Ninth, the Court finds that the applicant has not provided any evidence to indicate that the applicant is serving a demonstrated community need. The applicant has not provided evidence as to how the services offered are needed in the community and/or how the applicant is satisfying that need. Therefore, the Court concludes that the applicant does not satisfy the statutory requirements of K.S.A. 2009 Supp. 79-201 Ninth.”
The statutory definition of “humanitarian services” includes a requirement that the organization conduct activities which “meet a demonstrated community need.” The complete statutory definition provides:
“As used in this clause, ‘humanitarian services’ means the conduct of activities which substantially and predominantly meet a demonstrated community need and which improve die physical, mental, social, cultural or spiritual welfare of others or the relief, comfort or assistance of persons in distress or any combination thereof including but not limited to health and recreation services, child care, individual and family counseling, employment and training programs for handicapped persons and meals or feeding programs.” K.S.A. 2010 Supp. 79-201 Ninth.
BSA asserts the record contains the sworn testimony of its executive director that clearly established the ranch served a demonstrated community need. The executive director testified BSA covers a territory of 30 counties in southern and southeast Kansas, which includes Chautauqua County, and serves 13,000 young people. He testified the mission and purpose of BSA are reflected in the corporation’s bylaws. The bylaws specifically state:
“The corporation shall promote, within the territory covered by the charter from time to time granted it by the Boy Scouts of America and in accordance with the Congressional Charter, Bylaws, and Rules and Regulations of the Boy Scouts of America, the Scouting program of promoting the ability of boys and young men and women to do things for themselves and others, training diem in Scoutcraft, and teaching them patriotism, courage, self-reliance, and kindred virtues, using the methods which are now in common use by the Boy Scouts of America. In achieving this purpose, emphasis shall be placed upon the educational program of the Boy Scouts of America and the oaths, promises, and codes of the Scouting program for character development, citizenship training, and mental and physical fitness.”
We are loathe to declare such noble purposes to be less than humanitarian. The promotion of self-reliance; the encouragement of good deeds for others; the development of patriotism, courage, and character; and the advancement of mental and physical fitness certainly fit within the statutory requirement of “improving] the physical, mental, social, cultural or spiritual welfare of others.” If the Boy Scout program as defined by BSA’s bylaws is less than humanitarian in its purpose, it would be difficult to conceive of many organizations that could meet the statutory definition.
In response, Chautauqua County admits some of BSA’s activities on the ranch might fit the definition of humanitarian services, but the County contends COTA’s finding that BSA was organized “exclusively for charitable and educational purposes” was not unreasonable or arbitrary principally because its articles of incorporation and corporate bylaws use the terms “train,” “teach,” and “emphasis shall be placed on tire educational program” to describe its purpose.
The definition of “humanitarian purposes” is expansive and, contrary to the County’s argument, educational programs are not outside the scope of humanitarian services. See Univ. of Kan. School of Medicine, 266 Kan. at 756-58, 763-64 (charter stated the “principal purposes or functions of the corporation shall include the instruction and training of students, undergraduate, graduate and postgraduate, enrolled in die University of Kansas School of Medicine”). Our appellate courts have considered the definition to be expansive in approving a host of services as humanitarian in nature. See, e.g., Mental Health Ass'n of the Heartland, 289 Kan. 1209 (medical services); In re Tax Exemption Application of Mercy Health System of Kansas, Inc., 29 Kan. App. 2d 375, 26 P.3d 78 (2001) (rehabilitation services); 9200 Santa Fe Corp. v. Board of Johnson County Comm’rs, 19 Kan. App. 2d 91, 864 P.2d 742 (1993) (a job-readiness program for teenagers and programs for the development of children’s fitness were deemed humanitarian services); In re Tax Exemption Application of Hutchinson’s Historic Fox Theatre, Inc., No. 90,145, 2003 WL 22119343 (Kan. App. 2003) (unpublished opinion) (cultural or theater programming was considered humanitarian services). Under the statute’s broad definition of humanitarian purposes, the ranch should have been viewed as improving the physical, mental, social, cultural, and spir itual welfare of Boy Scouts in Chautauqua County, as well as the other counties in southern and southeastern Kansas.
We are persuaded that serving 13,000 young people demonstrates a service that is wanted and needed. In addition to the number of young people served, the Executive Director pointed out organizations funding BSA, including United Way, do so based solely on the ability to show a demonstrated need and specific outcome. The fundraising promotional material with endorsements from former Secretary of Defense Robert Gates and former Senator Bob Dole, a minor aspect of BSA’s exhibits, were provided to demonstrate their support and recognition of the need for services provided through the ranch, even though these exhibits may not have addressed the specific need during the tax year at issue.
The County argues on appeal that community need should be assessed based on meeting a need within the County where the property is located. The argument is premised on the fact that Chautauqua County will bear 100% of the burden if the ranch acreage is removed from the tax rolls, so the County suggests that, to be exempt, the property should be meeting a need within the “community” of the county affected. Such a provincial conception of community need has never been recognized by our caselaw construing 79-201 Ninth. For purposes of this statutory exemption, community need must not be assessed solely based on services within the county where the property is located.
The word “community” is defined as a neighborhood or vicinity as well as a group or class of people having similar interests or society as a whole. See Black’s Law Dictionary 317 (9th ed. 2009); Webster’s II New Riverside University Dictionaiy 288 (1984). Judge, now Justice, Beier, writing for the Court of Appeals in Mercy Health System of Kansas, 29 Kan. App. 2d at 380, appeared to agree with this interpretation when indicating BOTA unduly emphasized this inquiry and used it as a proxy for the overall question of whether the requirements for a tax exemption were met. The threshold or primary requirement of K.S.A. 2010 Supp. 79-201 Ninth is whether the property is substantially and predominantly related to the purpose of providing humanitarian services. Here the evidence shows that BSA served the needs of the Boy Scout community in its 30-county region, which included Chautauqua County. We deem this showing sufficient for purposes of K.S.A. 2010 Supp. 79-201 Ninth. See Univ. of Kan. School of Medicine, 266 Kan. at 757-58, 766; Mercy Health System of Kansas, 29 Kan. App. 2d at 380.
We hold that for purposes of determining compliance with the statutoiy definition of humanitarian services within K.S.A. 2010 Supp. 79-201 Ninth, community need must not be assessed solely based on services directed or delivered within the county where the property is located.
Considering the expansive definition of humanitarian services in K.S.A. 2010 Supp. 79-201 Ninth, we conclude BSA was organized for the predominant purpose of providing humanitarian services, and these services met a demonstrated community need. Having determined the ranch is “actually and regularly used by a community service organization for the predominant purpose of providing humanitarian services,” we must determine whether the nonexempt uses of the ranch are “minimal in scope and insubstantial in nature” and “incidental” to BSA’s humanitarian purposes and uses under K.S.A. 2010 Supp. 79-201 Ninth(e).
Did COTA Err in Concluding that Nonexempt Uses Were Not Minimal in Scope and Insubstantial in Nature?
COTA also determined that the nonexempt uses of grazing, hunting, and fishing were not minimal in scope and insubstantial in nature, as required for exemption under K.S.A. 2010 Supp. 79-201 Ninth, stating:
“The Court further finds that the lessees’ use of the property is not minimal in scope and insubstantial in nature. While the applicant [BSA] would like the Court to focus only on the amount of income received by tire leasing of the property, the Court finds that it must also examine the physical use of the property. The applicant has not provided any evidence to demonstrate that the grazing and hunting only occurs on a portion of the property. Therefore, the Court concludes that the nonexempt use is occurring on all portions of the property. [Cattle operator] is allowed to graze cattle for a 180-day period, while [guided hunting operator] is allowed to hunt on the property for turkey and deer-bow and deer-rifle seasons. [Cattle operator’s] use of the property is for approximately one-half of the year, while [guided hunting operator’s] use of the property is for approximately 70% of the year. When compared to the applicant’s use of the property for only six weeks and occasionally on weekends, [nonexempt operators] use of the property cannot be deemed to be minimal in scope or insubstantial in nature.”
K.S.A. 2010 Supp. 79-201 Ninth subsection (e) provides the following guidelines for use of the property:
“(e) the actual use of property for which an exemption is claimed must be substantially and predominantly related to the purpose of providing humanitarian services, except that, the use of such property for a nonexempt purpose which is minimal in scope and insubstantial in nature shall not result in the loss of exemption if such use is incidental to the purpose of providing humanitarian services by the corporation.”
BSA suggests that COTA improperly measured and compared exempt and nonexempt uses for purposes of K.S.A. 2010 Supp. 79-201 Ninth and should have used either a “use-day” analysis or a revenue comparison.
The record on appeal contains the BSA’s use-day analysis for the period September 2007 thru August 2008. The executive director testified that one Scouting day equals a 24-hour period where an individual Boy Scout spends time on the ranch. His calculation indicated that, for this period, Scouting use-days were 14,165, whereas only 6 individuals hunted on the ranch for 5 days each, and from May 1, 2008, thru October 1, 2008, 45 cow/calf pairs were permitted to graze on the ranch. Although more grazing was permitted by the 2009 lease, we are persuaded that this use-day analysis illustrates that the nonexempt uses were minimal in scope and insubstantial in nature.
Even more persuasive, however, were BSA’s revenue comparisons. BSA provided a comparison of both exempt and nonexempt ranch revenues and expenses for the years 2006-2008. Total Scouting revenue for the year 2006 was $257,571. Of that amount, $11,975 came from non-Scouting revenue or 4% of the total revenue. Total operating expenses in 2006 were $346,993.81, resulting in a loss of $75,447.81. In 2007, the ranch had total revenues of $186,796, of which $14,450 came from non-Scouting revenues or 7% of the total revenue. Total operating expenses were $275,370.98, resulting in a loss of $74,124.98. For 2008, total revenues were $222,626, of which $19,652.50 came from non-Scouting sources or 8% of total revenues. The operating expenses for the ranch totaled $284,128, resulting in a loss of $41,849.50. In light of the annual deficit, BSA supported the ranch from other sources such as United Way, popcorn sales, and donations. According to BSA’s exemption application, fees collected from cattle grazing and guided hunts were used to support camperships and scholarships for youth who could otherwise not participate in ranch activities.
Not only do we endorse a use-day analysis as preferable to COTA’s analysis, we hold that a revenue comparison is supported by a host of appellate cases. A comparison of revenue from Scouting and non-Scouting activities is an appropriate measure of “minimal and insubstantial” under K.S.A. 2010 Supp. 79-201 Ninth(e). See Univ. of Kan. School of Medicine, 266 Kan. at 764-69 (leasing arrangements are not prohibited by 79-201 Ninth and below market rental did not inure to the benefit of any private shareholder or individual); Mercy Health System of Kansas, 29 Kan. App. 2d at 376, 380-81 (nonexempt uses accounted for less than 4% of the center’s gross revenues); Hutchinson’s Histone Fox Theatre, 2003 WL 22119343, at °3 (nonexempt rental use of tire theatre provided only 8.8% of the theatre’s total revenue in 1999 and less than 2% of revenue in 2000-2001).
BSA urged COTA to consider its revenue comparisons as well as intensity of use in its petition for reconsideration. With respect to revenue evidence, however, COTA noted the percentage of non-Scouting revenue compared to total revenue continued to increase yearly — from 5.52% in 2007 to 9.58% in 2009. As a result, COTA found the ranch was being used as an “investment tool” and the “dominant motive” in entering the lease arrangements' was “profit.” We disagree. Lease arrangements are allowed under K.S.A. 2010 Supp. 79-201 Ninth. The legislature specifically omitted in K.S.A. 2010 Supp. 79-201 Ninth the language from K.S.A. 2010 Supp. 79-201 Second that prohibited income where such property is “ ‘held or used as an investment even though the income or rentals received therefore is used wholly for such literary, educational, scientific, religious, benevolent or charitable purposes.’ ” Univ. of Kan. School of Medicine, 266 Kan. at 768. Here, no part of the lease income inured to the benefit of the directors or members of BSA, and the ranch realized no profit from this income — the ranch operated at a loss and relied on donations and financial assistance from other community service organizations. Moreover, all revenue from the nonexempt uses was utilized to fund scholarships to the ranch.
We also note that the nonexempt uses of the property were incidental to the purpose of providing humanitarian services by BSA. First, the totality of the revenue received from these purposes was directed entirely to the extension of the humanitarian services by funding scholarships to the ranch. Second, the nonexempt uses were incidental in the sense that they were consistent with the maintenance of a ranch; i.e., proper grazing and wildlife management practices were considered by BSA to be critical to maintaining the property as a ranch. Indeed, the record on appeal contains substantiation for BSA’s participation in the United States Department of Agriculture conservation program — the Environmental Quality Incentives Program (EQIP). BSA’s executive director explained that EQIP involves management of grasslands through cattle grazing and thinning of wildlife through hunting. Such uses seem to this court to be precisely the type of incidental uses contemplated by the statutory scheme.
Although the interpretation of tax exemptions from other states is of limited value, see Univ. of Kan. School of Medicine, 266 Kan. at 760, a similar tax issue concerning a Boy Scout camp on substantial land was addressed in In the Matter of Nassau County Council Boy Scouts of America, 84 A.D.2d 862, 444 N.Y.S.2d 755 (1981). In that case, the Board of Assessors placed 3,700 acres of a 4,300-acre Boy Scout camp back on the tax rolls because (1) much of the land was used so infrequently that it was in a state of “non-use,” as opposed to used in furtherance of the Boy Scouts’ exempt purposes, and (2) 2,300 of the 3,700 acres were “primarily used” for commercial lumbering and timber activity. Timber sale contracts produced annual income of approximately $10,000 in 1977 and $20,000 in 1978. The New York Supreme Court Appellate Division reversed, concluding the 3,700 acres were used primarily in furtherance of the exempt purpose for which the Boy Scouts are organized. The court found the whole of the camp, composed of heavily wooded acres with miles of trails and old logging roads, was an integral part of the camp and served to preserve the character of the facility. Further, the court found the lumbering activities did not alter the primary use of the camp because the revenue derived from lumbering was used to defray the cost of operating the camp and did not interfere with use of the camp. Accordingly, the court found this activity was minimal and merely incidental to the exempt purpose. 84 A.D.2d at 863. We agree with this analysis.
In summary we conclude the predominant purpose and use of the ranch was for humanitarian services despite the fact that camps are held for only 6 weeks in the summer and weekends during the fall and spring. The cattle grazing, hunting, ñshing, and conservation practices do not interfere with the predominant purpose of the ranch, and the revenue these activities generate are used to offset operational expenses and provide scholarships for youth. Accordingly, these nonexempt uses should be considered “minimal in scope and insubstantial in nature” and should not result in the loss of exemption because such uses are merely “incidental to the purpose of providing humanitarian services” under K.S.A. 2010 Supp. 79-201 Ninth(e).
For all the reasons noted above, we reverse the decision of COTA and remand with directions to restore the BSA’s tax-exempt status for its Chautauqua County ranch.
Reversed and remanded with directions. | [
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Arnold-Burger, J.:
Donna Hohmann, n/k/a Donna Lubbers (Mother), appeals the district court’s decision to apply Scott Hohmann’s (Father) social security disability lump-sum payments made on behalf of his children to Father’s arrearages in child support payments for the dates covered by the payments. Finding no error, we affirm.
Facts
As the result of a divorce, Father was required to pay Mother $426 each month for child support for their two children. In December 2007, the Social Security Administration (SSA) determined that Father was disabled and unable to work. However, because he was required to be disabled for a full 5 months before being entitled to disability benefits, his benefits entitlement date did not begin until June 2008. Father had been steadily falling behind on his child support payments to Mother and made his last payment, of only $25, in June 2008. With that one exception, from June 2008 through December 2008, Father neglected to make any child support payments. However, on January 28, 2009, Father received a disability payment from SSA covering the period when his disability began — June 2008 — to December 2008. In addition, SSA made lump-sum payments to the couple’s children, again for the time period from June 2008 to December 2008, in the total amount of $3,148.
In October 2009, the Court Trustee filed a motion to modify child support for reasons not important to this appeal. However, one of the issues identified for determination at trial was whether the SSA’s lump-sum payments to the children for the time from June 2008 to December 2008 should be credited to Father’s unpaid child support obligations for that time period.
In a memorandum decision, the district court determined that Father was entitled to a credit on his child support arrearages for the SSA’s lump-sum payments to his children for the time his child support payments accrued from June 2008 to December 2008. The court indicated that only the amount of his arrearages from June 2008 to December 2008 would be satisfied. Any arrearages before Father became entitled to benefits would not be satisfied by the SSA’s lump-sum payments to his children.
Analysis
The sole issue on appeal is whether lump-sum SSA disability payments to the children of a disabled father can be used to satisfy the father’s child support arrearage for the dates covered by the payments. In this case, the children received total lump-sum payments of $3,148 for June through December 2008. Father’s child support obligation for that same period was $2,982 ($426 per month for 7 months). The district court allowed the payments to the children to satisfy the father’s arrearage for June through December 2008, but he was not allowed to apply the excess, approximately $166, to arrearages accumulated prior to June 2008. The district court based its decision on this court’s holding in In re Marriage of Williams, 21 Kan. App. 2d 453, 900 P.2d 860 (1995). Mother argues that Father had a duty to support his children dur ing the months he was in arrears. Based on her interpretation of Williams, Mother argues that Father is only entitled to credit for tire month the lump-sum payments were made, January 2009, and not towards the arrearages accrued from June to December 2008.
This issue presents a question of first impression in Kansas. It is a question of law for which review is de novo. Williams, 21 Kan. App. 2d at 454.
The parties both cite and attempt to rely on Williams. In Williams, the child’s monthly SSA disability payment ($555) was in excess of what the father actually owed in child support per month ($250). The father asked the district court to apply any excess payment from SSA ($305 per month) to his child support payment arrearages. Our court denied the father a credit against his child support arrearages for die excess SSA disability payments his child received on a monthly basis. 21 Kan. App. 2d at 454-56. We found that the excess benefit results in a windfall that should inure to the benefit of the child, not the defaulting father. 21 Kan. App. 2d at 456.
In coming to this conclusion, the Williams court cited the only other case in Kansas dealing with diis topic, Andler v. Andler, 217 Kan. 538, 538 P.2d 649 (1975). In Andler, like Williams, tire father was to pay $160 per month in child support; however, the children received $221.10 per month in SSA disability payments due to father’s disability. But, unlike Williams, when father stopped paying the $160 per month, mother filed a motion in district court for contempt arguing that the children’s entitlement to the SSA payments existed without regard to any support judgment entered by the court. Our Supreme Court disagreed focusing on the fact that the obligor parent paid for the SSA benefits in advance; thus, because tiie benefits were earned, the obligor parent should be entitled to receive a credit for them when the child received a payment. The court, however, determined that any excess amount becomes a gratuity under the divorce decree and does not apply to future child support obligations. 217 Kan. at 542-44.
In the present case, the focus is on how to. apply the lump-sum payments made by the SSA to the children for the time period from June 2008 to December 2008 — the time Father became el igible for benefits but no payment was distributed from the SSA, a question not specifically addressed in either Williams or Andler.
It appears that a majority of states that have considered this specific issue allow a credit against an obligor parent’s child support arrearage for a lump-sum payment from the SSA to a child. See Anderson v. Anderson, 955 N.E.2d 236, 238-41 (Ind. App. 2011); Frens v. Frens, 191 Mich. App. 654, 657-58, 478 N.W.2d 750 (1991); County of Grant v. Koser, No. A11-746, 2012 WL 34038, at *5-6. (Minn. App. 2012); Weaks v. Weaks, 821 S.W.2d 503, 507 (Mo. 1991); Hern v. Erhardt, 113 Nev. 1330, 1335-37, 948 P.2d 1195 (1997); Children and Youth Services of Allegheny County v. Chorgo, 341 Pa. Super. 512, 522, 491 A.2d 1374 (1985); Com., Dept. of Social Services v. Skeens, 18 Va. App. 154, 158-61, 442 S.E.2d 432 (1994); Swaney v. State, Dept. of Family Services, 256 P.3d 514, 516-17 (Wyo. 2011). In a majority of those states, however, the lump-sum payment is only applied as a credit for the specific time period when the obligor parent becomes eligible for social security benefits but has yet to receive a payment. Any arrearages accrued before the obligor parent becomes eligible for benefits may not be reduced by the lump-sum payment. See Swaney, 256 P.3d at 516-17; Hern, 113 Nev. at 1335-37; Frens, 191 Mich. App. at 657-58; Weaks, 821 S.W.2d at 507; Chorgo, 341 Pa. Super. at 523-24.
The majority view is consistent with both Williams and Andler. As our Supreme Court emphasized in Andler, the SSA payments are earned by the obligor parent and he or she should be entitled to receive a credit for them for the same time period covered by the payment. Andler, 217 Kan. at 543-44. The very existence of a disability gives rise to the real possibility that the obligor may not be financially able to comply with the support order pending receipt of benefits. Whether the arrearage is paid by the government through social security benefits derived from Father’s account, or directly by Father, the source of die payment should be of no concern. The children are still receiving the amount of support from Father that the court has decided they should receive.
Mother argues that the logical extension of this approach would require her to repay Father under the circumstances of this case if there had been no arrearage. In other words, had Father not been in arrears, would Mother have to repay Father the $2,982 he would have timely paid during the period of June through December 2008?
Because that is not the factual pattern we are faced with in this case, we decline to rule on it. But we do note that the majority of courts who have decided this issue have found that the nonobligor parent is not required to return such “overpayments” to the obligor parent. Most courts view it as a voluntaiy overpayment that inures solely to the benefit of the child. See, e.g., Child Support Enforcement Agency v. Doe, 92 Hawaii 276, 285-86, 990 P.2d 1158 (Hawaii App. 1999); Brown v. Brown, 849 N.E.2d 610, 616 (Ind. 2006); Newman v. Newman, 451 N.W.2d 843, 844 (Iowa 1990); Holmberg v. Holmberg, 578 N.W.2d 817, 827 (Minn. App. 1998), aff'd 588 N.W.2d 720 (Minn. 1999); Keith v. Purvis, 982 So. 2d 1033, 1038-39 (Miss. App. 2008); Steel v. Hartwick, 209 W. Va. 706, 708-09, 551 S.E.2d 42 (2001).
Following the majority of the states that have previously addressed this issue and keeping in line with our decision in Williams and the Supreme Court’s decision in Andler, we find that lump-sum social security disability benefits received by Mother on behalf of her minor children because of Father’s disability may be credited toward Father’s child support arrearage that accumulated during die months covered by the lump-sum payments. If the payment is in excess of the arrearage, the excess benefit accrues to the child as a gift and may not be credited to any arrearage that accumulated prior to the months covered by the lump-sum payment. Accordingly, the district court’s decision is affirmed. | [
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McAnany, J.:
The suit that resulted in this appeal was prompted by a stepmother who her stepchildren claim cheated them out of their inheritance. The stepchildren (referred to as the children) obtained what may be a worthless judgment against their stepmother. This suit is against the insurance company and others who, according to the children, were complicit in the loss. The issue before us is whether the district court erred in granting summary judgment in favor of the defendants because the children’s claims were barred by the applicable statutes of limitations or statutes of repose.
Standards for Summary Judgment
The parties are well acquainted with the standards for granting summary judgment and our standard for reviewing the ruling on appeal, all of which can be found in K.S.A. 60-256; Supreme Court Rule 141 (2011 Kan Ct. R. Annot. 232); and in Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011); Kuxhausen v. Tillman Partners, 291 Kan. 314, 318, 241 P.3d 75 (2010); and Mitchell v. City of Wichita, 270 Kan. 56, 59,12 P.3d 402 (2000). We need not repeat them here, other than to note that our review of the parties’ summary judgment motions is de novo.
The Various Motions and Responses
We turn to the record on appeal for the parties’ motions, statements of uncontroverted facts, and briefs which were before the district court. They consist of the following:
4/27/10
Lincoln National Life Insurance Company’s (Lincoln National) motion for summary judgment and supporting memorandum which includes its statement of uncontroverted facts.
4/28/10
Jeff Breault’s and his securities brokerage firm’s (Carey Thomas Hoover Breault, Inc.) motion for summary judgment and supporting memorandum and statement of uncontroverted facts.
6/3/10
The children’s response to Lincoln National’s motion, their response to Lincoln National’s statement of uncontroverted facts, and their own statement of additional uncontroverted facts. (There is no response in the record from Lincoln National to the children’s statement of additional uncontroverted facts regarding Lincoln National.)
6/3/10
The children’s response to Breault’s and his firm’s motion, their response to Breault’s and his firm’s statement of uncontroverted facts, and their own statement of additional uncontroverted facts regarding Breault and his firm.
6/21/10
Breault’s and his firm’s reply brief to the children’s brief in opposition to the motions for summary judgment and their reply to the children’s statement of additional uncontroverted facts with respect to Breault.
Background Facts
Our first task is to identify the uncontroverted facts. The parties’ statements of uncontroverted facts do not fully frame the factual background of the case. From their briefs, however, we have put together the following scenario over which we find no disagreement, though the parties have not formally spelled it out pursuant to Supreme Court Rule 141.
Lynn Dunn died on September 12, 1993. He was survived by his wife, Doris Dunn, and his five adult children from a prior marriage — Phillip Dunn, Rene Dunn, Sandra Dunn, Pattie Peterson, and Linda Knoblauch. These children are the plaintiffs in the present suit.
Lynn’s will was submitted for probate administration. It directed Lynn’s heirs to spend no more than $375,000 to buy an annuity that would provide Doris, then age 59, with income of approxi mately $2,500 per month to age 62, and $1,825 per month thereafter for the remainder of her life. Upon her death, the remainder would be divided among his children per stirpes.
Unfortunately, the amount available in Lynn’s estate was insufficient to carry out this provision in his will. So securities broker Breault was contacted to obtain an investment vehicle that would come as close as possible to accomplishing Lynn’s wishes. Breault proposed replacing the fixed annuity called for in the will with a variable annuity consisting of investments in stocks and bonds, the values of which, and the resulting value of the annuity, would fluctuate with the market. The family agreed, so Doris and the children entered into a family settlement agreement l'eflecting the change. The family settlement agreement provided for purchase of an annuity policy through Lincoln National. Doris and Phillip were to be the joint owners of the annuity, and Phillip and his four siblings were to be designated irrevocable beneficiaries. The family settlement agreement also provided that Doris and Phillip would determine the initial allocation of the annuity investments and withdrawals. “Thereafter, any changes in the allocation or amount of withdrawals shall be made only upon the joint signature of both of such co-owners.”
The district court approved the family settlement agreement on December 5, 1994. Doris and Phillip then purchased the variable annuity through Breault for $241,307.62. Doris began receiving $2,000 per month beginning January 5, 1995.
In June 2009 the children filed suit, claiming damages of $642,484.99. In their second-amended petition, they asserted the following claims:
• Count I: breach of contract and conversion by Doris.
• Count II: breach of agency duties by Breault and his firm.
• Count III: vicarious liability of Lincoln National for Breault’s conduct.
• Count IV: breach of contract by Lincoln National.
• Count V: conversion by Lincoln National.
• Count VI: failure of Lincoln National to inform the joint account owner of account activity.
The children moved for summary judgment against Doris and ultimately were awarded a judgment of $321,242.49 against her. That summary judgment proceeding is separate and apart from the issues presented in this appeal.
Uncontroverted Facts
This brings us to the summary judgment motions filed by Lincoln National and Breault and his firm, which we must consider de novo. Turning to the parties’ statements of uncontroverted facts, we first note that the defendants are united in interest with respect to the issues raised in the defendants’ summary judgment motions and at stake in this appeal: whether the children’s claims are barred by the applicable statutes of hmitation or statutes of repose. Accordingly, we will combine the uncontroverted facts they set forth in tire various briefs to determine whether there remains any genuine issue of material fact and whether under the uncontroverted facts these defendants are entitled to judgment as a matter of law. (We have no response in the record from Lincoln National addressing the children’s statement of additional uncontroverted facts asserted in their response to Lincoln National’s summary judgment motion, so we consider those additional facts as uncontroverted.) We have paraphrased the uncontroverted facts and placed them in chronological order as follows, with the caveat that not all of them may be relevant to the issues before us:
1. Breault recommended that Doris and Phillip, her stepson, purchase the Lincoln National annuity. Breault met with representatives of the children only once: when the decision was made to buy the Lincoln National annuity.
2. Doris and Phillip applied for the annuity contract on December 14,1994, and the annuity was issued December 16,1994. Breault set up the annuity account on terms designed to effectuate the family settlement agreement. The Lincoln National annuity conformed to the order of the district court and to the family settlement agreement. (We accept this as uncontroverted for purposes of the motions, though the annuity seems to be at odds with the family settlement agree ment to the extent that a contract rider appears to disenfranchise Phillip as a coowner.)
3. Breault was both the sales agent and the servicing agent on the account. He received a commission of $11,341.46 when the annuity was issued and thereafter received quarterly “trail commissions” of .25% of the account value beginning in the second year of the annuity.
4. Phillip was a joint owner of the annuity with Doris and was also an irrevocable beneficiary along with his four sisters. Phillip was age 28 at the time and had a high school education. He had no experience investing in securities or annuities and had no understanding of the agent’s duties to him.
5. Under the terms of die annuity, none of the beneficiaries had any right to recover anything or take any action on the contract during Doris’ life. (The children controvert this because they claim it is not a statement of fact but a legal conclusion.)
6. Breáult assisted Doris in handling issues she had with the administration of payments during the life of the annuity. None of the children asked Breault for financial guidance after he initially sold the annuity. Breault received statements from Lincoln National during the life of the annuity.
7. The Lincoln National annuity is considered a security under the Securities Act of 1933. Under the rules of the National Association of Securities Dealers (NASD) a securities firm is required to provide notices of account activity on a quarterly basis. Breault was required to be a NASD member to sell this annuity.
8. Lincoln National was required to send a report to the owners of the annuity at least once each year. Lincoln National did not include Phillip’s address in the relevant account information. Lincoln National never mailed any statements or correspondence to Phillip.
9. The family settlement agreement required the signature of both owners to change investment allocations. Breault changed investment allocations in the annuity but without obtaining the signature of Phillip for the changes.
10.Doris told Breault she wanted to move the policy.
11. On November 1, 1997, Doris wrote to Lincoln Life and said she was dissatisfied with Breault and Lincoln Life would be hearing from him in the near future. Doris fired Breault about that time or shortly thereafter.
12. Breault’s firm received its last “trail commission” on December 31, 1997.
13. Doris cashed in the annuity on March 12, 1998. Lincoln National paid Doris the value of the account. Lincoln National did not obtain the consent of Phillip or of any of his siblings to terminate the annuity. Breault received notice that Doris had surrendered the annuity. He did not notify Phillip of this event.
14. A broker with Equiselect gave Doris help and advice in moving the money from the annuity account.
15. Doris spent all the money obtained from cashing in the annuity.
16. Rene Dunn learned that Doris had terminated the annuity when she first inquired about the annuity in February or March 2009.
17. The children filed this suit on June 19, 2009. They claim Lincoln National breached the annuity contract and Lincoln National is vicariously hable for Breault’s conduct. The children also claim that Breault and his firm had a broker/customer relationship with Doris and Phillip. They claim that Breault fraudulently concealed or acted with reckless disregard (1) in failing to provide Lincoln National with information about the probate estate and its terms and (2) in failing to notify the children when Doris cashed in the annuity. Breault strenuously denies these claims.
Discussion
Ripeness
As a preliminaiy matter, the defendants assert that this case is not ripe because the irrevocable beneficiaries have no rights to the funds in the annuity until Doris’ death. But in oral argument they apparendy abandon this point and request that we decide the case on the merits of their defenses under the statutes of limitation and statutes of repose. We will do so.
Statutes of Limitation and Statutes of Repose
The children’s claims arising out of the annuity contract are subject to the 5-year limitation period found in K.S.A. 60-511(1): “The following actions shall be brought within five (5) years: (1) An action upon any agreement, contract or promise in writing.” They also bring claims that are limited by the 2-year limitation period found in K.S.A. 60-513(a), which provides:
“(a) The following actions shall be brought within two years:
(2) An action for taking, detaining or injuring personal property, including actions for the specific recovery thereof.
(3) An action for relief on the ground of fraud, but the cause of action shall not be deemed to have accrued until the fraud is discovered.
(4) An action for injury to die rights of others, not arising on contract, and not herein enumerated.”
The 2-year statute of limitations, K.S.A. 60-513, also contains a statute of repose:
“(b) Except as provided in subsections (c) and (d), the causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.” (Emphasis added).
The defendants assert that K.S.A. 60-513(b) precludes the children’s claims. However, the children’s contract claims are not controlled by K.S.A. 60-513(b). The limitation period for claims on a written contract is found in K.S.A. 60-511, which contains no statute of repose.
Statutes of limitations and statutes of repose express distinct concepts under the law. Harding v. K. C. Wall Products, Inc., 250 Kan. 655, 662, 831 P.2d 958 (1992); see Martin v. Naik, 43 Kan. App. 2d 591, 595-97, 228 P.3d 1092 (2010), rev. granted on other grounds 291 Kan. 911 (2011) (pending). A statute of limitations is remedial and procedural, while a statute of repose is substantive. Harding, 250 Kan. 655, Syl. ¶¶ 6, 7. A statute of limitations creates a procedural barrier to bringing an action after a stated number of years. Once the time period in a statute of limitations has expired, the claim still exists but the plaintiff is barred from obtaining, any relief on it. However, because it is procedural in nature, the statute of limitations is waived by a defendant who fails to assert it. In contrast, a statute of repose entirely extinguishes the cause of action after the passage of time even if the cause of action has not yet accrued. See Four Seasons Apts. v. AAA Glass Service, Inc., 37 Kan. App. 2d 248, 251-52, 152 P.3d 101 (2007).
A statute of limitations that predicates the accrual of a cause of action on its discoverability generally includes a statute of repose that prevents the period for bringing suit from being open-ended. The statute of repose completely extinguishes the cause of action after a period of time. A cause of action for breach of a written contract, which is controlled by the 5-year limitation period found in K.S.A. 60-511(1), accrues at the time of the breach, regardless of when the breach is discovered or is discoverable. See Four Seasons, 37 Kan. App. 2d at 253-54. For this reason, there is no need for a statute of repose, and none exists with respect to breach of contract claims.
On the other hand, certain tort actions controlled by the 2-year limitation period found in K.S.A. 60-513(a) do not accrue until the fact of injury is discoverable. K.S.A. 60-513(b). To avoid an open-ended time for bringing such actions, the legislature has created a statute of repose in K.S.A. 60-513(b) that imposes a 10-year drop-dead date for commencing the action.
Equitable Estoppel
■ Statutes of Limitation — Contract Claims Against Lincoln National
The children claim that the doctrine of equitable estoppel bars the statutes of limitation from providing a basis for summary judgment on their contract claims against Lincoln National because Lincoln National failed to send yearly statements and legal notices to Phillip, the coowner of the annuity.
Doris surrendered the annuity in March 1998. This action was commenced more than 11 years later in June 2009. One of the beneficiaries, Rene, was the first to discover that Doris had cashed in the annuity. She discovered this in February or March 2009. According to the children, had Lincoln National kept Phillip informed of what Doris was doing, the children would have realized what their stepmother was up to and could have taken timely action. Thus, they argue, the doctrine of equitable estoppel should bar the running of the 5-year statute of limitations on their breach of contract claim.
As noted earlier, there is no statute of repose that sets a drop-dead date for commencing a breach of contract action because the cause of action accrues at the time of the contract’s breach and the statute provides no escape hatch. But by common law we have adopted the doctrine of equitable estoppel in Kansas. The immediate question is whether the doctrine extends to circumstances such as those presented here. This calls for a review of the caselaw as it developed over the decades. As stated in Safeway Stores v. Wilson, 190 Kan. 7, 12, 372 P.2d 551 (1962):
“There is no definite rule governing estoppel which can be applied to every situation. There are few, if any, relationships, of which the law takes cognizance, which are not [a]ffected to some degree by the principles of estoppel. Since the principle of equitable estoppel runs through all transactions it cannot be determined by any fixed or definite rule. Where the question is raised each case must be determined on its own individual facts.”
Because the basis for invoking the doctrine of equitable estoppel is so very fact intensive, it is important that we understand the factual context in which various pronouncements about equitable estoppel have been made in cases having something to say about the issue before us. We do not include in this review a case cited by the defendants, Kelly v. VinZant, 287 Kan. 509, 197 P.3d 803 (2007), because it discusses fraud but not equitable estoppel. Further, it does not appear that the estoppel principle has been applied with steadfast consistency over the years. Nevertheless, we press on.
1959
In Rex v. Warner, 183 Kan. 763, 332 P.2d 572 (1959), Warner needed funds in addition to his first mortgage loan proceeds in order to buy his new home. Rex, Warner s employer, agreed to loan Warner the difference in exchange for a promissory note secured by a second mortgage on the property. At the closing, and through an apparent oversight, Warner and his wife failed to execute tire note and second mortgage. When Rex discovered the oversight, he requested that the Warners execute the documents. Warner agreed, but his wife refused to do so. After two other requests spread over several years, Warner stated that while he had signed the documents his wife had not and would not sign them. Rex sued for specific performance of the oral contract to execute and deliver the note and mortgage. Warner contended the action was barred by the 3-year statute of limitations on oral contracts. Rex countered that equitable estoppel barred reliance on the statute of limitations. Rex prevailed, and on appeal the court stated:
“While this court recognizes the doctrine of equitable estoppel in pais to prevent a resort to tire statute of limitations, and that a debtor or defendant may, by his representations, promises, or conduct, be estopped to assert the statute where other elements of estoppel are present [citations omitted], we do not believe the facts alleged are sufficient to invoke that doctrine in tire instant case.... Generally speaking, an actual fraud in tire technical sense, bad faith, or an attempt to mislead or deceive is not essential to create such an estoppel; to invoke tire doctrine, the debtor or defendant must have done something that amounted to an affirmative inducement to plaintiff to delay bringing the action. [Citations omitted.]
“. . . It was within plaintiff s domain to ascertain why tire defendants refused to perform and where tire means of knowledge with respect to his rights or liabilities are available to him, he may not ignore the requirement of due care and at the same time invoke the doctrine of equitable estoppel. That doctrine is not available for the protection of one who has suffered loss solely by reason of his own acts or omissions. Equity aids the vigilant and not tiróse who slumber on their rights. [Citation omitted.]” 183 Kan. at 770-72.
1964
In Klepper v. Stover, 193 Kan. 219, 392 P.2d 957 (1964), Stover leased property to Murray. Murray assigned the lease to Kendall, who reassigned the lease to the Citizens State Bank, which reassigned the lease to the plaintiff. The lease from the outset con tained an error in the legal description. Plaintiff sued to reform the legal description in the lease, claiming that in good faith he erected improvements on the property and paid the rent for a number of years. The original parties to the lease and the various assignees were unaware of the error until the plaintiff had a survey prepared in anticipation of making additional improvements. Plaintiff claimed the defendants were estopped to raise the statute of limitations as a defense. The defendants moved to strike these allegations, the district court declined to do so, and tire defendants appealed.
On appeal, the Supreme Court, citing Rex, 183 Kan. at 771, noted that “ ‘to invoke the doctrine, the debtor or defendant must have done something that amounted to an affirmative inducement to plaintiff to delay bringing the action.’ ” Klepper, 193 Kan. at 221. The Klepper court also stated:
“To apply the doctrine of estoppel to defendants here upon the ground of the statute of limitations requires an element of deception upon which the plaintiff acted in good faith in reliance thereon to his prejudice whereby he failed to commence the action within the statutory period. Whether the acts, promises, or representations of defendants lulled plaintiff into a sense of security, preventing him from filing suit before the running of the statute is a question of fact. (34 Am. Jur., Limitation of Actions, § 412, pp. 324, 325.)
“if a defendant, electing to rely on the statute of limitations, has previously by deception or in violation of his duty toward plaintiff, caused him to subject his claim to the statutory bar, defendant must be charged with having wrongfully obtained an advantage which the court will not allow him to hold, and this can be done by his silence when under an affirmative duty to speak. (53 C.J.S., Limitations of Actions, § 25, Estoppel, pp. 963, 964.)” 193 Kan. at 222.
The court concluded that “we believe there are sufficient allegations in plaintiff s petition to allege an equitable estoppel against defendants’ attempt to invoke the statute of limitations as a bar to plaintiff s cause of action. [Citations omitted.]” 193 Kan. at 222.
1970
In Bruce v. Smith, 204 Kan. 473, 464 P.2d 224 (1970), Herbert and Carol Bruce sued Smith for damages to the Bruces’ couch when it was sent to A&A Duraclean Service for cleaning. Smith had sold the business to Magdaleno the month before this trans action. Smith contended that Magdaleno owned A&A when the work was done and that Smith had no connection with the business at the time. But Carol Bruce presented evidence that she talked to a person who was identified as Smith about the cleaning job, he satisfied her that A&A could handle it, and he made arrangements to pick up the sofa. When the sofa came back damaged, a person believed to be Smith came to the Bruces’ house to examine it and made recommendations for corrective action, “but alas, to no avail!” 204 Kan. at 475.
On appeal, the court noted regarding the estoppel issue:
“While it is true the record discloses no affirmative statements of ownership made by Mr. Smith to Mrs. Bruce, silence itself may give rise to an estoppel where, under the existing circumstances, there should have been a disclosure. Where a duty to speak exists, silence is tantamount to dissimulation. (28 Am. Jur. 2d, Estoppel and Waiver, § 53, pp. 665, 666.) We believe this rule fits the facts of this case.” 204 Kan. at 477.
1977
In United American State Bank & Trust Co. v. Wild West Chrysler Plymouth, Inc., 221 Kan. 523, 561 P.2d 792 (1977), Wild West sold a car to Kathleen and Ronald Lorg and financed the sale for them. They assigned the note and security agreement to the bank and warranted to the bank that the buyers were over age 21 and had the legal capacity to contract. If the warranty was breached, Wild West was required to repurchase the note. Wild West mistakenly told the bank that Ronald Lorg was age 41. The bank agreed to purchase the note and security agreement. The Lorgs quickly defaulted and wrecked the car. Kathleen declared bankruptcy, and Ronald disclosed that he was age 17 at the time of the purchase and disaffirmed the purchase contract pursuant to K.S.A. 38-102 (Weeks). The bank sued Wild West and, after a trial to the court, obtained a judgment against Wild West for breach of the warranty.
Wild West argued that the bank was estopped from asserting its rights under the warranty because the bank knew Ronald’s true age. The court observed:
“A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. (Wichita Federal Savings & Loan Ass’n v. Jones, 155 Kan. 821, 130 P.2d 556; 31 C.J.S., Estoppel, § 59, p. 367.)” United American State Bank ir Trust Co., 221 Kan. at 527.
Wild West’s estoppel argument failed because the trial judge determined that the bank did not know Ronald’s true age when it agreed to purchase the note and security agreement, and that finding was support by substantial competent evidence. 221 Kan. at 527.
1978
Bowen v. Westerhaus, 224 Kan. 42, 578 P.2d 1102 (1978), involved a dispute between two insurance companies regarding a car that was destroyed in a fire. Bowen, insured by Farmers Insurance Group, left his car with Westerhaus for repairs. Westerhaus was insured by Universal Underwriters Insurance Company. Westerhaus’ garage caught fire and Bowen’s car was destroyed in January 1971. Farmers paid Bowen for the loss and became subrogated to Bowen’s rights. Farmers made claim for the loss caused by Universal’s insured. Universal responded that there was a dispute between Universal and Travelers Insurance Company over which company had primary coverage for the loss, and the Insurance Commissioner was sorting it out. Over a year later, Universal told Farmers that it had always been ready to pay half of the Bowen loss but Travelers was unwilling to pay its half. As a result, Universal was filing a declaratory judgment action to resolve the coverage issue. In December 1973, Universal advised Farmers that the declaratory judgment action was still pending and it hoped to get an answer within 90 days. The statute of limitations ran in January 1974. Universal and Farmers continued to communicate with each other. In June 1974, after learning the declaratory judgment action had been decided adversely to Universal, it notified Farmers that the 3-year statute of limitations had run on the claim and Farmers was out of luck.
Farmers filed suit on its subrogation claim in Bowen’s name and asserted that Universal and Westerhaus, its insured, were barred by equitable estoppel from raising the statute of limitations defense. Westerhaus moved for summary judgment based upon the statute of Hmitations. The court granted the motion.
On appeal the court reversed, finding there remained a genuine issue of material fact which preclude summary judgment. The court relied on Safeway Stores and stated that the conduct giving rise to an estoppel “generally raises a question of fact unless tire facts are stipulated to or depend upon the interpretation of unambiguous written documents.” Bowen, 224 Kan. at 48 (citing An-not., 39 A.L.R.3d 127). The record contained written documents, letters exchanged by the insurers, but there remained a dispute as to their import, and the court was required to consider these letters in the light more favoring the nonmoving party. 224 Kan. at 49; see Osterhaus v. Toth, 291 Kan. 759, Syl. ¶ 1, 249 P.3d 888 (2011).
Newton v. Hornblower, Inc., 224 Kan. 506, 582 P.2d 1136 (1978), was a derivative action in which estoppel and the statute of hmitations arose in a scenario which is the reverse of what is usually presented. In Newton the plaintiff claimed the defendants took excessive management fees and salaries, misappropriated corporate assets, and diverted business opportunities to themselves to the detriment of the corporation. The defendants claimed that plaintiff, a director of the corporation, had the duty to keep himself reasonably apprised of the status of the corporation, including the various transactions at issue, and should be estopped from bringing this action which is barred by the statute of limitations. The plaintiff argued that estoppel was not available to the defendants because they hid the true facts from him. The trial court found that the defendants concealed the facts giving rise to the claim. On appeal, the Supreme Court concluded that the defendants could not rely on the estoppel defense, reasoning that estoppel is for the protection of innocent persons and only they can invoke it. “One cannot take advantage of. . . estoppel and the statute of limitations where his own concealment is the basis for the delay.” 224 Kan. at 516.
1979
Coffey v. Stephens, 3 Kan. App. 2d 596, 599 P.2d 310 (1979), arose out of a January 1970 automobile collision. Stephens’ insurer paid for Coffey’s property damage, and the adjuster admitted that the accident was Stephens’ fault. A series of adjusters told Coffey that her claim would be settled when she was released by her doctor. Coffey hired an attorney 8 months before the 2-year statute of limitations ran. Negotiations were delayed while Coffey’s attorney collected her medical records. Coffey ultimately filed suit in June 1972, several months after the 2-year statute of limitations had run. Coffey argued that Stephens was estopped to assert the statute of Hmitations due to the conduct of his insurer. The issue was submitted to the jury, which found in favor of Stephens.
On appeal the appellate court affirmed, concluding that “the mere fact that liability had been admitted and a proposal made to negotiate a settlement in the future does not alone obviate the necessity of fifing a suit within the period required by the statute.” 3 Kan. App. 2d at 598. The court noted:
“One general statement of the [equitable estoppel] document which runs throughout the cases in which it is asserted is that a defendant, who has acted in such a fashion that his conduct is sufficient to lull his adversary into a false sense of security forestalling the filing of suit until after the statute has run, will be precluded from relying on the bar of the statute. [Citations omitted.]” 3 Kan. App. 2d at 598.
1982
In Levi Strauss & Co. v. Sheaffer, 8 Kan. App. 2d 117, 650 P.2d 738 (1982), Sheaffer operated a men’s apparel store in the Aggie-ville area of Manhattan. Clark, a Levi salesman, told Sheaffer that if he took on the Levi fine and bought up to his credit limit, Clark would see to it that Sheaffer would have no competing Levi retailers in his area. Sheaffer agreed, closed out other fines of men’s apparel, and remodeled his store to complement the Levi fines. Clark moved on after a year and was replaced by other Levi salesmen. Sheaffer reminded them of Clark’s promise about protecting his territory, and none said they would not work to ensure Sheaf-fer’s exclusive dealership in Aggieville.
When a competing retailer began carrying the Levi fine, Sheaffer complained to various levels of the Levi management but got the runaround. This runaround included affirmative representations to Sheaffer that “as far as the [Levi salesman] was concerned, Sheaf- fer’s was the only account for Levi in Aggieville. He said he would take care of the matter.” 8 Kan. App. 2d at 120. At a meeting in Levi’s San Francisco headquarters, a Levi manager “told Sheaffer that he would look into the matter and take care of it.” 8 Kan. App. 2d at 120. Ultimately, Levi sued Sheaffer on his open account, and Sheaffer counterclaimed for breach of the claimed oral exclusive dealership contract. The district court concluded that equitable estoppel barred Levi from relying on the statute of limitations defense. The district court found that
“ ‘[w]hile it is true the evidence does not show express promises were made to Sheaffer by the salesmen . . . Sheaffer was led to believe that he was to have the exclusive right to sell Levis in . . . Aggieville. . . . Perhaps most damaging to die plaintiff s position that no exclusive dealership was intended is the failure of the Levi sales representatives or administration to disclaim Sheaffer’s claim of exclusive dealership.’ ” 8 Kan. App. 2d at 123.
Sheaffer prevailed at trial on his counterclaim, and Levi appealed, claiming the district court’s findings were insufficient to support the court’s finding of equitable estoppel. The appellate court affirmed, noting the definition of equitable estoppel which includes “ ‘acts, representations, admissions, or silence when it has a duty to speak.’ ” 8 Kan. App. 2d at 124.
1983
Iola State Bank v. Biggs, 233 Kan. 450, 662 P.2d 563 (1983), involved the bank’s suit to collect on a personal guaranty. The parties filed cross-motions for summary judgment, and the court found that Dolores Bybee’s 1975 guaranty agreement covering the obligations of Biggs Feed & Grain, Inc., was enforceable against her, but that two 1974 guaranties for Joe and Jan Biggs, d/b/a/ Biggs Feed & Grain (collectively “Biggs”), were not. The bank appealed.
The Biggs were the son-in-law and daughter of Jack and Dolores Bybee. In 1974 Jack and Delores executed guaranties for the bank’s loans to Joe and Jan. In 1975 Joe and Jan incorporated their grain business, and Jack and Delores executed another guaranty for the bank to enable the new corporation to obtain a line of credit. The following month, the bank consolidated the prior individual loans to Joe and Jan into one corporate obligation, relieving Joe and Jan of personal liability on those preincorporation loans.
In 1981 the bank sued to collect on the corporation’s debt and to enforce the guaranties. Joe and Jan filed bankruptcy, and Jack died, leaving Dolores holding the bag. Dolores admitted liability on the 1975 guaranty but claimed the incorporation of the business and the new guaranty in 1975 extinguished the two prior guaranties in 1974. The bank claimed that Dolores was equitably estopped to deny her obligations on the 1974 guaranties because Dolores submitted financial statements to the bank after the business was incorporated and each statement listed as a liability her two preincorporation guaranties of the personal debts of Joe and Jan. The Supreme Court stated:
“Equitable estoppel is the effect of the voluntary conduct of a person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show it rightly relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. [Citation omitted.]” 233 Kan. at 458.
It was uncontroverted that Dolores performed no act upon which the bank could rely because she neither read nor signed the financial statements submitted to the bank. (Apparently Jack must have submitted the financial statements to the bank.) The Supreme Court concluded that the trial court was correct in finding no estoppel. 233 Kan. at 458-59.
1984
In Turon State Bank v. Bozarth, 235 Kan. 786, 684 P.2d 419 (1984), a farmer financed his farm operation through the local bank. He secured the debt with his cattle, crops, and machinery. In 1980 he sought an additional loan for funds to sow his spring crops. Because the security for his existing loan would not cover this new loan, he was required to have his son-in-law cosign the note. In 1981 the farmer sold some cattle and deposited the money in the bank and asked the bank to apply most of it to the note cosigned by his son-in-law, but the bank applied most of the cattle sale proceeds to the farmer s original debt. When the farmer went bankrupt, the bank sued the son-in-law on the outstanding note he cosigned. The son-in-law responded that the bank was supposed to have deposited the cattle sale proceeds as the farmer requested, but failed to do so. The trial court found that the bank was estopped to deny application of the funds to the son-in-law’s note.
When the farmer asked the bank to apply the cattle proceeds against the cosigned note, the bank did not tell the farmer one way or another how it would handle the transaction, but it proceeded to apply the funds to the original debt. The issue before the Supreme Court was whether the bank was estopped by its silence. Quoting 28 Am. Jur. 2d, Estoppel and Waiver, § 53, pp. 669-70, the court recited the general rule:
“ ‘In general, a person is required to speak only when common honesty and fair dealing demand that he do so, and in order that a party may be estopped by silence, there must be on his part an intent to mislead, or at least a willingness that others should be deceived, together with knowledge or reason to suppose that someone is relying on such silence or inaction and in consequence thereof is acting or is about to act as he would not act otherwise.’ ” 235 Kan. at 790.
The court observed that over the years the farmer discussed with the bank how to apply the proceeds of cattle and crop sales to the farmer’s bank debts, but that it was the practice of the parties that the bank would make the final determination. The court noted that the bank did not mislead the farmer but applied the cattle sale proceeds to the loan that generated the proceeds. “There is no basis for the defense of equitable estoppel. There is no showing the bank by its acts, representations, admissions, or silence induced the [farmer or his son-in-law] to believe certain facts existed upon which they detrimentally relied and acted. [Citation omitted.]” 235 Kan. at 792.
1997
In Robinson v. Shah, 23 Kan. App. 2d 812, 936 P.2d 784 (1997), the defendant performed abdominal surgery on the plaintiff. The plaintiff had ongoing gastric distress. The defendant had diagnostic x-rays taken of the plaintiff, and the radiologist reported to the defendant that the x-rays showed that surgical sponges had been left in the plaintiff s abdomen during the surgery. The defendant failed to disclose this to the plaintiff and, after a decade of ongoing distress, the plaintiff, now under the care of a different doctor, discovered the presence of the sponges. The plaintiff sued the defendant for fraud and medical malpractice. The district court dismissed die plaintiffs claims based upon the statute of limitations. The appellate court reversed, citing many of the equitable estoppel cases discussed above in concluding that “the defendant in a malpractice case cannot take advantage of a defense based on the statute of limitations or the statute of repose where the defendant’s own fraudulent concealment has resulted in the delay in discovering the defendant’s wrongful actions.” 23 Kan. App. 2d at 832.
These cases teach us that fraud, bad faith, or the intent to deceive is not essential to create an estoppel. Rex v. Warner, 183 Kan. 763, 770-72, 332 P.2d 572 (1959). But using equitable estoppel to bar application of the statute of limitations requires an element of deception. Klepper, 193 Kan. at 222. A common factual thread running through the cases is conduct by a party that lulls the adverse party into a false sense of security, forestalling the filing of suit until the statute has run. Coffey, 3 Kan. App. 2d at 598. On the other hand, equitable estoppel can arise from a party’s silence when that party had a duty to speak. United American State Bank, 221 Kan. at 527; Iola State Bank, 233 Kan. at 458; Bruce, 204 Kan. at 477; Levi Strauss, 8 Kan. App. 2d at 124. But in order to be estopped by silence, the defendant must have the intent to deceive, or at least a willingness that others would be deceived, and reason to believe that others would rely on such silence. Turón State Bank, 235 Kan. at 790.
Further, equitable estoppel generally involves questions of fact and when the facts are disputed or when necessary facts come from ambiguous documents, summary judgment is inappropriate and the factual dispute must await resolution at trial. Bowen, 224 Kan. at 48; Safeway Stores v. Wilson, 190 Kan. 7, 12, 372 P.2d 551 (1962). But when the facts are undisputed, the district court may rule on the availability of .the doctrine as a matter of law. Rex, 183 Kan. at 769.
Here, we find no genuine issue of material fact on the estoppel issue that must await trial for final resolution of the children’s contract claims against Lincoln National. Thus, the issue becomes one of law: Under the uncontroverted facts does the doctrine of equitable estoppel apply?
The children do not claim that they were lulled into a false sense of security by any action by Lincoln National; rather, they claim the estoppel arises from Lincoln National’s silence when it had an obligation to speak. That silence arises in two contexts: (1) Lincoln National’s failure to provide Phillip with periodic reports as it was required to do and (2) its failure to notify Phillip when Doris cashed in the annuity.
Widi respect to the periodic reports, the children cannot contend that they were lulled into a false sense of security from not hearing from Lincoln National. After all, had Phillip received quarterly reports during the life of the annuity, he would not have acted upon them by bringing this action sooner. In fact, Lincoln National’s failure to provide the first periodic report in the first year of the contract put Phillip on notice that Lincoln National had breached the contract and that pursuant to K.S.A. 60-511(1) he had 5 years to seek relief through the courts.
With respect to Lincoln National’s failure to notify Phillip when Doris cashed in the annuity, we take note of the “Joint/contingent Ownership” provision in a rider to the annuity contract which gave Doris the right to unilaterally cash in the annuity. The rider provides: “If joint owners are named in the application such joint owners shall be treated as having equal undivided interests in the Contract. Either owner, independent of the other, may exercise any ownership rights in this Contract.” From the children’s perspective, the nonreported event that they wished they had known about sooner was Doris cashing in the annuity. But they do not direct us to any provision in the contract that requires Lincoln National to report to anyone upon termination of the annuity contract. Silence can be the basis for equitable estoppel when the defendant has the duty to speak but fails to do so. While the children cite the contract provision that provides for periodic reports during the life of the contract, they do not direct us to any contract provision that re quired Lincoln National to inform Phillip that Doris had terminated the contract by cashing in the annuity.
Further, the cases teach us that Lincoln National must have intended to deceive the children or at least harbored a willingness that the children would rely upon and be deceived by its silence. We find no support for that notion here. The annuity contract, Section 1.04(f), and the variable annuity amendment to the contract contain a schedule of investment advisory fees. The decision to cash in the annuity was made by Doris alone. It was not in Lincoln National’s pecuniary interest for Doris to cash in the annuity or for the children not to dissuade her from doing so. There is certainly no evidence that Lincoln National remained silent in order to deceive the children or lull them into a false sense of security.
Finally, it is uncontested that Phillip was on notice of Lincoln National’s contractual duty to provide periodic reports but took no action to inquire when none was received. As stated in Rex,
“he may not ignore the requirement of due care and at the same time invoke the doctrine of equitable estoppel. That doctrine is not available for the protection of one who has suffered loss solely by reason of his own acts or omissions. Equity aids the vigilant and not those who slumber on their rights.” 183 Kan. at 771-72.
Based upon the uncontroverted facts, we conclude that the children were not entitled to invoke the doctrine of equitable estoppel to defeat the statute of limitations on their breach of contract claims against Lincoln National. Lincoln National is entitled to summary judgment on the children’s contract claims against it.
■ Statutes of Repose — Tort-Based Claims Against Lincoln National
As discussed earlier, statutes of repose are found in tort-based statutes of limitation which predicate commencement of the running of the statutory period on the discoverability of the tort. Here, the children contend that Lincoln National is equitably estopped from raising the statute of repose to bar its claims of conversion and vicarious liability because claims grounded in fraud or concealment are excepted from the statute of limitation and the statute of repose. They assert that “[t]he theory of equitable estoppel is closely allied with the allegations of fraudulent concealment.” As a basis for the claims, the children allege that Lincoln National remained silent when it had a duty to speak, thus leaving them without a remedy for the wrongs committed.
Finally, the children state in a conclusoiy manner, without case support or argument, that although their claim of vicarious liability for the breach of fiduciaiy duty of Breault and his firm is based in tort, the theory of equitable estoppel should apply even if the statute of repose is implicated.
The children’s tort claims are subject to the 2-year limitation period set forth in K.S.A. 60-513(a)(2). Their claims of conversion and breach of fiduciary duty are governed by a 10-year statute of repose. K.S.A. 60-5l3(b). These claims clearly fall outside of the limits set by the statutes.
Whether the doctrine of equitable estoppel is even available to toll a statute of repose is a debatable issue in Kansas. The majority in Robinson, discussed above, and the court in Stark v. Mercantile Bank, N.A., 29 Kan. App. 2d 717, 724, 33 P.3d 609 (2000), concluded that “[f]raud and fraudulent concealment either toll the statute of repose or make it inapplicable.” But Judge Knudson, expressing the minority view in Robinson, noted the fundamental difference between statutes of limitation, which extinguish the right to pursue a cause of action, and statutes of repose, which extinguish the cause of action itself. He reasoned that equitable estoppel cannot bar application of a statute of repose. Robinson, 23 Kan. App. 2d at 834-35 (Knudson, J., dissenting). We need not weigh in on that debate.
If the doctrine of equitable estoppel applies to the statute of repose with respect to the children’s tort-based claims, the children must satisfy the same burden they faced in confronting the statute of limitations defense to their contract claims. As discussed earlier, based upon the uncontroverted facts the children have failed to establish that they are entitled to invoke the doctrine. The children’s tort-based claims against Lincoln National are barred by the applicable statute of repose, and Lincoln National is entitled to summary judgment on those claims.
■ Statute of Limitations — Breach of Fiduciary Duty Claims against Breault and His Firm
The children contend that Breault and his firm are equitably estopped to raise the statute of limitations as a defense to the children’s claims of breach of fiduciary duties. These claims are subject to die 2-year statute of limitation as set forth in K.S.A. 60-513(a)(2). The children contend that the controlling statute of limitations for breach of fiduciary duty is 3 years under K.S.A. 60-512 because the relationship was one formed as the result of a contract as well as one implied by law. Regardless, the children failed to commence this action within either statute of limitations.
Based on the uncontroverted facts it is clear that there was no ongoing fiduciary relationship upon which the children could predicate these claims. Breault recommended that Doris and Phillip purchase the Lincoln National annuity. Breault met with representatives of the children only once: when the decision was made to buy the Lincoln National annuity. Breault set up the Lincoln National account on terms designed to effectuate the family settlement agreement. The annuity conformed to the order of the district court and to the family settlement agreement.
Breault received a sales commission when the annuity was purchased and an ongoing commission thereafter during the life of the annuity. He assisted Doris in handling issues she had with the administration of payments during the life of the annuity but he had no ongoing contact with the children. None of the children asked Breault for financial guidance after he initially sold the annuity.
As the court determined in Daniels v. Army National Bank, 249 Kan. 654, 656, 822 P.2d 39 (1991), a fiduciary relationship maybe created by contract or implied in law due to the facts surrounding the transaction and the relationship between the involved parties. In Linden Place v. Stanley Bank, 38 Kan. App. 2d 504, Syl. ¶ 3, 167 P.3d 374 (2007), the court stated that in determining whether a fiduciary relationship exists, one must determine whether a “special confidence is placed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interest of the one placing the confidence.”
There is evidence that could support a fiduciary relationship between Doris and Breault. Doris consulted with him on investments in the annuity, and Breault changed the investment allocation at her behest. But the relationship between Breault and the children after the annuity was purchased was nonexistent. None of the children asked Breault for any financial or investment advice after the annuity was purchased. Breault did not have any contact with the children after December 1994, more than 14 years before this suit was filed.
Regardless, in order to establish estoppel, the children must prove that they rightfully relied on Breault’s and his firm’s acts or omissions which lulled them into a false sense of security and caused them to delay bringing this action until the statute of limitations had expired. Again, as with the claims against Lincoln National, the children rely on Breault’s silence, his failure to act, rather than any overt act. We apply the same analysis here that we used in considering the claims against Lincoln National.
There certainly is no evidence that Breault intended by his silence or inaction to deceive or to mislead the children. It is uncontroverted that Doris was dissatisfied with Breault before she cashed in the annuity. She fired Breault at or shortly after the time she cancelled the annuity. It was not in Breault’s pecuniary interest for Doris to cash in the annuity. His motivation would have been for the children to dissuade Doris from terminating the annuity, not keeping Doris’ intended actions a secret from the children. Doris relied on another brokerage firm, Equiselect, in moving the proceeds from the annuity account. In their statement of additional uncontroverted facts, the children do not assert any fact which, viewed in the light more favoring the children, suggest that Breault was instrumental in causing Doris to cash in the annuity. The uncontroverted facts do not justify the children invoking equitable estoppel as a bar to the application of the statute of limitations.
Continuous Representation Doctrine — Tolling Claims Against Breault and His Firm
For the first time on appeal, the children argue that the doctrine of continuing representation tolls the applicable statute of limita tions. They claim that Breault continued to change investment allocations throughout the life of the policy and they never terminated their relationship with Breault. Thus, they argue, under the continuing representation doctrine the statute of limitations did not run until the plaintiffs realized that the policy had been surrendered.
The continuous representation rule has been recognized in Kansas to toll the statute of limitations only in the context of legal malpractice claims. Depending on tire facts and circumstances of each case, there are at least four theories which can apply to attorney malpractice to determine when the accrual of a cause of action occurs and the statute of limitations begins to run. One of those theories is the continuous representation rule. Gansert v. Corder, 26 Kan. App. 2d 151, 153-54, 980 P.2d 1032 (1999); Pittman v. McDowell, Rice & Smith, Chtd., 12 Kan. App. 2d 603, 609, 752 P.2d 711, rev. denied 243 Kan. 780 (1988). Notably, the continuous representation rule does not toll statutes of repose. Bonin v. Vannaman, 261 Kan. 199, 228, 929 P.2d 752 (1996).
The purpose of the continuous representation rule is
“ ‘ “to avoid unnecessarily disrupting the attorney-client relationship. Adoption of this rule was a direct reaction to the absurd requirement of the occurrence rule which requires the client to sue his attorney even though the relationship continues and diere has not been and may never be any damage. The rule, limited to the context of continuous representation, is consistent with the purpose of die statute of limitations which is to prevent stale claims and enable the defendant to preserve evidence. Where the attorney continues to represent the client in the subject matter in which the error has occurred, all such objectives are achieved and preserved. The attorney-client relationship is maintained and speculative malpractice litigation is avoided.” ’ ” Morrison v. Watkins, 20 Kan. App. 2d 411, 417, 889 P.2d 140, rev. denied 257 Kan. 1092 (1995).
The children claim that the continuous representation rule was extended to medical malpractice claims in Robinson. See Robinson, 23 Kan. App. 2d 812. While tire doctrine was raised in the previously mentioned separate opinion of Judge Knudson, the majority did not rely on the continuous representation rule. Further, our Supreme Court has explicitly stated that the continuous representation rule does not apply to medical malpractice cases. Bonin, 261 Kan. at 228.
In any event, we find no basis upon which to extend the continuous relationship rule to the facts of this case. The uncontroverted facts establish that there simply was no continuous relationship between Breault and the children after the annuity was purchased. The family purchased the annuity in December 1994. Breault or his firm had no further contact or relationship with Phillip or his siblings. In November 1997, Doris fired Breault and removed him as the servicing agent. This suit was filed in June 2009, almost 12 years later. The justification for applying the doctrine of continuous representation to the broker/client relationship would be to avoid disrupting the relationship between the investment advisor and his client. Here, there was no such relationship to disrupt. Even if the children were to ride Doris’ coattails in her relationship with Breault, that relationship ended almost 12 years before the children brought this action. Even under this theory, the tolling would have ended and the limitation period would have commenced in November 1997. The continuous representation rule would not bar the effect of the statute of limitations.
Fraudulent Concealment — Claims Against Lincoln National, Breault, and His Finn
Finally, based upon the holding in Robinson, the children contend that the defendants’ fraudulent concealment avoids the effect of the applicable statutes of limitations and statutes of repose. In their seconded-amended petition, the children allege that Breault fraudulently concealed the surrender of the policy in reckless disregard of their interests and Lincoln National is vicariously liable for Breault’s actions. The children argue that Robinson supports their argument that fraudulent concealment is an exception to the statute of limitations.
As discussed earlier, the present case is readily distinguishable from the facts in Robinson. We have no evidence of fraudulent concealment here. We have none of the shameful conduct exhibited in Robinson, no intentional deception to protect the defendant from the legal consequences of his medical negligence. When Doris cancelled the annuity, the defendants gained nothing in the transaction and gained nothing by failing to advise Phillip about it. In fact, Lincoln National lost its ongoing investment advisory fee, and Breault and his firm lost an ongoing commission when Doris cashed in the annuity. When Rene inquired about the annuity in 2009, Breault immediately informed them that Doris had surrendered the annuity in 1998.
We find no basis upon which to extend the rationale in Robinson to the uncontroverted facts now before us. When viewed in the light most favoring the children, the defendants’ claimed acts of fraudulent concealment do not bar tire effect of the applicable statutes of limitations and statute of repose.
In our de novo review we conclude that there is no genuine issue of material fact which prevents the applicable statutes of limitation and repose from constituting bars to the children’s claims. The defendants are entitled to judgment as a matter of law. The district court did not err in so concluding.
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from judgment of the lower court finding appellant’s tavern to be a nuisance to the people of the state of Kansas, and ordering it padlocked.
Appellee filed a verified petition which alleged in substance that appellant Eva Wilson was owner of the real estate in question and the buildings located thereon; that she was not licensed to sell at retail nor distribute alcoholic liquor under the Kansas Liquor Control Act; that she did on July 16, 1949, unlawfully sell alcoholic liquor to other persons in violation of law and did keep and maintain on the premises in question alcoholic liquor for unlawful purposes; that she kept alcoholic liquor on said premises for sale for a long time prior to July 16,1949; that she was licensed to sell cereal malt beverages; that she permitted persons to resort to the premises for the purpose of drinking and consuming alcoholic liquors; that she did set up and keep for gambling purposes at diverse times prior to July 16, 1949, slot machines and other gambling devices known as bingo sticks or pull type punch boards; that she possessed and maintained approximately two cases of alcoholic liquor on said premises on July 16, 1949; that the possession and sale of alcoholic liquor on the premises in question is unlawful and in contravention of the law pertaining to licenses under the cereal malt beverage act; that the premises are unlawfully maintained and are a common nuisance to the people of the state of Kansas, and should be abated, closed and padlocked as a common nuisance. The petition asks that the court issue a restraining order against appellant from keeping and maintaining a common nuisance, and on final hearing to adjudge the premises and buildings in question to be a common nuisance and that the nuisance be abated by order of the court, and the premises closed and padlocked for a period of not less than three months nor more than two years, or until the laws of Kansas are complied with, and for other relief not material to the issues involved herein.
Issues were joined between the parties and the case was submitted to the court on the evidence taken at the hearing on the temporary injunction and evidence taken in the companion case of State v. Wilson reported in 169 Kan. 659, 220 P. 2d 121, and depositions therein.
The court found that appellant’s tavern premises were a common nuisance; that appellant did on or about July 16, 1949, keep in her possession on her premises alcoholic liquors in violation of law; that she did at diverse times within two years prior to the institution of the action sell alcoholic liquors to other persons from said premises; that she was licensed to sell cereal malt beverages from said premises at said times and kept alcoholic liquors thereon; that she did permit persons to gamble on gambling devices which she had set up; and ordered the premises padlocked and enjoined appellant from operating and maintaining a nuisance on said premises for a period of one year.
Appellant admits that the evidence was sufficient for the court to decree an injunction if the law permitted such.
Appellant contends the court erred (1) in granting an injunction under the cereal malt beverage act because the provisions of that law were repealed by the 1949 Liquor Control Act; (2) in abuse of discretion in padlocking the premises, since there was no evidence of a continuance of such violations; and (3) that the state had a plain and adequate remedy at law.
As to appellant’s first contention, the record does not disclose that the lower court granted the injunction under the cereal malt beverage act, and that act has no application here. An examination of the petition and order of the court reveals that the injunction on the gambling features was granted under G. S. 1935, 21-918, and the injunction and padlock order were granted under chapter 242, Laws of 1949, known as the Kansas Liquor Control Act. The pertinent part of section 94 of that act provides that any house, building or place of any kind where alcoholic liquors are sold, bartered or given away in violation of the act, or any building or structure where persons are permitted to resort for the purpose of drinking alcoholic liquors or any place where liquors are kept for sale in violation of the act are declared to be a common nuisance. Pertinent parts of section 95 provide that the county attorney in any county in which such nuisance exists may maintain an action for injunction in the name of the state of Kansas to abate and temporarily and permanently enjoin such nuisance. Upon final judgment against the defendant, the court shall order that such room, house, building, structure or place of any kind shall be closed and padlocked for a period of not less than three months nor more than two years and until the owner or occupant thereof shall give bond with sufficient surety in the sum of not less than one thousand dollars, conditioned that no alcoholic liquor will for a period of two years thereafter be possessed, sold, bartered, or given away; and so forth.
The court found that appellant was licensed to sell cereal malt beverages upon said premises, but that she did not have a retail liquor license to sell alcoholic liquor and that alcoholic liquor was sold in violation of the law, and that by reason thereof appellant’s tavern premises were a common nuisance and the provisions of the mentioned statute made it mandatory for the court to issue the injunction and, without waiting for a violation of such injunction, to order the buildings located thereon padlocked. Obviously the fact that appellant possessed a cereal malt beverage license gave her no right to sell alcoholic liquor.
Appellant also contends that the court should have dismissed the action for the reason the state had an adequate remedy at law under G. S. 1947 Supp., 21-2706. This argument of appellant is not well founded. The administrative remedy to revoke is not exclusive.
Some mention is made in appellant’s brief that under section 95, chapter 242, Laws of 1949, she was entitled to post a bond conditioned that the law would not be violated. This is a matter purely within the discretion of the lower court upon proper application being made under said section 95.
We fail to find any place in the record where the court abused its discretion in issuing the injunction and padlock order under sections 94 and 95, chapter 242, Laws of 1949. The judgment is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This action originated as a condemnation proceeding to acquire land for state highway purposes under the provisions of G. S. 1935, 26-101. Isabelle S. Weiss, the landowner, accepted payment of the award made by the appraisers for the land taken and is not a party to this appeal. Safeway Stores, Incorporated, the tenant of the landowner, operated a grocery store facing the highway which was sought to be widened, thereby leaving less space for parking purposes in front of the store building. The appraisers awarded damages to the landowner for land taken in the sum of $1,015.33 and to the tenant the sum of $1,750 for “loss of business and all other damage.” The state highway commission appealed from the awards. On the trial in the district court the jury allowed the tenant no damages and from the judgment the tenant alone has appealed to this court.
We shall refer to the parties as the condemnor, the landowner and the tenant. The material facts may be summarized as follows:
' Condemnation proceedings were instituted in February, 1946; the appraisers allowed the damages heretofore indicated; the condemnor deposited the total amount of the awards with the clerk of the district court; the next day the condemnor appealed to the district court; the landowner and condemnor became satisfied with the award made to the landowner; the latter was paid that amount; the judgment recites the parties stipulated the abandonment of the appeal by the condemnor with respect to the award to the landowner in nowise affected the status of the appeal from the award to the tenant; no issue was raised by the landowner at any time relative to the amount of land taken or whether the condemnor actually took more land than was condemned; a few months after payment of the award to the landowner the condemnor took possession of the land and proceeded with the widening and improving of the highway.
In order to make the instant case current it will be helpful to also relate the following additional facts:
While the appeal was pending in the district court and before the action on the damage feature was tried two motions were filed; the first was by the tenant in which it asked that the $1,750 be paid to it, contending the deposit thereof into court operated as an estoppel against the condemnor to appeal from that award; the motion was overruled; thereafter the condemnor filed a motion requesting a refund to it of the $1,750, contending “loss of business, or business damage” could not be made the legal basis of an award under the eminent domain laws of this state; that motion was sustained; from the rulings on those two motions the tenant appealed to this court; this court did not rule on the question of whether a tenant could recover such or any other damages but held the tenant was out of time to appeal from the ruling on the first mentioned motion; we, however, reversed the second order of the district court which permitted the condemnor to withdraw the amount of the tenant’s award for the reason that to permit its withdrawal would, in effect, circumvent the appeal from that award; (State Highway Commission v. Weiss, 167 Kan. 427, 207 P. 2d 480) thereafter the question of the tenant’s damage was litigated in the district court and the jury by its verdict determined the tenant was not damaged; judgment was rendered accordingly and from it the tenant alone has appealed.
The tenant, as on the former appeal, argues the deposit of its award with the court clerk by the condemnor deprives the latter of all right to have the subject of the tenant’s damage or the extent thereof litigated. As already stated we held on the previous appeal the tenant had not perfected his appeal on that question in time. The appeal involving the same question having been too late before, it, of course, is not in time now.
We are presently concerned only with the validity of the judgment whereby the tenant was denied damages. Before treating the tenant’s contentions in that regard we shall deal with a few contentions of the condemnor. The condemnor expresses doubt the term “owner” of land includes the holder of a leasehold estate therein. The condemnation proceeding was commenced in February; 1946. The proceeding was governed by G. S. 1935, 26-101 and 26-102. The first mentioned statute provided the appraiser should give notice to “. . . any owner, and all lienholders of record, of the property sought to be taken . . .” and notice of the time and place for the assessment of damages. It is apparent a tenant is not a lienholder within the ordinary meaning of that term. Does the holder of a leasehold estate for a period of years fall within the term “owner” as contemplated by the condemnation statutes? It may be well to observe we are not here concerned with the rights of a mere tenant at will or with a tenant who remains in possession after receiving a valid notice to quit or with other tenancies unlike the instant one. Only a tenancy for years is here involved.
We have held the word “owner” as used in our mechanics’-lien statute is not limited to an owner of the fee but includes the owner of a leasehold estate. (Miller v. Bankers Mortgage Co., 130 Kan. 543, 287 Pac. 618.) Although in Comm'rs of Smith Co. v. Labore, 37 Kan. 480, 15 Pac. 577, the factual situation was quite different and although it was found unnecessary in order to affirm the judgment to determine whether damages should be allowed for interference with lease rights of the parties, this court said:
“It is claimed, however, by the plaintiff in error, defendant below, that this enhanced value is based solely upon a lease and the fact of tenancy, and that tenants or lessees have no right to have damages awarded to them condemnation proceedings. Now it is not necessary in this case, in order to sustain the judgment of the court below, that any one of tire Labores should be awarded anything as a tenant or lessee, or anything for any injury done to the land of either of the others. Each originally claimed, and we may consider each as still claiming, damages only for injuries done to his own land. But may not tenants or lessees have an award of damages for losses sustained by them by reason of condemnation proceedings? [Authorities cited] The word ‘owner,’ as used in the statutes relating to condemnation proceedings, may perhaps he construed to apply to every person having any interest in the property to be taken. Such seems to he the purport of the above-cited cases.” (p. 485. 486.)
In Bales v. Railroad Co., 92 Kan., 771, 141 Pac. 1009, the question presented was the correct measure of damages to a lessee for the appropriation of a leasehold estate, it appearing the lessee’s right to recover damages was not questioned.
In 18 Am. Jur., Eminent Domain, § 232, it is said:
“A tenant for years under a written lease is an owner of property in the constitutional sense, and is entitled to share in the compensation when all or a part of the property leased is taken by eminent domain during the term of the lease, or where the property is damaged as, for example, by a change of grade of an abutting highway.”
To the same effect are 29 C. J. S., Eminent Domain, § 198; annotations 98 A. L. R. 254, 3 A. L. R. 2d 286, 288. The principle stated is well established and we need not labor the point.
The condemnor next contends if a tenant may recover damages at all it can be only for damage to tangible property as, for example, loss to crops and the like but not for intangible factors such as loss of business. The question of the proper measure of damages is not presented by the record before us. The jury did not allow damages for loss of business.or on any other ground. It concluded the tenant was not entitled to recover damages. Only a few instructions requested by the tenant and refused by the court are included in the abstract of record presented here. The tenant, appellant, has not favored us with a copy of the instructions given, or with the objections thereto, if any were made. Under such circumstances we cannot say the instructions given were inaccurate or inadequate to cover the issue of damages.
The condemnor further argues the judgment cannot be disturbed for the reason the jury was justified in believing although the parking space in front of the building was shortened there was sufficient room for cars to drive between the highway and the front of the building and parking space for customers along the side of the building. The tenant contends prior to the taking of the land there was ample space for cars to park facing the front of the building and to back out of such parking space without entering upon the highway and that this could not be done thereafter. The tenant argues the proof of damáge in that respect was uncontroverted. Ordinarily diminution in the value of a lease because of appropriation by condemnation is a proper element to be considered in de termining damages to a leasehold interest. In view, however, of another matter to be considered we need not determine whether the jury was justified in refusing to allow damages by reason of a change in parking facilities in front of the building.
The forty year lease contract in question contained provisions pertaining to the termination of the lease by the lessee in the event of condemnation procedings by which the condemnor acquired title to the premises or any material portion thereof. The lease contract gave the lessee the right to terminate the lease after such condemnation proceedings and to offer to purchase the property. It provided if the lessor accepted such offer the lessee should be entitled to receive, and should receive, any and all award or payment therefor made in the condemnation proceedings. On the other hand the lease contract provided if the lessor did not accept the lessee’s offer to purchase, or if the lease was terminated, as provided in the lease contract, the lessee should not be entitled to receive or retain the award or payment, or any part thereof and the award should be paid to the lessor. Subsequent to the instant condemnation proceedings the lessee elected to terminate the lease and made an offer to purchase, which offer the lessor rejected. The lease was terminated in accordance with the provisions of the lease contract. The lease contract further provided for a specific rental adjustment in favor of the lessee in the event the lessee elected not to terminate the lease and to remain in possession of the premises.
It has been said a provision in a lease such as that contained in the last sentence of the foregoing paragraph does not constitute full compensation and that such provision alone does not preclude a lessee from recovering other damages, if any, which he may have suffered. (18 Am. Jur., Eminent Domain, § 232, p. 866.) What the effect of such a provision standing alone would be need not be determined now. Here the lease contract went further. As previously indicated, the lessee agreed if the lease was terminated, as provided by the contract, the lessee would not be entitled to any portion of the award. In 18 Am. Jur., Eminent Domain, § 232, the rule is stated thus:
“The right of the owner of the leasehold interest to compensation is not affected by any agreement made by the condemner with the owner to pay him for the tenant’s rights. Of course, if the lease itself includes a provision in respect of the rights of the parties in the event of the condemnation of the leased premises, such provision is' controlling, if applicable to the particular case.” (p. 866.)
See, also, annotation 98 A. L. R. 254.
In view of the record before us we cannot say reversible error was committed in the trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
Plaintiffs, as next of kin, proceeding under our statute (G. S. 1947 Supp. 60-3208 and G. S. 1935, 60-3204), brought this action for the alleged wrongful death of their son, Donald D. Moseley. The appeal is from orders of the trial court overruling the demurrers of the respective defendants to plaintiffs’ second amended petition.
We shall refer to the defendants, the City of Kansas City, as the City, the Board of Public Utilities of Kansas City as the Board, and the Southwestern Bell Telephone Company as the Telephone Company.
We need not refer to the earlier pleadings further than to say that the original petition was attacked by a motion to make definite and certain and to strike certain paragraphs, as a result of which an amendment was filed thereto; that as a result of the court’s rulings on other motions a first amended petition was filed; and that as the result of the court’s rulings on other motions a second amended petition was filed. This is lengthy, covering twelve pages of the abstract, but for the purpose of determining the legal questions argued here we think it may be summarized as follows:
Plaintiffs’ son, Donald, lost his life about 4:30 a. m. August 9, 1948, when he climbed a pole used by the defendant Board tc transmit electric energy for the lighting of the streets, and also used by the Telephone Company to carry its wires, and made contacts between such appliances from which he received a charge of electricity, producing his death. It was alleged Donald, who was sixteen years old, was of “low intelligence quotient, of backward and arrested mentality which was that of an ordinary child'of twelve or thirteen years of age. He had just finished the eighth grade of the public schools and in both the seventh and eighth grade had been suitable only for and carried in the low-grade classes.”
It was further alleged that the pole Donald climbed was situated at the southeast corner of the intersection of Ninth street and Waverly Avenue, both streets of the city. It was set against the east side of the curb of the pavement on Ninth street and was situated within Ninth street and Waverly Avenue. At the top of the pole was a crossarm carrying wires of the Board, which carried electricity of about 2,300 volts, used in lighting the city’s streets between sunset and sunrise. The lights on the pole in question were lighted at the time. The bracket supporting the lights and the wiring thereto are described in detail in the petition, and it was alleged that the wiring was insufficiently insulated, as a result of which the electricity passed through the bracket to which the lights were attached; that the wires leading from the crossarm to the lights were too close together and that the insulation thereon was insufficient, or it cracked. These lights were about eighteen feet from the ground. On the pole, about two feet below the lights, was the equipment of the Telephone Company, which is also described in some detail, and it was alleged that there was a loose wire hanging down from the wire of the Telephone Company. It was alleged that beginning three feet from the ground in the parking and four feet four inches from the pavement on Ninth street there were steps by which one might climb to the equipment of the Telephone Company and of the Board.
It was further alleged that plaintiffs’ son, Donald, was ignorant of the danger from electricity to which he subjected himself in climbing the pole. It was further alleged that the pole, with the steps thereon and the appliances near the top, had existed for “months and years”; that no sign was ever posted and maintained on or about the pole warning of danger or warning children against climbing the pole; that at the time Donald climbed the pole, and for years prior thereto, children were in the habit of climbing the pole by means of the steps, and that
“The maintenance and continuance of these steps and other appliances herein described on the pole were attractive to children, and owing to the conditions on the pole as herein described a great and unnecessarily dangerous situation existed for persons and especially children climbing the pole, and the said pole and its maintenance with the said steps and in its dangerous condition at the time of and prior to the time Donald D. Moseley climbed the same as herein alleged constituted a nuisance, dangerous and attractive to children of the age and mentality of Donald D. Moseley.”
It was further alleged that defendants knew, or by the exercise of reasonable care could have known, of the existence of the matters and conditions described in the petition, and that Donald “was ignorant of the danger from electricity to which he was subjected in climbing the pole, but climbed the same in a spirit of adventure and fun.” Alleged acts of negligence are set out in fourteen separate paragraphs, and it was further alleged that
“By reason of the matters and things alleged herein the defendants in maintaining and using the pole as herein alleged created and maintained a nuisance attractive to children, as a proximate result of which Donald D. Moseley lost his life in the manner herein stated.
“At the time of and prior to his death Donald D. Moseley was engaged in assisting in carrying and delivering papers and working in the plaintiffs store, and was in all respects unusually helpful to his parents, affectionate toward them, and they were fond of him and grieved greatly at his death.”
The principal arguments in this court turn about the question which may be stated as follows: Was the pole, located and equipped as described in the petition, an attractive nuisance to a boy of the age of Donald D. Moseley and of his intellectual capacity and understanding, as described in the petition? Or, stated in another way, since in all cases where the doctrine of attractive nuisance is invoked the child is at least a technical trespasser, the question is whether the child is excused from his liability as a trespasser and whether the pole in its location and equipped, as alleged, constituted an invitation to him to climb the pole and investigate or in some manner work with or climb up around the wires, lights and other equipment thereon?
The pole was located in the parking at the intersection of two streets, where Donald had a right to walk, if he used due care. We assume, since it is not negatived, that the pole was also situated where defendants had a right to place it, if they used due care in erecting and maintaining it. So there is not much to be said for or against either party by the location of the pole. The question still remains: Was it an attractive nuisance, as that term is applied in negligence cases where children are involved, so as to excuse his trespassing thereon?.
The question first came into our opinions in the case of Kas. Cent. Rly. Co. v. Fitzsimmons, which was here on two appeals, 18 Kan. 34 and 22 Kan. 686. In that case a boy about twelve years of age was sent by his father to look after a cow, which he found near a railroad turntable in an open common, which was the grazing ground of many cows belonging to citizens of the town. He and five or six other boys went to play on the turntable, which was unlocked and easily pushed so as to turn around, as was a common practice with boys in the vicinity. He sat on the edge of the turntable in such a way that as it was turned his leg came in contact with an adjacent track. His leg was caught between them and so injured that it had to be amputated. The trial resulted in a judgment for plaintiff, and on the first appeal the principal question was whether the defendant, or another company, was liable for the condition of the turntable. The judgment was reversed because of erroneous instructions concerning that matter. Nothing was said about the doctrine of attractive nuisance. On the second trial plaintiff again recovered a small judgment. Defendant appealed and the opinion of the court is found in 22 Kan. 686. There appellant first contended that it had nothing to do with the turntable or the corporation to which it belonged, a question which had been practically settled in the prior appeal; second, that it was not guilty of any negligence, and third, that the plaintiff was himself guilty of contributory negligence. All these questions had been decided against the appellant in a trial by jury. With respect to defendant’s negligence (p. 690) the court took note of the fact that from the evidence it appeared the turntable was a dangerous machine for boys to use; that it was easily moved by them, easily turned or revolved on its axis, and that it was of that alluring character which would naturally invite boys to use it and to play upon it; that it was in an open prairie where cattle grazed, where boys often played; that it was left without locks or fastenings, without being watched or guarded, or even fenced in; that it naturally attracted boys and induced them to ride upon it; and compared it with what we might speak of as a merry-go-round, and said:
“It is true that the boys in such cases are technically trespassers. But even trespassers have rights which cannot be ignored, . . .”
Citing Railroad Co. v. Stout, 17 Wall. 657 (84 U. S. 657) and Keffe v. Milwaukee & St. Paul Railway Co., 21 Minn. 207. The court further considered the question whether the plaintiff was guilty of contributory negligence, and relying upon the same two cases concluded it was a question for the jury, and in paragraph 3 of the syllabus concluded the verdict of the jury was binding on the court.
In Railroad Co. v. Stout, 17 Wall., 84 U. S. 657, a child six years of age, playing with others on a railroad turntable which was not guarded and not fastened or locked and revolved easily on its axis, was hurt while playing with other boys on the turntable, and sued for damages. In the trial “counsel for defendant disclaimed resting their defense on the ground that the plaintiff’s parents were negligent, or that the plaintiff (considering his tender age) was negligent, but rested their defense on the ground that the company was not negligent, and asserted that the injury to the plaintiff was accidental or brought upon himself.” So the real question in the case was whether the defendant was negligent. The trial court gave an instruction on this question (p. 657), which was not objected to, and the jury returned a verdict for plaintiff. The supreme court affirmed the decision and held:
“While it is the general rule in regard to an adult, that to entitle him to recover for an injury resulting from the fault or negligence of another, he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of that case.”
In Keffe v. Milwaukee & St. Paul Railway Co., 21 Minn. 207, a child of tender years, being of the age of seven, playing with other children on a railroad turntable situated in a public place near defendant’s passenger depot, which was unfastened and not guarded or closed, was injured and sued for damages. The judgment was affirmed, the court holding:
“The owner of dangerous machinery who leaves it in an open place, though on his own land, where he has reason to believe that young children will be attracted to play with it and be injured, is bound to use reasonable care to protect such children from the danger to which they are thus exposed.”
Tire court, in its opinion, treated the turntable as being very attractive to children as a place to play.
The doctrine of the above cases became known as that of the turntable cases. Later it was expanded to other objects and situations and is.now generally known as that of an attractive nuisance. We shall not attempt to write a thesis on the subject. Those interested may find excellent discussions under the subject of “Negligence” in 45 C. J. §§ 155 to 189; 65 C. J. S. § 29; 38 Am. Jur. §§ 142 to 157. See, also, cases collected in the annotations, 36 A. L. R. 34; 39 A. L. R. 486; 53 A. L. R. 1546; 60 A. L. R. 1444; also the cases collected in the American Digest System under “Negligence,” Key No. 23.
The attractive nuisance doctrine, recognized by the federal courts and by the courts of some (not all) of the states, including Kansas, is a modification of the general rules of liability for negligence and applies only to a child of “tender years,” in which the child is a trespasser, at least in a technical sense, but is excused from the normal liability of a trespasser because of an attractive object or situation, dangerous if used or handled by children who by reason of their tender years lack capacity to know or realize the danger of being about or handling the attractive object or condition. It does not apply to adults. Neither does it apply to children old enough to know the possible danger involved. The term “tender years” never has been defined in exact years and months, but in the overwhelming majority of jurisdictions, where the doctrine is used, it is rarely applied in the case of a child more than ten years of age. In a relatively few instances, each dealing with an unusual situation, the doctrine has been applied to a child of the age of eleven, twelve, thirteen or fourteen years of age. The courts universally hold that the doctrine is not applicable to a normal child more than fourteen years of age. The fact that a child, older than the normal age to which the doctrine is applied, has been backward in his work at school is not deemed sufficient to include the child within the doctrine, unless there is a showing that the backwardness in his studies is the result of mental impairment or deficiency.
It is not everything which may attract a child that can be regarded as an attractive nuisance, for there is no limit to the class of objects which may be attractive to a normal child even though he be less than ten years of age (45 C. J. p. 765.) To hold otherwise would place an unreasonable burden upon the owner of almost every kind of property capable of causing personal injury under any circumstances. The condition or appliance must be something unusual and which is of a nature rendering it peculiarly or unusually attractive or alluring to children. The object must be one and so situated that the owner knew, or should have known, it was attractive to children of tender years. In this case plaintiffs do not allege that the defendants knew or should have known children had played about the pole in question and that it was attractive and dangerous to children. What they do allege is that defendants could have known those facts. That is-insufficient. The word “should” denotes duty. The word “could” denotes no more-than a possibility.
The pole as described and alleged to have been used by defendants was one supporting wires which carried electric energy for the lighting of the streets of the city, and also supported wires used to furnish telephone service to the inhabitants of the city. There must have been many of them, since one of them could be of little service by itself. They had been used for many years. The pole was not an uncommon thing. There was no reason to say that it was unusual, or that it was especially attractive, or that it constituted a nuisance. It was a necessary part of the equipment used for the purpose of supporting wires for the transmission of electric energy. There is no effective way defendants “could” have known that children were playing about it and climbing it at 4:30 o’clock in the morning. It would have been necessary for defendants to have had someone to watch the pole, and all other poles used for that purpose. Obviously this would have been a financial burden which defendants were under no duty to impose upon themselves. The fact that children may have played about the premises on some previous occasion, even if known to defendants, is insufficient to constitute an invitation.
In the petition it was alleged that Donald did not know the danger of playing about wires carrying electric energy. Certainly such lack of knowledge cannot be regarded as the fault of defendants. If fault is to be placed upon anyone for that result it should be placed on plaintiffs.
Aside from the principal contention of the plaintiffs that the pole constituted an attractive nuisance it was alleged that the defendants were negligent in maintaining the pole and its equipment as described and are liable for that reason. The point is not well taken. Donald had no duties to perform, or any other business to transact, by climbing the pole. Defendants owed him no duty other than that they should not willfully or wantonly injure him. There is no contention that defendants knew of his presence there until after his death. He voluntarily went upon property belonging to others under such circumstances as to be properly regarded as a trespasser and sustained his fatal injuries by the lack of his own due care.
Examining the petition in the light of what has been said it is clear that the petition states no cause of action against any of the defendants. The judgment of the trial court should be reversed with directions to sustain the demurrers of the respective defendants to the second amended petition of plaintiffs.
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The opinion of the court was delivered by
Parker, J.:
This is an action for a divorce and division of property. The trial court granted a divorce to the plaintiff wife, awarded her permanent alimony in the sum of $1,000 and made a division of the property. She appeals from the order of the trial court respecting the alimony and property matters.
The parties were married on December 20, 1924, and have no children. At the time of the marriage plaintiff had personal property worth $2,100 and the defendant personal property of the approximate value of $3,000. They occupied the same home until the filing of the petition for a divorce in 1949, but it can be said that almost from the start they lived together in a state of armed neutrality. Throughout all the years they lived on a farm. Up until 1936 there was some cooperation between them, at least so far as their business affairs were concerned, and the proceeds realized from crops, livestock and produce raised on a rented farm were for the most part put in a- common fund and used for their mutual benefit. However, as the years went by their marital disagreements became more pronounced. In 1936 it appears their relations became so strained they entered into some sort of arrangement, although at that time they owned no real estate and verv b'ttle personal property, that so far as their busi ness and monetary affairs were concerned each would pursue his separate way. Some sort of division was made between them as to the property they had jointly acquired up to that date. Thereafter the defendant farmed the rented land on which the parties were living and raised crops, cattle, hogs and other livestock. The plaintiff raised cattle and other livestock, also turkeys and chickens. If the plaintiff needed feed for her operations she purchased it on the open market or from the defendant at the market price. If the defendant desired feed he bought it on the market or purchased it from the plaintiff if she had more than she needed. If either of the parties rendered a service for the other a charge was made therefor and paid in due time. Plaintiff placed the profits derived from her business operations in a separate bank account. Defendant did likewise. Strangely enough both plaintiff and defendant seemed to prosper under this unusual arrangement and in the succeeding years each, in his own name, acquired title to considerable real estate and held the title thereto on the date of the trial of the divorce action.
In 1942 plaintiff was able to buy and pay for a tract of land located in Barber county, hereinafter referred to as the “Farmer” farm; defendant in 1942, out of money realized from his operations, managed to buy and pay for some land in Clark county, hereinafter referred to as the Clark county land; sometime between 1942 and 1946 plaintiff inherited eighty acres of land in Barber county from her parents, hereinafter referred to as Mazie DeWitt Barber county land; in 1946, with money realized from her business operations and from sale of crops on the Farmer land and the farm she had inherited from her parents, plaintiff purchased and paid for another piece of land in Barber county, hereafter referred to as the Yoke land; meanwhile, with moneys received from his business operations, including the proceeds of crops sold from the Clark county land, defendant purchased and paid for the farm in Barber county which the parties had rented and lived on for many years, hereinafter referred to as the Wallace DeWitt Barber county land; sometime in 1946 or 1947 plaintiff acquired title to 200 acres of land located in Barber county under the will of Charles Hartley, a gentleman of her acquaintance with whom she had become very friendly in the immediate preceding years. Hereinafter this land will be referred to as the Hartley land.
The record before us discloses no conflict in the evidence regard ing the market value of any of the foregoing real estate at the time of the trial. The only testimony available is that of the plaintiff who fixed the market value of such tracts of land as follows: The Farmer farm $10,000; the Clark county land $10,000; the Yoke land $6,000; the Wallace DeWitt Barber county land $7,000; the Maizie DeWitt Barber county land and the Hartley land, valued together, $14,000.
In addition to the real estate heretofore mentioned each of the parties had acquired and, on the date of the trial, claimed to own considerable personal property. Plaintiff admitted her personal assets amounted to $18,110. She claimed that in acquiring them she had expended $8,110 in money obtained from her personal business operations and $10,000 in cash which she had received as a gift from her friend, Charles Hartley, in his lifetime. Defendant admitted he had similar assets worth approximately $13,000. He claimed $9,300 he had inherited from his parents had been used in accumulating them. Plaintiff claimed defendant had assets of this character amounting to $21,161.13. As we read the record, viewed in the light of the evidence most favorable to plaintiff’s claim, they could not have exceeded $18,611.13.
At the close of the trial, with evidence disclosing a factual situation such as has been heretofore outlined, the district judge censored both parties for their conduct during the existence of the marriage, stating that to make a long story short he could and perhaps should find they were in equal wrong and deny a divorce. Finally, however, he granted plaintiff the divorce with the statement he realized both plaintiff and defendant were too old to be reformed and that he was certain they would never live together again. He then took up the question of a division of their property. Pie stated he believed it should be left as the parties had divided it up between themselves over the long period of years they had been married and that he thought the fair thing to do was to carry out the arrangement and understanding they had had between themselves during that period of time. Thereupon he awarded plaintiff the Mazie DeWitt Barber county land and the Hartley land as property that she had separately acquired during the marriage. He then gave her the Farmer farm and the Yoke land on the theory that although both tracts had been jointly acquired they nevertheless belonged to her under the working arrangement and agreement between the parties. Then, on the same theory, he awarded the defendant the Wallace DeWitt Barber county land and the Clark county land. That disposed of the real property. When he came to a division of the personal assets, to which we have heretofore referred, he pointed out how they had been acquired, again commented upon the understanding and agreement, and awarded all such property standing in the plaintiff’s name to her and all such as stood in the defendant’s name to him. He also made division between them of other personal property, not heretofore specifically mentioned, such as household effects, et cetera, directed that each of the parties pay his own attorneys’ fees, and taxed the costs to the defendant.
Upon rendition of judgment in accord with the foregoing findings and conclusions the plaintiff filed a motion for new trial, the only points urged being error in the denial of alimony and in the division of property. After a hearing on this motion the court modified its original judgment by allowing plaintiff the sum of $1,000 as alimony. Plaintiff then perfected this appeal.
Appellant devotes much space in her briefs to statements made by the trial court in announcing its decision, and findings in the judgment itself, respecting how the property belonging to the parties was acquired and who was the actual owner thereof. Conceding there seems to be some confusion in the findings as to what property was separately acquired and what was jointly acquired we are not disposed, in view of the fact its ultimate decision makes such questions of little consequence, to labor those contentions. Heretofore we have detailed the trial court’s views and reasons for its decision. What it actually did was to divide the property, both real and personal, in accord with the long established plan and arrangement of the parties on the theory they had entered into what was tantamount to a postnuptial agreement. It is true, as appellant points out, the evidence as to the express terms of that initial agreement was not any too definite or conclusive. Nevertheless the record makes it crystal clear that from the date they first entered into their agreement to go their separate ways both parties, by subsequent action and conduct, repeatedly evidenced their complete understanding of and ratified the terms of an agreement which were just as definite and certain as if they had been spelled out at length and placed upon paper. Those terms were that following the agreement each was to have and hold as his or her own whatever property he or she might there after acquire, regardless of the source or manner of its acquisition. That, except for minor items of personalty to which we shall presently refer, was just what the trial court gave them. Under such conditions and circumstances and others set forth in the opinion we cannot say it erred in awarding the major portion of the involved property in accord with the terms of a subsisting postnuptial agreement between the parties even though it had never been reduced to writing.
Having approved the trial court’s action in awarding property acquired under terms of their postnuptial' agreement the record really presents only two more questions for consideration. They can be stated thus: (1) Did such court err in its allowance of alimony and its division of minor items of personal property which by their very nature could not be properly considered as covered by the terms of their agreement? (2) Was its order requiring each party to pay his own attorneys’ fees erroneous?
In approaching a decision of the first question, to which we have heretofore referred, it can be said without fear of contradiction the established rule in this jurisdiction is that when a divorce is granted a wife by reason of the fault of the husband an allowance of alimony or division of property made by the trial court rests in its sound discretion and will not be disturbed on appellate review unless it clearly appears from the record that it failed to exercise or abused that discretion. (Forrey v. Forrey, 167 Kan. 77, 204 P. 2d 725; Stanton v. Stanton, 166 Kan. 386, 20l P. 2d 1076; Walno v. Walno, 164 Kan. 620, 192 P. 2d 165; Mann v. Mann, 136 Kan. 331, 15 P. 2d 478.)
When boiled down appellant’s contention on this point seems to be, that under our decisions, she is entitled to have set aside to her all property that she had separately acquired, regardless of its amount, and after that is entitled to have set off to her one-half of the appellee’s property regardless of the existing factual situation. That sort of a claim was definitely rejected in Walno v. Walno, supra, where it is said:
“. . . If that (referring to a similar contention) were an unvarying standard, there would be no room for exercise of discretion by the trial court. In making the argument appellant overlooks the fact that in each case relied upon by her the divorce was granted by reason of the fault of the husband, while in the instant case the trial court found the parties to be in equal wrong. The Mann case, supra, makes it clear that the trial court is to take into con sideration the conduct of the parties, the needs of the wife, the earning capacity of the husband, the amount of property and how and when it was acquired. We cannot agree with appellant’s contention that the trial court entertained the view that it could not take into consideration the farm which appellee received from his father. . . .” (p. 625.)
In what is probably our most recent decision on the subject (Carlat v. Carlat, 168 Kan. 600, 215 P. 2d 200) we referred to the rule on appellate review and the matters to be considered by this court in determining whether the trial court had abused its judicial discretion. At page 602 of the opinion we cited numerous decisions and said:
“There is no hard and fast rule in this jurisdiction for determining the amount of an alimony award where a wife is granted a divorce for the fault of her husband. Generally speaking it can be said to depend upon the facts disclosed by the evidence in the particular case involved. However, it is true we have repeatedly held that in fixing its amount a trial court is required to take into consideration the conduct of the parties, the needs of the wife, the earning capacity of the husband, the amount of property owned by the parties and, under certain conditions not here involved, how and when that property was acquired. ...”
Reviewing the record we think it is clear the trial court was fully cognizant of the fact that under the terms of the postnuptial contract it had just awarded the appellant property which, in the light of the evidence most favorable to her, was worth $48,110, while the appellee had only been awarded property worth $36,611, a difference of some $12,500. It was also aware, since the parties had agreed between themselves that property was to be divided as it had divided it and considered as separately owned, that the agreement was to be given full force and effect if that could be done under provisions of the statute (G. S. 1947 Supp. 60-1511) and our decisions requiring the allowance of reasonable alimony in a case where the wife had been granted a divorce for the fault of the husband. It then, in compliance with the applicable rule, gave consideration to the conduct of the parties, the needs of the wife, the amount of the property, the probable earning power of the husband and the conditions under which all property involved had been acquired, and decided that when they were all considered together an allowance of $1,000 to the wife would be reasonable as alimony and that such remaining household effects and personal property as were not covered by the terms of the postnuptial agreement should be divided as equally as possible between them. In the light of the unusual situation disclosed by the record we are unwilling to say appellant has clearly made it appear this action of the trial court was so unreasonable, unjust and inadequate as to constitute abuse of discretion or hold there is any error in the record which requires a reversal of the judgment.
Appellant’s complaint that the trial court’s action in requiring her to pay her own attorneys’ fees is erroneous requires little attention. The statute G. S. 1935, 60-1507, provides “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.” Doubtless the trial court reached the conclusion appellant was just as able financially, if not more so, to pay her attorneys’ fees as appellee and that she should do so. As recently as Thompson v. Thompson, 168 Kan. 450, 213 P. 2d 641, we held the foregoing provisions of the statute gave the trial court broad discretion in determining whether it would allow attorneys’ fees in a divorce proceeding and that its action with respect thereto would never be disturbed on appellate review in the absence of a clear and convincing showing of abuse of discretion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
Plaintiff sued her husband for divorce upon the grounds of extreme cruelty and gross neglect of duty. In her petition she alleged facts showing jurisdiction of the court, gave the date of their marriage and the names and ages of three minor children born to them; alleged that by their joint efforts they accumu lated an equity in a two-acre tract of ground in the city of New Cambria, which tract has a residence thereon which is the home of the parties and their children, and that they had also accumulated household furniture and fixtures. It was further alleged that plaintiff is a fit and proper person to have the custody and control of the minor children; that defendant is a strong, able-bodied man, and then employed, earning $210 per month, and that plaintiff and her children are entirely dependent upon him for support. The prayer was that plaintiff be granted an absolute divorce from defendant; that while the case is pending he be required to pay temporary alimony and child support and attorney’s fee, and that the court grant plaintiff “an alimony judgment either in property or money”; that plaintiff be given the custody of the minor children, and that defendant be required to support and maintain them. Upon plaintiff’s motion therefor the court made an order that defendant pay $75 per month pending the action for the support of plaintiff and the minor children, and that defendant pay in court $50 to apply upon plaintiff’s attorney’s fee. There were other motions and restraining orders which need not be specifically noted.
Defendant filed an answer which contained a general denial of the allegations of the petition not specifically admitted, admitted the residence of the parties, their marriage and the birth of their children; alleged the accumulation of the New Cambria property, on which it was alleged there remained a loan of $850, and alleged the accumulation of personal property and household goods, which were described in detail, used by plaintiff and defendant in their home at New Cambria; specifically denied defendant had disregarded his marriage vows and obligations, and specifically denied that he had been guilty of an act or acts of extreme cruelty or gross neglect of duty, and alleged that he is a fit and proper person to have the care, custody and control of the minor children. The prayer of the answer was that plaintiff be denied a divorce, that the court determine the interest of plaintiff and defendant in the property described in the answer, and determine who shall have the care, custody and control of the minor children of the parties, and that he recover his costs and such other equitable relief as may be proper.
To this answer plaintiff filed a reply in which she denied all allegations of the answer inconsistent with the allegations of her petition, and specifically denied that defendant is a fit and proper person to have the care, custody and control of the minor children.
No dates are given in the abstract when any of the pleadings or motions were filed in this case. At some time defendant asked that plaintiff file a bill of particulars, and one was filed which covers about four pages of the printed abstract. Defendant moved to strike portions of that and to have it made definite and certain, and this motion seems to have been sustained in part. Whereupon plaintiff filed an amended bill of particulars which covers more than six pages of the printed abstract, which concluded with the prayer that plaintiff be granted the equity of the parties in their New Cambria home and the furniture and fixtures therein so that she could have a home for herself and children. Defendant’s motion to dismiss and his demurrer to plaintiff’s amended specification of facts and reply were by the court considered and denied. There was a trial, which we are told consumed three and one-half days. From this the court made the following conclusions of fact and law:
“Conclusions of Fact and Law
“From a full and careful consideration of the competent evidence, the court makes the following conclusions of fact and of law herein:
“Conclusions of Fact
“1. Plaintiff and defendant were married at Abilene, Kansas, December 1, 1935, have ever since been and are now wife and husband. The court has jurisdiction of the subject-matter and of the parties to the action.
“2. At the time of said marriage of plaintiff and defendant Plaintiff was the mother of two small children by a former husband from whom she was then divorced. Plaintiff had custody of said children, one being a female child named Ruth Pierce.
“3. Subsequent to their marriage the parties resided at various addresses in Salina, Kansas, until about September, 1945, when they moved to New Cambria, a small town several miles east of Salina, but in Saline County. At the time of their removal to New Cambria, in addition to the two children of plaintiff’s first marriage as previously mentioned, the parties hereto had three children of their own marriage, who are now minors and whose names and ages are as follows: Nina Lamer, a girl, aged 13; Wayne Lamer, a boy, aged 12; Judith Lamer, a girl, aged 5.
“4. That at times during the residence of the parties, first on Penn Street and then on College Avenue in Salina, Kansas, but prior to and before the removal of the parties to New Cambria about September, 1945, the defendant was guilty of certain acts amounting to extreme cruelty toward plaintiff, said acts being those testified to by the witness Ruth Pierce, but which are not set out at length herein as no useful purpose could be served thereby. That upon plaintiff being informed concerning such acts of extreme cruelty, she consulted attorneys at Salina relative to instituting an action against defendant for divorce, and contemplated the institution of the same. That plaintiff and defendant met at the offices of the plaintiffs then and present attorneys of record, and there consulted together, and that although plaintiff announced her love and affection for the defendant had ended because of his said acts yet she continued to reside and to cohabit with him as his wife, from such time until shortly before the institution of this action, and that plaintiff has thereby condoned any and all acts of extreme cruelty of defendant toward plaintiff occurring prior to tire removal of the parties to New Cambria at the time aforesaid. That defendant was guilty of no acts constituting gross neglect of duty.
“5. That plaintiff has not proved defendant to have been guilty of any act of extreme cruelty nor of gross neglect of duty toward the plaintiff since the removal of the parties to New Cambria in September, 1945, nor since said condonation set out in the paragraph next preceding, and that plaintiff is not entitled to be divorced from defendant.
“6: That the parties hereto have jointly accumulated during their marriage, and now own a 2-acre tract of real estate with dwelling house thereon, situate at New Cambria, Saline County, Kansas, together with the household furniture and equipment contained in said dwelling. That said real estate is of the value of $2,500.00 with a purchase money lien of approximately $750.00 there against. That plaintiff, and defendant’s minor children reside thereat. That plaintiff’s children of her first marriage are adult and no longer reside with her, the daughter Ruth Pierce being married.
“7. In addition to the above property of the parties is an automobile of little present value.
“Conclusions of Law
“1. That plaintiff has legally condoned any and all acts of extreme cruelty of defendant toward her occurring prior to the removal of the parties to New Cambria, Kansas, in September, 1945; and that no acts of defendant amounting to extreme cruelty toward plaintiff have occurred subsequent to such date or subsequent to such condonation. That defendant is not guilty of gross neglect of duty at any time mentioned in the evidence. That a divorcement of the defendant is refused plaintiff.
“2. It is determined by the court that under the circumstances existing in this case, although divorce is refused plaintiff, that such division as is hereinafter made is alike just and equitable to the parties thereto and also is for the best interests of said minor children of the parties here involved. That by way of said division, the real estate comprising said dwelling house and grounds of the parties at New Cambria, Kansas, together with the household furniture and equipment contained in said house, is set aside to plaintiff as her sole and separate property free from any claim of the defendant therein, and that as between the parties hereto the defendant shall not be liable for the further payment of any portion of the purchase money hen there against; said property being particularly described as follows, to-wit: (Legal description set out.)
“3. It is determined by the court that the plaintiff is a fit and proper person to have the care, custody and control of the minor children of die parties, to-wit: Nina, Wayne and Judith Lamer, and the care, custody and control of said children is ordered awarded her.
“4. That for the maintenance and support of said minor children the defendant is ordered to pay plaintiff through the office of the clerk of the district court of Saline County, Kansas, the sum of $75.00 per month, the initial payment thereof being payable 30 days after the last payment of temporary child support due and payable according to the court’s previous order made herein.
“5. It is ordered that defendant shall be entitled to visit said minors at the home of plaintiff for the period of one hour upon one occasion each week, and that defendant shall also be free to see or visit with said two oldest minor children wherever they may be outside said home, provided only that such times or occasions do not reasonably interfere with the proper exercise by plaintiff of parental care and control of said children and is in no way actually disadvantageous to them.
“6. That plaintiff, who has heretofore applied for additional attorneys’ fees, is given judgment against defendant for $75.00 additional fees, for her attorneys, payable 90 days from this date, and that the costs of this action shall be taxed against the respective parties who have incurred them.”
Defendant moved the court to strike conclusions of law Nos. 2, 3, 4, 5 and 6, and further moved the court to render judgment denying plaintiff a divorce and in his favor for costs. He also filed a motion for a new trial upon substantially all the statutory grounds. These motions were heard by the court, considered and denied. The court rendered a decree in harmony with its conclusions of fact and of law. Defendant has appealed.
It will be noted that the parties are still husband and wife. No divorce was granted to plaintiff, and defendant did not ask for one. After the appeal defendant desired to continue paying the $75 a month for the support of the children, but was afraid if he did so he would be held to have conformed to the decree in that respect to the extent that it would bar his appeal. He therefore asked this court to permit him to continue those payments without affecting his right to appeal, and the court granted that request.
Appellant contends the court erred in overruling his demurrer to plaintiff’s petition with its amended bill of particulars and reply upon the ground that they did not state facts sufficient to state a cause of action. We have examined this contention and find no substantial merit therein. '
At the beginning of the trial defendant moved for a continuance because of the absence of material evidence which would be produced and testified to by Don Pierce, the oldest son of plaintiff, of El Reno, Okla., and made an affidavit as to what he understood Pierce would testify to if present. The defendant never made any effort to have him present for the trial or to take his deposition. The court overruled the motion. This was not error. More than that, the record indicates that what defendant thought Pierce would testify to would be nothing more than cumulative of evidence which was presented.
Appellant contends that his motion to render judgment for defendant denying divorce to plaintiff and for further judgment for defendant for his costs, made after the court had made its conclusions of fact and of law, should have been sustained, and points out that the court did not make a specific finding of “just cause shown,” citing, G. S. 1949, 60-1506; Brauchi v. Brauchi, 165 Kan. 542, 195 P. 2d 589; Perkins v. Perkins, 154 Kan. 73, 114 P. 2d 804; In re Cooper, 86 Kan. 573, 121 Pac. 334; Bowers v. Bowers, 70 Kan. 164, 78 Pac. 430. The argument is that the court having found no cause for granting the divorce the case should have closed at that point with judgment for defendant. The plaintiff in her petition and the defendant in his answer had asked the court to make an order respecting the custody of the children, and respecting the rights of the parties as to the property. The statute cited conferred that authority upon the court, and an examination of the cases cited tends to support the order of the court rather than to oppose it. The point is not well taken.
Appellant contends that no attorney fees should have been granted to the plaintiff below. In this he relies heavily on Johnson v. Johnson, 57 Kan. 343, 46 Pac. 700, where it was held:
. . where the wife ashs for divorce, and the husband merely defends, without asking for any relief against her, it is error for the court, as a part of the final judgment, to tax the defendant with a sum as attorneys’ fees for the plaintiff’s attorney and costs of suit.” (Syl. 3.)
We do not find the case has been cited on that point. The holding should be limited to the facts of the case, which differ from the facts here. Defendant did ask for affirmative relief, as shown by his answer, previously mentioned, and by his brief in this court. Our statute (G. S. 1949, 60-1507) places the allowance of attorney fees for the wife in a divorce case largely to the discretion of the court. (See cases cited under the section, particularly Hawley v. Hawley, 164 Kan. 176, 188 P. 2d 650.) Under the facts in this case we find no abuse of the court’s discretion in the allowance of attorney fees. The case was bitterly contested on every point. Appellant argues:
“Plaintiff should be denied custody of the children, child support, any prop erty, and defendant should not be restricted in his association with and custody of and control of his children. If either parent should have custody of the children at the exclusion of the other, defendant should have it.”
Under this heading appellant reviews the evidence, with a sharp criticism of the testimony of a number of the witnesses. We have examined all of this testimony which has been abstracted by either side and find no just reason to complain of the result reached by the trial court. Certainly, the credibility of the witnesses and the weight to be given to their testimony was for the trial court and is not for this court. Neither do we think the trial court abused its discretion in letting plaintiff have the home, since it was the only available method of providing a home for the children. Neither was it error to give the custody of the children to the mother. They are of an age that they need maternal care, and of course the appellant is away from home during the day while at work. In view of his limited income and assets the expense of this appeal will be burdensome upon him, but that is not a matter which the trial court or this court could control.
Appellant’s complaint of the overruling of his motion for a new trial is not well taken.
We find no error in the record. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal by the defendant in a damage action.
The sole contention of the defendant is the trial court should have sustained his demurrer to plaintiff’s evidence on the ground the evidence disclosed plaintiff was guilty of contributory negligence as a matter of law.
It is elementary that on demurrer only evidence favorable to the party adducing it and favorable inferences to be drawn therefrom are to be considered. The injury was the result of a collision of automobiles. It occurred at night, on a country road about forty feet wide, at a place approximately 300 to 350 feet east of the brow of a hill. Defendant’s car came over a hill from the west. On the night of the accident Mr. and Mrs. Wesley Jones and two daughters were visiting at the home of thé Smiths. When they started to leave their car failed to start. Lowell Smith, the plaintiff, a minor between eighteen and nineteen yeárs of age, got the Smith car and pushed the Jones car a short distance until the motor started. After the car had started Lowell followed the Joneses to bid them good-by. The Jones and Smith cars were moving in a westerly direction. Lowell stopped his car about a yard or two directly behind the Jones car. This left a space on the south of twenty to twenty-one feet between the Jones car and the south edge of the traveled portion of the road. This left ample space for a car coming from the west with both its doors open to pass on the south side of the road. There was also specific evidence the Jones car was stopped on the north side of the road.
After bidding the Jones family good-by Lowell turned his back to the west and started towards his car along the south side of the Jones car. He got as far as the rear fender of the Jones car, at any rate not to the door of his.own car, when everything blacked out. He did not think he ever saw or heard defendant’s car. It was his opinion that if a person was hit as he was he would not be able to remember things about the accident before he was hit. The lights were burning on the Jones and Smith cars at the time of the accident. There was also testimony no portion of the Jones car extended to the left-hand or south side of the road. Defendant’s car struck the left front wheel, fender and headlight of the Jones car. Wesley Jones estimated the speed of defendant’s car as seventy-five miles per hour but stated that was purely a guess. It was three or four steps from the Jones car to the door of the Smith car. Defendant’s car after striking the Jones car rolled about 120 feet toward the southeast.
Appellant argues appellee was guilty of contributory negligence in standing or walking beside the parked cars in the south lane of traffic where the visibility of a driver coming over the hill from the west was greatly reduced. We fail to see how the hill would have affected the driver’s visibility had he been on his proper side of the road. The fact the boy was walking near the center or slightly to the south thereof, if the latter was a fact, cannot be said to have been the proximate cause of his injury. Appellee was not struck first by appellant’s car while the latter was traveling along the south portion of the road. Appellant’s car first struck the Jones car which, according to appellee’s evidence, was situated on the north of the center of the road. That left twenty feet or more space for appellant’s car to travel along the south side of the road and complied with the provisions of G. S. 1947 Supp. 8-570. Had appellant’s car while traveling on the south side of the highway first struck appellee an entirely different question would be presented.
Appellant also argues appellee left his automobile directly behind the Jones car and so near the center as to block the highway. The evidencé favorable to appellee does not support that contention. Moreover appellant did not strike the Smith car at all.
It is claimed appellee should have known a person approaching from over the hill would be blinded by the lights of the Jones and Smith cars. Appellee’s evidence did not disclose appellant was blinded by such lights.
Appellant asserts the fact appellee testified he did not remember hearing or seeing appellant’s car approaching discloses he was guilty of contributory negligence. That does not follow as a matter of law. Appellee after turning to go east was looking into the lights of his own car. The motors of the Jones and Smith cars were running and may have caused sufficient noise to prevent appellee hearing appellant’s car. There is no evidence on that subject. On the other hand if appellee had observed the approach of appellant’s car he would have had the right to assume, absent knowledge to the contrary, that appellant would observe the law and turn to his proper, the south, side of the road instead of striking the Jones car on the north side of the. road. (Sullivan v. Johnston, 164 Kan. 386, 390, 190 P. 2d 417; Gabel v. Hanby, 165 Kan. 116, 193 P. 2d 239; Garrison v. Denton, 170 Kan. 79, 223 P. 2d 718.) Wesley Jones, the driver of the Jones car, saw appellant’s car approaching and believed it would miss his car. Whether a person had knowledge another was going to violate a rule of the road presents a jury question whenever reasonable minds might differ on the subject.
Under these circumstances Gilbert v. Railways Co., 109 Kan. 107, 197 Pac. 872; Broman v. Kimball, 112 Kan. 186, 210 Pac. 191; McCoy v. Pittsburg Boiler and Machine Co., 124 Kan. 414, 261 Pac. 30; Anderson v. Thompson, 137 Kan. 754, 22 P. 2d 438; Hendren v. Snyder, 143 Kan. 34, 53 P. 2d 472; McCoy v. Fleming, 153 Kan. 780, 113 P. 2d 1074, relied on by appellant, do not require or justify the sustaining of the demurrer to appellee’s evidence.
Appellant concedes the special findings of the jury are not to be considered in passing on a demurrer to plaintiff’s evidence. Although stating he has nothing to urge other than the ruling on the demurrer he nevertheless discusses some of the special findings under a separate argument that his motion for judgment non obstante veredicto should have been sustained. Although we are convinced the special findings do not compel a vacation of the general verdict we shall notice findings No. 4 and 10 emphasized by appellant.
Question and answer No. 10 were:
“What was the proximate cause of the accident?
“The location of the Jones car and the failure of Virgil Salts to swerve his car sufficiently to right to avoid said Jones car when sufficient space was available.”
It is true the jury also found the wheels on the left side of the Jones car were on the center of the surfaced road. (Findings No. 4.) Under the evidence and finding No. 10 there remained ample space for appellant’s car to pass on the south. In any event, however, appellee did not park the Jones car and cannot be charged with negligence in that respect.
It is also well to bear in mind the rule that it does not necessarily constitute negligence as a matter of law merely to stop a car on the wrong side of the highway. Under many circumstances that becomes a question of fact for the jury. (Waltmire v. Ford, 147 Kan. 732, 78 P. 2d 893.) The most that can be said in the instant case in that respect is that the jury found the left wheels of the Jones car were on the center of the highway. As previously stated, however, appellee did not stop it there. We think the trial court’s rulings on the demurrer and on the motion for judgment non obstante veredicto were proper. The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for a balance alleged to be due upon an account. A jury trial resulted in judgment for plaintiff and defendant has appealed.
The record discloses that plaintiff is a Missouri corporation with its principal place of business at 1147 Board of Trade Building, Kansas City, Mo.; that it is duly authorized to do business in Kansas and operates branch offices within the state, including one at Norton; that plaintiff conducts a grain commission business, selling and buying grain and other commodities as agent or broker for persons who desire its services. The business, so far as the case before us is concerned, is conducted by plaintiff through the Uhlman Grain Company of Chicago, the clearinghouse member for plaintiff on the Chicago Board of Trade and with the Chicago Board of Trade and its clearinghouse corporation. This business is conducted under an Act of Congress commonly known as the Commodity Exchange Act (see applicable provisions of Title 7, U. S. C., 1946 ed.) and rules made thereunder by the Office of Economic Stabilization of the United States Department of Agriculture and the Office of Price Administration. Defendant, who resides in Decatur county, began his dealings with plaintiff in April, 1945, and continued until about June 3, 1946. Most of his dealings were through the Norton office, where plaintiff had assigned to him a number.
The issues framed by the pleadings in this case and defined by a pretrial order center principally around the following transaction: On July 19, 1945, defendant placed an order with plaintiff to sell 5,000 bushels of May, 1946, corn, which was placed as priced at $1.18/8 per bushel. Defendant sold his corn “short,” which means that he did not possess, own or control the corn himself. On August 25, 1945, defendant placed another order by which he sold an additional 5,000 of May, 1946, corn “short,” which was filled by plaintiff at a price of $1.13/8 per bushel. It appears that the price of corn increased, and when the corn had to be settled for in May, 1946, the price was $1,465. The plaintiff paid for defendant to Uhlman, and it paid the clearinghouse on the Board of Trade, Chicago, the sum of $14,650 to settle that transaction, as it was obliged to do under the Acts of Congress and the rules pertaining thereto duly promulgated. Defendant had made some deposits with plaintiff and had some profits on other transactions which, when applied, left a balance due of $1,995, for which this action was brought. The pleaded defense for this transaction was that on November 2, and again on November 7, defendant had placed with plaintiff at Kansas City an oral order for the purchase of 10,000 bushels of May corn. In its reply plaintiff denied receiving those orders because it has no record of them. One of the questions submitted to the jury by the pretrial order was whether those orders were placed. The jury found they were. Defendant in his answer further alleged that on January 28, 1946, he placed an order with plaintiff to purchase 10,000 bushels of May, 1946, corn on the Board of Trade at Chicago, and that on March 4, 1946, he placed a similar order with plaintiff. Plaintiff admitted receiving these two orders and alleged that when the order of March 4 was given plaintiff canceled the order of January 28. None of these orders was filled. In its reply plaintiff alleged that it was impossible to fill any of the orders at the prices authorized by the defendant. On that issue the jury found in favor of the plaintiff. There was an abundance of evidence to support those findings.
Another transaction pleaded by defendant pertained to the pur chase of 5,000 bushels of rye for delivery in May, 1946, made on November 13, 1945. The record discloses that on that date defendant was in plaintiff’s Kansas City office and early in the morning placed the order orally with Mr. Clark, of plaintiff’s office. The order was transmitted to Chicago and filled at 10:02 a. m. through the Uhlman Grain Company, and it does not appear they understood that the order was given from Kansas City. At any rate the Uhlman Grain Company reported it under defendant’s number where he did business at Norton, Kan. The result was that defendant did not learn the order had been filled until the next morning. On May 13 the price of rye declined on the Board of Trade and defendant undertook to cancel the order, but it had already been placed before the Uhlman Grain Company received the order for cancellation. By the close of the day’s trading the price, of rye had declined a little more than seven cents. Defendant complained to Clark of his failure to be advised that the order had been accepted. Clark told him he need not accept it if he did not want to, but after considering the matter defendant concluded he would accept the order and “straddle” it, that is, buy on the lower price and try to prevent a loss, and that was what he did. At the pretrial conference it was agreed by the parties and ordered by the court that this matter would be submitted to the jury to determine what loss, if any, defendant sustained by reason of the delay in getting word of the purchase. At the trial defendant offered no evidence to show that he had any loss on that transaction, with the result that the court did not instruct the jury upon it. The transaction became no longer important so far as this case is concerned.
Counsel for appellant complain of rulings of the court upon the introduction of evidence and also make some complaint of the instructions. We have examined all of these and find no error in those rulings.
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 appeal from an order sustaining a demurrer to an amended petition in an action brought to recover damages for failure of defendant lessee to restore certain real property owned by plaintiff to its original condition when possession of it was surrendered by defendant, after it had been used as a tank and pump station site under a written lease authorizing the property to be used for that purpose.
The basic question is whether, under the terms of the lease contract, such duty to restore was incumbent upon defendant company.
On January 1, 1916, the respective predecessors in interest of plaintiff and defendant entered into the following written contract:
“CONTRACT
“AGREEMENT, Made and entered into the 1st day of January A. D. 1916 by and between Charles W. Brown of Daytona, Florida, party of the first part, hereinafter designated as the lessor, and The Prairie Oil & Gas Company, a Kansas corporation, party of the second part, hereinafter designated lessee:
“Witnesseth, That the said lessor, for and in consideration of the sum of One Dollar to him in hand well and truly paid by the said lessee, the receipt of which is hereby acknowledged, and of the covenants and agreements hereinafter contained on the part of the lessee to be paid, kept and performed, has granted, demised, leased and let and by these premises does grant, demise, leaase (sic) and let unto the said Iesse (sic), its successors or assigns, for the purpose of building tanks, powers, stations, pipe lines and structures thereon, and the use thereof, all of a certain tract of land situated in the County of Butler, State of Kansas, described as follows, to-wit:
(Description omitted.)
“It is understood and agreed by and between the parties hereto that the lessor reserves all oil and gas or other mineral rights in and upon the land above described and grants to the lessee the exclusive use of the surface of said land for the purposes indicated herein, except the use of such surface as may be necessary to drill for or otherwise operate for oil and gas or other minerals.
“It is agreed that this lease shall remain in force for a term of twenty (20) years from this date, provided, however, that the lessee for an additional consideration of One Dollar, to be paid to the lessor, upon (SO) days notice to the lessor, at the end of any rental year, shall have the right to surrender, cancel, or terminate this contract, except as hereinafter stated. Should the lessee exercise the right to surrender, cancel or terminate this lease, before this contract has been in effect and rental paid for ten years, then, and in that event there shall be paid to the lessor the sum equal to two years rent in advance, or One Thousand Dollars ($1000) provided, this surrender clause and the option therein reserved to the lessee shall cease and become absolutely inoperative immediately and concurrently with the institution of any suit in any court of law or equity by the lessee to enforce this lease, or any of its terms, or to recover possession of the leased land, or any part thereof, against or from the lessor, his heirs, executors, administrators, successors or assigns, or any person or persons.
“In consideration of the premises the said lessee covenants and agrees; To pay the lessor, his heirs, executors, administrators, Five hundred dollars ($500.00) each year, in advance, while this lease remains in full force and effect.
“The lessee further agrees to pay any taxes or special assessments that may be made upon .the improvements erected by it upon the land herein described; or in case any extraordinary tax of any character should be assessed against the land itself growing out of the occupancy and use of such land by the said lessee, will also pay such special assessments or taxes. It being understood that the lessor is liable for and will pay the ordinary land taxes assessed against the owner of the fee, as well as any taxes that may be assessed because of the oil and gas or other mineral value of the land itself.
“The lessee shall have the right at any time to remove all machinery, buildings, tanks, powers, stations, structures, pipelines or other improvements, placed on said premises, and at the termination of this lease the lessee shall be allowed not to exceed thirty days within which to remove said machinery, buildings, etc.
“All payments which shall fall due under this lease may be made directly to the lessor or deposited to his credit in the Fourth National Bank, Wichita, Kansas.
“The lessee shall not be bound by any change in the ownership of said land until duly notified of any such change, either by notice in writing, duly signed by the parties to the instrument of conveyance or by receipt of the original instrument of conveyance, or duly certified copy thereof.
“It is further agreed that the obligations of this lease will not be effective as to either party unless the lessor (sic) is able to deliver actual possession of the land described within five (5) days from this date.
“All covenants and agreements herein set forth between the parties hereto shall extend to their successors, heirs, administrators and assigns.”
(Signatures and acknowledgment omitted.)
On August 4, 1916, a supplemental contract was entered into between the same parties, the sole purpose of which was to correct the description of the real estate covered by the original contract, and this supplemental agreement contained the following provision:
“It is understood by and between parties hereto that this contract is supplementary to the contract of January 1st, 1916, herein referred to, and a part thereof; that the land herein described is leased for the same purpose and under the same terms and conditions, and for the identical consideration and period of time as that described in said contract of January 1st, 1916, all of the terms and conditions therein specified being a part hereof the same as though written herein in full.
“This contract shall extend to and be binding on the heirs, executors, administrators, successors and assigns of the parties hereto.”
On September 15, 1916, the lessee in the two foregoing contracts sold and assigned to The Prairie Pipe Line Company all of its right, title and interest under such contracts and the buildings and improvements on the premises in question.
On December 31, 1931, that assignee and the successors in interest to the original owner lessor entered into a written agreement modifying and supplementing the contract of January 1, 1916, and August 4, 1916, in the following particulars: (1) The acreage was reduced from 36.56 acres to 17.76 acres; (2) the annual rental was reduced from $500 to $300, effective January 1, 1932, and (3) lessee was granted the right at its option to renew from year to year the original lease contract as so supplemented and modified upon the expiration of the original term of twenty years. This supplemental agreement contained the following provision:
“. . . That otherwise said original lease and agreement and all the terms and provisions thereof shall continue and remain in full force and effect. The right is further hereby granted unto party of the first part, at its option, to renew this lease from year to year after the expiration of the stated term thereof upon payment of such annual rental of $300.00 per year in advance, which right and option of renewal shall continue and remain in full force and effect so long as party of the first part, its successors and assigns shall continue to make use of said premises for the purpose aforesaid.”
The Prairie Pipe Line Company continued in possession of the leased premises and used them as a tank and pump station site until March 31, 1932, at which time it sold and assigned all of its interests in and to the original lease contract, as supplemented, to Sinclair Prairie Pipe Line Company. The latter continued in possession of the leased premises and used them as a tank and pump station site until August 31, 1936, on which date it sold and assigned all of its right, title and interest under the lease contract to Sinclair Refining Company, defendant in this action.
In January, 1938, plaintiff herein became the owner of the real estate covered by the original lease, as supplemented. No question is raised concerning the validity of any of the foregoing conveyances and assignments and a recital of them is given merely for the purpose of showing the background of the matter existing at the time suit was filed.
Following execution of the original lease contract of January 1, 1916, certain buildings, tanks and other improvements for use in connection with the stated purpose of the lease were erected by lessee and its successors in interest. All rentals were paid down to and including the year 1945, and on or about January 1, 1946, defendant company advised plaintiff that it was surrendering possession of all the leased premises. This action was filed on October 31, 1947. Motions to elect, to strike, and to make more definite and certain were directed against the petition, but their substance and the rulings thereon are not here important. The amended petition, after reciting the background as hereinbefore summarized, alleges:
“That on or about January 1st, 1946, when the defendant informed the plaintiff they were surrendering possession of said 17.76 acres described in said Leases it failed to, and has at all times since failed and refused to remove therefrom, several hundred feet of concrete sidewalks, concrete foundations for five or six dwelling houses, concrete foundations for four or five garages, concrete foundations for pumps and powers; and failed to take up and remove several hundred feet of pipe lines; failed to tear down and level off the banks of earth tanks; failed to remove large quantities of broken concrete, stones, bricks, iron pipes and other similar refuse; failed to remove and destroy noxious weeds, grasses, trees, vines, and shrubs; failed to remove oil that had been permitted to flow or be spilled on the soil; failed to fill ditches, sumps, ponds, and other holes and depressions on said leased land, and failed to remove gravel and chat placed thereon for use in roadways and drives.”
It then alleges that as of January 1, 1946, the fair and reasonable market value of the land in question would have been $4,000 had it been free from those objects and things above enumerated, but that in its condition as left by defendant its fair and reasonable market value was not to exceed $500; that it would cost not less than $3,500 to restore the property to its former condition so it could be used for farming and stock raising purposes, and the prayer of this cause of action is for damages in the amount of $3,500.
For his second cause of action plaintiff seeks to recover the sum of $350 per year for the years 1946 and 1947, which he alleges to be the fair rental value of the property and of which he was allegedly deprived on account of the acts of defendant heretofore related.
Defendant’s demurrer to the amended petition,- on the ground that no cause of action was stated, was sustained, and from that ruling plaintiff has appealed.
In his brief plaintiff frankly admits that defendant and its predecessors had the right to build, maintain and use the buildings and improvements on the premises; that defendant would not be liable for all damages arising from the reasonable and ordinary use of the premises; that defendant had the right to remove its property upon surrender of the lease, and that defendant caused no damage by the method or means employed in removing such property as it did remove. In other words, it is not claimed that defendant was guilty of negligence in any manner. Neither does plaintiff claim that the lease contract or supplements contain any provision that the premises should be returned to the owner in as good condition as they formerly were. His whole argument is based upon the proposition that the law implies a covenant on the part of defendant lessee to surrender the premises in as good condition as they formerly were, ordinary wear and tear excepted, citing the general rule to that effect found at 16 R. C. L., Landlord and Tenant, § 238, p. 746, and 32 Am. Jur., Landlord and Tenant, § 802, p. 684; and finally, that the acts of defendant constituted waste.
On the other hand, defendant company contends plaintiff is not entitled to rely on an implied covenant for the reason that the rights and liabilities of the parties were definitely fixed by the express terms of the lease contract and supplements, and that under those circumstances the law will imply no further covenants or obligations. And, as to plaintiff’s second cause of action, it is argued that a landlord is not entitled to recover from a tenant the diminished value of real property caused by the acts or omission of the tenant, and also the rental value of the land for a given period of time.
In our opinion plaintiff’s contention, that under the facts of this case there was an implied covenant on the part of defendant lessee to restore the premises to their former condition upon surrender of the lease, is untenable.
At the outset it must be conceded that this was not an ordinary landlord and tenant lease in the usual sense of the word. Its expressed purpose was to provide a site for the construction of tanks, powers, stations, pipelines and other structures for use in the operation by lessee of a tank and pump station. It further provided the lessee was to pay all taxes or special assessments levied against the improvements erected on the premises. Lessee was also given the right at any time to remove all machinery, buidings, tanks, powers, stations, structures, pipelines or other improvements, and upon the termination of the lease it was provided that lessee be allowed not to exceed thirty days within which to remove the improvements thus erected.
Considering the expressed purpose of the lease, plaintiff was bound to know that the lessee, in furtherance thereof, would erect buildings, tanks, pipelines and all other things necessary for the operation of the business at hand. In fact, the right to erect such improvements was granted, but nowhere in the contract is there any provision requiring lessee, upon termination of the lease, to restore the premises to their former condition. As we read this lease contract, defendant lessee was under no duty at any time to remove any of its property. It was given the right and option to do so if it so desired, but nowhere is plaintiff lessor given the right to enforce removal. It therefore follows that since plaintiff had no right to enforce removal he is in no position to complain of the partial removal, which was done under contract right of lessee so to do, in the absence of negligence in accomplishing such partial removal. Had the parties desired to contract that upon termination of the lease defendant would be required to remove all of its property and to restore the premises to their former condition, they could have done so, but here the only covenant touching removal of the property is the one giving lessee the right to remove if it so desires. An express agreement or covenant excludes the possibility of an implied one of a different or contradictory nature. (14 Am. Jur., Covenants, Conditions and Restrictions, § 14, p. 490.)
While none of our previous decisions appears to have decided the precise question under consideration, our holding is not without precedent in other jurisdictions. The Supreme Court of Oklahoma, in a case almost identical factually, recently (1948) held in accord with the conclusion we have just reached. (Fox v. Cities Service Oil Co., 201 Okla. 17, 200 P. 2d 398.) See also Arkansas Fuel Oil Co. v. Connellee, Tex. Civ. App., 39 S. W. 2d 99; Gulf Oil Corporation v. Horton, Tex. Civ. App., 143 S. W. 2d 132, and Farmer v. Golden Rule Oil Co., 130 Kan. 803, 807, 287 Pac. 706.
We have given careful consideration to each of the arguments, citations and illustrations urged by counsel for plaintiff, but in our opinion none is persuasive under the particular facts now before us. Ry the terms of this lease the lessee had the right to erect the improvements in question. It was under no duty to remove them, although it was granted the right and option to do so if it saw fit. The lessor could not require removal. No claim is made that lessee was negligent in its use of the property or in the manner of removal of that part removed. The only claim is, that by virtue of an implied covenant, lessee should have removed all of the property and restored the premises to their former condition. This, we have already shown, lessee was not obligated to do.
What has been said also disposes of plaintiff’s contention with respect to his right to recover the fair rental value of the premises in question. The demurrer to the amended petition was properly sustained and the judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This is an action for damages alleged to have been sustained by plaintiff when a car left standing on a highway by defendant was struck by another car and driven against plaintiff.
This is the second time this case has been before this court. In the first case the trial court overruled defendant’s demurrer to the petition and the defendant appeáled and we affirmed the judgment of the lower court. (See Flaharty v. Reed, 167 Kan. 319, 205 P. 2d 905.)
The petition alleged federal highway No. 160 extended west from the city of Pittsburg, Kan.; was paved and used extensively by automobiles; that at the place described it was paved with black top to a width of approximately twenty-four feet; that about 2:20 a. m. on March 18, 1946, defendant parked his car on highway 160 in a negligent manner; that at that time plaintiff was walking on the north shoulder of the highway and had reached a point about fifteen or twenty feet west of the defendant’s automobile when an automobile driven by one May in a westerly direction along the highway struck defendant’s car and knocked it in a northwesterly direction against the plaintiff, injuring him so that his left leg later was amputated; that his injuries were caused by the negligent acts of the defendant in that he parked his automobile on the north side of the pavement while it was headed in a southeasterly direction so that it covered the entire north half of the paved portion and the front part extended half way across the south half of the pavement; that it was parked outside the business or residential area of a city in such a position that there was less than twenty feet of the pavement opposite it free and unobstructed for the passage of other vehicles and there was not a clear view of it from a distance of 200 feet in each direction, all in violation of G. S. 1947 Supp., 8-570; that defendant negligently parked his car in such a manner between the hours of one-half hour after sunset and one-half hour before sunrise without showing any lights, as provided by G. S. 1947 Supp., 8-586; that defendant’s automobile at the time was not in the act of towing any vehicle, was not disabled and was parked at such an angle that it presented the appearance of a dark object and was not visible in the darkness from a sufficient distance to enable the drivers of other automobiles using the highway to avoid striking it and such drivers were misled and confused as to whether it was on the north or south portion of the pavement and that such hazardous condition was the proximate cause of the collision of the automobiles, which caused plaintiff’s injuries; that defendant negligently failed to use ordinary care and prudence for the safety of others using the highway; that he failed to place warning flares or other signals on the highway and defendant knew there were several people walking or standing on the highway and let his automobile remain stopped and parked in that position.
The petition then alleged various items of damages to plaintiff.
The prayer was for $48,544.64 damages.
To this petition the defendant answered first with a general denial. The defendant then alleged that if plaintiff suffered any damages they were not the result of defendant’s negligence; that plaintiff had driven his tractor from his home to the scene of the accident. The plaintiff knew there were cars upon the highway but drove his tractor without proper lights to the scene of the accident; parked his tractor upon the highway facing west and within three or four feet of defendant’s car, which was parked at that time helping to remove a car from the ditch; that if the plaintiff suffered any damages his own negligence was the proximate cause of such injuries because he negligently failed to keep a reasonable lookout for vehicles being driven upon the highway; that he negligently parked his tractor in such a manner that it was headed in a westerly direction without being equipped with a lighted rear lamp, in violation of G. S. 1947 Supp., 8-583 and 8-586; that he negligently parked his tractor so that it presented the appearance of a dark object and was not visible to drivers approaching from the east; that he negligently failed to use ordinary care for the safety of himself and others using the highway; that he failed to place warning flares or other signals on the highway and that he knew at the time it was a much used highway. The answer further stated that if plaintiff’s injuries were not proximately caused by his negligence, then they were caused by the negligence of May, the driver of the car which hit the automobile of defendant, and that if plaintiff suffered any damages they were not the result of any negligence, want of attention or omission on the part of this defendant but were solely the result of an accident. The answer also alleged that plaintiff had been paid $4,500 in full accord and satisfaction for any damages he had sustained.
The plaintiff replied denying that he had been paid by May in full but alleged that the payment he had received from May was only a partial payment and that he had executed a release by the terms of which he reserved unto himself his claim for damages against defendant and denying all allegations in the answer inconsistent with the allegations of his petition. At this stage the defendant filed a motion for judgment on the pleadings because the reply failed to deny the allegations in the answer that plaintiff carelessly parked his tractor on the highway, which negligent acts directly contributed to . his injuries. This motion came on to be heard on December 13,1949. At that time the trial court allowed the plaintiff to file an amended reply in which he denied every and all the material allegations of the answer.
The issues were submitted to a jury and at the conclusion of plaintiff’s evidence the defendant demurred to it on the ground that it did not prove any cause of action in favor of the plaintiff and against the defendant. This demurrer was overruled. At the conclusion of all the evidence defendant filed a motion for a directed verdict for about the same reason. This was overruled and the jury returned a verdict as follows:
“We, the Jurors impaneled and sworn in the above entitled case, do on our oaths find the issues herein joined in favor of the plaintiff and assess as the amount of his recovery the sum of $20,166.67 in .addition to the $4,556.22 which he has received from Lewis E. May.”
The jury answered special questions as follows:
“Q. No. 1. Do you find that the plaintiff was negligent? A. No.
“Q. No. 2. (a) Was the plaintiff aware of the fast approaching car of Lewis E. May from the east? A. No. (b) If your answer is ‘No’, what prevented him from being apprised of the imminent danger? A. Back to East and in crouched position at front of Pennock car. (c) If your answer is ‘Yes’, what precautions, if any, did he take to safeguard himself? A...............
“Q. No. 3. Was the collision the result of an accident as defined in the Court’s instructions? A. No.
“Q. No. 4. State the position the defendant’s car was in with reference to the north edge of the black top at the time the collision occurred? A. Rear wheels 1 ft. to 3 ft. out from north edge of black top — facing Southeasterly about 40-45 degrees.
“Q. No. 5. State what act or acts of negligence, if any, did defendant commit? A. Having his car improperly parked — (facing Southeast instead of West) on wrong side of road and extending past State allotted space for passing of other cars or vehicles, and improper signals or lights.
“Q. No. 6. Where was the left rear wheel of the tractor with reference to the north edge of the black top on the highway when it was struck by the May car? A. Around one foot South of North edge of black top.
“Q. No. 7. Was the tractor equipped with lights? A. No. \
“Q. No. 8. If your answer is ‘no,’ do you find that the failure to have lights on the tractor was a cause of or directly contributed to causing the collision. A. No.
“Q. No. 9. Did plaintiff have equal opportunity with the defendant to be aware of tire fast approaching car from the east? A. No.
“Q. No. 10. Were the headlights on the Reed car lighted, were blinking and visible to May as he approached in his car from the east immediately prior to and at the time the collision occurred? A. No.”
Defendant filed a motion for judgment on the answers to special questions notwithstanding the verdict and this was overruled, whereupon the defendant filed a motion for a new trial on the grounds of abuse of discretion; erroneous rulings and instructions of the court; that the verdict was given under the influence of passion and prejudice; that the verdict was in whole or in part contrary to the evidence; newly discovered evidence; that the verdict was pro cured by the corruption of the party obtaining it; that the court erred in sending verbal instructions to the jury and in submitting a special form of verdict; that it erred in telling the jury a diagram drawn by one of the defendant’s counsel upon the floor was improper; in refusing to grant a continuance upon the grounds that the court allowed a material amendment to plaintiff’s reply on December 13, 1949; and in refusing to pass upon the defendant’s motion for judgment on the pleadings; and in overruling the defendant’s demurrer to the evidence; in overruling defendant’s motion for a directed verdict; in receiving evidence from the plaintiff over the objection of the defendant and admitting in evidence what purported to be a copy of a release without proper identification; that the verdict was excessive; misconduct of the jury; and of the prevailing party; accident and surprise which ordinary prudence could not have guarded against; and defendant was not afforded a reasonable opportunity to present his defense.
This motion was overruled and defendant has appealed.
We shall consider first the argument of defendant that his demurrer to plaintiff’s evidence should have been sustained. Defendant argues here that the evidence of plaintiff proved him to have been guilty of such contributory negligence as to bar his right to recover as a matter of law. Defendant does not argue that the evidence does not show him to be guilty of negligence. He only argues it shows plaintiff was equally guilty of negligence.
The injury occurred at a point some sixty feet west of where a country road intersects state highway 160. Plaintiff’s home is some distance south of this point. All parties agree a car, which we shall refer to as the Pennock car, was in the ditch headed west on the north side of highway 160 and that the highway was black top, about twenty-four feet wide, with a shoulder about two feet wide on each side.
It is also agreed that defendant’s car was in a position so that its rear end was a few feet from the rear end of the car in the ditch. There is dispute about the exact position of defendant’s car, but the plaintiff testified that when he reached the scene it was headed toward the southeast across the highway at an angle of about forty-five degrees; that when he arrived at the scene its lights were shining in a southeasterly direction; that it blocked the entire north half of the highway and part of the south half. This is sufficient to establish the position of the defendant’s car for the purpose of ruling on the demurrer to plaintiffs evidence and would put defendant’s car in the line of traffic of a car approaching from the east. All are agreed that plaintiff was called from his. home about 2:30 in the morning; told there was a car in the ditch; that he was requested to bring his tractor to pull it out and that he got out of bed and drove his tractor to the intersection. There is a sharp conflict in the evidence as to where he left his tractor or rather where it was when he was injured. Defendant pleaded in his answer and attempted to prove that plaintiff parked it on highway 160 facing west, a few feet east of defendant’s car, and in the same traffic lane. Plaintiff testified, however, that he drove it to the corner and stopped and that no part of it went on the paved part of highway 160; and that it was headed in a .southwesterly direction, just on the west edge of the gravel on the country road. A car being driven from the east on highway 160 collided with either the plaintiff’s tractor first, and knocked it against defendant’s car or collided with defendant’s car without hitting the tractor. Defendant argues on his demurrer to the evidence that plaintiff’s evidence showed his tractor to have been parked in the traveled portion of highway 160.
The evidence of plaintiff, to which reference has already been made as to where he left the tractor, was that it was entirely off the paved portion of the state highway. This was sufficient on that point to withstand a demurrer to plaintiff’s evidence because if the tractor was entirely off the black top, plaintiff had done everything in his power to guard against it being hit by a car on the highway. Plaintiff testified that he dismounted from his tractor; walked west past the defendant’s car and to the front of the Pennock car and was stooping down looking under it to see where he could fasten a chain when defendant’s car was hit by a car coming from the east and he was injured. Defendant argues that plaintiff was aware of the dangerous situation but took no steps to correct it; that he admitted his tractor had at least one wheel on the highway and that his tractor had no lights except a flashlight, which he had left upon it; that by admitting he had his tractor repaired after the occurrence he left only the conclusion that the tractor was hit in the collision and this makes plaintiff guilty of contributory negligence as a matter of law.
We cannot agree. Whether under all the surrounding facts and circumstances the plaintiff acted with due regard for his own safety, where there is substantial evidence that he did so act, is not a matter of law that can be reached on a demurrer to the evidence. In Murphy v. Gas & Oil Co., 96 Kan. 321, 150 Pac. 581, we said:
“Whether or not the plaintiff exercised ordinary care, after having knowledge, would have been a question for the jury.”
In Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721, we said:
“In determining whether as a matter of law a plaintiff is guilty of contributory negligence which precludes his recovery for injuries sustained, all of the testimony favorable to the plaintiff must be accepted as true, and if the facts are such that reasonable minds reach different conclusions thereon, the question must be submitted to the jury and cannot be determined by the court as a matter of law.”
(See, also, Hukle v. Kimble, 169 Kan. 438, 219 P. 2d 434; and Samms v. Regier, 167 Kan. 556, 207 P. 2d 414.)
In consideration of a demurrer to the evidence we will not only refuse to weigh the evidence but will draw all reasonable inference in favor of the plaintiff’s cause of action. (See Balthazor v. B. & B. Boiler & Supply Co., 169 Kan. 188, 217 P. 2d 906.)
Defendant states in his brief the plaintiff’s evidence does not show defendant’s parked car was the cause of the accident, but that it revealed the car coming from the east hit first plaintiff’s tractor. The record does not bear that statement out. There was substantial evidence that plaintiff’s tractor never was in the traveled portion of highway 160 so that it could be hit.
The demurrer to plaintiff’s evidence was properly overruled.
Defendent next argues the trial court erred in overruling his motion for a directed verdict. His argument on this is in a large measure a repetition of his argument on the question of whether or not defendant’s demurrer to the evidence should have been sustained. It is not good.
Defendant next argues that the trial court erred in overruling his motion for judgment on the pleadings in considering plaintiff’s amended reply and in refusing to grant a continuance after so doing.
The cause was set for trial on December 6,1949, but by agreement of counsel was continued to December 14, 1949. Plaintiff’s original reply had been filed on November 19,1949. On December 10,1949, defendant filed a motion for judgment on the pleadings. The basis of that motion was that when defendant had alleged in his answer that plaintiff was guilty of contributory negligence the plaintiff in his reply had only denied the allegations of the defendant’s answer, which were inconsistent with and were contrary to the allega Rons of the petition. The defendant argued that such a denial was not sufficient to put in issue the question of whether or not the plaintiff was guilty of contributory negligence. On December 13, 1949, the day before the case was to go to trial, the court gave plaintiff leave to file an amended reply, which denied all new matter in the answer. This was a matter entirely within the discretion of the trial court. Conceding for the moment, but not holding, that the first reply was insufficient to put the matter of contributory negligence in issue, still the defendant was not prejudiced in his defense by the court permitting the amendment.
About the same may be said about the defendant’s argument that the trial court erred in refusing to grant the defendant a continuance at that point. It is true the case was set for trial the next day. However, the original reply had been filed since November 19, 1949. That was nearly thirty days and the defendant did not see fit to file the motion for judgment, thus calling the attention of the court and the parties to the reply until two or three days before the case was set for trial and after it had heen continued for a week by agreement of counsel. The entire matter was one in which the court had authority to exercise wide discretion. (See Barton v. Hackney, this day decided; also Byington v. Comm'rs of Saline Co., 37 Kan. 654, 16 Pac. 105, also G. S. 1935, 60-759.)
Defendant next argues the court erred in giving instructions to the jury. In this connection he first argues the trial court erred in giving instruction 9. This instruction was as follows:
“You are instructed that under the law of Kansas it is the duty of the operator of a motor vehicle when stopping or parking said vehicle on a highway outside the city limits of an incorporated city to stop or park said vehicle parallel with such highway and near the right-hand side of said highway; that in parking a motor vehicle on the public highway during the night-time it should be parked in such a manner that 20 feet of the pavement or travel portion of said highway is left open for the passage of other vehicles.”
We do not find where defendent objected to this particular instruction. It is true that during a colloquy between the trial court and counsel, counsel stated he wished the record to show the defendant objected to the instructions beginning with 'No. 9 to the end. Nowhere do we find any specific objection to No. 9. The general objection was not sufficient. (See Stith v. Fullinwider, 40 Kan. 73, 19 Pac. 314; also Ryan v. Madden, 46 Kan. 245, 26 Pac. 679.) Furthermore, when we construe all the instructions together in the light of the entire record we see nothing wrong with instruction 9.
Defendant next argues that the trial court erred in giving instruction 15. That instruction was as follows:
“In this connection you are instructed that in order to make negligence the direct and proximate cause of an injury there must have been some causal connection between the negligent act and the injury; that is to say, the negligent act must have been such an act that without it the injury would not have occurred, or in other words, the negligent act must have been the cause which produced the injury, and if the negligent act did not cause or produce the injury, then it is not the proximate cause thereof. However if an intervening act was foreseen or might reasonably have been foreseen by the defendant Iris negligence may be considered the proximate or legal cause of the injury, notwithstanding the intervening act, if you find any existed.”
Defendant objects to the last sentence of this instruction. He argues this sentence presupposes negligence on his part. This instruction must be construed along with all the other instructions. (See C. B. U. P. Rld. Co. v. Andrews, 41 Kan. 370, 21 Pac. 276; also Giltner v. Stephens, 166 Kan. 172, 200 P. 2d 290.) When so construed we discern nothing wrong with instruction 15.
Defendant points out other instructions he argues the trial court should not have given, but we have examined them and find the above applies with equal force to them. The trial court did not err in instructing the jury.
Defendant next argues that the trial court erred in the form of verdict he submitted to the jury. The driver of the car from the east, which was alleged to have struck defendant’s car and knocked it against plaintiff, paid the plaintiff damages in the amount of $4,556.22.
One of the forms of verdict submitted to the jury and used by the jury in returning its verdict was as follows:
“We, the Jurors impaneled and sworn in the above entitled ease, do on our oaths, find the issues herein joined in favor of the plaintiff and assess as the amount of his recovery the sum of $_in addition to the $4556.22 which he has received from Lewis E. May."
Defendant argues the above form of verdict was in effect an improper instruction to the jury. We are unable to follow defendant’s reasoning in this argument. We do not, however, approve that form of verdict. It would have been better had the court submitted a simple form by which the jury could have found either for the plaintiff or the defendant and named the amount of recovery, if any. However, we think this form was more likely to have been prejudicial to the plaintiff than to the defendant. Submitting it under all the surrounding facts and circumstances was not a reversible error.
Defendant next argues that the trial court erred in admitting plaintiff’s exhibit 6 in evidence. This was a copy of an instrument which purported to be a release of one Louis May from liability to the plaintiff. May was the driver of the car that came from the east. On this point defendant argues first that its admission violated the best evidence rule. He bases this argument on the fact that plaintiff did not show the original instrument was lost or destroyed or otherwise unavailable. Plaintiff testified as to the amount he received from an insurance company; that this amount was delivered to him by one Letton; that he signed an instrument and delivered it to Letton and since that time had not had access to it. Letton testified he settled with plaintiff on behalf of May and took a written instrument signed by plaintiff; that the original instrument was filled out by a man from his office in longhand at plaintiff’s kitchen table; that the original document was brought to his office and an exhibit was made for his office files by his stenographer; and the original was sent to the insurance company. He did not have it. He testified after seeing exhibit 6 that it was an exact copy of the original release signed by plaintiff. The objection that this copy was not admissible in evidence under the circumstances detailed is not good. In Deitz v. Regnier, 27 Kan. 94, we said:
“The books of the banking house of Schuster, Hax & Co. were in tire state of Missouri, out of the jurisdiction of the court. Their production could not be compelled in the courts of this state; and as the books were not in the custody of tire party offering the account in evidence, but in the hands of a firm in another state, not subject to the call or control of the party needing them here, a copy thereof was admissible.”
To the same effect is Cooley v. Gilliam, 80 Kan. 278, 102 Pac. 1091. (See, also, White v. White, 76 Kan. 82, 90 Pac. 1087.) The defendant also argues drat the matter contained in the exhibit was incompetent because it had no bearing upon the question of the negligence of defendant Reed. The trouble with that argument from the viewpoint of defendant is that defendant injected the question of the release into the case at bar when he pleaded that the release was in full accord and satisfaction for these damages, It was necessary for the plaintiff to introduce that release to show that in it he reserved his right to sue the defendant.
This brings us to a consideration of defendant’s argument that there was misconduct of the jury in that it rendered a quotient verdict. On the hearing of the motion for a new trial two of the jurors testified that after some discussion it was agreed that each juror should write the sum to which he thought the plaintiff was entitled on a slip and these amounts should be added together and divided by twelve and the quotient obtained would be the verdict; that this was done. The jurors testified that after reaching this quotient one of the jurors remarked that perhaps the verdict should be reduced to round figures.
The foreman of the jury testified that when that suggestion was made he said “No, as foreman of the jury the verdict is already rendered and that is what it shall be.” He also testified that after the quotient was reached he asked the jurors to hold up their hands if that should be the amount of the verdict and each juror held up his hand.
It has long been a rule in this state that arriving at the amount of the verdict by reaching a quotient, such as was done in this case, was misconduct which would warrant the granting of a new trial.
In Ottawa v. Gilliland, 63 Kan. 165, 65 Pac. 252, we said:
“Where a jury agree that each member shall submit a sum which he thinks one of the parties ought to receive, that the sum of these shall be divided by the number of jurors, the quotient to be their verdict, and this is done and a nominal sum added for the purpose of making the amount an even number, without further deliberation or consideration, the verdict should be set aside.”
To die same effect is Anderson v. Kirby, 105 Kan. 596, 185 Pac. 894; also Neiswender v. Shawnee County Comm’rs, 153 Kan. 634, 113 P. 2d 115. There is really no dispute in this record but that the conduct of the jury in reaching a verdict in this case was that detailed by the evidence of the two jurors and the foreman. Such was misconduct of the jury. It follows there must be a new trial in this action.
The judgment of the trial court is reversed with directions to grant defendant a new trial in accordance with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Smith, J.:
This was a replevin action for an automobile. The plaintiff has appealed from the order of the district court denying his motion for judgment on the pleadings.
In his original petition the plaintiff alleged that he was the owner of a described automobile; was entitled to immediate possession of it and possession was wrongfully detained by the defendant.
To this petition the defendant answered denying that plaintiff was the owner of the automobile in question, but alleging that defendant was the owner; that defendant had purchased the automobile through the plaintiff with the understanding that the plaintiff was to keep the title of the car in his name as an accommodation to the defendant; that defendant had made arrangements for the financing of the purchase of the automobile and had made payments on its purchase price. The answer prayed for recovery of it or for its actual value and for damages.
To this answer the plaintiff moved for judgment on the pleadings for the reasbn that it failed to constitute a defense to his cause of action and for the further reason that it admittéd the plaintiff’s title to the automobile and his right to its possession.
This record does not disclose how the trial court ruled upon that motion but less than thirty days later the defendant filed an amended answer in which he denied the allegations of the plaintiffs petition and alleged that defendant and plaintiff had entered into an oral partnership agreement to do business as the “All State Roofing Company;” that it was agreed the plaintiff was to take title to all the partnership property in his name for the mutual advantage of the partners, and that about June 6,1949, the partnership purchased the automobile in question; that defendant made the down payment on it by delivering to the seller a Plymouth car, which was his sole property; that it was understood between plaintiff and defendant that defendant was to use his own personal funds to purchase the automobile for the use of the partnership and title was to be taken in the name of the plaintiff; that defendant paid $141.65 a month out of his personal funds until the automobile was fully paid for.
The answer further alleged the partnership was dissolved in August, 1949, and as a result of the dissolution it was agreed plaintiff was to take the machinery of the partnership of the value of $350 and $400 in cash and defendant was to continue the business and assume all its debts and the automobile in question was to be transferred to him and remain the property of the roofing company; that plaintiff had failed to transfer the title to the defendant; defendant was the lawful owner of it, entitled to its possession, and plaintiff was wrongfully detaining possession of it from him. The answer contained the usual allegations that the property was not taken in execution of any order or judgment against the defendant or for the payment of any tax, fine or amercement. The prayer to this answer was the same as the prayer of the former answer.
The plaintiff filed a motion to strike from this answer all reference to the partnership and its dissolution. This motion was sustained in part and overruled in part with the result that defendant filed an amended answer.
This amended answer contained a general denial and allegation that plaintiff and defendant had entered into an oral partnership; a repetition of the allegations that it was understood that plaintiff was to take title to the partnership property in his name and that it was understood that defendant was to purchase the automobile for the benefit of the partnership and that it was so purchased and the title was to be taken in the name of plaintiff. An allegation was the partnership was dissolved and it was understood that the automobile was to be transferred to defendant and remain the property of the “All State Roofing Company;” that plaintiff had failed to transfer the title and defendant was the lawful owner of the automobile, entitled to its possession; that defendant had made many demands on the plaintiff for it and its delivery had been refused.
The plaintiff moved for judgment on the pleadings for the reason that the answer pleaded no defense to plaintiff’s right to possession of the automobile and for the further reason that the owner admitted plaintiff’s title to it, together with plaintiff’s right to possession.
This motion was overruled. From that order the plaintiff has appealed.
The specifications of error are that the trial court erred in overruling plaintiff’s motion to strike certain portions of defendant’s answer, filed on November 21, 1949, and in overruling plaintiff’s motion for judgment on the pleadings.
We do not have the benefit of any brief in behalf of the appellee.
Defendant’s position is that while the record title to the car was in the name of plaintiff, actually it was bought with defendant’s money and used by the partnership and under the terms of the contract between the parties at the time of the dissolution of the partnership the car was awarded defendant.
The plaintiff takes the position that under the provisions of G. S. 1947 Supp., chapter 8, since title to the automobile was in plaintiff’s name, defendant could have no beneficial or other interest in it no matter what the contract of the parties. He quotes first a portion of G. S. 1947 Supp., 8-126, as follows:
“(n) ‘Owner.’ A person who holds the legal title of a vehicle, shall be deemed the owner for the purpose of this act.”
He also quotes from other sections of the act providing for certificates of title to motor vehicles, for their transfer and assignment, and delivery of such certificates to a buyer at the time of the sale of a car. He also calls our attention to G. S. 1947 Supp., 8-135 (c), which provides as follows:
“(6) On and after July 1, 1937, it shall be unlawful for any person to buy or sell in this state any vehicle required to he registered hereunder, unless, at the time of delivery thereof there shall pass between the parties such certificate of title with an assignment thereof, as herein provided, and the sale of any vehicle 'registered under the laws of this state, without the assignment of such certificate of title, shall be fraudulent and void.”
Plaintiff argues that pursuant to these sections when defendant pleaded in his answer that it was agreed plaintiff was to keep title to the car in his name he thereby admitted that plaintiff was the true and real owner and he, that is, defendant, was prohibited by statute from asserting any title or right of ownership in the car. What plaintiff’s argument amounts to is there can never be any joint ownership in a motor vehicle. He cites and relies on opinions where we have held that the purchase of an automobile in total disregard of a statute governing the sale and transfer of such property was void and afforded the purchaser no defense in a replevin action instituted by a plaintiff having lawful claim to the property. We have examined all these authorities and they are all cases where the rights of a third party, such as a mortgagee, or an innocent purchaser, were involved. The statute was passed to protect the rights of such and for the benefit of the general public. It was not designed nor intended to make it unlawful or impossible for more than one person to own an interest in a motor vehicle. We are not called on here to decide what would have been the situation had plaintiff sold the car to some innocent third party. This action is between two parties, each of whom claims to own the car in question. Plaintiff asks us to hold that on account of the statutes referred to defendent is barred from presenting his claim. This is too narrow and technical a construction.
It follows from what has been said that there are issues of fact to be tried in the court below. The order of the trial court overruling plaintiff’s motion for judgment on the pleadings therefore was not a final order — hence not appealable.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for damages for an alleged assault and battery. The appeal is from an order of the court overruling defendant’s demurrer to the petition.
The pertinent portion of tire petition reads:
“That on November 14, 1949, the defendant invited this plaintiff to permit him to take her to her home, stating that he was going over near to such home for the purpose of playing tennis; and that she got into his car; and that instead of taking her home he drove into the west park, drove his car off the highway and committed an assault and battery upon this plaintiff; . . .”
It was further alleged that by reason thereof plaintiff was shocked and rendered nervous, to her damages in the sum of $500, for which plaintiff prayed judgment, and for the additional sum of $2,000 exemplary damages.
To this petition defendant moved the court for an order requiring plaintiff to make her petition definite and certain by stating the facts from which she draws the conclusion that an assault and battery was committed and to set out specifically and in detail the actual damages she sustained. This motion was resisted by plaintiff and overruled. Defendant then filed a demurrer to the petition upon the ground that it fails to state facts sufficient to constitute a cause of action. This demurrer was overruled.
A demurrer to the petition never admits naked conclusions, but only facts well pleaded. (Richards v. Tiernan, 150 Kan. 116, 91 P. 2d 22.) Since the plaintiff successfully resisted the motion the petition should be strictly construed against plaintiff. (Kinderknecht v. Hensley, 160 Kan. 637, 164 P. 2d 105; Snyder v. McDowell, 166 Kan. 624, 203 P. 2d 225, and cases cited therein.) Our Statute (G. S. 1935, 60-704) reads:
“The petition must contain: . . . Second. A statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition.”
The general rule applicable here is well stated in 4 Am. Jur. 193, as follows:
“The petition or complaint in an action for assault and battery must allege all the facts constituting the alleged assault or trespass.”
And in 6 C. J. S. 835, the general rule is thus stated:
“The complaint must set forth facts sufficient to constitute a cause of action.
“In accord with the general rules of pleading . . . the declarations or complaint in an action of assault or assault and battery must set forth facts sufficient to constitute a cause of action, including the fact of the assault in such manner as to be readily understood by defendant. . . .
“A mere averment of an unlawful assault is but the statement of a legal conclusion;”
These general authorities cite cases in support thereof.
Counsel for appellee rely heavily upon the case of Lonergan v. Small, 81 Kan. 48, 105 Pac. 27. The opinion in that case quotes facts alleged in the petition covering more than half a page in the printed report. Hence, it is not an authority supporting his contention that the petition in this case is sufficient.
We have examined the other authorities cited and find that none of them is in point to support the ruling of the trial court. The result is the ruling appealed from should be reversed with directions to sustain the demurrer.
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The opinion of the court was delivered by
Price, J.:
The principal question in this case is whether claims against a decedent’s estate were filed within the time provided by law.
George Kruse died intestate on July 16, 1947. On July 18, 1947, one of the appellant claimants filed a petition in the probate court for administration of his estate. An order for hearing was made, notice of such hearing was duly published, and on the date set therein, August 16, 1947, an order was made appointing one Hintleman as administrator, and he was ordered to file his bond in the amount of $2,000. He did not file a bond or take his oath of office. On August 18, 1947, two heirs-at-law of the deceased appeared and filed their motion to set aside his appointment, and for a continuance. No further proceedings were had until September 29, 1947, at which time these same two heirs-at-law moved for the appointment of an administrator of their own choosing. This motion was filed in the same case and file as the former petition.
On October 3, 1947, the two claims here in issue, aggregating $809.89, were filed with the probate court. No question as to their not being in proper form has ever been raised. Also on this date one Hartley filed his claim for funeral expenses in the amount of $288. This claim is not in issue.
On November 10, 1947, an order was made vacating the previous appointment of Hintleman and appointing one Woods as administrator. The latter qualified by filing his oath and bond, letters of administration were issued and his notice of appointment was first published on November 13, 1947.
On January 2, 1948, the administrator filed a verified petition for authority to sell real estate for the payment of debts. In this he alleged that the personal property in the estate amounted to about the sum of $342.85, and that the debts of the estate, exclusive of costs of administration, amounted to $1,097.89. Pursuant to court order the real estate was sold on February 5, 1948. Subsequently several additional claims, not here in issue, were filed. On June 3, 1948, Hartley filed a claim identical with the one previously filed by him on October 3,1947. At no time did appellant claimants ever refile their claims.
On October 7, 1948, the matter of claims against the estate came on for hearing and the court allowed all except the two here in issue. As to them the court found:
“. . . that said claims were not filed in time and are not allowed.”
From this order of disallowance claimants appealed to the district court. In that court the administrator, in a special appearance, moved:
“. . . to dismiss this appeal for the reason that the claims . . . were not filed within the period required by law and are therefore void and of no effect.”
This motion was sustained and the court’s order recites:
“It is, therefore, by the court ordered, that the motion to dismiss be and the same is hereby sustained, and the claims of W. H. Schrandt and Gertrude Schrandt are hereby found not to have been filed within the period required by law and are void and of no effect.”
It is from this ruling that claimants have appealed to this court, and the parties are in sharp dispute on three principal contentions.
Appellee administrator first contends the district court was without jurisdiction to entertain the appeal from the probate court on account of the failure to serve notice of the appeal upon all adverse parties.
Secondly, he contends the district court was without jurisdiction because the notice of appeal, proof of service thereof and the appeal bond were not filed in the probate court as provided by G. S. 1947 Supp. 59-2405.
And finally it is argued that even though it be held the appeal was properly taken it nevertheless was subject to dismissal for the reason that the files before the court showed on their face that the two claims in question were not filed within the time provided by G. S. 1947 Supp. 59-2239, and were therefore barred.
We will discuss these contentions in the order stated.
Section 2405, supra, provides:
“To render the appeal effective: (1) The appellant shall serve upon the adverse party or his attorney of record, or upon the probate judge for the adverse party, a written notice of appeal . . .”
The notice of appeal before us reads:
“In the Probate Court of Ottawa County, Kansas.
“In the Matter of the Estate of George Kruse, Deceased.
“Notice op Appeal.
“To: George Woods, Administrator; L. A. McNalley, Attorney for Administrator, and W. D. Lancaster, Probate Judge: . . .”
Service was acknowledged by the attorney for the administrator and by the probate judge. In addition, counsel for claimants executed an affidavit in proof of service of the notice upon the attorney for the administrator.
In support of his contention appellee administrator cites decisions to the effect that the right to appeal is statutory; that parties wishing to avail themselves of the right must comply with the provisions of the statute giving such right, and that notwithstanding such jurisdictional question was not raised in the court below this court on appeal is duty-bound to take note of the question. We concede that to be the rule.
It is further argued that the heirs-at-law of the deceased are adverse parties and they not having been served with the notice of appeal the statute was not complied with and thus the attempted appeal was of no effect.
We think appellee’s interpretation of section 2405, supra, is too narrow. By its provisions notice could be served upon the adverse party or his attorney of record, or upon the probate judge for the adverse party. Here notice was served upon both the attorney for the administrator and the probate judge. It is true the notice did not specify the probate judge for the adverse party, but from the language of the statute it is difficult to ascertain any other legislative intent than that notice to the probate judge is notice to adverse parties. The notice before us is not limited or restricted in scope such as was the notice in In re Estate of Demoret, 169 Kan. 171, 176, 218 P. 2d 225, relied on by appellee. We think appellee’s contention as to this point is without substantial merit and that the notice of appeal complied with the statute.
Passing now to the second contention, namely, that the district court was without jurisdiction because the notice of appeal, proof of service thereof and the appeal bond were not filed in the probate court as provided by section 2405, supra, we first pause to note that subsequent to the oral argument and submission of this cause in this court counsel for appellee furnished us with affidavits executed by the probate judge and the clerk of the district court tending to support his position. These, however, were no part of the record in the court below and will not be considered by this court on appeal. The lower court decided this case on the files and records of the probate court and the motion to dismiss heretofore referred to, and in so doing stated:
“The appeal is regular in form, but they were not filed in time.”
The record before us, and which was before the district court, affirmatively shows that the appeal bond was approved by the probate court as provided, by section 2405, supra, and nowhere is it shown that the notice of appeal, proof of service thereof and the appeal bond were not filed in the probate court. Under the circumstances, and in view of the record before us, including the specific finding by the court that the appeal was regular in form, we are not disposed to hold the appeal was not properly before the district court for any of the reasons advanced.
This brings us to what we consider to be the real issue in this case, namely, whether these claims were filed within the time provided by section 2239, supra, the pertinent portion of which reads:
“All demands, . . . against a decedent’s estate, . . . not exhibited as required by this act within nine months after the date of the first published notice to creditors as herein provided, shall be forever barred from payment: . . .”
It will be recalled that death occurred on July 16, 1947; that two days later one of appellant claimants filed a petition for administration on the estate of the deceased; that on August 16, 1947, an order was made appointing Hintleman as administrator; that he failed to qualify; that on August 18, 1947, two heirs-at-law of the deceased moved to set aside his appointment and for a continuance; that on September 29, 1947, those two heirs-at-law moved for the appointment of an administrator of their own choosing; that the two claims here in issue were filed with the probate court on October 3, 1947, and that on November 10, 1947, the court vacated the previous appointment of Hintleman and appointed Woods, who qualified and first published his notice to creditors on November 13, 1947. Claimants did not refile their claims and the question thus squarely presented is whether a claim filed subsequent to the commencement of proceedings for the administration of an estate but prior to the date of the first published notice to creditors by the person who eventually was appointed and qualified as administrator, was filed in time within the meaning of the statute.
Appellee administrator contends the statute means a claimant cannot file his claim prior to the date of first publication of notice to creditors and must file it within nine months after that date.
Claimants argue the statute is one of limitation and merely means they had the right to file their claims any time after proceedings for administration were commenced but not later than nine months subsequent to the date of the first published notice to creditors.
G. S. 1947 Supp. 59-2204 provides that:
“A probate proceeding may be commenced in the probate court by filing a petition and causing it to be set for hearing. . . .”
Here the petition seeking administration of the estate and the appointment of an administrator was filed on July 18, 1947. It was set for hearing and notice thereof was duly given. In due course a named individual was appointed administrator. But does the fact of his failure to qualify and the subsequent appointment and qualification of another person, all in the same case and file, mean that in the meantime a probate proceeding in this estate was not in existence and pending? We think not.
Were claimants-bound to wait until someone appointed as administrator had qualified and published his notice to creditors before fifing their claims with the probate court?
It is to be borne in mind the probate code does not require that a claim be exhibited to or served upon the personal representative. G. S. 1947 Supp. 59-2237 provides that a person may exhibit his demands against an estate of a decedent by fifing a petition for its allowance in the proper probate court and that it shall be considered duly exhibited from the date of such filing.
Appellee administrator cites a number of our decisions which inferentially seem to support his position. However, a close examination of each reveals a factual situation so different from that presently before us as to render them of little or no assistance. Apparently the precise question has never been before this court for determination.
Down through the years there have been a number of provisions in our law relative to the fifing of claims against estates of deceased persons. Each has fixed a time limitation for fifing. The legislative trend has been to shorten the time within which claims may be filed, with the obvious purpose of providing for more expeditious closing of estates to the end that the interests and rights of all parties concerned'be definitely determined. We think that section 2239, supra, while designated as a “Nonclaim statute,” is also clearly a statute of limitations. (See Hurst v. Hammel, 153 Kan 827, 829, 113 P. 2d 1045, and In re Estate of Brasfield, 168 Kan. 376, 385, 214 P. 2d 305.) We are cited to numerous definitions of the word “within,” and particularly to Salvation Army v. Watts, 130 Kan. 714, 288 Pac. 764, where an express condition contained in a will was under consideration, but in our opinion the only reasonable and logical interpretation of the word as used in the statute is that it is a word of “limitation” and means a creditor must filé his claim not later than nine months after the date of the first published notice to creditors.
Various other arguments and contentions are made by the parties, but in view of our conclusion need not be taken up and discussed. ’ It is clear that here the claims in question were filed not later than nine months after the date of such first published notice and were therefore filed in time.
It therefore follows that the judgment of the district court is reversed with directions to remand the cause to the probate court for adjudication of the claims on their merits.
Harvey, C. J., dissents from subsection (1) of paragraph 2 of the syllabus, and'the corresponding portion of the opinion. | [
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The opinion of the court was delivered by
Kagey, J.:
This is an appeal by defendant from a conviction upon an information charging burglary and larceny.
The facts may be stated as follows: Complainant Leta Ingalls testified that she and her husband Harry Ingalls ran a restaurant and beer tavern in Lawrence, Kansas, known as Duck’s Sea Food Tavern. The Ingalls had been separated and living apart for one or two years prior to November 22, 1949; Mrs. Ingalls lived at 913 Connecticut street and did not know where her husband was staying, although they were operating the restaurant business daily as equal partners. About midnight November 22, 1949, one of the help at the tavern took Mrs. Ingalls from the tavern to her home at 913 Connecticut Street where she had been living in a two-story, seven-room house alone; formerly she had two roomers, but no one had lived with her within six months preceding this date; on arriving home she went directly to her upstairs bedroom, placed her pocketbook under the bed, and retired for the night; after falling asleep, she was awakened sometime during the night thinking she heard a creak in the floor, but did not turn on the light and again fell asleep; the next morning she awoke, went to the downstairs bathroom and found her purse on the clothes hamper there; went upstairs to check her money and found that it had been stolen; she immediately called the police and when they arrived, advised them that $4,000 had been taken from- her; she thought the information later filed by the county attorney was correct; she went down to the police station with her husband and heard him report to police that the loss was $400; she had told them it was $4,000, but after she checked she “found out”; she made a claim for repayment on a burglary insurance policy for $250, which was all the insurance she had. She further testified that she had $2,200 in currency in one billfold in her purse, consisting of one fifty dollar bill and the rest in crisp, rather new, twenty-dollar bills, all of which was her own personal money; she also had $1,200 in currency in her purse consisting of tens, fives and one-dollar bills (the number of each denomination not mentioned) and also $60 to $100 in silver, all of which belonged to the business or partnership, which she handled as cashier; that she had been accumulating the $2,200 over a period of ten years, had been carrying it around in her pocketbook off and on during that time, and had been so carrying it for more than a year last past; that she had intended to buy bonds; that she had a personal bank account, and there was no particular reason for carrying the money around in her purse; she did not think her husband had a bank account.
Police officers testified that when they went to the home of Mrs. Ingalls on the morning of November 22, 1949, they found the night lock on the front door had been jimmied and the door pried from its hinges and that it would not stay closed; they found an “El Roi Tan” cigar band on the living room floor four or five feet from the front door; the officers further testified that on November 26, 1949, they saw defendant at a used car lot in Lawrence and later arrested him in the east part of the city while driving with his family in a 1933 Chevrolet automobile; they took defendant to the police station and made a search of defendant’s car finding, among other things, children’s clothing, a revolver, an automatic pistol, and under the dash of the automobile on top of the radio they found a money bag containing about $1,200 in currency and silver consisting of one $50 bill and 59 twenty-dollar bills; that defendant stated he had won $4,000 gambling from Fred Holloway; a search of the purse of defendant’s wife at the police station revealed 22 ten-dollar bills, 10 twenty-dollar bills, and 45 five-dollar bills.
Mr. Barncord, a used car dealer, testified that about six weeks prior to November 22, 1949, the defendant purchased a 1933 Chevrolet from him for $85 with a down payment of $35, leaving a balance due of $50; that defendant failed to make his weekly payments; that on November 26, 1949, defendant talked to Mr. Barn-cord about buying a 1948 Buick; defendant gave Mr. Barncord $650 in five, ten and twenty-dollar bills; the Buick was priced at $1,850, but defendant could not get the balance financed and the deal was terminated and the money returned. Barncord did prevail upon the defendant to pay the balance due on the Chevrolet by compromising for $40.
A used car dealer from Emporia, Kansas, testified that he sold defendant a 1942 Buick about fifteen or eighteen months before November 22, 1949, for $1,450, and took a chattel mortgage on the car; that during the fall of 1949 he had seen defendant four or five times about the defaulted payments and that the balance due was $272.65; defendant’s brother gave a check for the balance which was never honored by the bank; that he finally received the balance due from a used car dealer in Topeka, Kansas, shortly before November 22, 1949.
Fred Holloway, owner and operator of a pool hall in Lawrence, testified that he had known defendant about three years; had played cards with defendant two or three times a week and had lost $400 or $500 to defendant on different occasions but that he had not lost any money to him within three or four months prior to November 22; that defendant smoked several kinds of cigars including Roi Tans.
At the conclusion of the state’s evidence, defendant interposed a demurrer on the ground that the state failed to produce any evidence on which the jury could base a verdict of guilty, and also moved the court to discharge defendant for the same reason. Both the demurrer and the motion to discharge were by the court overruled.
The only evidence offered by the defendant was the testimony of a Mr. Parker who stated that on August 17, 1949, defendant made a deposit of $100 on a new Buick automobile; that prior to October 28, 1949, defendant talked to him about delivery on an automobile; that he tried to take a credit statement from defendant and learned defendant had no job of any kind and that he could not finance the automobile; that defendant threw some money in a clip on the desk, but he had no idea how much it was; that he refunded the $100 deposit to defendant.
At the close of defendant’s evidence, he moved for a directed verdict of not guilty, which motion was by the court overruled.
Defendant brings the case here and assigns as error among other specifications, the court’s ruling on his demurrer and motion for discharge at the close of the state’s case. Defendant predicates his argument on the fact that there was no direct evidence against the defendant; that the entire case of the state was based on circumstantial evidence; and the circumstances were not sufficient to support the verdict.
At the outset it is agreed by both the state and the defendant that the evidence upon which the conviction was had is entirely circumstantial. The universal rule with reference to conviction on circumstantial evidence is that the circumstances must be so strong that they exclude every reasonable hypothesis except that of the guilt of the defendant. (State v. Robinson, 158 Kan. 287, 147 P. 2d 374; State v. Sweizewski, 73 Kan. 733, 85 Pac. 800; State v. Brizendine, 114 Kan. 699, 220 Pac. 174.) This court recognizes the rule laid down in State v. Murphy, 145 Kan. 242, 65 P. 2d 342; Syll. ¶ 4 of which is as follows:
“When considering on appeal the sufficiency of circumstantial evidence to sustain conviction of crime, the question before this court is not whether the evidence is incompatible with any reasonable hypothesis except guilt. That was a question for the jury and the trial court, and the function of this court is limited to ascertaining whether there was basis in the evidence for a reasonable inference of guilt, following State v. Brizendine, 114 Kan. 699, 220 Pac. 174.”
It follows from the above that it devolves upon this court to determine from the evidence whether there was any basis in the evidence for a reasonable inference of guilt. In connection with this statement, we are compelled to the belief that there was no evidence upon which an inference of guilt could be based. In support thereof, we notice briefly certain pertinent parts of the evidence presented by counsel for both parties in this court.
To begin with, it is interesting to note that the information filed charged the defendant with breaking and entering in the nighttime the dwelling of the complaining witness, Leta Ingalls, at 913 Connecticut street in Lawrence, Douglas county, Kansas, and with stealing, taking and carrying away therefrom the sum of $3,387 in money. No charge was made that the defendant took bills or currency of any particular denomination. Testimony of the complaining witness in connection with this charge was that she told the police after the alleged entering and stealing occurred on November 22, 1949, that $4,000, mostly in bills, had been stolen. The testimony fails to show that any statement was made at that time about the denomination of the bills. There is some doubt after an examination of the evidence that as much as $3,387 had ever been stolen from her. From the counter abstract furnished by the state, she testified on cross examination as follows:
“Q. Were you there when your husband reported to the police that the loss was $400.00?
“A. No, not at the house.
“Q. Were you down at the station when he so reported that?
“A. Yes.
“Q. You heard him tell them it was $400.00?
“A. Yes.
“Q. You had told them it was $4000.00?
“A. At first but after I checked I found out. We had other money, too.”
The purport of the above testimony is of no immediate concern, however, because as we read the record, there was no identification of the money taken from the defendant as being the stolen money, the only testimony in reference thereto by the complaining witness, as gleaned from the counter abstract, being as follows:
“Q. Would you examine Exhibits 4 and 6, Mrs. Ingalls, and tell us if these twenties are new?
“A. Just about like I had. I wouldn’t say they are brand new, but they are crisp twenties, all of them.”
In view of the above testimony, it is doubtful that there could be any inference of guilt by reason of identity of the money.
Defendant’s wife Dolly worked for the complaining witness at Duck’s Sea Food Tavern and was in the home of the complaining witness once (she thinks) about one and one-half years prior to November 22, 1949, to buy some second hand clothes, and from this fact it is inferred that defendant might have known his way around in the house; further that defendant might have known that the complaining witness carried a large sum of money in her pocketbook, although the testimony fails to disclose how defendant’s wife could have known about it. The testimony merely showed that Mrs. Ragland worked in the tavern and had been in the home a year and a half before and that is all; purely an inference on an inference.
In connection with the amount of money allegedly purloined by the defendant, the state attempts to attach great significance to the fact that defendant stated when he was arrested that he had won about $4,000. We fail to see how an inference could be drawn from this statement that defendant had stolen the money of the complaining witness when she herself had made no claim that money in the amount of $4,000'was stolen from her.
Significance is attached to the money clips and money bag found in defendant’s car. No claim is made that any of the money allegedly lost by the complaining witness was affixed with money clips, nor that complaining witness had her funds in a money bag like the one found in defendant’s car.
The state attempts to infer that the defendant was in flight when apprehended by the officers by reason of the fact that when defendant was in the used car lot, Barncord, the owner, saw the police watching defendant and therefore defendant could have seen the police watching him, although there is no evidence any place in the record that defendant did see the police watching him. This was on November 26, four days after the alleged robbery; and certainly no inference, in the absence of direct testimony, could be drawn that defendant was in flight when the police arrested him.
An inference is attempted to be drawn that because an El Roi Tan cigar band was found in the house of complaining witness after the alleged robbery; further, because friends of the defendant brought him cigars at the jail after he was arrested among which were El Roi Tans; and because Holloway, the person from whom defendant had won four or five hundred dollars on occasions, had seen the defendant smoke El Roi Tans; therefore the El Roi Tan cigar band found in the burglarized premises must have been .left there by the defendant. This is another illustration of basing an inference on an inference. In the case of McKenzie v. New York Life Ins. Co., 153 Kan. 439, 112 P. 2d 86, this court said:
“Presumptions or inferences based upon presumptions or inferences are insufficient to meet a burden of proof resting upon a pleader.” (Syl. f 2.)
See, also, Schmidt v. Twin City State Bank, 151 Kan. 667, 100 P. 2d 652; 31 C. J. S., Evidence, § 116b and cases cited in note 10. While the cited cases are civil cases, the rule is the same as to criminal cases, particularly in view of the fact that the burden of proof in a criminal case is greater.
Counsel for the state assert that there are other circumstances from which inferences of commission of the crime charged may be drawn, but from our examination of the record, they do not dignify a discussion.
Some reference is made in the record and in the argument about a petition for a writ of habeas corpus filed by the defendant and Dolly Ragland, his wife, upon the evidence as disclosed in the record now before this court; and that Dolly Ragland was discharged upon the petition. That case was apparently another case in which no appeal was taken from the court’s decision, and is therefore not before us.
The judgment is reversed with directions to discharge the defendant.
Harvey, C. J., dissents. | [
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The opinion of the court was delivered by
Parker, J.:
Sherman Lawrence, forty-four years of age, was injured on October 8, 1947, when an automobile in which he was riding as a passenger collided with a bus belonging to the defendant, the Kansas Power and Light Co., at the intersection of Sumner street and Pennsylvania avenue in the city of Topeka. At the time of the collision the bus was being driven by the defendant, H. H. Bruner, an employee of the company. Following the accident the plaintiff brought suit against the defendants charging they were guilty of certain acts of negligence in the operation of the bus, alleging that he had suffered certain injuries (describing them) as the result of the collision, and asking for damages in the amount of $20,000.
The case has been tried in district court on three different occasions. At the first trial the district court sustained a demurrer to the plaintiff’s evidence. On appeal (See Lawrence v. Kansas Tower & Light Co., 167 Kan. 45, 204 P. 2d 752) that judgment was reversed by this court with directions to grant a new trial. The second trial resulted in a verdict of $7,873.40 for plaintiff. After its rendition the defendants made application for and were granted a new trial. The third trial, the one here involved, was had before a jury which returned a verdict in favor of the plaintiff and against the defend ants in the amount of $4,000. After overruling the defendants’ motion for a new trial this verdict was approved by the trial court and judgment was rendered thereon in favor of the plaintiff. Defendants then perfected this appeal in which the only error relied on as a ground for reversal of the judgment is that the trial court erred in overruling their motion for a new trial because the verdict of the jury was excessive and rendered under the influence of passion and prejudice.
In view of the issue involved no useful purpose would be served by a further and more detailed statement of the facts giving rise to this controversy. However, in case a more complete statement is desired for informative purposes, it should be said they are set forth at length and can be found in die opinion of Lawrence v. Kansas Power & Light Co., supra. For the same reason, nothing is to be gained by burdening this opinion with references to any testimony adduced at the trial except that relating to the extent and character of the injuries suffered by appellee as a result of the collision. We therefore turn directly to the evidence decisive of that point.
The appellee testified as a witness in his own behalf. The substance of his testimony will be summarized and related as briefly as possible. He stated that on the date of the accident he was working at common labor for Allen Taylor, a contractor, at $1.10 an hour, that following the accident he became unconscious and awakened in a hospital the next day, that he suffered severe pain in his back, groin and penis, that he bled profusely, that several ribs were broken, that both pelvis were broken, that he remained in the hospital for twenty-seven days and that for eighteen or nineteen days of that time he was flat on his back in bed, unable to turn over, with a catheter inserted through his penis to his bladder. With reference to his condition and what happened after he left the hospital he stated he went to his home and was confined to his bed during practically all of the succeeding two or three weeks, that he used crutches for three or four months after he got out of bed and then a cane, that he returned to work on March 20, 1948, for his former employer, that at drat time he was unable to do the work he had performed prior to the accident — pushing a wheelbarrow — and started operating the cement mixer. Touching his condition at the time of the trial he said that he could not lift heavy weights as he had in the past and that when he attempted to do so his back hurt and he became tired; that when he walked very far and fast he had a peculiar pain that ran up and down his legs from the hips and that his back gave out, and that he had difficulty in passing his water. Testifying further with respect to his condition he stated that prior to the accident he was normal sexually and that since that time had become impotent. He also stated that because of the accident he had incurred hospital and medical bills amounting to $418.
Allen Taylor testified that immediately prior to the accident appellee was working for him pushing a wheelbarrow, shoveling sand, and doing other heavy work; that he was paying him from $50 to $60 a week on the average; that when appellee returned to work on March 20, 1948, he paid him at the same rate, although he gave him light work, consisting of running the cement mixer, where he could operate the machine with his hands and lean against the cement pn the mixer.
Testimony of the attending physician was to the effect that his examination of appellee on the evening of the accident showed fractures on both sides of the pelvis, fractured ribs on the left side of the chest, a rupture of the urethra and a urinary retention necessitating insertion of a catheter which remained in for several days. He also stated that appellee suffered a great deal of pain while in the hospital. This witness also testified that his examination of appellee on the day of the trial showed some limitation of motion in his back and that he needed further treatment for that condition as well as the condition of his ruptured urethra which, if not relieved, might result in a permanent stricture. He also said that in his opinion appellee’s back was not as strong as it was before the accident and that in his present condition he could not perform heavy manual labor. When asked as to what tire expense of necessary treatment to appellee’s back would amount to the doctor refused to give an estimate, stating that it would require diathermy treatments two or three times a week for four or five months. He did estimate the expense of repairing the ruptured urethra at from $100 to $200.
During the cross-examination of the witness last mentioned appellants subjected him to a rigid cross-examination for the obvious purpose of having him admit that additional treatment would result in appellee’s complete recovery. While it must be conceded that his answers to some of the questions on that subject indicated he was hopeful such would be the result, a fair analysis of his testimony indicates that he was by no means sure of it. This is definitely established by the following excerpts from portions of his testimony:
“Q. Did you have an opinion at that time as to whether or not he would have any permanent disability from his injuries? A. I didn’tj no. It is difficult to say how a person is going to be six months later, and I maintained a hopeful attitude, as with many patients, that he would get better.
“Q. Well, based upon the experience that he had so far as recovery, is concerned, didn’t you have some opinion as to how he would get along? A. My expressed opinion was he’d get along all right, my retained opinion was that he would have difficulty.
“Now doctor, if he has this additional treatment which you say he needs, particularly with reference to his urinary tract, when that treatment is completed, will that remove this stricture which he now has? A. It might, it would depend upon tire type of stricture. However, if an operation was necessary to remove the stricture it might require much greater treatment than I indicated.
“Q. Doctor if that treatment is followed, do you have an opinion as to whether or not at the end of it he will be back to normal again. In other words, isn’t this treatment going to do some good that you are talking about? A. I think it would. There again I wouldn’t say definitely, but I think it would.”
Another physician, an orthopedist, testified concerning examinations he had made of appellee in June, 1949, and again just before the trial. He stated appellee still had a lumbosacral strain requiring further treatment, the expense of which would amount to from $300 to $350, that because of such strain his back was not as good as before the accident, and that in his present condition he could not perform heavy work. In response to questions by appellants’ counsel this witness conceded that if appellee would take the treatment, to which he had referred, he believed that he would be all right as far as his back was concerned. However, the record discloses that he, like the attending physician, was not too certain that would be the result. This is evidenced by portions of his testimony on such point hereinafter quoted:
“Q. And it was your opinion then and it is your opinion now that if he would take that treatment he would be all right? A. That is right.
“Q. Do you believe that if tins man took this treatment, doctor, that you recommended, that he would thereafter have any permanent disability whatsoever? A. Well, one cannot guarantee; the longer one delays in getting treatment of these lumbosacral strains, the less likely you can be sure of a permanent result. However, I still feel that he should get a good result.
“Q. But you believe that in all probability he would have very little, if any, permanent disability after that treatment? A. I believe he should get a good result.”
So far as the record discloses the only testimony adduced by appellants relating to the phase of the issue in controversy was that of Dr. Clovis Bowen, a general practitioner in the city of Topeka, who said that he had examined appellee in October, 1948, before he went to work as a laborer for the Hill Packing Company. This witness states this examination was general in nature and of the kind usually made to determine the fitness of employees for work with the company and that it did not include the injuries to appellee’s back or the rupture of his urethra. On cross-examination he frankly conceded that if appellee had made complaint of a ruptured urethra, a fractured pelvis and a strained back, he probably would not have let him go to work for his company.
The rule established in this jurisdiction is that in order for a verdict and judgment in a personal injury accident to be set aside or reduced as excessive it must appear, from all the facts and circumstances disclosed by the record, they are so large as to shock the conscience of the court (See Henderson v. Deckert, 160 Kan. 386, 162 P. 2d 88, and cases there cited).
When we give full credence to appellee’s testimony touching the extent of his injuries, his pain and suffering, his expenses, and other matters relating to his present physical condition to which there is no need to again refer, and to all the other evidence herein mentioned, as we are bound to do because tire jury gave it such credence, we cannot say that the verdict and judgment in the instant case are so excessive as to shock our judicial conscience. Therefore, under the rule to which we have heretofore referred, the record does not warrant either an order of remittitur or a reversal of the judgment.
The conclusion just announced means, of course, the size of the verdict itself was not so excessive as to indicate bias or prejudice on the part of the jury. We find nothing in the record to indicate it was guilty of conduct of that character in any other respect. It follows appellants’ assignment of error to the effect the verdict was given under the influence of bias and prejudice cannot be upheld.
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The opinion of the court was delivered by
Price, J.:
This is an action to recover for personal injuries and property damage arising out of an automobile collision which occurred at an intersection of two county roads, neither of which was marked nor a through road, a short distance from Esbon in Jewell county.
Plaintiff was seriously and permanently injured and brought suit to recover damages in the amount of $25,000. Defendant’s answer and cross-petition denied defendant’s negligence, alleged contributory negligence on the part of plaintiff and sought to recover the sum of $409.41 damages to defendant’s automobile on account of plaintiff’s negligence. From a verdict and judgment for plaintiff in the amount of $10,000 defendant has appealed.
A brief summary of plaintiff’s evidence, sufficient for our purpose, shows the following:
Plaintiff was a farmer, thirty-one years of age, and lived with his wife and two young children. At about noon on July 27, 1947, he and his two children, who were in the back seat, were returning to their farm home from the elevator at Esbon. The day was clear and the highway dry. Plaintiff’s car was a 1934 model Ford two-door, in good working order. He was driving north and the road was level, for some distance both north and south of the intersection in question. He had driven over the road many times and was familiar with the intersection. It was what is known as a “blind corner,” particularly right at the southeast corner thereof, on account of an embankment on the east side of the north and south road covered with weeds and brush, and hedge trees on the south side of the east and west road. The latter road was not level, there being a downgrade for several hundred feet east of the intersection, the latter being right at the crest or brow of the hill, so to speak. Plaintiff testified that as he approached the intersection he was driving between fifteen and twenty miles per hour; that he slowed down, looked both ways, and then drove into the intersection at a speed of thirteen or fourteen miles per hour; that when he got into the intersection he first saw defendant’s car approaching from the east, coming “like a rocket,” and that he “stepped on the gas” in an effort to get out of the way; that defendant’s car hit his car in the center of its right side with such force as to cave the right door into the gearshift lever and spring the frame so that the left door flew open throwing plaintiff out over into a grader ditch at the northwest corner of the intersection, and his car rolled over and finally came to a rest upside down on top of plaintiff, pinning him underneath. As before stated, he suffered severe and permanent injuries, but in view of defendant’s concession that the verdict and judgment are not excessive if plaintiff is entitled to recover, they will not be detailed.
As a result of the impact defendant’s car was turned almost directly around in its tracks so as to be heading east in about the middle of the intersection, with its right rear wheel two feet north of where it had come up the road.
A number of other witnesses testified in behalf of plaintiff, but their testimony need not be narrated.
At the conclusion of plaintiff’s evidence defendant demurred on the ground the evidence failed to establish negligence of defendant, and for the further reason it convicted plaintiff, as a matter of law, of contributory negligence so as to bar his recovery. This demurrer was overruled.
Defendant testified that she had driven an automobile for a number of years; that prior to reaching the grade east of the intersection she was driving about forty miles per hour, but that as she came up the grade she slowed down to about twenty miles per hour, that being her speed as she entered the intersection; that she first saw plaintiff’s car just as she entered the intersection; that it was just a “flash” to her left and then the crash, and she estimated plaintiff’s speed at fifty to sixty miles per hour.
The jury returned a general verdict for plaintiff in the amount of $10,000, and answered fifteen special questions. In substance, it found that plaintiff entered the intersection first; that defendant drove her car into the side of plaintiff’s car; that at the time of the collision defendant was not driving her car at a proper and reasonable rate of speed, and that the collision would have been avoided had she been doing so; that plaintiff was driving in a careful and proper manner as he entered the intersection; that he was injured as a direct and proximate result of defendant’s negligence; that each driver was driving at an estimated thirty miles per hour as each entered the intersection; when plaintiff first saw defendant’s car plaintiff’s car was just north of the south line of the intersection and defendant’s car was a short distance east of the intersection; that plaintiff observed the speed at which defendant was traveling; that at approximately twelve feet south of the point of impact plaintiff could first have seen defendant’s car by looking to his right; that plaintiff 'made an attempt to get out of the way, and that the collision was not the result of an unavoidable accident.
Defendant filed a motion for judgment notwithstanding the verdict and the answers to special questions on the ground the special findings convicted plaintiff of contributory negligence, barring his recovery. This motion was overruled.
Defendant then moved to set aside and vacate the general verdict and the answers to certain special questions. This motion was also overruled. Defendant then filed a motion for new trial containing seventeen grounds and at the hearing thereon presented an affidavit, which will be noted later, touching the qualification of the trial judge to sit in the case. This motion was overruled, judgment was entered upon the verdict, whereupon defendant appealed. Fourteen specifications of error are alleged.
The facts of this case are very simple and the evidence introduced by both parties was relatively brief. However, the abstract and counter abstract before us contain some 227 pages, a very large portion of which consists of argument between counsel and between court and counsel. To take up and discuss in detail each of the many grounds relied on as error would extend this opinion beyond all reason and at the same time would contribute nothing to the body of our law on the questions discussed. It is strenuously argued that the court erred in refusing to give certain special questions and instructions; in giving certain instructions and special questions; that the answers to special questions are inconsistent with each other and with the general verdict, and that as a matter of law such answers convict plaintiff of contributory negligence. We have examined in detail the requested instructions and those given by the court and in our opinion, taking them as a whole, the jury was properly instructed with reference to all material matters in controversy. Furthermore, we think the special questions submitted were not improper and that defendant was in no way prejudiced by the court’s refusal to submit other questions which were requested.
However, there are a number of matters presented by the record which are vigorously urged by defendant and which we feel should be discussed. The first is the matter of plaintiff being permitted to file a reply and answer to defendant’s answer and cross-petition out of time. It appears this was done at the close of plaintiff’s evidence and defendant contends that such was error. However, she fails to point out in what respect, if any, she was thereby prejudiced. This was an ordinary personal injury case, resulting from the collision of two automobiles at an intersection. Each party knew what the claims of the other were and we fail to see wherein defendant was in any way prejudiced. Such being the case, defendant’s claim in this respect is without merit. (G. S. 1935, 60-3317.)
Defendant also argues that the court erred in overruling her demurrer to plaintiff’s evidence, the argument being that the evidence not only failed to show any negligence of defendant, but affirmatively showed contributory negligence on the part of plaintiff, thus barring his recovery. We will not labor the question, but merely call attention to the. long-established rule that in a fact case such as this before a trial court should sustain a demurrer to the evidence such evidence should be so clear that reasonable minds considering it could have but one opinion, namely, that the party adducing it was guilty of contributory negligence. (Lawrence v. Kansas Power & Light Co. 167 Kan. 45, 204 P. 2d 752.) Without again summarizing plaintiff’s evidence, we think it presented a situation where reasonable minds might differ as to just who was negligent and that being the case it clearly was a question to be presented to the jury. The lower court did not err in overruling the demurrer.
Complaint is also made that by a persistent and designed effort on the part of counsel for plaintiff the probability and fact that defendant was covered by liability insurance was injected into the case, and counsel cites three instances occurring during the trial. The first occurred during the voir dire examination of the jury panel by plaintiff’s counsel when it developed that a prospective juror was engaged in the “farming and insurance business.” Counsel pursued the subject further and brought out the fact this juror sold automobile liability insurance and frequently adjusted losses in Jewell county. This examination took place in the presence of the other prospective jurors and defendant claims it was so “pointed” as to give the whole jury panel the very definite impression that an insurance company was involved in the case.
Later, during the trial, while plaintiff was on the witness stand, counsel for defendant made inquiry concerning what was done with plaintiff’s car after the collision and it developed that defendant’s counsel had seen plaintiff about the matter while the latter was in the hospital. On redirect examination counsel for plaintiff asked, “Was that before the suit was filed that this gentleman, Mr. Norris, was up to see you at the hospital?” Plaintiff’s answer was, “Yes, he come to the hospital and said that he represented the insurance company.” Counsel for defendant immediately moved for a mistrial and that the jury be discharged. This motion was overruled, whereupon the jury was excused pending further argument on the motion. Following this argument the court adhered to its former ruling, and still later in the trial, when the motion was renewed, counsel for plaintiff consented that the answer to the question be stricken and the jury admonished to disregard it. Counsel for defendant refused to agree to such procedure on the ground the damage had already been done and that any further reference to the subject of insurance would merely magnify and emphasize in the minds of the jury the probability and fact that defendant was covered by insurance. As a result, no admonition or instruction concerning the matter was given to the jury.
In furtherance of the alleged “scheme and plan” on the part of plaintiff’s counsel, defendant complains of a statement made by counsel for plaintiff in his argument to the jury, which ran like this:
“. . . As a matter of fact Mr. Norris wasn’t down at that hospital to see that car to find out where it was. He was down there to get a statement out of that boy. That is why he was down there, that would prevent him from recovering in this lawsuit and that is the truth of it.”
It is argued that this statement again reminded the jury that an insurance company was involved in the case.
Defendant calls our attention to what was said in Coffman v. Shearer, 140 Kan. 176, 34 P. 2d 97; Witt v. Roper, 150 Kan. 722, 96 P. 2d 643, and McGuire v. McGuire, 152 Kan. 237, 103 P. 2d 884, with reference to the matter of insurance being injected into a case of this kind. No good purpose would be served in reviewing those authorities for, as we read this record, it is not made to appear that any prejudice resulted from what manifestly appears to have been an inadvertent reference on the part of plaintiff while on the witness stand. Indeed, the trial court in denying the motion for a mistrial and to discharge the jury commented that he was well satisfied there had been no intentional misconduct by counsel and that the mention of insurance was purely inadvertent. We feel compelled to agree, and so far as the examination of the one juror is concerned it surely cannot be argued that counsel for either side, in any kind of a lawsuit, would select a jury without first making inquiry concerning the business or occupation of the members of the jury panel. Furthermore, it appears that here eighteen jurors were empanelled and after the list was made up each side struck three names and the remaining twelve were sworn to try the case. The record does not indicate that even if this particular juror’s name was stricken from the fist by plaintiff it was done in such a manner that the remaining members had any information concerning the fact.
And we are also of the opinion that counsel for defendant attaches far more significance to the statement contained in plaintiff’s argument to the jury than is due it. A considerable latitude naturally is allowed counsel in arguing to a jury provided counsel stays within the record, and we think that perhaps defendant’s complaint in this respect might well be based upon the fact this trial was hotly contested and was interrupted throughout by constant bickering and argument between counsel. While of course not conclusive on the matter, yet it is significant to note that here the plaintiff, a young man, is undoubtedly crippled for life, and yet the jury returned a verdict of $10,000, when the sum of $25,000 was prayed for. We are unable to say that concerning this feature of the case the matters complained of resulted in any bias or prejudice on the part of the jury.
Complaint is also made of another incident during the trial. While defendant was being cross-examined she was asked about the title certificate to her car. She did not have it with her and was asked to produce it the next day. In the meantime defendant’s evidence was completed, defendant rested, and no rebuttal was offered by plaintiff. On the next day defendant was granted leave to reopen the case so as to introduce the title certificate requested by plaintiff’s counsel on the previous day, and for one other question on redirect examination. Defendant produced and identified the title certificate and then was asked one additional question concerning whether she heard the horn of any automobile as she approached the intersection or at any time before the collision. She answered in the negative, whereupon one of plaintiff’s counsel proceeded to ask her about her ownership of real estate and personal property and about conveyances by her subsequent to the date of the collision. Defendant’s counsel objected to this line of questioning on the ground it was not proper cross-examination and for the further reason that it was entirely outside the issues and incompetent, irrelevant and immaterial. Then followed considerable argument between counsel and between court and counsel, a large portion of which was in the presence of the jury. Defendant’s objections were overruled and the court in so ruling commented that any conveyances of property by defendant subsequent to the date of the collision would be competent to show her mental attitude with reference “to certain things in this case”; that people are not allowed to dispose of their property for the purpose of avoiding liability, and that it was competent to show the attitude of a person by showing such conveyances. Plaintiff’s counsel pursued the matter further and it developed that one such conveyance concerned a homestead right of defendant and another concerned property already owned by the grantee, but to whom no conveyance had previously been made. The questions and answers, together with objections by defendant and argument thereon and comments by the court, cover some nineteen pages of the abstract, and finally counsel for plaintiff consented that the court could and should strike out this line of testimony and admonish the jury to disregard it. This was done.
Defendant argues that this evidence was highly prejudicial, incompetent, irrelevant and immaterial; that its only purpose was to prejudice defendant in the eyes of the jury, and that once having gotten before the jury the error was not cured .by the fact the court ultimately struck it out with an admonition to disregard it.
We concede that such evidence was outside the issues and that it had no place in this lawsuit, but we cannot agree with counsel that its prejudicial effect, if any, was such as to constitute reversible error. It is seldom, if ever, that in the trial of a sharply contested lawsuit some prejudicial, incompetent, irrelevant and immaterial evidence does not find its way into the record. In such instances it should be stricken and the jury admonished to disregard it, just as was done in this case. It is for the lower court, in the first instance, to determine, in its sound discretion, whether prejudice has resulted, and for this court, on appellate review, to determine whether such discretion of the lower court has been abused. In the light of the entire record we cannot say the incidents just referred to were so highly prejudicial as to constitute reversible error.
And finally, one other ground for reversal is urged. At the hearing on the motion for a new trial counsel for defendant presented and filed an affidavit, counsel being the affiant, in which it was alleged that the trial judge was a second cousin by blood of the plaintiff; that by reason of such relationship he was disqualified to sit and preside as judge in the trial; that at no time during the trial or prior thereto did the trial judge, or plaintiff or his attorneys disclose such relationship to defendant or her counsel; that all proceedings were therefore a nullity on account of not being had before a judge pro tem. On the argument and discussion concerning this affidavit it developed that the trial judge and plaintiff's mother were first cousins by blood.
While perhaps better practice would dictate that under such circumstances a trial judge should apprise the parties beforehand and step aside, if so requested, yet the real issue before us is whether as a matter of law the trial judge in this case was disqualified to sit. G. S. 1935, 20-305, provides that a judge pro tem may be selected when the judge is related to either of the parties. G. S. 1947 Supp. 20-311, provides that in any contested civil or criminal case where any party to such case is related to the district judge within the degrees mentioned in the statute, such district judge shall be disqualified from hearing the case. However, the prohibition of the statute does not extend to the relationship of cousin in any degree, and notwithstanding section 305, supra, the terms of section 311, supra, clearly did not disqualify the trial judge in this case as a matter of law. Furthermore, nowhere is it made to appear that such relationship in any way influenced the trial judge or that any prejudice to defendant resulted thereby.
As before stated, many grounds other than those specifically discussed are urged by defendant for a reversal of this case and the granting of a new trial. We have given careful consideration to each and every contention advanced by defendant but are constrained to hold that the record before us contains nothing which would warrant the granting of a new trial. The judgment of the lower court is therefore affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
The appeal in this case is from the judgment of the trial court enj oining the defendant, a city of the second class, from extending its water mains beyond the limits of the city and levying taxes therefor. The proceedings for extending the water mains were taken under G. S. 1935, 14-705 to 14-710, which are set out as an appendix to this opinion. The record discloses that on June 20, 1946, a petition was filed with defendant’s city clerk praying for the construction of 8,655 feet of water line in the territory described in the petition, which territory is outside of but adjacent to the city of Chanute. On June 25, 1946, the governing body of the city examined the petition and found that it had been signed by a majority of the resident owners owning more than fifty-one percent of the property in the proposed benefit district described in the petition, and adopted a resolution accepting the petition; directed the city engineer to prepare plans and specifications, and directed the performance of the work of extending the water line. Iron pipe was ordered for the extension of the water line, which was not received until December, 1948. On December 7, 1948, the governing body of the city adopted and duly published an ordinance creating the benefit district, ordering the construction of the water line and authorizing the issuance of bonds to pay the cost and the necessary special assessments to retire the bonds.
On February 14, 1949, three individual owners of property which would be affected by the construction and payment of the costs of the water line filed a.suit to enjoin its construction, upon the grounds, first, that the statutes which purported to authorize the construction of the water line were invalid, and, second, even though the statutes were valid the governing body of the city had no jurisdiction of the premises “for the reason that the petition presented to the city was not signed by a majority of the resident owners of the said proposed benefit district, nor was it signed by the resident owners owning more than fifty-one percent of the property to be assessed in the proposed territory affected.” After a hearing the court granted a temporary injunction. The defendant filed an appropriate answer. When the case came on for hearing the parties stipulated:
“1. That in determining the sufficiency of the petition described as Exhibit 1 to plaintiffs’ petition filed herein, if the signers thereof whose residence was, on the date of the filing of said petition, outside the physical limits of the benefit district described in said petition, were excluded, then the petition would contain the signatures of less than a majority of the resident property owners, and the petition would contain the signatures of the owners of less than 51 percent of the property within the benefit district.
“2. That in determining the sufficiency of the petition described as Exhibit 1 to plaintiffs’ petition filed herein, if the signers thereof whose resident was, on the date of the filing of said petition, within the physical limits of the benefit district described in said petition or within the corporate limits of the City of Chanute, Kansas, were included, then the petition contains the signatures of a majority of the resident property owners owning more than 51 percent of the property within the benefit district.”
They also agreed that judgment should be rendered on the pleadings, stipulation and argument. The court found:
“1. That the temporary injunction heretofore granted and allowed herein, on March 30, 1949, should be made final and permanent.
“2. That Sections 14-705 to 14-710, G. S. 1935, are not unconstitutional, null and void.
“3. That defendant herein was without jurisdiction to perform any act under and by virtue of the petition requesting construction of the proposed water line, all as described in plaintiffs’ petition filed herein, for the reason that said petition was not signed by a majority of the resident owners owning more than fifty-one percent of the property to be assessed in the said territory.”
The court made and entered the following decree:
“1. That defendant herein be, and it hereby is, permanently restrained and enjoined from performing any further act under and by virtue of the petition requesting construction of the proposed water line, all as described in plaintiffs’ petition filed herein, and is further restrained and enjoined from creating or attempting to create any liability against the proposed benefit district described in plaintiffs’ petition filed herein, and from levying any taxes against the territory in said district or any part thereof. . . .”
and rendered judgment for plaintiffs for their costs. From this judgment and decree the defendant appealed.
Appellant argues that persons who own land in the benefit district, who were residents either of the district or of the city of Chanute, were qualified under the statute to sign the petition. We concur in that view. The sections of the statute in question were originally passed in 1925 (Chap. 120, Laws 1925). Both the title of the act and the body of the act conferred authority upon cities of the second clabs to extend their water mains and water service to territory lying beyond, but adjacent to, the city limits. The validity of that act was sustained by this court in Barrett v. City of Osawatomie, 131 Kan. 50, 289 Pac. 970, even though the act was uncertain as to the territory outside of the city to be taxed for the extension of the water mains. The act was amended in 1931 (Chap. 129, Laws 1931) so as to avoid that difficulty by creating a benefit district. This act was a grant of authority to the city. Under the .statute the city issues bonds to pay the initial cost. If the pipe to be laid exceeds six inches in diameter the city pays for the extra cost. The petition makes a contract between the parties, which is abrogated in the event the territory comprising the benefit district is taken into the city and in other respects the statute treats the water mains and service as it does the part of the city waterworks within the corporate limits. Certainly there is no reason why one residing within the corporate limits, but who owns land in the benefit district, should not be eligible to sign the. petition. There is no specific wording in the statute which excludes him. This view of the statute, under the stipulation of the parties, makes it clear that the city had jurisdiction to pass upon the petition and proceed with the work.
Counsel have cited a few cases on this point, but none of them is particularly helpful. That is true with cases we found from our own research. Considering the nature of the work to be done and the liabilities assumed by the respective parties we think it clear that the court erred in holding the petition insufficient to give the city jurisdiction to act.
There is no cross appeal here with respect to the validity of the statute. Notwithstanding that, counsel for appellees argue that question. We think it is not before us, but if it is, we see no reason for holding the statute invalid.
From what has been said the judgment of the trial court should be reversed with directions to deny the injunction.
It is so ordered.
APPENDIX
14-705. That any city of the second class owning or maintaining a municipal water system may extend its water mains into territory beyond the boundaries of said city for the purpose of supplying water to customers living in territory beyond the city limits of said city, but in territory adjacent thereto, under the following conditions: Whenever a majority of the resident property owners owning more than fifty-one percent of the property to be assessed in territory beyond the city limits of any city of the second class, but adjacent thereto, shall present to the governing body of such city a petition praying for the extension of water mains into said territory, the said governing body of such city shall consider said petition, and if it shall find the extension of said water mains will be of benefit to said city, then the said governing body may, by ordinance, direct the laying and construction of such water mains, together with all the necessary appurtenances into said adjacent territory.
14-706. The aforesaid petition so presented shall be in the form of a contract, creating a benefit district, prescribing the place where such water mains are to be located and stipulating and agreeing that the cost of laying and constructing such water mains, together with all the necessary appurtenances thereto, shall be taxed against the properties located within said benefit district; and said petition shall be a contract, shall pass with the property, and be binding upon the heirs and assigns of owners of property within the benefit district.
14-707. In the event that said governing body of such city shall order the laying and construction of such water mains, they shall issue ten-year serial bonds to pay the cost thereof, and the board of county commissioners shall levy and pay over to the city, annual special assessments against all property included in said benefit district petitioning for said water service, sufficient to pay the annual interest and to retire said bonds on maturity of the same, in the same manner and to the same extent as special assessments for lateral sewers are now levied in said cities: Provided, however, That where the governing body of such city shall deem it advisable to lay a water main larger than six inches in diameter in such benefit district, the amount to be paid by such special assessment shall not be greater than would be the cost of a main six inches in diameter, and the remainder of the cost shall be paid from the water fund of the city.
14-708. In the event in [any] such territory so supplied with water service shall thereafter be added to and become a part of said city supplying such service, said contract shall be abrogated, and water shall be furnished on the same terms as it is furnished for other citizens of said city.
14-709. All money that is received from said water service shall be deposited in the water fund of said city, and shall become a part of said fund. The expense of extending such service shall be part of the same funds thereof in the same manner as the cost of extending water mains in the city is paid, and the mains so extended shall be and remain a property of the city.
14-710. This act is intended to be supplemental to all other acts of the Revised Statutes, and on no account shall the Revised Statutes of 1923 be repealed hereby. | [
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The opinion of the court was delivered by
Arn, J.:
This is an appeal by the claimant from a judgment of the district court denying a claim for workmen’s compensation. The respondent employers, three brothers doing business as Swisher Brothers Contracting Company, were self insurers and are the appellees herein. The accident in question occurred August 17, 1948, at 7:30 a. m., in Kansas City, Jackson county, Missouri, while claimant was taking a wheelbarrow of mortar down a plank runway to the basement of a building, when he slipped and fell, fracturing his right ankle and leg. Claim for compensation was filed, and subsequently a hearing had before the compensation commissioner. It was stipulated that the accident and injury arose in the course of plaintiff’s employment with respondents; that notice was had; that claim was made as required by law; and that the average weekly wage was sufficient to make the weekly payment the maximum for a scheduled injury. The commissioner found claimant entitled to compensation for temporary total disability followed by five percent permanent loss of the use of the right foot, and made a lump sum award of $429 for a scheduled injury; but the commissioner also found that respondents were not liable for medical and hospital treatment incurred by claimant upon his own initiative. Respondents appealed, and the district court made findings as follows:
“1. That any actions of the parties, negotiations or conversations between claimant or claimant’s brother and respondent in the State of Kansas, relating to the employment of claimant by respondent, did not amount to a meeting of the minds, and the agreement relating to employment was made in the State of Missouri.
“2. That the contract of employment between claimant and respondent was therefore made in the State of Missouri and the Kansas Workman’s Compensation Act is not applicable.”
Thereupon the district court denied the claim for compensation and claimant appealed from that judgment. Appellant contends:
(1) The court erred in holding that the contract of employment was made in the State of Missouri; and
(2) The court erred in disallowing the claim both for the scheduled injury and for the medical attention claimant had provided for himself.
The question of the situs of the employment contract, whether Missouri or Kansas, is a question of fact (Scott v. Kansas Western Pipe Line Co., 158 Kan. 160, 163, 146 P. 2d 366) to be determined by the district court; and if that determination and finding by the district court is based upon any substantial evidence, the supreme court will not molest the trial court’s finding.
Appellant’s second contention concerning the amount of his claim would of course become moot if there was sufficient evidence upon which to base the trial court’s finding that the contract of employment was made in the state of Missouri. Such a determination requires a review of the evidence. This we have done, and from the testimony most favorable to respondent-appellees, there is substantial evidence to support the trial court’s finding. Consider for the moment that evidence most favorable to appellees. When claimant was asked how he happened to work for the Swishers, his answer was “My brother lived close to Earl and he told my brother he didn’t know whether I could do the job or not, if I would come over he’d try it.” Earl Swisher, one of the respondents, testi fied that claimant’s brother first approached him for a job for claimant, and he told the brother to send claimant over and he’d see. The brother asked respondent if he would put claimant to work and respondent told the brother he thought claimant was too old to do that kind of work. The brother assured respondent that claimant was pretty strong for his age and respondent said: “Well, send him over and I’ll see.” There was no conversation with claimant by any of respondents on the way over to Kansas City, Mo., in the truck. When they got to work, respondent asked claimant if he could mix mortar and he said no, so respondent asked him if he could slide concrete blocks down into the basement. He said he could do that and respondent then put him to work. Respondent had no idea what kind of work claimant could do before he got over to the job on Charlotte street in Kansas City, Mo. Had he been able to mix mortar, respondent would have put him to work doing that at twenty cents per hour more wages. Respondent further testified that he didn’t know what work claimant could do and wanted to find out, and if claimant couldn’t do any of the work at all, respondent would not have used him. When they arrived at the job in Kansas City, Mo., respondent relied on what claimant said. The only time respondent talked to claimant about the type of work there was to do was after they got over to Kansas City, Mo., on the job. Respondent had no conversation with claimant about salary or about the type of work he was to do or anything else with reference to his employment while they were in Kansas. The respondent Harold Swisher testified that he never had a conversation in the state of Kansas with claimant about employment and the first he knew of claimant’s employment was the discussion he heard between his brother Earl and claimant which took place on the job in Missouri.
There is no abundance of evidence as to the making of the contract of employment, nor as to which side of the state line the actual employment of claimant took place. There was of course other testimony tending to show that claimant was actually hired and the contract of employment made in Kansas — but it is not the function of this court to weigh the conflicting evidence. When the trial court makes a finding upon conflicting evidence adduced in a workmen’s compensation case, and upon evidence from which different persons might have reached different conclusions, such finding is conclusive and will not be disturbed by this court on appeal. (Carrington v. British American Oil Producing Co., 157 Kan. 101 [Syl. ¶ 4], 138 P. 2d 463, and cases cited p. 105; Goss v. McJunkin Flying Service, 157 Kan. 684 [Syl. ¶ 1], 143 P. 2d 659; Lane v. St. Louis Smelting & Refining Co., 160 Kan. 495, 496, 163 P. 2d 362; Rubins v. Lozier-Broderick & Gordon, 160 Kan. 499, 503, 163 P. 2d 364; Burk v. American Dist. Tel. Co., 160 Kan. 519, 163 P. 2d 402, and cases cited pp. 522, 523; Workmen v. Johnson Bros. Construction Co., 164 Kan. 478, 479, 190 P. 2d 863.)
Appellant cites cases which adhere to the fundamental rule that a contract is made at the place where the minds of the parties met. But the question in the instant case was whether that place of "meeting of the minds” was in Kansas or in Missouri; and that, as we have said, was a fact to be determined by the district court.
The review of a workmen’s compensation case by the supreme court on appeal is limited to questions of law. (G. S. 1935, 44-556, and cases cited, supra.)
From the record before us, we cannot say as a matter of law that there was no evidence to substantiate the district court’s finding. On the contrary, that finding is supported by evidence; and, the contract having been made in Missouri, the Kansas workmen’s compensation act is not applicable.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
Two appeals arise out of proceedings by heirs at law to contest the probate of the will of Adele A. Smith, deceased. The two proceedings were consolidated in the district court and the appeals likewise have been consolidated here.
The heirs at law are a niece and two nephews of Adele A. Smith, deceased, and are children of a prior deceased half sister of Adele A. Smith, testatrix of the instant will. The Columbian Title and Trust Company was nominated by the testatrix as the executor of her estate. It filed a petition in the probate court for the probate of the will and for appointment as executor. Both orders were made without opposition in the probate court. Within nine months the heirs appealed to the district court from such orders.
In the district court the heirs demurred to the executor’s petition for probate on three grounds. The only one of those grounds now relied on is, “That the proponent has no legal capacity to sue.” The demurrer was overruled. From that ruling the heirs have appealed. The correctness of the ruling is the sole issue presented here in case No. 37,616. The question in that case is, therefore, whether a testamentary executor has the power and capacity to file a petition for the probate of the will.
Appellants’ contention an executor does not have such capacity is based on two theories. . One is that prior to the' adoption of the new probate code the statute pertaining to the probate of wills specifically named the executor, as well as any person interested, as one who might petition for the probate of a will (G. S. 1935, 22-208) and that in the new code adopted in 1939 the legislature omitted from that statute the word “executor” and said, “Any person interested in the estate . . . may petition for the probate. . . (G. S. 1947 Supp. 59-2221.)
Appellants rely on the rule that when a statute is revised, some part being omitted, the omitted parts are not readily to be supplied by construction but are ordinarily to be considered as annuled, citing Chicago, R. I. & P. Rly. Co. v. Nichols, 130 Kan. 509, 287 Pac. 262, and other decisions announcing the same rule.
Appellants misinterpret the old statute referred to and confuse two statutes dealing with separate and distinct subjects. The old statute mentioned did not expressly provide for a petition to probate a will. It specified who could produce — that is cause a will to be brought before the probate court — and further provided that the production of the will before that court could be compelled for the purpose of proving it. On the matter of compelling the production of the will in probate court see, also, the old statute, G. S. 1935, 22-211. The old code also provided that after the will had been produced the probate court should cause the witnesses to the will to come before the court arid be examined. (G. S. 1935, 22-213; Pee v. Carlyle, 120 Kan. 200, 243 Pac. 296.) The provision under the new code corresponding in purpose to the old provision (G. S. 1935, 22-208 and some others) for the production of a will in the probate court and to proceedings to compel its delivery to that court by a person having custody thereof is not G. S. 1947 Supp. 59-2221, as contended by appellants, but is G. S. 1947 Supp. 59-621. The present code now specifically provides an additional and separate proceeding. It expressly provides for a petition to probate a will and states who may file it. (G. S. 1947 Supp. 59-2221.) It follows the latter statute is not actually a revision of G. S. 1935, 22-208, and the rule pertaining to a revision of a particular statute relied upon by appellants does not apply.
Moreover it will presently appear that under decisions of this court rendered prior to the adoption of the new code the words “person interested” were believed sufficient to include an executor and hence the lawmakers in enacting the new statute, G. S. 1947 Supp. 59-2221, realized it was superfluous to expressly mention an executor in that statute. We need not, however, rest our decision entirely on what has been said thus far. The question whether a testamentary executor may petition for the probate of a will will be further illuminated under appellants’ next contention.
Appellants’ second theory is an executor is not a “person interested in the estate” (G. S. 1947 Supp. 59-2221) for the reason the words “person interested” are ordinarily interpreted to mean a person having a pecuniary interest. Assuming such a connotation were intended it would be difficult, if not impossible, to say an executor had no pecuniary interest in the decedent’s estate. An executor, unlike an administrator, is nominated by the decedent to administer a trust. He has a right to administer it provided he is legally competent and accepts the trust. (In re Estate of Grattan, 155 Kan. 839, 851, 130 P. 2d 580.) He is, of course, entitled to reasonable compensation for services directed to be rendered as an executor. That alone would appear sufficient to make him a “person interested in the estate.”
Although it is true the words “person interested” are often, and properly, interpreted to mean a person having a pecuniary interest, we think we would not be justified in concluding an executor’s pecuniary interest in the estate constitutes the sole factor in determining his right to petition for the probate of a will. Even under the old code provision pertaining merely to the production of a will in the probate court this court in the Pee case, supra, said:
“The statute speaks of the ‘person interested.’ The probate court is not obliged to respond to the demand of a mere intruder, but any one is interested who may desire to make any legal use of the will. It is enough that a person may desire to found a claim upon it, or use it as evidence, or might be prejudiced if the will were not proved.” (p. 202.)
Manifestly, an executor might be prejudiced by a denial of his right to perform as intended by the testator and to be compensated for his service if the will were not proved.
Furthermore, prior to the new code provision expressly authorizing any “person interested in the estate” to file a petition for the probate of a will it was held to be the actual duty of an executor named in a will to offer the. will for probate for the benefit of all concerned. (In re Estate of Hooper, 144 Kan. 549, 555, 61 P. 2d 1335.) Under the new code it is made the duty of a person having custody of a will to deliver it to the court which has jurisdiction after death of the testator. (G. S. 1947 Supp. 59-621.) Touching related statutes see, also, G. S. 1947 Supp. 59-618, 59-620.
An executor being nominated by the decedent possesses certain rights even prior to his formal appointment by the probate court. Although prior to granting letters testamentary he may not dispose of any part of the estate he nevertheless has the power to pay funeral expenses and to do things necessary to conserve the estate. (G. S. 1947 Supp. 59-704.) The fact a person is named as executor or beneficiary in the will establishes “his interest in the estate of the decedent.” (2 Bartlett’s Kansas Probate Law and Practice, § 1057.)
In view of certain decisions from foreign jurisdictions cited by appellants it may be well to state we are not dealing now with the right of an executor to contest a will but only with his right and duty to uphold and enforce it. Whatever the rule may be elsewhere we have no hesitancy in concluding that under our own early decisions and various provisions of the probate code an executor has a sufficient interest in the estate of a decedent to permit him to petition for the probate of the will. It follows the demurrer of the heirs to the petition for probate was properly overruled.
This brings us to a consideration of the second proceeding, case No. 37,683. This appeal pertains primarily to the testamentary capacity of the deceased. The contest is between the executor and certain beneficiaries in the will as proponents and the previously mentioned heirs at law as opponents of the will.
Before treating the subject of testamentary capacity and a contention certain evidence was erroneously admitted we shall first eliminate all consideration of allegations in the pleadings pertaining to fraud, coercion, breach of trust or false representations on the part of any of the proponents, including the scrivner of the will. It is highly unfortunate that defamatory charges which, if true, would constitute grounds for disbarment proceedings, should be made in the total absence of evidence even tending to support them. We would be inclined to comment further on this subject if the record before us disclosed present counsel for appellants drafted the pleadings containing such charges. In fairness to appellants’ present counsel it should be stated their briefs contain no attempt to support these charges. They will be regarded as having been completely abandoned.
We need not labor the subject of undue influence. It is sufficient to say we have repeatedly held mere guess, suspicion, conjecture and possibility or opportunity for undue influence are insufficient to invalidate a will in the absence of testimony disclosing an exercise of undue influence. (Ginter v. Ginter, 79 Kan. 721, 741, 101 Pac. 634; Klose v. Collins, 137 Kan. 321, 20 P. 2d 494; In re Estate of Walker, 160 Kan. 461, 462, 163 P. 2d 359.)
Legitimate influence has never been regarded as improper. It is malign influence resulting from fear, coercion or any other cause which deprives a testator of his free agency in the disposition of his property that the law condemns. (Ginter v. Ginter, supra p. 733; Klose v. Collins, supra; Anderson v. Anderson, 147 Kan. 273, 76 P. 2d 825.) When it is shown, as here, a will has been executed in accordance with the formalities required by law the burden to establish' undue influence, or any other defense to a will, rests on the party asserting it. (Ginter v. Ginter, supra; In re Estate of Harris, 166 Kan. 368, 374, 201 P. 2d 1062.) A painstaking review of this lengthy record discloses it is entirely barren of testimony indicating the slightest attempt on the part of the scrivener or any other beneficiary to persuade or influence the testatrix to make a will contrary to her own wishes and desires.
Touching the criticism the testatrix had no independent advice and, therefore, the will was not valid, under the provisions of G. S. 1947 Supp. 59-605, it will suffice to say the will was not prepared or written by the sole or principal beneficiary and the statute is not applicable. (Klose v. Collins, supra.) In fact, the scrivener of the will was the beneficiary of only a token gift which probably had little more than sentimental value.
The principal complaint is the record as a whole does not support the finding testatrix possessed testamentary capacity on November 25, 1947, the day she executed the will. Appellants are correct in contending that while testimony concerning the mental condition of the testatrix shortly before and after the execution of the will may be considered, the evidence pertaining to her condition on November 25 is of primary importance. (Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849; Barnhill v. Miller, 114 Kan. 73, 75, 217 Pac. 274.) Appellants are also right in the contention if there is no substantial testimony disclosing testamentary capacity on that date and only testimony showing incapacity, the finding she possessed testamentary capacity cannot stand.
The difficulty does not lie in the rule, but in its application to the record in each case. The evidence pertaining to testamenta^ capacity, as in so many cases of this character, was highly conflicting. On review we are, of course, concerned only with the inquiry whether there was substantial testimony to support the trial court’s finding of capacity and not with conflicting evidence. We do not weigh or compare conflicting testimony. The comparison of such testimony and the weight to be accorded thereto, under the rule obtaining in this state, are matters resting solely in the province of the trial court and not in the appellate court. This rule, of course, applies to every element or defense interposed to the probate of a will. (In re Estate of Walker, supra, p. 462.) In other words it applies to the capacity of the testatrix to know what property she possessed, her capacity to know who were the natural objects of her bounty, if any, and to her capacity to decide to whom she preferred to leave her property. This is the established rule although the testator may be feeble in mind and decrepit in body. (Kunkle v. Urbansky, 153 Kan. 117, 122, 109 P. 2d 71; In re Estate of Hall, 165 Kan. 465, 470, 195 P. 2d 612.)
Appellants are correct in contending testimony as to testamentary capacity must be based on facts sufficiently definite to permit a witness to be able to give a correct opinion. (In re Estate of Cross, 166 Kan. 318, 321, 201 P. 2d 1052.)
Applying all these fundamental principles to the conflicting evidence we have no difficulty in concluding the court could find, as it did, that lack of testamentary capacity was not established. There was ample testimony to show: The testatrix had capacity to know what property she had; that she and her husband, who had died only recently, had frequently discussed and agreed upon the disposition to be made of her property in case she survived him; the testatrix desired to dispose of it just as they had agreed; she had gone over the rough draft of her will two days before signing the final draft; the scrivener spent thirty to forty-five minutes with her on the day she executed the will; while the testatrix was physically weak from a broken hip and prolonged hospitalization she was nevertheless mentally normal, coherent in her expression and knew what she was doing the day she executed the will; old friends visited with her on that day after she executed the will and were agreed she possessed mental capacity to know what property she had, her relatives and how she desired-to dispose of her property.
There was testimony after the testatrix executed the will she expressed the satisfaction that “she was at rest about her business because she had transacted it as she and Clem [her deceased husband] had planned.” There was substantial testimony the reason she did not leave any of her estate to two of the appellants and failed to leave a larger amount to one of them was that she had not been with them a great deal and they had not meant much to her.
In the case of Klose v. Collins, supra, involving greater evidence of testamentary incapacity this court held:
“The fact that the testatrix at an advanced age when she executed a will, was childish, feeble-minded and forgetful, and had never looked after her own business matters herself, is not in and of itself sufficient ordinarily to render her mentally incompetent to make a valid will.” (Syl. ¶ 2.)
See, also, In re Estate of Hall, supra, p. 470; In re Estate of Harris, supra, p. 373.
It is further argued the trial court rested its finding of testamentary capacity on a wrong theory, namely, that the testatrix had mental capacity to assent to her husband’s plan for the disposition of her property. We need not debate the sufficiency of such a theory if that had actually been the court’s theory. We think appellants’ contention constitutes a too narrow interpretation of the court’s findings. Without narrating or setting forth all the findings it is clear the court concluded the testamentary document represented her wishes and constituted her own will. It is very true the testatrix desired to dispose of the property at her death, as nearly as possible, in accordance with the plan she and her husband had frequently discussed during his lifetime and to which they had agreed. If the original plan had actually been his idea of disposition, and she understandingly and willingly agreed thereto, and continued in the desire to dispose of her property at the time she executed the testamentary instrument it constituted her own will. There is ample evidence that is precisely what she desired to do and what she believed she had done.
Appellants also argue the trial court erred in the admission of evidence of an incompetent witness, Dr. W. W. Mills, who testified that in his opinion the testatrix possessed capacity to know what property she had, her relatives and what she desired to do with her property. It is claimed the testimony was privileged and the doctor was an incompetent witness under the provisions of G. S. 1935, 60-2805. The specific objection was the doctor could not testify concerning any information he had obtained at any time while he was a doctor for the testatrix or had anything to do with her care.
The only professional services Doctor Mills rendered for the testatrix were in the hospital June 24,1947, in connection with her broken hip. That was the last time he saw her professionally. He saw her on two occasions thereafter, once at her husband’s funeral the following November 13, and again socially in the hospital on December 25. His testimony pertained solely to the impressions he formed in those social conversations concerning her testamentary capacity. Dr. James Stewart was her regular physician. Our statute on privileged communications does not work a general disqualification- of a physician to testify. It limits his incompetency as a witness to information acquired as a result, and in the line of, professional employment or duty in the treatment of a patient. Information received by a physician solely outside the course of professional services, unrelated thereto, and which is not confidential in its nature is not within the ban of the statute. The statute relating to the privilege of testimony of one’s physician pertains to matters germane to the physician’s diagnosis and treatment of the patient. (State v. Townsend, 146 Kan. 982, 73 P. 2d 1124; State v. Aguirre, 167 Kan. 266, 206 P. 2d 118; 58 Am. Jur., Witnesses, § 429.)
Appellants further argue Doctor Clark, a partner of Doctor Mills, treated the testatrix for her hip injury following Doctor Mills’ services on June 24. They contend Doctor Mills, being a partner of Doctor Clark, could not testify, citing cases factually dissimilar to the instant case. Doctor Mills’ testimony touching his impressions concerning testamentary capacity of the testatrix were in nowise based on information he had received from his partner concerning the testatrix, but were formed entirely from the social conversations he had with the testatrix long after June 24.
In view of the conclusion Doctor Mills was a competent witness we need not treat the further questions argued whether an executor may waive a privileged communication and whether such waiver, if permitted, is effective when a privileged communication is objected to by the heirs at law. In this connection, however, the following cases may be of interest: Fish v. Poorman, 85 Kan. 237, 242, 116 Pac. 898; Flack v. Brewster, 107 Kan. 63, 66-67, 190 Pac. 616; Gorman v. Hickey, 145 Kan. 54, 64, 64 P. 2d 587.
The judgment is affirmed.
Price, J., not participating. | [
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The opinion of the court was delivered by
Wedell, J.:
This action originated as one to enjoin defendants from interfering with plaintiffs’ rights to enjoy the privileges of a duck hunting club with the defendants. It was expanded into an action for the dissolution of the club, an accounting and for division of the net proceeds of the sale of the club’s personal property.
There were eight members in the club. Six plaintiffs brought the action. Four of them prevailed and defendants, the other two members of the club, have appealed. There is no cross-appeal by the defeated plaintiffs.
The injunctive relief sought pertained to the 1947 duck hunting season. That season has long since passed and any judgment this court might now render touching the question appellees’ right to enjoy the privileges of the club for that season would be wholly unavailing. All questions touching the judgment for injunctive relief are, therefore, moot.
This court under numerous and varying circumstances has, in conformity with well established principles, declined to decide issues where its judgment could not be made effective. (Dickey Oil Co. v. Wakefield, 153 Kan. 489, 111 P. 2d 1113, and cases therein cited.) In other words, when a judgment is merely on an abstract question of law or fact and the authority of the court cannot be vindicated by the enforcement of process a judgment is a useless thing. Under such circumstances courts simply withhold their judgment. See State, ex rel. v. Smith, 140 Kan. 461, 36 P. 2d 956.) The rule has been applied not only in cases pertaining to private controversies but in actions involving the public interest where no actual controversy remained and where a judgment could not amount to a judicial decision. (Ellis v. Landis, 118 Kan. 502, 235 Pac. 851.)
The only manner in which a decision of this court on the moot subject of injunctive relief could now be of interest to the parties is the fact appellees posted a bond in order to obtain injunctive relief. The mere fact a bond is involved does not ordinarily justify a review of a moot issue. In Geinger v. Krein, 103 Kan. 176, 173 Pac. 298, it was held:
“The court will not consider the merits of an appeal from a judgment of forcible detention, rendered against a tenant claiming under a lease, after the lease has expired; and the fact that in the course of the litigation the tenant has given bond not to commit waste and to pay double value of the use, and damages, does not give him a continuing right to a decision on the merits.” (Syl.)
To the same effect see, also, Dickey Oil Co. v. Wakefield, supra, p. 493.
The fact the trial court under the expanded issues granted some relief in addition to a temporary injunction does not change the fact that the question pertaining to the separate subject of injunctive relief has become moot. The only matter possibly before us now is the relief granted by ordering a sale of personal property of the club members, an accounting and distribution of the net proceeds in accordance with respective interests of the members.
Appellants argue the reply in which appellees sought the latter mentioned relief constituted a departure from the injunctive relief sought in their petition. It is apparent from the pleading and evidence that feelings engendered among members of the club were such that a continuation of their joint venture was at an end. We also observe appellants’ answer alleged they and appellees had purchased the club equipment together. Appellants’ answer further disclosed they had taken it upon themselves to make an accounting and distribution of the financial interests of club members as they thought proper. Appellants’ answer also alleged they were individually the owners of the hunting lease on the land. Appellees contended the lease was acquired and held by appellants in trust for all its members. Appellants’ answer clearly indicates they sought to preclude appellees from exercising any rights or privileges in the club.
The original action and the expanded issues were equitable in character. The court had jurisdiction of the subject matter and the parties. The equitable powers of chancery courts have been greatly expanded. They have power and authority to make a full and final adjudication of all matters properly before them when necessary for a complete and final adjudication. They are not compelled to leave such matters for separate and future litigation. (19 Am. Jur., Equity, §§ 127, 128, 129.)
Moreover, we think appellants are not now in a position to complain of a departure, if the reply in fact constituted a departure, in the light of allegations of their answer. A search of the record before us discloses no motion to strike the reply on that ground or a complaint concerning a consideration of the expanded issues in the course of the trial. As previously indicated the hunting season in volved was over and it was cle^r the parties would not continue in the joint undertaking. At the conclusion of the trial the court indicated its intention to wind up the affairs of the club. We find no objection to the suggested procedure or any error in the judgment rendered. It would rather appear all parties acquiesced in the theory the affairs of the joint venture should be terminated and fully settled. Under such circumstances the parties have no right to complain on appeal. (Gelphman v. Gelphman, 142 Kan. 582, 50 P. 2d 933.)
It follows the only part of the decree subject to review must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Parker, J.:
This is an action to compel the conveyance of real estate on the theory the record title thereto had been acquired by defendants under a trust arising by implication of law. The plaintiff prevailed and the defendants appeal.
Por a proper understanding of the issues involved it will be necessary to make brief reference to the pleadings.
In substance material allegations of the petition can be summarized as follows: On or about October 20, 1945, plaintiff orally employed defendant, G. W. Shell, a real estate man, to purchase for him a quarter section of land located in Finney county, agreeing to pay him a reasonable commission for that service. The defendant accepted the employment and agreed to make the purchase. About November 7, 1945, the oral agreement was modified to provide that if the property could be purchased for $4,500 plaintiff would not be required to pay any commission. Subsequently this defendant purchased the real estate in question but caused the title thereto to be conveyed by warranty deed to the defendant, Jack Shell, his brother, who had knowledge of the contract and who, thereafter, caused the conveying instrument to be recorded in the office of the register of deeds of Finney county. Plaintiff at all times stood ready and willing to comply with his part of the oral agreement and so notified the defendants. He also demanded a deed. Notwithstanding the defendants, and each of them, failed, neglected and refused to convey him the land. Following a recital of the foregoing facts the petition prays judgment against the defendants for a conveyance of the real estate or in the alternative a judgment for its reasonable value. ’
The answer contains a general denial and by way of a special defense allegations to the effect that without any agreement for compensation G. W. Shell undertook to procure a deed to the real estate with the expectation of conveying it to plaintiff. It further alleges plaintiff never did agree to buy the real estate orally or otherwise, that after G. W. Shell had acquired a deed to the property and offered it to plaintiff the latter declined to buy it and that thereafter such defendant sold the land to defendant, Jack Shell.
Plaintiff’s reply denies all averments of the answer contrary or inconsistent with the allegations of the petition and in addition contains the following statement “that said plaintiff renews his tender to the defendant (sic) of the purchase price of said land, together with any compensation to which the defendant, G. W. Shell, might be entitled.”
With issues framed by the pleadings, as heretofore related, the cause was tried by the court. During the trial defendants’ separate demurrers to plaintiff’s evidence were overruled. At its close, after overruling various requests by defendants for findings of fact, the trial court made findings of fact and conclusions of law. Defendants then filed motions, for additional findings, to set aside the findings as made and to set aside the conclusions of law, which were overruled. Thereupon the trial court rendered judgment in conformity with its findings of fact and conclusions of law, decreeing title to the real estate to be in the plaintiff, directing the defendant, Jack Shell, to execute a deed thereto and providing that in the event of his failure so to do the judgment should operate as a conveyance of the property.
Defendants then filed a motion for new trial. When it was overruled they perfected this appeal.
So many of the trial findings and conclusions are in controversy as to warrant setting them forth at length. They read:
“1. The plaintiff for two years had been trying to purchase from A. D. Devonshire of California the Southwest Quarter (SW %) of Section Nineteen (19), Township Twenty-three (23), Range Thirty (30), in Finney County, Kansas. The plaintiff’s letters had not been answered by the owner of the real estate.
“2. The defendant, G. W. Shell, in 1945, was, and had been, a real estate broker at Garden City, Kansas. He had previous business dealings with the plaintiff.
“3. On or about October 30, 1945, the plaintiff informed the defendant, G. W. Shell, that he desired to purchase the above described real estate and gave this defendant the owner’s address. This defendant agreed to try to purchase the real estate for the plaintiff, pay for it, and then transfer the real estate to the plaintiff. If this defendant was unable to purchase the real estate, then there was to be no charge for the services of this defendant. In the event this defendant acquired the above described real estate, then he was to turn it to the plaintiff at the price this defendant paid for it, plus a real estate commission. There was no discussion as to the amount of commission to be paid. The plaintiff stated he would give $4,000.00 and if necessary $5,000.00 for the above described real estate.
“4. The defendant, G. W. Shell, informed his brother, the defendant, Jack Shell, of his agreement with plaintiff and requested permission to have his brother’s name as grantee in a deed to be sent to A. D. Devonshire. The defendant, Jack Shell, agreed to allow his name to be placed in the deed as grantee and to ‘deed’ the above described real estate to the plaintiff. The deed was signed and acknowledged by A. D. Devonshire on November 7, 1945, and then sent to the Garden National Bank with instructions to deliver the deed upon payment of $4,000.00.
“5. Before the arrival of the deed to the real estate, the plaintiff called at the office of G. W. Shell, who stated that he had hopes of purchasing the real estate, but that the total costs of purchasing the real estate, including his commission, would be $4,500.00. The plaintiff agreed to pay the sum of $4,500.00 for the real estate.
“6. On or about December 3, 1945, the defendant, G. W. Shell, paid the bank the $4,000.00, received the deed, and had it recorded in the office of the register of deeds at Garden City, Kansas. The deed bears the name of Jack Shell as grantee and has on it $5.50 of revenue stamps.
“7. Shortly after the recording of the deed, the plaintiff called at the office of the defendant, G. W. Shell, and was informed by this defendant that it would cost $4,800.00 to purchase the real estate. The plaintiff did not agree to take the real estate at that price. He went to the court house in Garden City and there learned of the recording of the deed. This action was soon thereafter filed.
“8. The plaintiff has, at all times, been ready, willing and able to purchase the real estate at $4,000.00 and pay the defendant, G. W. Shell, a reasonable commission for his services. No evidence was offered as to what was the usual and reasonable commission to be paid a broker in this kind of transaction. No tender of $4,000.00 or any other sum to the defendants or either of them and no demand for a conveyance of the real estate was ever made by the plaintiff.
“9. The real estate at the time the deed was obtained had a reasonable market value of $4,800.00.
“10. Jack Shell paid the taxes assessed against said real estate for 1946 and 1947, in the sum of $121.00.
“11. That all agreements, negotiations and communications had between the plaintiff and the defendants or either of them as found by the court herein, were oral and not in writing.”
“1. The defendant, Jack Shell, holds title to the real estate in trust for the plaintiff and as security for the money advanced by the defendant, G. W. Shell, in obtaining the deed from A. D. Devonshire to the real estate. (Bryan v. McNaughton, 38 Kan. 98.)
“2. The plaintiff upon the payment of $4,500.00 to the Clerk of the District Court of Finney County, Kansas, for the benefit of the defendant, will be entitled to the legal title to the real estate involved in this action.”
Next, in view of grounds relied on for reversal of the judgment, it seems necessary to clarify the factual situation disclosed by the evidence. At the same time we shall endeavor to dispose of all specified errors relating to requests for findings and the findings as made.
Findings Nos. 1, 2, 6, 9, 10, 11 and the last two sentences of 8 are not in dispute. The evidence relating to portions of No. 3 is in conflict, but an examination of the record discloses testimony by the appellee to all facts therein set forth. That is enough to sustain it.
Our decisions uniformly hold that findings of fact supported by any substantial, competent evidence will not be disturbed on appeal (In re Estate of House, 164 Kan. 613, 192 P. 2d 177; West’s Kansas Digest, Appeal and Error, § 1010 [1]).
Appellants contend the trial court erred in overruling its motion to set aside that portion of Finding 4 to the effect Jack Shell had notice of appellee’s claims. We disagree. G. W. Shell, himself, testified on cross-examination as follows:
“I mentioned to Jack that I had put his name on the deed before I even sent it out; I told Jack I was going to get the land and that I would take it in his name and he could deed it to Ben and he consented to that; I sold the land to Jack; he was to pay whatever it cost; he has not yet paid anything except he has paid the taxes and recorded the deed; . . .”
While appellants’ evidence was to the contrary the appellee testified to all facts set forth in Findings 5, 7 and the first sentence of 8. Obviously the trial court, as was its right, believed the appellee and not the appellants. Therefore, in view of the rule applicable on appellate review, such findings cannot be disturbed.
Appellants not only requested findings but, after the trial court had submitted those it proposed to make for consideration of the parties, moved for additional ones. We have examined both motions. Most of the suggested findings were framed to conform to appellants’ version of the facts, which the trial court refused to accept, and hence were properly refused. A few were given in the form requested. Upon careful analysis of the remainder we fail to see how they could alter the conclusion reached. Under such circumstances no substantial prejudice resulted to appellants from refusal to approve any finding requested and the trial court’s action with respect thereto does not constitute grounds for reversal of the judgment (See G. S. 1935, 60-3317; Stecklein v. Stecklein, 121 Kan. 490, 247 Pac. 449).
Thus, it appears all other errors relied on must be determined in the light of the factual picture disclosed by the findings of fact.
One other matter requires attention before giving consideration to the law decisive of the rights of the parties. Appellants strenuously contend that under appellee’s evidence and the findings no question of agency is involved. Otherwise stated, their claim, repeatedly asserted, is that the evidence discloses and the court found a mere oral agreement between the parties relating to the sale of land, wholly devoid of features creating a trust relationship. In giving consideration to this point it must be remembered that the primary and all important question under the issues as joined by the pleadings was employment or no employment. Resort to the petition reveals that it specifically charges G. W. Shell accepted employment under the oral contract. The answer discloses that he undertook to procure the deed without any agreement for or expectation of compensation. This claim ignores some of the evidence. On direct examination appellee testified that in his first conversation with G. W. Shell the latter inquired whether appellee would pay a commission if such appellant could get the land and that appellee replied he would be glad to do so. Later in his testimony he stated there was nothing in particular said about the amount of the commission, but he told Shell he would pay a good commission. On cross-examination, with reference to his contract with Shell, he was asked the following question: “For whatever he had to give for it, plus a commission?” to which he made answer “That is right.” In the face of the foregoing testimony it cannot be said the evidence fails to disclose any question of agency.
Neither do we think, as appellants urge, the trial court assiduously avoided a finding of agency or employment. Indeed when findings 1, 2 and 3 are construed together we are convinced it found that, under the evidence, a contract of employment for the services of a real estate agent existed between appellee and G. W. Shell. To hold that nonuse of the word “agency” or “employment” compels a contrary conclusion would result in failing to give due import to their phraseology. Moreover, we refuse to believe, that faced by the all important issue raised in the pleadings, to which we have heretofore referred, and with conclusions of law as made in this case, it did not so intend. To assume their language is ambiguous would not result in a different conclusion. The rule on appellate review is that findings are to be given the meaning intended by the tribunal which makes them. When this rule is applied the intention of the trial court seems clear to us even though it failed to put its finger on either or both of the two words to which we have heretofore referred.
Once the status of the relationship existing between appellee and G. W. Shell is fixed and determined the question whether the trial court’s conclusions of law are proper is not too difficult. Appellants’ two principal contentions are (1) that the oral agreement between the parties is one relating to land, and in violation of the statute of frauds (G. S. 1935, 33-106), and (2) that the facts do not give rise to a trust by implication of law. These contentions can and will be treated together.
While the authorities on the subject are by no means in accord we believe it can be safely stated that the great weight of authority is to the effect that a real estate agent, employed under an oral contract to negotiate for the purchase of real estate for his principal, who purchases the land in his own name, holds it in trust for his principal, irrespective of whose money was used for the purchase of the property. Inherent, of course, in the principle of law just stated is the additional rule that an oral contract of the character therein mentioned is not within the statute of frauds.'
No useful purpose will be served by attempting to marshal the numerous authorities dealing with the subject. It suffices to say the legal principle, in various forms, and many decisions supporting it, will be found in 8 Am. Jur., Brokers, 1045, § 103; 54 Am. Jur., Trusts, 149, 180, §§ 191, 237; 42 A. L. R. Anno., 28 to 31, incl.; 135 A. L. R. Anno., 236 to 239, incl.; 151 A. L. R. Anno., 662 to 666, incl.; 37 C. J. S., Frauds, Statute of, 616, 625, §§ 121, 141; 65 C. J., Trusts, 373, § 150.
The decisions in this jurisdiction are in accord with the weight of authority. Upon reviewing them we find at least two decisive of the issues in the instant case and others, which, while they are factually different, have a bearing thereon.
In Bryan v. McNaughton, 38 Kan. 98, 16 Pac. 57, we held:
“Where a land agent is employed by his principal to negotiate for the purchase of certain lands, and in violation of his duties as agent purchasers the property for himself and his partner, with his own money, and takes a title thereto in the name of his partner; and the transaction, on account of the circumstances thereof, is impressed, from reasons of equity and justice, with a constructive trust in favor of the plaintiff, held, that the purchase-money furnished by the agent will be considered as a loan only; and while the agent and his partner may hold the title to the property purchased as security for the money advanced, neither of these parties can hold the land adversely to the principal, merely because the principal has not advanced the purchase-money, when, at the time of the employment of the agent, the amount of the purchase-money could not be known; and when neither the agent nor his partner even presented to the principal any statement of the purchase-money or expenses, or ever made any demand therefor. . . .” (Syl).
In Rose v. Hayden, 35 Kan. 106, 10 Pac. 554, we held:
“Where a person desiring to purchase a piece of land employs by parol a firm of land agents to negotiate for the purchase of the land for him, and the member of the firm who does the business commences such negotiations, but finally, and in violation of his duties as agent, purchases the property for himself, with his own money, and takes the title thereto in his own name; and afterward the principal tenders to the agent an amount of money equal to the purchase-money, and an additional amount sufficient to compensate the agent for all his services, and also tenders a deed for the land for the agent to execute to the principal, and demands of the agent that he shall execute the same, but the agent refuses, and claims to own the land himself, held, under these facts, and by operation of law, that the agent holds the legal title to the land in trust for his principal; that the principal holds the paramount equitable title thereto, and by keeping his tender good may recover the property in an action in the nature of ejectment; and this notwithstanding the statute of frauds, and the fact that the employment of the agent was only in parol, and the further facts that the principal did not advance the purchase-money, and has never been in the possession of the property, nor made any improvements thereon; that the case is not one of the creation of an express trust either by parol or in writing, nor one of the express transfer of any interest in real estate either by parol or in writing, but is simply a case of resulting trust, brought into existence by the operation of law upon the facts of the case; and that the case does not come within the statute of frauds; and that the authority of the agent for the purpose for which he was employed need not be in writing. (Citing cases.)” (Syl.)
At this point we pause to point out that the only material distinguishing feature in the facts of the two decisions from which we have just quoted and those of the case at bar is that there the real estate agent was to take title in the name of the principal while here the fair import of the testimony is he was to take the deed in his own name and then convey to his principal. That fact, in our opinion, does not take the instant case out from under the rule announced in such cases.
Another decision, entirely different from a factual standpoint, but nevertheless applicable, is Gemmel v. Fletcher, 76 Kan. 577, 92 Pac. 713.
With specific reference to the statuté of frauds we have repeatedly said that oral agreements of the kind here involved are contracts of employment to produce a stated result and hence the statute has no application (Robinson v. Smalley, 102 Kan. 842, 843, 171 Pac. 1155; Goodrich v. Wilson, 106 Kan. 452, 454, 188 Pac. 225; McCrae v. Bradley Oil Co., 148 Kan. 911, 915, 84 P. 2d 866).
Without more ado it can now be stated we are convinced the foregoing decisions, to which we adhere, compel a conclusion that under the facts and circumstances disclosed by the record the trial court’s conclusions of law and its judgment must be upheld.
Appellants rely heavily upon Miller v. Kyle, 107 Kan. 388, 191 Pac. 492, and Crane v. Coons, 105 Kan. 214, 182 Pac. 554. Neither decision is applicable for the reason that in the opinion of each it is pointed out that the persons who had acquired the title to the real estate therein involved were in no sense agents of the persons seeking to impress it with a trust. Much weight is also given to Grantham v. Conner, 97 Kan. 150, 154 Pac. 246. Resort to the opinion in that case will disclose it is also clearly distinguishable.
A contention to the effect the agreement was void for lack of any consideration has little merit. Mutual promises by the parties are enough to support the contract in question. That they existed clearly appears from the evidence.
Appellants argue that want of a demand or tender precludes appellee’s recovery. We regard those matters of little importance here. This was an equitable proceeding to enforce a trust. Once it was established by the evidence the court, under all our decisions (Hatcher’s Kansas Digest, Equity, § 41; West’s Kansas Digest, Equity, §§ 39,423), had power to render a decree that would meet the exigencies of the situation and attain the ends of justice.
In support of their motion for a new trial appellants offered the affidavit of a disinterested witness who stated that appellee had told him he had refused to take the land after G. W. Shell had procured the deed from its former owner. This was one of the vital issues at the trial. The Shell brothers both testified that appellee had refused to take the property. Appellee, as a witness in his own behalf, denied that he had done so. This new evidence was purely cumulative. Moreover, there was no showing of diligence on the part of appellants in obtaining and producing it at the trial. Under such conditions and circumstances the trial court did not err in overruling the motion for new trial (Bond v. Bond, 154 Kan. 358, 118 P. 2d 549; Bradbury v. Wise, 167 Kan. 737, 208 P. 2d 209).
We fail to find any error in the record warranting a reversal of the judgment It is therefore affirmed. | [
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The opinion of the court was delivered by
HortoN, C. J.:
This was an action by the plaintiff against the defendants for the recovery of lots one and two, in block nineteen, in Ford’s addition to the city of Galena, in Cherokee county. The legal title of the lots is in the plaintiff, but tbe defendants claim to be the equitable owners thereof under a verbal contract for the conveyance of the premises to them, the taking possession under such contract, the payment of the contract-price, and the making of valuable improvements thereon of over three hundred dollars. Upon the trial, judgment was rendered in favor of plaintiff for the recovery of possession of lot two, and that defendants were the equitable owners of lot one.
It is insisted that the defendants were not entitled to judgment in their favor as regards said lot one. We have examined the evidence produced upon the trial, and are satisfied that there are sufficient findings of the jury, not set aside by the trial court, to support the judgment against plaintiff. It is immaterial whether William March was in May, 1877, the agent of the railroad company owning the premises, or the agent of the South-Side Town and Mining Company, subsequently called the South-Side Town, Mining and Manufacturing Company. Some preliminary arrangements were made by John H. Rhodes with William March, about May 7,1877, concerning the purchase of the property in controversy. At that time, the lots were not surveyed. In the latter part of May, 1877, after the South-Side Town and Mining Company was organized, March told Rhodes that he was out of the company, but asked W. J. Lea, the secretary of the company, to go and show Rhodes a good lot. Lea, with Howard Gove, one of the directors of the company, went and showed him the lot. It was then understood that he was to have the lot for twenty-five dollars, and after that he moved his house upon it. Under an arrangement with W. B. Stone, the superintendent and general manager of the. company, he commenced to work for the company on July 23, 1877, to pay for the lot. He paid for the same with his labor, and ever since the defendants have been in the actual, open and exclusive possession of the premises, with the knowledge of plaintiff.
It is contended that the plaintiff did not sell the lot to defendants, or consent to any sale being made, upon the theory that before Lea’s or Stone’s contract for the sale was binding upon the company, it should have received the approval of the board of directors. We do not think that this was necessary. If the company, through its secretary, superintendent, and general manager, made a verbal contract to sell the property in question to the defendants, who paid the purchase-money, and were put in and took possession, and while so in possession made the valuable improvements testified to, they thereby acquired the equitable title to the lot, aud are entitled to the legal title. (Bayer v. Cockerill, 3 Kas. 282; Galbraith v. Galbraith, 5 id. 402.)
The evidence shows that the membership of the company was confined to a few persons only; that they all-had knowledge of the improvements made by defendants upon the premises, and that the defendants were in possession thereof; and as the company accepted the contract-price for the lot, it is now too late for the company to say that the sale to the defendants was irregular or invalid because its officers did not act in conformity with some rule or by-law of the company requiring all sales to be submitted to the directors for their approval. If the secretary and general manager violated any rule or by-law, they may be responsible, but the rights of the defendants are not to be prejudiced thereby.
There being testimony in support of the claim of the defendants, contradicted though it was, if the jury chose, as they had a right, to believe it, and to disbelieve the evidence on behalf of plaintiff, or give it less weight, we can only, in accordance with well-settled rules in such cases, let the judgment stand. It will therefore be affirmed.
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The opinion of the court was delivered by
JOHNSTON, J.:
This action was brought by George W. Lane against the Kansas City, Fort Scott & Gulf Eailroad Company, to recover damages for the alleged negligent killing of two cows belonging to the plaintiff, on the 8th day of December, 1882, at a point near the city of Paola, in Miami county, where the defendant’s railroad crosses a public highway. It was alleged by the plaintiff that the cows were struck and killed by the defendant’s locomotive and passenger train, which was going-north at a high rate of speed, and that the railroad track for a distance of eighty rods south of the point of crossing this highway is nearly straight and level, so that any obstacle upon the track could have been readily seen by the persons in charge of the locomotive. But it is charged that on approaching the highway-crossing the employés of the defendant failed to blow the locomotive whistle, as is required to be done, and failed to-ring the bell or give any signal whatever of their approach. And the plaintiff charges that the killing of the cows' was the. result of the recklessness and negligent management of the locomotive and train. The plaintiff further charges, that defendant skinned the two cows and appropriated their hides to-its own use. The defendant denied that it negligently and carelessly killed the cows, but admitted the taking of the hides, and offered to confess judgment for their value.
A trial was had at the May term, 1883, of the district court of that county, and a judgment rendered in favor of the plaintiff for the value of the hides only, and thereupon the plaintiff prosecuted a petition in error in this court to reverse that judgment. At the January term, 1884, of this court, the judgment was reversed, and the cause remanded for a new trial. (Lane v. K. C. Ft. S. & G. Rld. Co., 31 Kas. 525.) Upon the second trial, which was before the court and a jury, it was admitted by the defendant that the plaintiff was the owner of the cows at the time they were killed; and that they were of the value of $100, as claimed by the plaintiff; and also that the cows were killed by the defendant’s engine and train of cárs at the time and place stated by plaintiff, but not negligently. The verdict and judgment were in favor of the plaintiff for the agreed value of the cows, and the defendant now comes here alleging error.
The assignments of error assail the rulings of the court in giving and refusing instructions, in the admission of testimony, and in overruling the motion for a new trial.
I. The court in its third instruction told the jury, among other things, that—
“In cases of apprehended danger, it is the duty of persons in charge of a running train, on approaching the crossing of .a public highway, to take such precautions as reasonable care would suggest, taking into consideration the safety of its patrons and passengers using and riding on the train; and if in the exercise of such precaution and care, in the judgment of the engineer in charge of the train there was greater danger to the train .and its passengers in attempting to stop it after he did see or could have seen the cows on the track, he would be justified in keeping on, although he may have knocked the cows from the track; and whether such necessity existed, or not, must be determined by the jury from all the facts and circumstances •of the case as shown by the evidence on the trial.”
It is objected that this instruction assumed that there was .•apprehended danger when the train was approaching the crossing where the cows were killed, and is therefore misleading. It is uot, we think, open to the criticism made. The court •does not therein intimate an opinion that danger existed, or that it was apprehended by the engineer; but the instruction was obviously founded upon the claim made and the testimony offered on the part of the railroad company. The engineer in •charge of the locomotive testified that he did not reverse the engine after seeing the cows upon the track; that the cows were not seen by him until he was within about one hundred and fifty yards of the crossing; that the train was running at the rate of about forty miles an hour, and there would have been great danger in stopping the train by reversing the engine, as it probably would have thrown the train off the track. It will therefore be seen that the instruction was really in the interest of and beneficial to the defendant, and the defendant at least has no reason to complain of being prejudiced by it.
II. The court instructed the jury as follows:
“ 8. If the jury believe the train which killed the plaintiff’s cows could not have been stopped after the engineer saw the cows on the track, and before they were struck, you will find for the defendant; provided, the jury believe from the evidence the engineer in charge of said train used ordinary diligence as herein explained.”
The defendant insists that this instruction should not have been limited by the proviso. We think that without the proviso the instruction would have been erroneous, as it would have taken -from the jury all inquiry' into the conduct of the engineer as to the proper care and diligence required of him prior to the time when he claims to have first seen the cows. The statute imposed the duty of sounding the whistle three times, at least eighty rods from the crossing. It was further his duty to be upon the lookout for obstructions on the track, and, if any were seen, to give such signals as the circumstances of the case required. If the proviso had been eliminated from the instruction, as desired by the defendant, it would have relieved the engineer from exercising these acts of precaution; and therefore the objections to this instruction, as well as the ninth, are not well founded.
III. Error is assigned on the refusal of the court to give the second and third instructions requested by the defendant, both of which relate to contributory negligence. This objection is met by the fact that the rules respecting the degree of care and diligence required of the plaintiff, and applicable to the facts in the case, were fairly and fully stated by the court in its general charge. Not only this, but in the second instruction requested, the court was asked in effect to direct the jury, that if the plaintiff drove his stock upon or near the track where trains were likely to be approaching, he could not recover. Whether there is danger or negligence in driving stock near to a railroad track, depends upon circumstances, and is a question to be determined by the jury after learning what the circumstances are. If the stock were under perfect control and carefully guarded, the driving of them near to the track, as upon the adjoining and parallel highway, would not necessarily constitute negligence. Numerous other circumstances may readily be conceived where such an act would not be negligence.
The third instruction requested by the defendant contained a direction to the jury that if there was a sign-board near the point where the highway crossed the railroad, notifying every one who used the road to “look out for the cars/’ they should find for the defendant. Clearly this direction would have been wrong, and for this reason was properly refused.
IV. Complaint is also made of the ruling of the court in refusing to instruct the jury that the evidence of the plaintiff in regard to sounding the whistle and ringing the bell of the locomotive, was of a negative character, while that of the defendant was positive, and that the law esteems the latter class of evidence more highly and of more value than the former. As a general rule, the testimony of one who swears positively that the whistle of a locomotive was sounded is of much more value than the statement of a witness that he did not hear it sounded. Such negative testimony by a witness who was not giving heed to the passing locomotive or the sounding of the whistle thereon, and who may have been accustomed to the frequent sounding of the Avhistle, is entitled to but little weight. But while the request, as a general statement of the rule of evidence, is correct, we do not regard its refusal as error. As presented, it ignored all modifying circumstances and assumed that no positive testimony was offered by the plaintiff that no signal was given. The testimony of one who was in a position to hear, and who was giving special attention to the sounding of the whistle, that it was not sounded, while negative in form, is a positive statement of fact, and where the witnesses had equal opportunity to hear the whistle, and are equally credible, it is generally of as miicb value as the testimony of one wbo states that it was sounded. In this case one of the witnesses, W. J. Eichards, who was near by and saw the collision, testified that when he observed the approach of the train, and that the cows were in danger of being killed, he determined to notice whether any signals were given, and called the attention of his wife to it, stating that “ Ell bet a hundred and fifty dollars they don’t whistle or ring,” and he swears positively that the whistle was not sounded nor the bell rung until after the cows had been struck and killed. In view of this testimony, the refusal of the request was not error.
V. An exception was taken to.the ruling of the court in not permitting a witness to state what the general habit and custom of the engineer in charge of the locomotive had been with reference to sounding the whistle on the approach of road-crossings. Waiving the question of the admissibility of this testimony, which it is not necessary to decide now, we find from the record that later in the trial the question was repeated and the court allowed the witness to answer it, and therefore the defendant has no reason for complaint.
Upon the final objection that the testimony does not sustain the judgment, it is sufficient to say that an examination of the record satisfies us that the testimony, although not as satisfactory in some respects as might be desired, is sufficient to uphold the judgment.
We see nothing else in the record that needs to be noticed;, and finding no error, the judgment of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
JOHNSTON, J.:
This was an action of replevin, brought by Nathan Gollober in the district court of Clay county, to recover a stock of goods of which he claimed ownership and right of possession through a transfer from the firm of Jack-man & Robinson. The partnership of Jackman & Robinson was engaged in the grocery business in Clay Center, and becoming financially embarassed and being pressed by creditors, sold their entire stock of goods and unsettled accounts to the plaintiff, on the 9th of January, 1883. The defendant Martin, who was the sheriff of Clay county, took and was holding possession of these goods under an execution issued upon a judgment rendered against Jackman & Robinson in favor of one of their creditors. The defendant levied the execution upon the goods as the property of Jackman & Robinson, and contended that the sale to plaintiff was fraudulent and void as against the creditors of the vendors.
The principal question in the case was as to the validity of this sale. A trial was had before the court with a jury, and a verdict in favor of the defendant was returned. The court refused to set aside the verdict and grant a new trial, and the plaintiff, excepting, brings the case here for review. He makes complaint of some portions of the charge of the court., and also contends that the verdict of the jury is unsupported by the evidence. Among the instructions given was the following:
“A sale made out of the usual course of business is evidence of fraud. Whatever is notice enough to excite the attention and put a party on his guard and call for inquiry upon the part of a prudent man, is notice of everything to which inquiry would lead.”
A departure from the usual course of business in the transfer of property has uniformly been held to be a suspicious circumstance, a badge of fraud, to be considered in determin ing the bona Jides of the transaction. (Bump on Fraudulent Conveyances, 51, and eases cited.) This rule is apparently not disputed by counsel for plaintiff, but they insist that the instruction was not pertinent, or warranted by the evidence introduced before the jury.
It appears from the testimony given in the case, that before the transfer was made, the plaintiff was apprised of the fact that Jackman & Robinson were in failing circumstances, and were being sorely pressed by their creditors; that within a few hours after being so informed, he purchased the stock of goods and a lot of unsettled accounts, without any inventory or ap-praisement thereof, making only a superficial inspection as he passed through the store-room and cellar where the goods were kept. He was not engaged in merchandising, and could have had but an imperfect notion of the value of the goods and accounts. This conduct was certainly a departure from the natural and usual course. Men do not usually buy a stock of merchandise made up as this one was, of a great number and variety of articles, without taking a detailed account and inventory of the same; and we have no hesitation in saying that the testimony in the case fully justified the court in the instruction given. The court did not assume or intimate, as counsel seem to infer, that the sale was made in an unusual manner, nor that the transaction between the plaintiff and Jackman & Robinson constituted a fraud upon the creditors of the latter. These questions were left to the jury, and while their attention was called to the rule that certain circumstances have a tendency to show fraud, the instruction will not bear the interpretation that such evidence or badge of fraud was conclusive, or could not be overthrown by explanatory proof.
The plaintiff testified that the transaction was evidenced by a bill of sale which was in testimony before the jury. The court, referring to this bill of sale, instructed the jury that “the mere production of a bill of sale which would be sufficient as against the seller, is not sufficient as against the creditor, and he must supplement that bill of sale with proof of good faith and payment of consideration.” Under the circumstances, there was no error in giving the instruction, nor do we think there was any just cause of complaint in instructing the jury that “the law presumes that every man intends the necessary consequences of his acts, and if the act necessarily delays, hinders or defrauds his creditors, then the law presumes that it was done with fraudulent intent.” One of the principal questions in the case was the intent of the debtors in making the sale charged to be fraudulent. The motives of parties in such cases are not of easy proof, and must generally be shown by their acts and declarations. Fraud is not easily detected, and in cases of this kind the law permits a resort to presumptive evidence, and imputes a fraudulent intent to a debtor where his conduct inevitably leads to a fraud upon his creditors. "Where his action necessarily results in defrauding his creditors, he must be presumed to have foreseen and intended such result. Notwithstanding this instruction, the questions of the debtor’s intent, and whether the sale was fraudulent, were still open for the determination of the jury, and the presumption referred to might have been rebutted by other circumstances and explanatory proof. In other portions of its charge the court told the jury “that fraud is never presumed, but must be proven; that it was the duty of the jury to take into consideration every circumstance, transaction and fact surrounding the sale.” With respect to the good faith of the plaintiff, the jury was in substance told that the fraudulent intent of the vendors was not alone sufficient to avoid the sale. Actual knowledge by a vendee of the fraudulent intent of the vendor is not essential to render the sale void. If the facts brought to his attention are such as to awaken suspicion, and lead a man of ordinary prudence to make inquiry, he is chargeable with notice of the fraudulent intent, and with participation in the fraud. (Phillips v. Reitz, 16 Kas. 396; Kurtz v. Miller, 26 id. 314; McDonald v. Gaunt, 30 id. 693.)
It is finally urged that the verdict is contrary to the evidence. Under the facts and circumstances surrounding the sale as disclosed by the record, and applying the rule govern ing this court iu interfering with the verdict of a jury where it has been approved by the trial court, we do not feel warranted in disturbing this verdict. There are signs of fraud connected with the sale, and considei’able testimony which tends to cast a suspicion upon the bonajides of the transaction. It appears, as has been stated, that the plaintiff was told by Jack-man on the day of the sale that his firm was in embarrassed circumstances, and for that reason were seeking to dispose of their goods. The sale was made in considerable haste, within a few hours after receiving this information, and upon a mere superficial examination of a large stock of goods and open accounts, worth several thousand dollars. The plaintiff was not a merchant, and had no training that would enable him to estimate its value; no inventory was taken, nor were there any persons skilled in the business called on to inspect the stock and accounts as to what they were worth, nor were there any other means employed by which a reasonably correct judgment could be formed of the value of the goods, which were subsequently sold for $1,872.72, nor of the unsettled accounts which amounted to between $1,700 and $1,800.' The consideration alleged to have been paid was $2,210, which was paid in the form of a check upon a bank with which the plaintiff was connected. Nine hundred and eighty dollars of this amount was paid by Jackman to his wife for money which he claimed to have borrowed from her, and $380 thereof was paid by the other member of the firm to his sister to discharge an individual debt which he claimed to owe her. These payments were made at the time of the sale and with the knowledge of plaintiff. Then again, Jackman & Robinson, together with their clerk, remained in the store after the alleged sale, and continued to sell goods and collect the outstanding accounts as formerly. The plaintiff visited the store only occasionally, and never sold any of the goods nor collected any of the accounts.
These circumstancs, together with others that need not be mentioned, tend strongly to impeach the;sale. Some explanation of these circumstances was made, or attempted to be made, by the plaintiff, but the jury found against him, and against the validity of the sale. The trial judge has ratified the finding, and, under the rule heretofore referred to, we must sustain the 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
JOHNSTON, J.:
The district court of Saline county granted a peremptory writ of mandamus against the plaintiff in error, who is a justice of the peace of said county, commanding him to receive and file a verdict alleged to have been agreed upon by a jury in a certain cause tried before him as a justice of the peace, where the defendant in error was plaintiff and one William Huebner was defendant. From the pleadings and the evidence in the record, it fairly appears that the cause was submitted to the jury late in the evening, and the justice of the peace, with the consent of the counsel, instructed the jurors that if they agreed upon a v.erdict during the night, they might seal the same and separate, returning the verdict into court on the next morning at nine o’clock, to which time the court adjourned. The jury reached an agreement during the night, when the verdict was signed and given to the bailiff, and the jurors dispersed. The bailiff carried the verdict in his pocket for a short time, and then returned and deposited it upon a desk in the office of the justice of the peace. The attention of the justice of the peace was called to it in the morning, and he was informed that it was the verdict agreed upon the previous night. Upon the convening of the court, on the next, morning, the jury failed to appear, and the justice directed the bailiff to bring the jury into court. After some effort to find the jurors, the bailiff returned and reported that only four of the jurors could be found. It was then suggested that the verdict which had been returned by the bailiff to the justice be received and filed, but the counsel for defendant objected to its reception, because it had been out of the hands of the-jury, and insisted that it could not be received unless presented by the jury, with all of the jurors present. The court was then adjourned until three o’clock of the afternoon of the same day, and the bailiff was instructed, in the meantime, to make search for the absent jurors and bring them into court at that time. The court reconvenedat 3 P. M., when five of the jurors appeared, the bailiff reporting that he was unable to find one of the jurors, or learn anything of his whereabouts. The justice then refused to receive the verdict, declared a mis-trial, discharged the jury, and continued the case for future disposition. Whereupon, the defendant in error instituted this proceeding in mandamus, and obtained a peremptory writ as above stated. The plaintiff alleges error.
The question presented for our determination is, was it the duty of the justice of the peace to receive and file the verdict brought into court in the manner hereinbefore stated, and can its reception and filing be compelled by mandamus? It will be observed that the agreement of counsel and the direction of the court did not go farther than to permit the jury, when they had agreed upon a verdict, to seal it, and separate for the night. This did not operate as a discharge of the jury, but it remained in existence as an organized body, and it was the duty of the jurors to have appeared at the convening of the court the following morning, and there, through their foreman, to present and publicly announce the verdict previously agreed upon. The permission to seal the verdict, and separate for the night, did not dispense with the necessity of their attendance upon the court at the time to which, it had adjourned. The determination of a jury, although formally stated in a verdict, and signed and sealed, is not final with them, hut it remains within their control and subject to any alteration or amendment they desire to make, until it is actually rendered in court and recorded. It is well settled that any member of the jury is at liberty to withdraw his consent from a verdict already agreed upon, at any time before it is received and recorded. (Root v. Sherwood, 6 Johns. 68; Proffatt on Trial by Jury, § 449), and until a sealed verdict is properly received and recorded in court, it is without force or validity. (Proffatt on Trial by Jury, § 460.) Except by consent, the verdict can only be rendered by a full jury. Every member should be present when it is received, so that the parties may avail themselves of the right to examine each juror, and learn if he concurs in the verdict announced. The main purpose in requiring the jury to bring in their verdict, and personally present it in open court, is that the pai’ties may have an opportunity to poll them, or to correct any informality found in the verdict presented. The polling of the jury is not a mere matter of discretion with the court, but is an absolute right of the parties to the suit. It was said in Ma-dusicav. Thomas, 6 Kas. 159, “that in all cases a party has a right to know whether a supposed verdict is the verdict of each juror, or of only one or more of the jury; and if §§ 283 and 284 of the civil code do not apply where the jury decide without retiring from the jury-box, still the common law would give each party a right to know the verdict of each juror.” (See also Thornburgh v. Cole, 27 Kas. 490.) Of course some of these requirements and rights might have been waived and dispensed with by the agreement or conduct of the parties. Here there was no such agreement or waiver. The defendant in the action stood upon his rights, and strenuously objected to the reception of a verdict unless it was regularly presented by the jury as an organized body, with every .member present. With the aid of the bailiff five of the jurors were found and brought .into court, but the sixth could ■.not be found. The determination of the five jurors was not a valid verdict, and the court could not receive it as such. (Maduska v. Thomas, supra.)
There has been no brief filed or argument made in this court in behalf of the defendant in error; but it is stated that to support his application for the writ, he relied upon the case -of Munkers v. Watson, 9 Kas. 668. It is not authority in this case. There the verdict was unanimously agreed upon •by the jury, reduced to writing in due form, returned by the jury, and regularly presented to the court, but for insufficient reasons the court refused to receive and enter the same. In this case, contrary to the injunction of the court, the jury disbanded before the rendition of a verdict, and as they did not •assemble again, no valid verdict could be rendered by them. That' which was returned was not a verdict, and therefore the court cannot be compelled by mandamus to receive and file it.
Some question is raised as to whether the court should not have compelled a more extended search, and a greater effort to secure the attendance of the absent juror. It would seem that a reasonable effort was made to bring the jury together, but that question cannot be determined in this proceeding, which is brought for the purpose of compelling the reception ■and filing of an alleged verdict, and not to compel the reassembling of the jury.
The judgment of the district court will be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Arn, J.:
This is an action for personal injuries sustained by plaintiff while riding in an automobile as the guest of defendants, and is brought under the guest statute, G. S. 1935, 8-122b. The defendants R. N. Resner and Pauline Resner are husband and wife and owners of the automobile, and their son Raymond Resner, the other defendant, was driving it at the time of plaintiff’s injuries. A demurrer by Mr. and Mrs. Resner to plaintiff’s petition was overruled and they appeal (No. 37,646). A separate demurrer by Raymond to the same petition was sustained, and from that order plaintiff has appealed (No. 37,659). The two appeals have been consolidated and to avoid confusion as to the identity of the parties, they will be referred to as plaintiff and defendants.
The pertinent paragraphs of the petition follow:
“2. That the defendant, R. N. Resner, also known as Rudolph N. Resner, was on the 24th day of October, 1946, the owner of one 1940 2-door Ford Sedan car which was used by R. N. Resner or Rudolph N. Resner and Pauline Resner, his wife, for their family use and enjoyment.
“3. That on the 24th day of October, 1946, the said plaintiff was invited to make a trip to Hoisington, Kansas, by said R. N. Resner or Rudolph N. Resner and Pauline Resner, his wife, which trip was to accomplish some mission or errand for the said R. N. Resner and Pauline Resner, his wife, the purpose of which mission or errand being unknown to this plaintiff, but which invitation was accepted by this plaintiff.
“4. That the defendants, R. N. Resner or Rudolph N. Resner and Pauline Resner, are the father and mother of Raymond Resner, their son, who was of the approximate age of 23 years and who was afflicted with the disease of epilepsy and has been so afflicted for a period of approximately two or three years before said date of October 24, 1946, and which disease caused said Raymond Resner to suddenly lose consciousness and control of himself, a fact which was well known to the defendants, and each of them, but which was unknown to this plaintiff, and that said defendants and each of them knew, by reason of said condition of said Raymond Resner, that he was a dangerous and unsafe person to drive and operate a motor vehicle in that they knew or should have known that, if said Raymond Resner was attacked or had an epileptic seizure or epileptic fit, he would have no control over said car or automobile or over himself regardless of the speed at which he was operating said automobile at the time of said seizure, and knew or should have known that in the event that said Raymond Resner had or would have an epileptic seizure or fit while he was driving or operating said automobile that the lives of all occupants of such automobile, including the life of said Raymond Resner, would be subject to great danger and peril.
“5. That each of said defendants knew that in the event said Raymond Resner was attacked or had an epileptic seizure or epileptic fit while driving or operating said automobile that said automobile, in itself at such time, would be a dangerous instrument or agency to the lives of any person who might be a passenger or occupant of said automobile.
“6. That notwithstanding said knowledge on the part of said defendants, and which facts were unknown to this plaintiff, the said defendants caused said automobile to be driven and operated by said Raymond Resner for the purpose of making a trip from Russell, Kansas, to Hoisington, Kansas, and that at said time, the said defendants knew that in the event the said Raymond Resner had or was attacked by an epileptic seizure or epileptic fit while driving or operating the automobile in which this plaintiff, the defendant Pauline Resner, Mrs. Charles 0. Frost, another invitee, and said Raymond Resner were passengers or occupants, that said automobile or car was a dangerous instrument or agency to the lives of said occupants or passengers and with said knowledge said defendants purposely, wantonly and negligently permitted said Raymond Resner to drive and operate said automobile.
“13. That all the injuries and damages, hereinbefore set out, and which were incurred and suffered by this plaintiff, were the approximate cause of the said defendants R. N. Resner and Pauline Resner, his wife, in permitting and allowing and requiring said Raymond Resner, their son, to drive and operate said automobile or motor vehicle and that by reason thereof, this plaintiff is entitled to damages against the defendants, and each of them, in the sum of $10,000.00. . . .”
Plaintiff concedes that her relationship as a passenger in the defendants’ car on the day of the accident was that of a “guest,” and that her action is predicated entirely upon the guest statute which provides (G. S. 1935, 8-122b):
“That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle.”
By many previous decisions of this court the phrase “gross and wanton negligence” has been held to mean “wantonness” (Stout v. Gallemore, 138 Kan. 385, 26 P. 2d 573; Frazier v. Cities Service Oil Co., 159 Kan. 655, 664, 157 P. 2d 822, and cases cited therein; Elliott v. Peters, 163 Kan. 631, 635-6, 185 P. 2d 139).
What is wantonness and how should it be defined? This court has defined it in nearly a score of casejs since the enactment of the guest statute in 1931 (Stout v. Gallemore, supra; Koster v. Matson, 139 Kan. 124, 128, 30 P. 2d 107; Sayre v. Malcom, 139 Kan. 378, 379, 31 P. 2d 8; Ewing v. Edwards, 140 Kan. 325, 326-7, 36 P. 2d 1021; Aduddell v. Brighton, 141 Kan. 617, 618-9, 42 P. 2d 555; Anderson v. Anderson, 142 Kan. 463, 465-466, 50 P. 2d 995; Cohee v. Hutson, 143 Kan. 784, 787-9, 57 P. 2d 35; Blosser v. Wagner, 144 Kan. 318, 321, 59 P. 2d 37; Donelan v. Wright, 148 Kan. 287, 290-1, 81 P. 2d 50; Frazier v. Cities Service Oil Co., supra; Leabo v. Willett, 162 Kan. 236, 238, 175 P. 2d 109; Elliott v. Peters, supra; Kniffen v. Hercules Powder Co., 164 Kan. 196, 206, 188 P. 2d 980; Srajer v. Schwartzman, 164 Kan. 241, 248-9, 188 P. 2d 971; Mason v. Banta, 166 Kan. 445, 447-8, 201 P. 2d 654), and it may be said that the sum total of these definitions expounded in the past amounts to this — a wanton act is something more than ordinary negligence, and yet it is something less than willful injury; to constitute wantonness, the act must indicate a realization of the imminence of danger and a reckless disregard and complete indifference and unconcern for the probable consequences of the wrongful act. It might be said to include a willful, purposeful, intentional act, but not necessarily so; it is sufficient if it indicates a reckless disregard for the rights of others with a total indifference to the consequences, although a catastrophe might be the natural result.
The term “wantonness” or “wanton conduct” has been defined by this court in cases other than those involving the guest statute (G. S. 1935, 8-122b), and it is difficult to find a more adequate definition of the term than is found in one such case—Frazier v. Cities Service Oil Co., supra, at page 666:
“. . . it may be concluded that as to injuries inflicted, wanton conduct or wantonness comes between negligence on the one hand and willful or malicious misconduct on the other; that it is more than negligence and less than willfulness, and to constitute wantonness the acts complained of must show not simply lack of due care, but that the actor must be deemed to have realized the imminence of injury to others from his acts and to have refrained from taking steps to prevent the injury because indifferent to whether it occurred or not. Stated in another way, if the actor has reason to believe his act may injure another, and does it being indifferent to whether or not it injures, he is guilty of wanton conduct.”
We began interpreting the guest statute in Stout v. Gallemore, supra (p. 390), by saying the act need not be intentional or willful, but some of our later decisions may inadvertently infer otherwise. For example, in Sayre v. Malcom, supra (p. 380), we said: “There was no allegation that plaintiff purposely drove his car into the culvert,” and that one word “purposely” is sometimes seized upon to argue that an act must be “purposely and intentionally” committted in order to be “wanton.” In Cohee v. Hutson, supra, at pages 788-9, we indicated that a plaintiff could not “wantonly” destroy his own cattle, truck and property; and in Donelan v. Wright, supra, at page 291, we said “that to hold defendant guilty of wanton conduct we would be compelled to say that he was willing to injure himself and his sweetheart and wreck his grandmother’s automobile.” It is sometimes argued that this language in the Cohee and Donelan cases makes it appear that to be “wanton” the act must be so intentional that the host attempted to destroy his own property and injure himself or his loved ones. Then in Srajer v. Schwartzman, supra (p. 250), we said the record did not infer any ill will between the host and guest, which language might be taken to infer that a showing of ill will is necessary to establish “wantonness.” Each of the above statements from the four cases just cited was perhaps harmless as applied to the particular facts involved in that respective case, but if singled out as abstract statements of law, the statements appear to place a too strict construction on the meaning of wantonness. Certainly ill will of the host toward the guest, or an intentional desire to injure a person or destroy property is not necessary as an element of wantonness. (Emphasis supplied in foregoing quotations.)
The petition here before us, given the most liberal construction possible, purports to charge “wantonness” by alleging that the twenty-three-year-old driver of the host car was afflicted with epilepsy and had been so afflicted for two or three years; that such disease caused said driver to have sudden seizures and to suddenly lose consciousness and control of himself; that if attacked by such seizures said driver would have no control over his car, and the lives of all occupants of the car would be endangered; that if said driver suffered such an attack while driving, any automobile in his hands at such time would be a dangerous instrumentality; that all of such facts were known to the driver, Raymond Resner, and his parents R. N. and Pauline Resner, and were unknown to plaintiff; that with said knowledge the defendants purposely, wantonly and negligently permitted said driver to drive and operate said automobile.
The last allegation to the effect that defendants’ acts were committed purposely and wantonly adds little if anything to the petition because wanton acts cannot be pleaded by merely alleging that a certain act was wantonly or purposely committed. On the other hand, a cause of action under the guest statute may be fully stated in a petition which does not mention the word “wanton” or the words “gross and wanton negligence.” So we have the question before us as to whether the acts set forth in the petition constitute wantonness, notwithstanding the pleader’s statement that they were committed purposely and wantonly. To determine the sufficiency of the petition, we must strip it of the various descriptive terms used to describe defendants’ acts and rely upon the specific acts themselves which are set forth in the petition.
This court is inclined toward the view that even with defendants’ knowledge of the driver’s ailment and the possibility of its recurrence, his driving the car under otherwise reasonable and ordinary conditions does not constitute a reckless disregard and complete indifference and unconcern for the safety of the occupants. At the most it was just ordinary negligence for which there is no liability under the guest statute. There is no allegation that defendants were warned by the conduct or appearance of Raymond that he was likely to have an epileptic seizure upon this trip; and there is no specific allegation that any persons knowing of his condition must have anticipated that he might be seized with an epileptic attack at any moment without warning. This petition simply does not sufficiently allege that the defendants had reason to believe Raymond would likely, or probably, be stricken by an epileptic seizure while driving the host car, nor that defendants realized the imminence of such danger with a total disregard for the consequences. Saying as we do, that the petition falls short as a matter of law of alleging wantonness, the demurrer to the petition was properly sustained as to the driver Raymond Resner, and should have been sustained as to the other defendants and parents of the driver, R. N. and Pauline Resner.
The next question raised by this appeal is the constitutionality of G. S. 1935, 8-122b, commonly referred to as the guest statute. The plaintiff below argues its unconstitutionality as being in violation of section 18 of the bill of rights of the Kansas constitution. We have dealt at some length with that question in Wright v. Pizel, Nos. 37,743 and 37,744 consolidated, post, page 493, decided this day by this court. Suffice it to say here, that with the term “wantonness” construed as we have construed it in the instant case and in earlier cases, we have no difficulty in upholding G. S. 1935, 8-122b.
The judgment of the trial court sustaining the demurrer of the defendant Raymond Resner is affirmed, and the judgment of that court overruling the demurrers of the defendants R. N. and Pauline Resner is reversed.
Smith, J., not participating. | [
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The opinion of the court was delivered by
Parker, J.:
This was an action to recover damages for injuries sustained as a result of a collision between two automobiles at a highway intersection in which the plaintiff failed to recover and judgment was rendered in favor of the defendant. The appeal is from an order overruling the plaintiff’s motion for a new trial.
U. S. Highway 81, a four-lane paved highway, hereinafter referred to as the highway, runs north and south through Sedgwick county. Thirty-fifth street, hereinafter referred to as the road, is a dirt and gravel road running east and west. The two thoroughfares intersect a short distance north of the City of Wichita. Approximately 70 feet east-of the east edge of the highway, and running parallel thereto, is the west track of the Santa Fe Railroad. This track and others to the east, covering a distance of approximately 20 feet, are level but on a higher elevation than the highway. The traveled portion of the road slopes gradually upward from the highway to the railroad tracks, crosses such tracks and then slopes gradually downward toward the east. There is a stop sign at the east edge of the highway requiring all traffic approach ing from the east on the road to stop before entering the highway.
On March 1,1947, at about 7:30 in the morning the highway, and at least that portion of the road between the highway and the railroad tracks, were covered with a thick coat of ice. Defendant was driving along the road in a westerly direction in a Lincoln sedan and approaching the highway. After crossing the tracks he started down the slope to the west. As he did so he applied has brakes for the purpose of stopping at the stop sign but they failed to hold and his automobile slid down the incline and entered the highway without stopping at the sign. He knew he was approaching a through highway. He knew he was required to stop before entering it and at all times material to the issue he could and did see the vehicles traveling thereon, including the truck with which he later collided. Indeed, he testified that when on the railroad tracks he saw such truck about 200 feet away approaching the intersection. Plaintiff was driving a Chevrolet delivery truck in a northerly direction along the east lane of the highway. He knew the pavement was icy. He first saw the defendant’s automobile when it was east of the railroad tracks. He kept the car in his vision and when he saw it was not going to stop at the stop sign he applied his brakes but failed to stop before there was a collision between his truck and the defendant’s automobile. He admitted he was unable to stop his truck because of the icy condition of the highway. As a result the right front fender of the Chevrolet and the left front fender of the Lincoln met in the intersection at a point about even with the center of the road (35th street) and approximately four paces west of the east edge of the paved portion of the highway and the plaintiff sustained severe personal injuries.
So much for the undisputed factual situation disclosed by the record. With evidence to support it and other evidence relating to the speed at which the respective parties were traveling, which we pause to add, was highly conflicting but does not require specific attention unless and until it becomes important in disposing of questions raised on appeal, the cause was submitted to a jury which returned a general verdict for the defendant and answered special questions as follows:
“Q. 1. At what speed was the Plaintiff proceeding? (a) When he first saw the Defendant’s car? A. 35 mph. (b) At the time of the collision? A. 25 MPH.
“Q. 2. Was the accident unavoidable? A. No.
“Q. 3. Was the failure of the defendant to stop his car at the stop sign due to the skidding of his car on ice and snow on the incline? A. Yes.
“Q. 4. Was the skidding of the Defendant’s car due to any negligence on the Defendant’s part? A. Yes.
“Q. 5. If you answer the foregoing question in the affirmative, then state what act or acts on the part of the Defendant contributed to such negligence? A. Failure to observe the highway on the incline, directly in front of his car.
“Q. 6. What, if anything, prevented the Plaintiff from continuing North on Broadway in the east lane of the four-lane highway? A. Plaintiff had calculated on avoiding collision by pulling to the left and had no time to change direction.
“Q. 7. Was the defendant guilty of any negligence which was the direct and proximate cause of said collision? A. Yes.
“Q. 8. If you answer the foregoing question in the affirmative, then state what acts of negligence you find the Defendant guilty of? A. Running stop sign.
“Q. 9. Was the Plaintiff guilty of any negligence which was the proximate cause or contributed to the collision? A. Yes.
“Q. 10. If you answer the foregoing question in the affirmative, then state what acts of negligence you find the Plaintiff guilty of? A. Driving too fast for the condition of the highway.
“Q. 11. If you find that Plaintiff was guilty of contributory negligence then state what such negligence consisted of? A. Driving too fast and not protecting himself from shifting of his load in case of sudden stop from any cause.
“Q. 12. Did the Defendant stop at the stop sign? A. No.
“Q. 13. Should Defendant have anticipated the presence of the ice in the exercise of reasonable care? A. Yes.
“Q. 14. Could a reasonably prudent person have seen the ice on the incline if he had looked? A. Yes.
“Q. 15. Should defendant in the exercise of reasonable care have stopped on the railroad tracks before attempting to descend? A. No.”
Following return of the foregoing findings plaintiff moved for a new trial on the question of damages only on the ground that under the facts found by the jury the defendant was guilty of negligence and the plaintiff was free from contributory negligence as a matter of law, thus leaving only the amount of plaintiff’s recovery in issue. This motion, which was denied, contains all the elements of and must be regarded as tantamount to a motion for judgment non obstante veredicto. The mere fact that if it had been sustained the jury would still be required to fix the amount of damages does not change its status. Therefore, under the well established rule (see Smith v. Tri-County Light & Power Co., 120 Kan. 123, 241 Pac. 1090; Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 139 P. 2d 859; Long v. Shafer, 162 Kan. 21, 174 P. 2d 88; Hubbard v. Allen, 168 Kan. 695, 215 P. 2d 647, this day decided) plaintiff concedes the special findings are supported by evidence for purposes of appellate review of the trial court’s ruling on the motion and like review of all contentions advanced by him with respect to legal questions inherent therein.
Appellant’s principal contention on appeal is that the acts of negligence found against him could not possibly have been a proximate cause of the collision. This claim is nothing more than a reassertion of what he sought to accomplish by his motion for judgment. In attempting to maintain his position he devotes much time to matters pertaining to the force and effect to be given the evidence. Since, as we have pointed out, he must stand or fall on the findings as made we are not concerned with matters of that character and they will be given no further attention. The pure legal question he does advance is that the jury’s answer to question No. 9 is inconsistent with the general verdict because the acts of negligence found against him by findings Nos. 10 and 11, could not be a proximate cause of his injuries as a matter of law. We are not impressed with appellant’s argument in support of this position and do not propose to labor it further than to say he insists speed could not be a proximate cause of the involved collision. The short and simple answer is that the jury not only found he was driving too fast but also that he was driving too fast for the condition of the highway and that he is bound by both answers.
It is true, as appellant asserts, that we have repeatedly held (see, e. g., Goodloe v. Jo-Mar Dairies Co., 163 Kan. 611, 619, 185 P. 2d 158; Crawford v. Miller, 163 Kan. 718, 186 P. 2d 116; Gabel v. Hanby, 165 Kan. 116, 193 P. 2d 239) that mere violations of our statute (G. S. 1947 Supp. 8-532, et seq.) regulating traffic, such as excessive speed, driving at a speed greater than is reasonable and prudent under the conditions then existing, or other matters of a similar nature, are not sufficient to make the driver of an automobile guilty of negligence. However, those same decisions all hold that is the result where it appears from the evidence that such violations contributed to the accident and were the proximate or legal cause of the injuries therein received. Here the jury found the appellant guilty of violations of our statute regulating traffic on the highway. It also found those violations contributed to and were the proximate cause of the collision in which he sus tained his injuries. Under such conditions there is no sound basis on which appellant’s claims, the special findings are inconsistent with the general verdict and that the negligence found by the jury could not be one of the proximate causes of the collision, can be sustained. Conceding the appellee was also negligent, that his negligence was of the same type and character as the appellant’s, and that the jury so found, does not change the result. Under our repeated decisions (Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 950; Morrison v. Hawkeye Casualty Co., 168 Kan. 303, 312, 212 P. 2d 633, and cases therein cited) there can be more than one legal or proximate cause of an accident.
Another ground urged for reversal of the judgment is that the trial court erroneously instructed the jury on the question of appellant’s contributory negligence. We shall not attempt to detail the instruction complained of. The record discloses the trial court did read such instruction to the jury. However, it also reveals that at the close of the reading of all the instructions this particular instruction was withdrawn and that another instruction on the same question was submitted in lieu thereof. No complaint is made as to the propriety of the substituted instruction. With the record in that state, assuming the first instruction was erroneous, we cannot say the trial court’s action in reading it to the jury before it was withdrawn constitutes reversible error.
Finally, appellant insists the court erroneously refused him permission to explain his reasons for making an alleged written admission — a sheriff’s report — as to the speed at which he was traveling immediately prior to the collision. This written instrument was offered in evidence by appellee on cross-examination of appellant when he admitted its execution and after he had testified on direct examination as to his rate of speed at the time in question, obviously for impeachment purposes. The statement was to the effect appellant’s speed was thirty-five miles per hour whereas he had just testified that it was from twenty to thirty miles. It will not be necessary for us to here decide whether on redirect examination the trial court should have permitted appellant to give his reasons for signing the instrument and his explanations for the language used therein over the appellee’s objection. The record reveals an extended colloquy between court and counsel for the respective parties in the presence of the jury respecting the admissibility of such evidence. Dtring the discussion the jury was fully apprised of the fact that appellant was claiming he had signed the statement at the direction of an officer who advised him to put down thirty-five miles per hour since that rate of speed was not in excess of the highway speed limit and it would make no difference. Among others the following statements were made:
“The Court: Of course, the Sheriff would have no authority to put down 35 or 95 or any other figure.
■ “Mr. Kitch [Appellant’s counsel]: The Sheriff told him as long as he was going not over 35 that is all he wanted to know.”
Further resort to the record discloses that during the course of appellant’s redirect examination he was asked by the court if the figure 35 as it appeared in the statement was in his handwriting, to which he replied, “That is what I was told to put down there.” From the same source it appears that the trial court, over appellee’s objection, permitted the answer to stand and go to the jury for its consideration. Thus it appears, although not in the exact form he desired, appellant was permitted to-give his reasons for making the statement and to explain why he had there stated that his speed at the time of the accident was thirty-five miles per hour. But that is not all. During the argument of the cause his counsel discussed this particular feature of the case at some length, called the jury’s attention to the fact a special question had been submitted with respect to the speed at which appellant was driving and stated that as far as he was concerned if the jury wanted to answer the question “35 miles per hour” it would be perfectly all right as it did not make a bit of difference on the legal problem involved.
Under the conditions and circumstances heretofore related we do not think it can be said the appellant has made it affirmatively appear that the trial court’s action in limiting his testimony on this particular subject was such an error as affected his substantial rights. In view of the record, if it was error at all, it must be regarded as technical.
In this jurisdiction technical errors which do not affirmatively appear to have prejudicially affected the substantial rights of parties are not grounds for reversal of a judgment (see G. S. 1935, 60-3317; Jacobs v. Hobson, 148 Kan. 107, 79 P. 2d 861; Morrison v. Hawkeye Casualty Co., 168 Kan. 303, 309, 212 P. 2d 633, and the authorities therein noted).
We find nothing in the record or in the contentions advanced by appellant to warrant a reversal of-the judgment. In conclusion it should perhaps be stated that we have reviewed the evidence, although the appellate issues do not require it, and are convinced this is primarily a fact case wherein the question of appellant’s contributory negligence was one on which reasonable minds might differ. Therefore, under all our decisions, such question was properly submitted to the jury (Keir v. Trager, 134 Kan. 505, 7 P. 2d 49; Fisher v. Central Surety & Ins. Corp., 149 Kan. 38, 86 P. 2d 583; Cruse v. Dole, 155 Kan. 292, 124 P. 2d 470; Walton v. Noel Co., 167 Kan. 274, 205 P. 2d 928) and its findings with respect thereto preclude appellant’s recovery. (See, e. g., Baker v. Western Cas. & Surety Co., 164 Kan. 376, 384, 109 P. 2d 850.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
HoetoN, C. J.:
The common source of title to the land in controversy was from Elias W. Tuttle. Upon the trial, Moore-head & Knowles in support of their case introduced a tax deed executed to Charles L. Flint, February 5, 1880; a quitclaim deed from Charles L. Flint to J. W. Bector, executed December 3, 1880; a warranty deed from J. W. Bector and wife to William Moorehead and E. C. Knowles, executed February 1, 1882; a sheriff’s deed, executed January 24, 1879, to Charles Mount, reciting a judgment in favor of Charles Mount against Elias W. Tuttle, dated August 6, 1878; and a sale of the real estate under said judgment on November 23, 1878; also, the proceedings in an attachment commenced March 23, 1878, by Charles Mount against Elias W. Tuttle, including the judgment rendered in such ease on August 6, 1878 ; the proceedings in an action of Charles Mount against William Wallenweber, commenced February 12, 1880, to quiet title, and in which action Charles Mount obtained such a decree, on April 6,1880; and, lastly, a quitclaim deed from Charles Mount and wife to William Moorehead and E. C. Knowles, executed July 24, 1882.
On the part of Williams, it is contended that the tax proceedings for the years for which the land was sold were so irregular and defective that the tax deed of February 5,1880, conveyed no title. Williams’s chain of title, introduced in evidence, was as follows: A warranty deed from Elias W. Tuttle and wife to Alfred Hawkins, executed June 5, 1876, but not filed for record until February 20, 1882; a warranty deed from Alfred Hawkins and wife to 'William Wallenweber, executed May 6,1878, and filed for record October 26,1878; and a warranty deed from William Wallenweber and wife to Israel Williams, executed January 5, 1882, and recorded February 20, 1882.
No claim is made before us that the tax deed of February 5, 1880, is valid, or that Moorehead & Knowles have any title thereunder. As Elias W. Tuttle conveyed the premises to Alfred Hawkins before Charles Mount commenced his attachment proceedings against said Tuttle, and as the findings show that Charles Mount had actual notice that William Wallenweber, the purchaser from Hawkins, claimed to own the land at the time that Mount purchased the land at sheriff’s sale, we may assume, at least for the purposes of this case, that Mount was not a purchaser without notice, although the sheriff’s deed was recorded January 24, 1879, and the conveyance from Tuttle to Hawkins was not recorded until February 20,1882. (Bush v. T. G. Bush & Co., ante, p. 556; Holden v. Garrett, 23 Kas. 98; Comp. Laws of 1879, ch. 22, § 21; Freeman on Executions, § 336; 2 Leading Cases in Equity, pt. 1, pp. 94, 95; Davis v. Ownsby, 14 Mo. 170; Chapman v. Coates, 26 Iowa, 288; Hoy v. Allen, 27 id. 208.) Mount, however, had the legal right to contest the alleged claim and title of Wallenweber in a direct proceeding brought therefor.
This conclusion leads up to the inquiry as to the validity of the judgment quieting title in Charles Mount, rendered April 6,1880. As Williams did not attempt to purchase from Wallenweber until January 5,1882, Williams obtained no title or interest in the property attempted to be conveyed to him on said date, if the judgment of April 6, 1880, decreeing that Wallenweber had no legal or equitable estate in the property so conveyed, is to be given full force and effect. The finding of the court in regard to this matter is as follows:
“That on the 12th day of February, 1880, an action was brought by Mount against Wallenweber in this court to quiet his title to said land against said Wallenweber, and the land at the time Ayas vacant and unoccupied. Service in said case was made by publication, upon proper affidavit being filed, showing the non-residence of Wallenweber, and the other statutory grounds required. The proper notice was published for four consecutive Aveeks in a newspaper printed, published and of general circulation in said county, the dates of publication being February 13, 20, 27, and March 5, 1880. The affidavit of the printer in proof of such publication was filed in manner and form required by law. Although this proof was. not examined, and therefore not approved or disapproved by the court, a decree was entered in said case quieting said Mount’s title to said premises by default, on the 10th of April, 1880.”
The decree in the case commences as follows:
“And now on this 6th day óf April, of the April term, 1880, of this court, and the 10th day of said month, this cause comes on regularly for hearing. The plaintiff appears by J. W. Rector, his attorney of record. The court finds that due and legal notice, for the time and in the manner prescribed by law, has been had and service made in this action by newspaper publication upon said defendant, William Wal-lenweber, he being then and ever since a non-resident of and absent from the state of Kansas, so that service of summons in this action could not be made upon him within the state of Kansas; and this being an action in which service and notice by publication upon a non-resident defendant is proper and authorized by law, yet said defendant has failed to answer or demur to plaintiff’s petition herein, or to appear in any way, but made and still wholly makes default herein,” etc.
Service was actually made in the case, and filed. The only evidence offered tending, to show that proof of service was not examined by the court, Avas the testimony of J. G-. Lowe, one of the attorneys for Williams. He testified, among other things:
“ I examined the papers in the case of Charles Mount v. William Wallenweber; that the affidavit of proof of publication of service did not have any indorsement that it had ever been approved by the court and ordered filed; nor were there any papers in the case showing that the court had ever examined the service of proof thereof and approved it. I am well acquainted with the practice in this court about such matters, and have been for ten years. I know that at the time the case was heard that it was not and never had been the practice of the court either to examine or approve the service by publication, or the affidavit proving such service, and that it was not done in that case.”
Upon this oral evidence and the finding of the court, it is contended on the part of Williams that all the proceedings in the action of Mount v. Wallenweber to quiet title are void; hence, that no title passed to the premises from Mount to the plaintiffs. The claim is, that the district court of Washington county never acquired jurisdiction in the case of Mount against Wallenweber to render the judgment therein, because proof of service was not inspected or approved by the court. The following provision of §75 of the code is cited: “No judgment by default shall be entered on such service until proof thereof be made and approved by the court, and filed.” Counsel, however, fail to quote in their brief all of said § 75. It reads as follows:
“Service by publication shall be deemed complete when it shall have been made in the manner and for the time prescribed in the preceding section; and such service shall be proved by the affidavit of the printer, or his foreman or principal clerk, or other person knowing the same. No judgment by default shall be entered on such service until proof thereof be made, and approved by the court, and filed.”
Without, at this time, passing upon the question whether the finding and judgment of the court can be impeached by oral evidence, we are of the opinion that as service by publication was made upon Wallenweber in the manner and for the time prescribed by § 74 of the code, and as such service was proved in accordance with the provisions of the statute and afterward filed, that the failure of the court to examine or inspect the proof thereof, or to further approve the same, did not defeat or set aside such service. We say, “to further approve the proof of service,” because, notwithstanding the oral evidence and the finding of the trial court, it appears from the recitations of the decree that the court found “that due and legal notice for the time and. in the manner prescribed by law had been had and service made in the action by publication upon the defendant Wallen weber.” Although there was no actual examination or inspection of the proof of service under the evidence and findings of the court, and although we have no order of the court entered on the minutes approving the pi’oof of service and ordering the same to be filed, there was a recitation in the decree of approval of the proof of service. Therefore we do not consider said judgment void, or liable to be successfully attacked collaterally. (Foreman v. Carter, 9 Kas. 674; Pierce v. Butters, 21 id. 124.)
The failure of the court to more fully “approve the proof of service” when it appears that the service was regular and sufficient in all other respects, is at most an irregularity — not an omission that will oust the court of jurisdiction and render its judgment a nullity. Under the terms of said § 75, in all cases where judgments are rendered by default upon service by publication, it would be good practice for the court to enter on its minutes approval of the proof of service, and order the same to be filed, but its omission so to do is not fatal to the jurisdiction of the court.
Complaint is made that the court erred in rendering judgment against Williams for all the costs. We think this complaint is well taken as to such costs as accrued before Williams was let in to defend, and the judgment as to the costs will be modified accordingly. The other alleged errors need only be noted briefly. Williams is in no situation to complain of the action of the district court in opening up the judgment obtained by default by Moorehead & Knowles against Mount. Moorehead & Knowles had the right to waive the statute and consent to an answer being filed.
Section 144 of the code authorizes the court to allow a plaintiff to file a supplemental petition alleging facts material to the case occurring after the former petition; therefore when Moorehead & Knowles became the owners of the title of Charles Mount subsequent to the commencement of the action, they had the right, with the consent of the court, to file the supplemental petition setting up their claim under -such title, notwithstanding the allegations of such supplemental petition were in conflict with the original petition filed by them. This case was virtually disposed of upon the supplemental petition and the answer of Williams thereto.
Before Mount brought his action against Wallenweber to quiet his title, he had obtained a sheriff’s deed. ■ He knew then •that Wallenweber made some claim to the land; but Wallen-weber, if he had title at all, must have derived the same through Tuttle; Tuttle’s conveyance was not recorded until February 20, 1882, long after the institution of the attachment proceedings and the suit to quiet title; therefore he brought his action properly against Wallenweber to determine whether the latter had any interest in the land. (Douglass v. Nuzum, 16 Kas. 515.), The judgment was properly rendered; .and it is too late for Wallenweber, or any person claiming from him, to object in a collateral, proceeding.
The judgment of the district court will be affirmed, except that all costs which accrued prior to the time that Williams became defendant will be taxed to Moorehead & Knowles.
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The opinion of the court was delivered by
Parker, J:
This was an action by a wife against her husband for divorce, custody of their minor child, division of property and other relief ordinarily involved in such a proceeding. The trial court heard the evidence, granted the plaintiff a divorce upon grounds of gross neglect of duty and extreme cruelty, divided the small amount of property owned by the parties between them, gave the wife custody of the minor son with the understanding- he was to remain in the physical custody of the plaintiff’s sister until further orders, directed the defendant to pay $50 per month for the child’s support, awarded the plaintiff alimony in the sum of $10,000 to be paid by the defendant at the rate of $100 per month, allowed attorney fees, and decreed that defendant pay all costs of the action. Defendant appealed from the judgment in its entirety and when the case reached this court charged, by his specification of errors, that all phases of the judgment were erroneous. Later he receded from that position and abandoned every error specified except one charging the trial court with abuse of judicial discretion in the making of its alimony award.
The parties were married on November 11, 1939, and lived together as husband and wife until February 28, 1948, the date on which the action was commenced. They have one child, a son, who was seven years of age when they separated. At the time of their marriage neither party had any property nor any particular training in any trade or business. The plaintiff was subject to epileptic attacks and defendant had full knowledge of that fact.
The divorce feature of the trial, with which we are no longer concerned in view of the limited appellate issue, was hotly contested. As much cannot be said for the testimony on which the trial court was required to base its judgment in determining the amount of the alimony award. The defendant failed to testify, either in person or by deposition, and a review of the evidence offered in support of his cause discloses nothing tending to throw light on his ability to pay alimony. In fact, the only pertinent evidence before the trial court on that subject was adduced by the plaintiff. It can be briefly summarized as follows: At the time of the trial plaintiff was thirty years of age, without funds, and unable to hold steady employment because still afflicted with epilepsy. Her seizures had increased in severity and frequency as the years progressed. So long as she remains in that condition, and it appears that no one can definitely predict whether she will ever improve, and if so when, she will require medicine, medical care and perhaps hospitalization. Defendant was thirty-two years of age, in good health, and employed by J. F. Pritchard and Company of Kansas City, Mo., for whom he had been working for about three years as a construction superintendent at a salary of at least $425 to $450 per month and expenses. Plaintiff testified defendant was working in Panama on the date of the trial, that his salary had been increased, and that he was then making approximately $500 or more per month. Defendant did not see fit to contradict her testimony. Defendant spent very little time at home during the three years preceding the filing of the action. During that period he contributed not to exceed $20 per week in cash for the support of his wife and child and paid house rent amounting to $34.50 per month. The tangible personal property owned by the parties, and known to the plaintiff, consisted of household effects and a 1936 Ford automobile. They owed approximately $300 in outstanding bills, incurred for the most part for medicines and medical treatment of plaintiff. The trial court gave the household goods to the wife, the automobile to the husband and directed that the latter pay the outstanding bills of the parties.
The sole question appellant now presents for review, as we have heretofore indicated, is that under the facts and circumstances heretofore related the alimony award is excessive and therefore subject to revision on appeal. He concedes, as well he may, a trial court has wide discretion in the allowance of alimony in a divorce proceeding and that on appeal its action with respect thereto will not be set aside or disturbed unless there is a clear showing that discretion has been abused. For just a few of our decisions announcing this well-established rule see Walno, v. Walno, 164 Kan. 620, 192 P. 2d 165; Wittig v. Wittig, 151 Kan. 440, 442, 99 P. 2d 750; Rumsey v. Rumsey, 150 Kan. 49, 90 P. 2d 1093; Mann v. Mann, 136 Kan. 331, 334, 15 P. 2d 478; Newton v. Newton, 127 Kan. 624, 274 Pac. 247; Miller v. Miller, 97 Kan. 704, 156 Pac. 695. Many other cases to the same effect will be found in West’s Kansas Digest, Divorce, §§ 235, 286, and Hatcher’s Kansas Digest, Divorce, §§ 50, 83. Conceding arguendo the force and effect of such rule he correctly argues (see Walno v. Walno, supra; Mann v. Mann, supra; Flautt v. Flautt, 126 Kan. 21, 266 Pac. 746; Snowden v. Snowden, 160 Kan. 291, 297, 160 P. 2d 653; Stanton v. Stanton, 166 Kan. 386, 388, 201 P. 2d 1076) the discretion vested in the trial court is a judicial discretion which is subject to review and will be corrected on appeal if under the facts of the particular case involved it appears the award is clearly unreasonable, unjust or oppressive.
There is no hard and fast rule in this jurisdiction for determining the amount of an alimony award where a wife is granted a divorce for the fault of her husband. Generally speaking it can be said to depend upon the facts disclosed by the evidence in the particular case involved. However, it is true we have repeatedly held that in fixing its amount a trial court is required to take into consideration the conduct of the parties, the needs of the wife, the earning capacity of the husband, the amount of property owned by the parties and, under certain conditions not here involved, how and when that property was acquired. (See Francis v. Francis, 108 Kan. 220, 194 Pac. 641; Flautt v. Flautt, 126 Kan. 21, 24, 266 Pac. 746; Mann v. Mann, 136 Kan. 331, 334, 15 P. 2d 478; Black v. Black, 154 Kan. 314, 118 P. 2d 533; Walno v. Walno, 164 Kan. 620, 624, 192 P. 2d 165.) It may also take into account future earnings of the husband. (Watts v. Watts, 158 Kan. 59, 66, 145 P. 2d 128; Blair v. Blair, 149 Kan. 3, 8, 85 P. 2d 1004; Landers v. Landers, 138 Kan. 538, 27 P. 2d 231; Flautt v. Flautt, supra; Francis v. Francis, supra; Nixon v. Nixon, 106 Kan. 510, 188 Pac. 227; West’s Kansas Digest, Divorce, § 231; Hatcher’s Kansas Digest, Divorce, § 51.)
Appellant’s principal complaint with respect to the judgment seems to be that the trial court did not give all matters comprehended by the foregoing rule proper consideration. He first asserts it failed to consider the possibility of appellee’s re-marriage or death in fixing the amount of the judgment. Next he insists that it gave insufficient weight to the fact appellant might become incapacitated for work or his earnings decreased in the future and placed too little emphasis on the possibility of appellee’s being able to rehabilitate herself within the eight years and four months in which the alimony payments were to be made. The over-all answer to each of these contentions is that the trial court is presumed to have given all matters of which appellant complains proper consideration and that he has wholly failed to clearly estabish that it did not do so. But that is not all. A review of the evidence presented discloses appellee was an epileptic, thirty years of age who, under our statute G. S. 1935, 23-120, could not legally remarry until she was forty-five 'years old, that her life expectancy was far more than ten years and that it was improbable her physical condition would improve in that time. It also reveals appellant was an able-bodied man, thirty-two years of age, that his earnings had been increasing as the years went by, and that no attempt was made to establish there was anything wrong with him which might reasonably be expected to result in incapacity or a decrease in earning power. Under such conditions it cannot be said the court abused its discretion in requiring the appellant to pay alimony for the period of time required by the judgment.
There remains only the question whether the amount of the award was excessive. In support of his position on that point appellant cites a number of our decisions where alimony judgments were modified by this court. A lengthy analysis of the cases on which he relies would merely encumber this opinion. It suffices to say they have been examined and that no one of them reveals a factual situation such as is here involved. He insists no decision can be found in our reports which involves similar facts and circumstances and supports the instant award. We do not agree. The facts in Black v. Black, 154 Kan. 314, 118 P. 2d 533, refute his contention. There the needs of the wife were no greater than here and the parties had accumulated no property. The husband was fifty-one years of age, in good health, was employed by a reputable concern and was earning a salary of $149.04 per month. We held that an award of $3,600 to be paid by the defendant at $50 per month disclosed no abuse of judicial discretion by the trial court. Comparative reasoning compels the conclusion such decision is a sound precedent for approval of the instant judgment.
We fail to find anything in the record or in the arguments advanced by appellant which requires or would justify us in holding the trial court was guilty of abuse of discretion in the rendition of the award.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered, by
Arn, J.:
This was an action by plaintiff landowners to recover for six elm trees allegedly owned by plaintiffs and cut down by defendant, a rural electric cooperative association, to make room for the construction of its electric power line. Trial was by the court, and upon judgment being rendered against defendant for treble damages pursuant to G. S. 1935, 21-2435, defendant appealed.
Plaintiffs’ quarter section of land was acquired by them about March 1, 1948. In 1938 a prior owner had granted defendant an easement to enter upon this particular quarter section of land and
to place, construct, operate, repair, maintain, relocate and replace thereon and in or upon all roads or highways abutting said lands an electric transmission line or system, and to cut and trim trees to the extent necessary to keep them clear of said electric line or system and to cut down from time to time all dead, weak, leaning or dangerous trees that are tall enough to strike the wires in falling.
This easement was never filed of record and counsel for the electric cooperative advises us that it was its practice not to record such easements because of the expense involved. Defendant’s line extended along a north and south road to a point as far north as the southeast corner of plaintiffs’ farm, and this line had served plaintiff’s farm with electricity for some years before plaintiffs owned it. The new construction and extension of defendant’s line was to extend 300 feet north from the southeast corner of plaintiffs’ land and along plaintiffs’ east line on the west side of the township road. The township road along the east side of plaintiffs’ farm was established under the public road law of 1874, and has a present width of sixty feet. It is said by appellees that no compensation was ever made for the right of way to the original abutting landowner or his successors, but the record is silent as to whether compensation was ever paid. It is apparent, however, that no compensation has been paid by appellant for the taking of the trees which are the subject of this litigation. The six shade trees were located within the highway right of way and were cut down about May 3, 1948, by the White Construction Company which was working for the defendant under a contract to clear 162 miles of line.
The memorandum opinion of the trial court includes the following findings:
“The trees were located some four to six feet from the right of way line of a township road in the highway. . . . It is not questioned that the ownership of the ultimate fee in the roadway is in plaintiff. The state and its subdivisions acquired only the right to use the land for highway purposes; that this includes the right to grant use of the right of way to public utilities such as defendant, and that such right is not an additional servitude is conceded.”
“There is no evidence to support a claim nor does defendant seriously urge that the cutting in this case was unavoidable or absolutely necessary. On the contrary from the evidence, and from a view of the premises in company with counsel for both parties, I reach the conclusion that the cutting which was done, that is the total destruction of the trees was unnecessary. It follows that plaintiff is entitled to recover.
“I find the trees to be of a value as follows: Two large trees, $25.00 each and four small trees, $5.00 each.
“The treble damage rule being applicable, plaintiff is entitled to judgment against defendant for $210.00 and costs.”
Appellant contends first that the actual cutting of the trees was done for it by the White Construction Company, and said company being an independent contractor, appellant is not liable for its tortious acts. However, the testimony of appellant’s manager was that the White Construction Company had a contract with appellant to clear 162 miles of line, and pursuant to this contract the White Construction Company cut the trees in question while working for appellant. So the contractor was hired to do the specific act of cutting the trees. Under such circumstances there is no merit to appellant’s contention. Appellant cannot shelter itself under the plea that its independent contractor was the immediate wrongdoer, and did the act in execution of a contract when such tortious act was the very one contracted for. It is immaterial whether the employer’s agent is an independent contractor, when the very act contracted for is illegal or wrong in itself (27 Am. Jur. 518, § 40). The rule is also stated in 76 A. L. R. 1257 thus:
“Where an injury is occasioned to a third person as the direct result of the doing of work contracted to be done, and not as a result of negligent acts of the contractor, the employer is liable for such injury. In other words, he is answerable for injuries which necessarily follow the performance of the work, and which are not the result merely of collateral negligence of the contractor. ... In such cases, the injury results not from the manner in which the work is done, but from the fact that it is done at all.”
We fail to find any merit in appellant’s argument that it cannot be liable for the cutting of appellees’ trees since they were cut by an independent contractor working under a specific contract to cut them. If the cutting of the trees was wrongful, appellant is liable therefor.
It is next argued by appellant that appellee landowners had no interest in the trees located within the township highway right of way such as will entitle appellees, as adjacent landowners, to recover for the loss thereof. Appellant, at the time the trees were felled, was operating under the “electric cooperative act,” art. 46, ch. 17 of G. S. 1947 Supplement. G. S. 1947 Supp., 17-4604 enumerates the powers of electric cooperatives, including:
“A cooperative shall have power: (i) To construct, maintain and operate electric transmission and distribution lines along, upon, under and across publicly owned lands and public thoroughfares, roads, highways, streets, alleys, bridges and causeways in conformity with the laws of the state of Kansas.”
Kansas is among the few states which authorize such additional construction upon the highways without it being regarded as an additional servitude for which compensation must be paid to the abutting landowner (McCann v. Telephone Co., 69 Kan. 210, 76 Pac. 870, 66 L. R. A. 171; Empire Natural Gas Co. v. Stone, 121 Kan. 119, 245 Pac. 1059). See, also, State, ex rel., v. Weber, 88 Kan. 175, 127 Pac. 536, in which syllabus paragraph 2 states the rule as follows:
“A person may build and maintain such a line on a rural highway without having obtained a franchise or special license from any officer, providing it is done in a way that will not seriously impede or endanger public travel or unnecessarily interfere with the reasonable use of the highway by other members of the public and there is no- invasion of the rights of the ovmers of abutting lands.” (Emphasis supplied.)
As broad as this authority may seem to be, it does not authorize appellant to take private property without due process of law. The use of the right of way to erect poles is one thing — but destruction of appellees’ shade trees in doing so is quite another thing.
The right of way of the township road along which the trees in question were located was acquired in the 1870’s from appellees’ predecessors in title. By that “taking,” with or without compensation, the public acquired only an easement for highway purposes and the landowner, his successors and assigns continued to own the fee to the center line of the township road. Shade trees and shrubs on the right of way of a township road to which the fee belongs to the abutting owner, are a part of the fee and cannot be taken for private purposes or for purposes inconsistent with highway purposes without full compensation to the fee owner (Comm’rs of Shawnee Co. v. Beckwith, 10 Kan. 603, 608; McCann v. Telephone Co., supra (l. c. 212); 18 Am. Jur. 837, § 206; 25 Am. Jur. 440, § 145; 25 Am. Jur. 592, § 301; Vol. II, Elliott on Roads and Streets, page 1144, § 877). See, also, Remington v. Walthall, 82 Kan. 234, 108 Pac. 112, holding a city officer who unnecessarily cuts down trees along the street right of way is liable to the abutting owner. And note that in State, ex rel., v. Weber, supra, at page 180, we held that a public utility may build electric transmission lines along the right of way of a rural highway, subject to the condition that such use does not invade the rights of the owners of abutting lands. See, also, Rienhoff v. Gas & Electric Co., 177 Mo. A. 417, 162 S. W. 761, Syl. ¶ 2, holding that a telephone company is liable to a property owner for the destruction of shade trees located in the parkway between the sidewalk and street in placing its wires and poles, notwithstanding the fact that it had the right to erect the poles where it did.
The highway authorities could have felled or uprooted the trees or otherwise destroyed them if necessary in order to widen the travelled way or in order to construct adequate drainage ditches. Under our law there are additional uses of the right of way available to certain public utilities where the use is for the public interest. We would not alter the rule long established in this state that the use of rural highways for the erection or laying of telephone lines, electric transmission lines, water mains, gas pipe lines or other public utilities, does not create an additional servitude entitling the fee owner to additional compensation. That rule is too well established to say now that such public utilities must obtain permission of the abutting landowner and pay him for the right to lay or erect its lines along the highway right of way. The appellant had the right to erect its poles upon the highway right of way, but this right of a public utility does not permit it to damage, take or destroy private property located within the right of way and belonging to the abutting owner without paying him for the property so destroyed, damaged or taken. Appellant relies on State, ex rel., v. Weber, supra; McCann v. Telephone Co., supra; State v. Natural-gas Co., 71 Kan. 508, 80 Pac. 962; and Empire Natural Gas Co. v. Stone, supra, as holding that public utilities have a right to lay or erect their lines on public highways when not inconsistent with the highway purpose without additional compensation for such additional servitude to the person whose land was taken for the highway right of way. These cases and many others do so hold — but to this rule must be added the proviso that no property of the abutting owner may be taken or destroyed, and no unnecessary damage caused him without full compensation. In the instant case appellees are not contesting appellant’s right to erect its poles and lines upon the highway — this is not a proceeding for injunction. Appellees merely seek recovery in money for their property taken by appellant, and they are entitled to recover judgment therefor.
It is also argued that appellees are estopped to challenge appellant’s right to take the trees under appellant’s unrecorded' easement for the reason that appellees knew of the existence of such easement, or had notice of such facts as would put them on inquiry as to appellant’s rights. But we have some difficulty in gleaning from the provisions of the easement authority to fell and destroy trees unless they are dead, weak, leaning or dangerous trees that might strike the wires in falling. There was no evidence that the trees in question fitted this description, and accordingly the trial court found that the total destruction of the trees was unnecessary. Furthermore, the evidence was insufficient to show that appellees knew of the existence of the easement. They did know that an electric power line of appellant’s extended north as far as appellees’ southeast corner line, because appellees were customer-members of appellant cooperative and their predecessor in title had been also. It might even be said that such knowledge was sufficient to put appellees upon notice that the appellant had some kind of easement extending south from appellees’ southeast corner because the line and poles were in place there. But the trees which are the subject of this litigation were located north of appellees’ southeast corner and upon land which was to constitute a new route for appellant’s transmission line. The evidence did not show that appellees had any reason to know of the existence of an easement along their east boundary line — even if the terms of the unrecorded easement had been sufficient to authorize appellant to take and destroy appellees’ trees.
Finally appellant argues that even though appellees are entitled to recover the reasonable value of the trees felled, they are not entitled to treble damages for the reason that G. S. 1935, 21-2435 applies only to trees upon a claimant’s own land, and appellees’ trees were in the right of way of the township road.
The pertinént portion of G. S. 1935, 21-2435 reads:
“If any person shall cut down, injure or destroy or carry away any tree placed or growing for use, shade or ornament, or any timber, rails or wood standing, being or growing on the land of any other person; . . . the party so offending shall pay to the party injured treble the value of the thing so injured, broken, destroyed or carried away, with costs, and shall be deemed guilty of a misdemeanor, and shall be subject to a fine not exceeding five hundred dollars.”
The words of this statute “tree . . . growing on the land of any other person” do not, appellant contends, apply to trees growing within the right of way of a rural highway. We have already said that the abutting landowner owned the fee in the highway right of way. Therefore, as far as the ownership of the trees is concerned, they were growing on the land of appellees — and section 21-2435 is applicable to require treble damages for their destruction.
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The opinion of the court was delivered by
Smith, J.:
This was a replevin action for eighty-four head of cattle, forty-two cows and forty-two calves. After the issues were joined on the petition and the answer and the cross petition of the defendant and a trial thereon, judgment was entered for the defendant for the expense of feeding the cattle. Plaintiff has appealed.
The petition alleged a contract for the purchase of the cattle for $8,000, the delivery of a check for $7,000 and an agreement to pay $1,000 more when the cattle were delivered at Plainville; that the cost of delivery was to be paid one-half by the plaintiff and one-half by the defendant; that the plaintiff was ready and willing to pay the $1,000 and tendered it into court; that by virtue of these payments the plaintiff was the owner of the cattle and entitled to immediate possession of them; that the cattle were in the possession of the defendant and he refused to surrender possession of them.
Judgment was prayed for the possession of the cattle.
The defendant answered by a general denial; then he admitted the contract of sale and the payments.
The answer alleged, however, that the agreement was that the plaintiff was to remove the cattle from his premises at his own expense on the day following the contract of sale and that the $1,000 was to be paid to the defendant upon the removal of the cattle. The answer further alleged that the plaintiff failed to remove the cattle from the premises of defendant until about the 5th of December, 1947, on which date they were taken by replevin by the sheriff; that the plaintiff had violated the contract by unreasonably delaying the removal of the cattle and he refused to pay the $1,000. The answer further alleged that the defendant was entitled to possession of the cattle and if the plaintiff could not return them he was entitled to their value. The answer also alleged the defendant was ready, willing and able to restore the $7,000 to the plaintiff and tendered it into court.
The prayer was that the defendant be declared the owner and entitled to the possession of the cattle.
The defendant also filed a cross petition, in which he included the allegations of his answer and further alleged that from November 14, the date of the contract, up to December 5, all in 1947, the cattle were in his possession; that he eared for and fed them, and the reasonable value of the feed and maintenance and care was fifty dollars a day and that if the court should determine that the cattle became the property of the plaintiff on November 14, 1947, plaintiff had received the benefit of the acts of the defendant in the care and keeping of the livestock and he was justly indebted to the defendant.
The prayer was for a judgment for the reasonable value of the care and keeping of the livestock. •
The plaintiff requested the court to order the defendant to elect between his answer and his cross petition on the ground that they were inconsistent. This motion was overruled.
For reply, the plaintiff alleged that on his writ he recovered only eighty-three head of cattle because one calf was not delivered, having been negligently killed by defendant, and it was worth seventy dollars and alleged he was to pay only one-half the cost of delivery and he was compelled to pay the full cost thereof — hence the defendant was indebted to him for thirty-two dollars on that account and he added that to the prayer of the petition.
The court submitted the case to the jury on the question of what was the reasonable value of feeding the livestock from November 14, 1947, up to December 5, 1947, and whether the cattle were to be delivered at Plainville by defendant, or the parties were each to pay one-half the cost of the delivery, or the plaintiff was to remove the cattle himself at his own expense.
The jury returned a verdict in favor of the defendant and against the plaintiff in the amount of $855.
A motion for a new trial was filed by the plaintiff setting out some ten grounds. This motion was overruled and judgment was entered for the amount of the verdict — hence this appeal.
The notice of appeal set out that the plaintiff was appealing from the court's order overruling the motion to require the defendant to elect and from the verdict and judgment and from the order overruling the plaintiff's motion for a new trial.
The only questions argued by the plaintiff, however, are stated first in the following question:
“Can a Defendant in an action for replevin of 84 head of cattle based on a contract of sale, as a defense deny that the contract of sale was made and claim ownership of the cattle, and then by way of cross-petition claim compensation for feeding and caring for the cattle on the theory that they were the property of the other party?”
Plaintiff’s theory upon this argument is that the two defenses were inconsistent and hence could not both be relied upon and the court erred in not requiring the defendant to elect. That two inconsistent defenses cannot be relied upon is correct. The test of inconsistency, however, is as set forth in 31 C. J. 405, which is as follows:
“Things are said to be inconsistent when they are contrary the one to the other, or, so that one infers the negation, destruction, or falsity of the other.”
Sometimes the rule has been stated that the defenses are inconsistent when the proof of one requires the disproof of the other. That is not true in this case. The parties here both admit the contract of sale. The only difference between them was how the delivery was to be made or rather who was to make the delivery and pay the cost thereof. There was no question but that after the contract of sale was made the cattle had been in possession of the defendant for some fifteen days and that the plaintiff had the benefit of whatever feed they ate during that time.
The issues as to the contract submitted to the jury were upon the question of delivery and those only. Evidently the jury believed the testimony of the defendant that the plaintiff was to come after the cattle. Just how the proof of one of these disproves the other does not readily appear.
As the ease progressed the court took the question of whether or not the contract of sale had been made from, the jury. While the plaintiff was on the witness stand he was asked the question about what happened at the time he bought the cattle and there was an objection because the question assumed there had been a sale. The court in overruling the objection remarked that the question of whether or not there had been a sale had been eliminated from the case by defendant’s testimony. There was no inconsistency between the answer and the cross petition.
The only other question argued by the plaintiff is that the defendant did not establish the amount he should recover for having fed the cattle because he only proved the amount it had cost him to feed them for that period. Plaintiff argues that the question in such cases is the reasonableness of the charge. Defendant proved what the feed cost him. Plaintiff insists defendant never did produce any evidence that the price he paid for the feed he used was a reasonable one. The record discloses that the day the cattle were to be delivered was a stormy day and immediately following that there was a stormy spell of weather in that vicinity; that defendant turned the cattle out of the small corral, in which they were confined awaiting the delivery, and put them in with his own cattle, some two hundred head. He testified ás to what it cost him to feed all these cattle and by mathematical calculation it was simple to arrive at the cost of the feed the eighty-three head had eaten. Under such circumstances we shall not hold that such evidence was not sufficient upon which the jury could reach a verdict as to the cost to defendant.
We find no error in the record and the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
In three separate actions, plaintiffs, alleging themselves to be taxpayers in Miami county, sought to recover taxes paid under protest to the county treasurer of that county as the result of a levy made by the defendant rural high-school district. From adverse rulings the plaintiffs appeal to this court where the-three appeals are treated together. The parties will be referred to as they appeared in the district court.
In appeals 37,813 and 37,814, motions of the defendants, the board of county commissioners, the county clerk and the county treasurer of Linn county, to quash process against them, were sustained on March 14, 1949. The remaining defendants filed demurrers to the petitions and those demurrers were sustained on April 28, 1949. On June 25, 1949, appeals were perfected by the plaintiffs in those two cases, from the rulings quashing process and from the rulings sustaining the demurrers to the petitions, and those rulings are specified as error.
In appeal 37,815, all-of the defendants demurred to the petition as amended, that demurrer was sustained on April 28, 1949, and an appeal was perfected by the plaintiffs on June 25, 1949, the ruling being specified as error.
Insofar as the rulings quashing process are concerned, the appeals were not perfected in time and the rulings are not before us for consideration. See State, ex rel., v. Miami County Comm’rs, 168 Kan. 723, 215 P. 2d 631.
In the three cases the appeals from the rulings on the demurrers were in time. It is here noted that in each case one ground of the demurrer was that the petition disclosed on its face that the plaintiffs had no capacity to sue (G. S. 1935, 60-705, Second) and that although there is variation in other allegations, the following allegations are common to all three petitions.
It was alleged that in 1946 an attempt was made to organize La Cygne Rural High-school District No. 6, Joint, of Linn and Miami counties, Kansas, which district made tax levies against the property of the plaintiffs, and that the attempted organization of the school district was invalid and void and not in keeping with the laws of the state of Kansas in many particulars which need not be' detailed further than that the district, not having been legally organized, any attempt to levy taxes was void; that plain tiffs had paid the taxes so levied under protest, and they prayed for recovery thereof.
While the question might be stated in various ways, it is clear that plaintiffs, in their actions to recover taxes paid under protest, challenge the legal integrity of the school district and seek judgment that its organization was illegal and invalid, and unless they are successful in that result, they are not entitled to recover. It has been held repeatedly that private individuals, as taxpayers or otherwise, cannot maintain an action challenging the legality of the organization of a school district or other municipality. The question was before this court in the recent case of Smith v. City of Emporia, 168 Kan. 187, 211 P. 2d 101, where corporate limits of a city were involved, and where it was held that such an action cannot be maintained by private individuals and can be prosecuted only at the instance of the state by its proper officers. In that opinion many of our cases are reviewed and others are cited, all supporting the rule stated.
The plaintiffs recognize the rule stated, but contend that where the attempt to levy taxes is without legal authority, it is a species of fraud and the taxpayer may maintain an action to enjoin the levy and collection (presumably under G. S. 1935, 60-1121) and in support of which our attention is directed to a number of our decisions in none of which was there any attempt to challenge the validity of the organization of the taxing unit. In any event, the present actions are not for an injunction under the above statute but are actions to recover moneys allegedly unlawfully exacted.
In our opinion the trial court did not err in sustaining the demurrers, and its rulings thereon are affirmed.
We note that in each appeal, the plaintiffs specify as error the ruling of the trial court dismissing the several actions at the plaintiffs’ cost. In their brief, plaintiffs make no particular complaint, but it would appear that if they could not maintain the actions, the rulings were proper.
The judgment of the trial court is affirmed.
Wertz, J., not participating. | [
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The opinion of the court was delivered by
Harvey, G. J.:
This was a suit by a minority stockholder of a corporation, engaged in the business of selling refrigerators, etc., at retail, for the appointment of a receiver and the closing of the affairs of the corporation.
In the verified petition, filed February 2, 1948, it was alleged that the defendant corporation was organized and began business July 1, 1945, with a capital of $25,000 divided into 250 shares, with G. B. Govits owning 127 shares, as president; Louis S. Kehias, owner of 120 shares, as vice-president and treasurer, and Beatrice Govits, wife of G. B. Govits, owning one share as secretary, and with two shares owned by two other parties; that at the time of the filing of the petition the corporation was transacting business as a closed family corporation, to the detriment of plaintiff, and had committed certain acts of fraud and mismanagement, which were detailed, and had caused dissension and irreconcilable conflict between the principal stockholders, and made the continued existence of the defendant corporation hazardous, for reasons that were stated. The al leged acts of fraud or misconduct were set out, but need not be detailed here. It was alleged that because of the acts and conduct complained of the corporation was in imminent danger of insolvency, was subjected to forfeiture of its corporate rights and its officers were subjected to possible criminal prosecution. The prayer was for the appointment of a receiver and an accounting by a certified public accountant, an order that all property wrongfully appropriated or withheld from the corporation be returned, that its debts be paid, and the remaining assets distributed.
'On the day the petition was filed plaintiff also filed an unverified motion for a restraining order. Without a hearing or notice to the defendant the court entered the following:
“RESTRAINING ORDER
“State op Kansas
To
G. B. Govits and Beatrice Govits
President and Secretary, respectively, of G. B. Govits & Company, Inc., a corporation, and G. B. Govits & Company, Inc., a corporation.
“Upon application of the plaintiff and his verified Petition herein filed, you and each of you are hereby temporarily restrained and enjoined from the further transaction of any business connected with G. B. Govits and Company, Inc., a corporation defendant herein, and you are further temporarily restrained and enjoined from selling, giving away or otherwise disposing of any of the property or assets of said corporation and from receiving, obtaining and in any manner disposing of moneys, properties or other assets now due and owing unto said G. B. Govits and Company, Inc., a corporation, or in any way incurring any indebtedness for which such corporate entity would hereafter be responsible or liable, until such time as a hearing may be had upon plaintiff’s petition for the appointment of receiver, or in the alternative, until the further order of this Court.”
Two days later defendant filed a motion to dissolve the restraining order, which reads:
“Comes now the defendant and respectfully moves the court to dissolve a restraining order heretofore issued by the court on February 2, 1948, which restraining order in effect restrains the defendant corporation from engaging in any type of business to the serious detriment of the financial interest of the corporation and its stockholders and further that said restraining order was secured without any notice of any kind to the defendant, nor did the plaintiff herein post bond to secure the defendant corporation against damages that would naturally flow from the Restraining Order procured by the plaintiff; that the Restraining Order herein referred to was not issued in accordance with the statutes of the State of Kansas and is, therefore, unlawful and should be forthwith by the Court dissolved.”
We are told there were some hearings on this motion to dissolve and that at some time it was overruled, but no record of the court pertaining to that matter is shown by the abstract. It should be noted that the restraining order stopped the business of the defendant corporation. It could not sell any of its merchandise, collect any bills due it, nor pay any bills it owed. The lease on the building where the business was conducted was forfeited for nonpayment of rent and G. B. Govits rented the building in his own name and paid the rent, and since he could not conduct the business of the corporation he moved its merchandise to one side of the room and bought merchandise of his own, which he endeavored to sell in the other part of the room.
At some date, not shown by the record, the plaintiff filed an accusation for coptempt against G. B. Govits for having disobeyed the restraining order in selling a few items belonging to the corporation. There was a hearing upon that citation on April 15 and 16,1948, and then continued to May 3. At that time the court thought an auditor should be appointed and it appointed a firm of certified public accountants in Wichita to conduct an audit and make a report to the court by May 14, 1948. This audit was made and a report filed. The next thing the record shows to have been done in the case was on January 7, 1949, when the court wrote counsel as follows:
“The Court has been, a long time in reaching a decision in this matter, not because it is so involved, but because the court has been busy with matters that came up before this one but as to this matter the court finds the defendant guilty of violation of the restraining order as charged.
“Prepare journal entry accordingly.”
And on that date it appears the court ordered G. B. Govits to appear in court on January 14, 1949, at 10:00 o’clock, to there receive such punishment for said contempt that to the court seemed just and proper. There is no record of what, if anything, was done on that date.
Since G. B. Govits had been enjoined from paying any of the obligations of the corporation he was unable to pay the taxes on its personal property. A tax warrant was issued for the amount and the sheriff levied upon the property and conducted a sale of it. At the sale G. B. Govits bought enough of the property to satisfy the tax warrant and appears to have moved the property into his part of the room where he was conducting business. The defendant filed an answer in which it admitted the organization of the corporation, the number of shares held by the incorporators and their official positions, and denied specifically and generally all the allegations of plaintiff’s petition upon which plaintiff sought a receivership and the dissolution of the corporation.
The case was set for trial on June 6, 1949. Apparently the first thing that was done, counsel for plaintiff called G. B. Govits as a witness and interrogated him about having purchased some property at the sheriff’s sale for the collection of taxes. Counsel for plaintiff then stated:
“Now, if your Honor please, upon this testimony before we start into this trial, I think the court should order him to restore the property he bought at that tax sale which he bid in as president of his own corporation. . . .”
After some colloquy between counsel and the court, the court said:
“Before we go onto something else, I am ordering that that office furniture and whatever it was sold for taxes be restored and, of course, he paid the taxes for the company and he will have his claim for the amount of taxes he paid at the Sheriff’s sale, and the thing has proceeded so long apparently the parties interested do not have a complete understanding of what their duties are, but I will assess a penalty of $25.00 for disobeying the court’s order.”
Counsel for plaintiff made an opening statement, near the close of which he said:
“Now, what we are here for today, your honor, is to have a Receiver appointed to take over this thing and sell it and dissolve the corporation. . . .”
The Court: “Well, I think that is what ought to be done if you can agree on a receiver. Whom do you want?”
Counsel for defendant: “We can’t agree on a Receiver, we object to the appointment of a receiver, the Court will remember you ordered a certified public accountant company to make an aduit . . . and they have made a complete audit and reported to the court and it shows no grounds whatsoever for a Receivership, it shows no irregularities of any kind, it shows the company has always operated at a profit, it shows in compensation to officers as members of the organization in 1945, 1946 and 1947 and in 4 years he drew $8,704.39 and Kehias drew nothing in 1945 but in 1946 and 1947 and part of 1948 he drew $5,500 and Mr. Weiskirch refers to it as a family affair, Mrs. Govits in four years drew a total of $1,300 in salary it shows this —in 1945, $285, in 1946, $750, in 1947, $125, just working extra as a bookkeeper, and he said the son worked there, in 1945 for services during the summer, $144, 1946, $150, not a dime in 1947, not a dime in 1948, for a total of $294.00, he says it is run for the benefit of the Govits, which is not true, according to the audit but it shows a well run, well managed corporation making a profit under the guidance of the President, a man who has been in this business for 24 years and there is not a single ground as to why this corporation should not be able to and permitted to run as a corporation under the control of the board of directors and if so permitted will go ahead and make money as it always has in times past and the audit shows a profit every year.”
Counsel for plaintiff: “The Audit does not correspond with the profit and loss statement submitted during those years and all those things and I don’t like tb take up the time,-”
The Court: “No, I can’t go into it, I don’t have time. Look at the people here now waiting for you to get through. I don’t have the time to criticise these reports or comparisons of that kind, they are all strangers to me, which one to believe and what one not to believe. But, it is apparent from what I have heard here in open Court it is apparent it has gone along without any consideration for other official duties and this tax sale purchase by the President of the corporate property is one of the items of a number of others I remember a number of things but not in detail, but this organization has not been conducted entirely in good faith on the part of those who are conducting it. So, I think the only thing to do is to put it ino the hands of a Receiver and let him handle it. The Court cannot be a Court and at the same time manager of and operating a business. Now, whom will you have for a Receiver?”
Counsel for plaintiff suggested the name of Frank Baker. Counsel for defendant was asked to make a suggestion. He had none to suggest, but offered the auditor’s report, which was received in evidence, and repeatedly objected to the appointment of a receiver. The court appointed Frank Baker as receiver and fixed his bond at $1,000. Defendant’s motion for a new trial was overruled and this appeal followed.
The record in the trial court was not well kept. If any journal entry was made of what was done in court, except of the order allowing the retraining order and of overruling the motion for a new trial, it is not shown by the abstract. The case appears to have been abstracted from the transcript of the reporter’s notes.
Appellant contends that it was error for the court to grant the restraining order without a notice and hearing. The point is well taken. To stop the work of the corporation, tie its hands so it could not sell any of its merchandise, collect any bills due it, or pay any bills it owed, is as legally unsound as it is unjust. Appellant further contends that when issues were made up and the case was set for trial, to appoint a receiver without a trial of the contested issues was erroneous. We agree with that contention.
The result is that the judgment of the trial court granting the restraining order is reversed and the restraining order is set aside, and that the judgment of the court made on June 6 appointing the receiver without hearing the evidence was erroneous and is reversed.
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The opinion of the court was delivered by
Harvey, C. J.:
On April 26,1949, Frank W. Holden, an inmate of our state penitentiary, filed in the district court of Leavenworth county a petition for a writ of habeas corpus seeking his discharge from the respondent warden. Issues were framed and a trial was had, after which the court denied the writ and remanded petitioner to the custody of the respondent warden. From this order petitioner has appealed.'
The record before us may be summarized as follows: On June 8, 1940, in the district court of Coffey county the petitioner, then represented by two able, reputable attorneys, entered a plea of guilty to an information which charged him in separate counts with three distinct felonies, namely, assault with a deadly weapon with intent to rob, burglary in the first degree and burglary in the second degree. The trial court accepted the pleas of guilty and sentenced him, as provided by statute, on each of the offenses charged, the sentences to run concurrently; and since the petitioner was under the age of twenty-five years, committed him to the Kansas state industrial reformatory at Hutchinson until released by operation of law under the rules and regulations of that institution.
Although it is not questioned here, we state as a part of the history of the case the fact that in 1942 he was duly paroled from that institution and thereafter violated his parole, the parole was revoked and he was taken into custody and returned to the reformatory.
On May 7, 1946, he was again paroled and allowed to go at large from the industrial reformatory, but in the lawful custody of the state board of administration, as prescribed by G. S. 1935, 76-2315. On September 24,1946, he stole an automobile in Kansas City, Mo., and transported it into the state of Oklahoma. He was apprehended in Oklahoma by the Kansas authorities September 27, 1946, signed a waiver of requisition for his return to Kansas, where he was wanted for the violation of his parole and for investigation concerning other felonies committed in Kansas, which investigation disclosed that he was not connected with. Upon demand by the United States marshal the Kansas authorities released him to federal authorities for prosecution under the Dyer act for the larceny of an automobile and transporting it from one state to another. For this offense he was tried in the federal district court of eastern Missouri, found guilty, and sentenced to the federal penitentiary at Leavenworth for two years and was given a conditional release by the federal government on May 18, 1948, at which time he was taken into custody by the Kansas authorities for return to the Kansas state reformatory as a parole violator. Shortly thereafter, by order of the state board of administration, he was transferred to the state penitentiary, where he is now in custody.
In this court appellant contends that his signing of a waiver of extradition to return from Oklahoma to Kansas constitutes a “contract” between himself and the state, by reason of which the state agreed to prosecute him only on state charges then pending, and that the release of appellant to the federal authorities constituted an abrogation of the terms of the contract. The point is not well taken and we think it is sufficiently covered by the cases of In re Flack, 88 Kan. 616, 129 Pac. 541; In re Martin, 142 Kan. 907, 52 P. 2d 1196, and Tines v. Hudspeth, 164 Kan. 471, 190 P. 2d 867, and authorities cited therein.
Appellant further contends that when he was released by the Kansas authorities to the federal authorities to be prosecuted for violation of the Dyer act the state of Kansas thereby lost its jurisdiction over him to return him to the institution as a parole violator. This point is not well taken. (See Perry v. Gwartney, 162 Kan. 607, 178 P. 2d 185, and Ohrazada v. Turner, 164 Kan. 581, 190 P. 2d 413, and authorities cited in those cases.)
In support of his contentions appellant cites Hunter v. Martin, 334 U. S. 302; 68 S. Ct. 1030; 92 L. ed. 1401, and Rosenthal v. Hunter, 164 F. 2d 949. We have examined these cases and find they do not support appellant’s contentions.
We find no error in the record. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
HortoN, C. J.:
Although the record in this case is an extensive one — embracing seventy printed pages —it is necessary for us to refer only to the ruling of the district court upon the plaintiff’s demurrer to the fourth defense set up in the amended answer of the railroad company. This, in our view, is decisive of the case. The plaintiff is the administratrix of the estate of the deceased under appointment from the probate court of Platte county, in the state of Missouri. She is an officer of the law of the state of her appointment, and therefore her powers are limited by the statutes of Missouri, and they cannot be changed or enlarged by the authority of the laws of this state, nor by any judicial construction of our courts. An administratrix takes only such powers as are conferred by law, and is merely an agent or trustee acting immediately under the direction of the law regulating her conduct and defining her authority. (Collamore v. Wilder, 19 Kas. 67.) In this state, the remedy, when death ensues from the wrong done, is by action in the name of the personal representative of the deceased, and the amount recovered will be for the benefit of the widow and children, if any, or next of kin. (City of Atchison v. Twine, 9 Kas. 350; Civil Code, § 422.) In Missouri, the personal representative of the deceased has no power to institute an action of this character. In that state, the action is to be brought: First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or, third, if such deceased be a minor and unmarried, then by the father or mother, who may join in the suit, and each shall have an equal interest in the judgment; or, if either of them be dead, then by the survivor. (Vol. 1, Rev. Stat. of Missouri, 1879, §§ 2121, 2122, 2123, pp. 349-351.)
The fourth defense of the answer alleges that the adminis-tratrix of the estate of the deceased is prohibited by the law of the state of Missouri from instituting, maintaining, or prosecuting sucb an action. (Yol. 1, Rev. Stat. of Missouri, 1879, cb. 1, art. 5, §§94, 95, 96, p. 16. See also, §§2121, 2122, 2123, supra.) If the death of the deceased had been caused by the wrongful act of the defendant in Missouri, plaintiff, as administratrix, could not have maintained this action in that state, and as administratrix she is not entitled to any greater power or rights in Kansas than she is in Missouri, under the statutes of which state she holds her appointment. This action was therefore improperly brought by the plaintiff as administratrix of the estate of Frederick Limekiller, deceased, and the court erred in sustaining the demurrer. (McCarthy v. Railroad Co., 18 Kas. 46; Land Grant Railway v. Comm’rs of Coffey Co., 6 id. 245.)
On the part of the plaintiff, it is contended that the right of a foreign administratrix to maintain such an action as this has been settled in K. P. Rly. Co. v. Cutter, 16 Kas. 568, and Perry, Adm’r, v. Rld. Co., 29 Kas. 420. The decision in Railway Co. v. Cutter, supra, and the language used in Perry, Adm’r, v. Rld. Co., supra, referring to the right of a foreign administrator or administratrix to prosecute in the courts of this state an action of this nature, was based upon the supposition that the authority of the foreign administrator or ad-ministratrix was the same under the statute of the state where appointed, as under the laws of this state, and therefore, under the rules of comity, a foreign administrator was allowed to exercise in this state all the powers which he or she exercised in his or her own state, not repugnant to the laws, nor prejudicial to the interests of ‘this state. But it has never been decided by this court that on account of courtesy, or for any other -reason, a foreign administrator or administratrix could exercise in this state powers which he or she could not exercise in his or her own state. (Land Grant Railway v. Comm’rs of Coffey Co., supra.) In the case of K. P. Rly. Co. v. Cutter, supra, the law of Colorado relating to administrators was not pleaded in the answer or referred to in the case; that decision was rendered upon the theory that the Colorado statute contained a provision similar to § 422 of our code. In Perry, Adm’r, v. Rld. Co., supra, the language of the court, “that an administrator appointed in' another state can maintain an action in this state under § 422 of the code,” was based solely upon the authority of K. P. Rly. Co. v. Cutter, supra.
Finally, if it be urged that under this construction of the law and the decision of Perry, Adm’r, v. Rld. Co., 29 Kas. 420, there can be no party having a legal right to maintain an action of this character, where a resident of another state, whose death is caused by the wrongful act of another in this state, dies without leaving any estate or assets in this state, we answer that we do not make the law. If there is any omission in the statutes, the remedy is with the legislature. Instead of requiring the instituting of an action in the name of the personal representative of the deceased, where death ensues from the wrong done, the legislature can authorize an action to be maintained in the name of the widow or children, if any, or in the name of some one nest of kin to the deceased.
The order of the district court sustaining the demurrer was erroneous, and therefore the judgment must be reversed, and the cause will be remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring. | [
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Tbe opinion' of the court was delivered by
Hcorton, C. J.:
The question in this case is, whether the arbitration proceedings can be sustained so as to authorize the court below to enter judgment upon the award of the arbitrators, and not whether the proceedings are good as a common-law arbitration. After the award of the arbitrators had been delivered to each of the parties in interest, the plaintiff filed the same, together with a submission or arbitration bond, in the court below, and asked the court to enter up judgment thereon as on a verdict of a jury between the parties. This was refused. This ruling is complained of. The arbitration bond or agreement provided, “that this submission shall be made a rule of the circuit court within and for the county of Montgomery and state of Kansas, and that judgment may be entered in said court on said award, according to its terms.” The statute (ch. 5a, Comp. Laws of 1879) is as follows:
“SECTION 1. That all persons who shall have any controversy or controversies, may submit such controversy or controversies to the arbitration of any person or persons to be mutually agreed upon by the parties, and they may make such submission a rule of any court of record in this state.
“Seo. 2. That the parties to such submission may enter into arbitration bonds, which bonds shall be conditioned for the faithful performance of the award 'or umpirage, setting forth the name or names of the arbitrators or umpire, and the matter or matters submitted to his or their determination; and when such is the agreement, that such submission be made a rule of any court of record within this state, or a rule of any particular court of record named in the submission.
“Sec. 8. That if either of the parties shall refuse or neglect to comply with said award or umpirage, the other party may file the same, together with-the submission or arbitration bond, iu the court named in the submission, or if no particular court be named therein, then in the district court in the county where said arbitration is held.”
On the part of the plaintiff, it is claimed that “ the provision relative to the circuit court can form no office further than to indicate that the parties intended to make the submission a rule of court; tnat having named a court which, in judicial notice, had no existence, no court was named; therefore, that the district court in the county where the arbitration was held had jurisdiction to enter judgment upon the award.”
On the part of the defendant, it is insisted that the agreement of the parties confers jurisdiction; that there was no agreement by the terms of the arbitration bond that the district court should entertain it, and that after the parties had inserted “circuit court” in the bond or agreement, it cannot be held that they meant the district court.
We think the latter view must prevail. The general rule is, that where parties undertake to enter into a submission under the statute, they must follow strictly the statutory requirements. Even where a more liberal rule prevails and informalities are disregarded, a substantial compliance with the statute is necessary, to give the court jurisdiction to enter judgment upon an award. By the expressed stipulations of the parties, the award was to be made a rule of the circuit court. This is not the district court of Montgomery county, and that court, under the arbitration bond, had no jurisdiction to enforce the award.
There is a circuit court of the United States for a circuit including Kansas, and this court has jurisdiction of certain cases between the citizens of Montgomery county, in this state, and citizens of other states. It would be just as fair to infer that the parties to these arbitration proceedings intended to make the award a rule of the circuit court of the United States, of Kansas, as to say they intended to make the award a rule of the district court of Montgomery county. Section 11, of said ch. 5a, reads: “If any legal defects appear in the award, or other proceedings, . . . the court may set aside said award.” If this had been an action to enforce the award of a common-law arbitration, and to reform or correct tbe arbitration bond, the question now presented would be wholly different.
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
Kaul, J.:
This action was commenced in the Probate Court of Rutler County, Kansas, in the estate of Louisa Tompkins, Deceased, to construe the joint and mutual will of the said Louisa Tompkins and her husband Charles P. Tompkins. The petition was filed by Charlotte Donovan Titel, a residuary legatee of said will. Subsequently an action was filed in the District Court of Rutler County, Kansas, by plaintiffs Dave Craig and Mrs. Dave Craig to declare certain alleged gifts void and to compel the defendant Louise Hildebrand to deliver to Ida M. Schmidt, Administrator C. T. A. of the estate of Mr. Tompkins, properties which had been given to the defendant Hildebrand by Mr. Tompkins immediately after the death of his wife. The action to construe the will in the probate court was transferred to the district court and both cases were consolidated for trial. Trial was had before the court, and a memorandum opinion was filed in which the court found for the plaintiffs that the will involved was joint, mutual and also contractual and that the survivor could not dispose of the property except for necessities. The trial court further ordered the defendant Hildebrand to return the gifts received from Mr. Tompkins to the administrator C. T. A. to be inventoried in his estate.
The post trial motions of the defendant Hildebrand were argued and overruled by the court, and she has appealed.
None of the facts are seriously disputed and are as follows:
In November of 1956 Charles P. Tompkins and Louisa Tompkins, his wife, executed a joint and mutual last will and testament prepared by Walter F. McGinnis, an attorney of El Dorado, Kansas. The Tompkins owned personal property of the approximate value of $24,554.43, all of which was held in joint tenancy.
Mrs. Tompkins died on March 26, 1962, at the age of 84. Mr. Tompkins died on August 15, 1962, at the age of 87. They left no surviving children. Mrs. Tompkins had a brother, Oscar Zondler, who was left one dollar in the will, a sister, Mrs. Edith Lewis, who was omitted from the will, and another sister and two brothers who predeceased Mrs. Tompkins leaving no survivors. ■ Defendant Louise Hildebrand, a daughter of Edith Lewis, is a niece of Mrs. Tompkins and a residuary legatee together with the plaintiffs herein. Mr. Tompkins left no known heirs.
The plaintiff Mrs.'Rickie Donovan is a first cousin of Mrs. Tompkins. The other plaintiffs, Margaret Donovan Allen, William J. Donovan, Charles Donovan, Dorothy Donovan Easley, Clarence Donovan and Charlotte Donovan Titel, are the children of Tim Donovan (now deceased) and Rickie Donovan, and as such are first cousins, once removed, of Mrs. Tompkins. The plaintiffs, Dave Craig and Mrs. Dave Craig were not related to the Tompkins but friends of their deceased daughter, Edith May.
In the early part of their married life the Tompkins lived in Kansas City, Kansas, and operated a bakery. After the death of their daughter Edith May, the Tompkins moved to El Dorado, Kansas, and opened a bakery there. Charlotte Donovan Titel and Mrs. Tompkins corresponded regularly and visited back and forth. In a letter written about 1935 or 1936 Mrs. Tompkins asked that Mrs. Rickie Donovan send her a list of all the names of her children and their addresses as they wanted to remember them in their will.
The defendant Hildebrand had known the Tompkins since 1935. Her mother, Edith Lewis, a sister of Mrs. Tompkins, worked in the bakery at El Dorado for some time.
The scrivener of the will, attorney McGinnis, owned property on both sides of the Tompkins bakery in El Dorado. He frequently visited with the Tompkins and talked to them about their estate from time to time over a period of a couple of years. As a result of the conversations and at the request of Mrs. Tompkins, although both were present, he wrote the will in November of 1956.
After the death of Mrs. Tompkins on March 26, 1962, Mrs. Hildebrand went to El Dorado on April 2, 1962, and saw Mr. Tompkins. The next day, April 3, 1962, she and attorney George S. Benson obtained the will from the Probate Court and read it. On the same day the following property was transferred as follows:
(a) A savings account in the Citizens State Bank, El Dorado, Kansas, in the amount of $3,128.95, to Charles P. Tompkins and defendant Hildebrand, as joint tenants.
(b) A savings account in Eureka Federal Savings & Loan Assoc., El Dorado, Kansas, in the amount of $4,015.00, to Charles P. Tompkins and the defendant Hildebrand, as joint tenants.
(c) -70 shares of R R Building Loan & Savings Assoc., fully paid shares, Newton, Kansas, of the value of $7,000.00 to the defendant Hildebrand, solely.
On approximately May 3, 1962, 60 shares of Investors Royalty Co., Inc., in the amount of $60.00 were transferred to Charles P. Tompkins and the defendant Louise Hildebrand, as joint tenants.
The body of the will is as follows:
“We, Charles P. Tompkins and Louisa Tompkins, both of 609!á West Central Street, El Dorado, Butler County, Kansas, do make and declare this to be our joint and mutual last will and testament, hereby revoking any and all other former wills by either of us heretofore made.
“First. We direct all just debts and funeral expenses be fully paid.
“Second. All property, whether jointly or separately held and whether real or personal owned by either of us is hereby devised and bequeathed to the survivor, with the right of disposal.
“Third. At the death of both of us it is our will and desire that all our property be converted into cash and that in doing so our household goods and personal belongings be forthwith sold at public auction to the highest bidder for each item.
“Fourth. We devise to Oscar Zondler of Kansas City, Kansas, the sum of one dollar in cash.
“Fifth. All of the cash so accumulated, after payment of debts and costs of administration, and payment of the above one dollar specific bequest shall be divided into nine equal parts and each of said equal parts shall be paid to:
“1. Mr. and Mrs. Dave Craig, or the survivor thereof, of 211 Ashley Rivers Road, Charleston 34, South Carolina.
“2. Mrs. Louise Hildebrand, 6434 East Sixteenth Street Terrace, Kansas City 26, Missouri.
“3. Mrs. Margaret Donovan Allen, 507 Kemp Street, Leavenworth, Kansas.
“4. William J. Donovan, 925 Tenth Avenue, Leavenworth, Kansas.
“5. Charles Donovan, 608 West Ninth Avenue, Leavenworth, Kansas.
“6. Mrs. Dorothy Donovan Easley, 608 Ninth Avenue, Leavenworth, Kansas.
“7. Clarence Donovan, 931 Ohio Avenue, Leavenworth, Kansas.
“8. Mrs. Charlotte Donovan Titel, 318 Pott St., Leavenworth, Kansas.
“9. Mr. Tim Donovan and Mrs. Rickey Donovan, or the survivor thereof, 608 Ninth Avenue, Leavenworth, Kansas.
or if all of the beneficiaries of any share be deceased then the number of equal divisions shall be reduced accordingly and be divided among the survivors of the said nine above so that each party or couple shall share the same.
“Sixth. It is our will and express desire that our bodies be cremated.
“Seventh. We nominate and appoint William R. Mannion as our executor and request the Court that he be so appointed.
“In witness whereof, we have hereunto set our hands at El Dorado, Kansas, this day of November, 1956.
Charles P Tompkins
Louisa Tompkins”
It is agreed by the parties that there are two issues raised by this appeal: (1) Did the trial court err in ruling that the will was a joint,, mutual and contractual will and that the survivor could transfer property only for necessities and in ordering the defendant Hildebrand to redeliver to the defendant Schmidt the properties transferred to her by the survivor to be distributed equally to the residuary legatees? And, (2), Did the trial court err in admitting the testimony of the scrivener, Walter F. McGinnis, concerning conversations he had with the testators about their estate planning and the drawing of the will?
The determinative question presented here by the pleadings and the agreed statement of points for appellate review is the same as presented to the trial court, i. e., what type of estate did Charles P. Tompkins acquire in the property under the joint will at the death of Louisa under the second paragraph of the will? The answer to this question depends upon a proper interpretation of the will.
The firmly established rule in this jurisdiction for the construction of wills, to which all other rules are subordinate, is that the intention of the testator as garnered from all parts of the will is to be given effect, and that doubtful or inaccurate expressions in the will shall not override the obvious intention of the testator. In construing a will the court must put itself as nearly as possible in the situation of the testator when he made the will and from a consideration of that situation and from the language used in every part of the will, determine as best it can the purpose of the testator and the intentions he endeavored to convey by the language used. (Beall v. Hardie, 177 Kan. 353, 279 P. 2d 276 and the many cases cited therein.)
More recent cases reflecting the rigid adherence to the rule in this jurisdiction are: In re Estate of Freshour, 185 Kan. 434, 345 P. 2d 689, In re Estate of Roberts, 190 Kan. 248, 373 P. 2d 165, and Parsons v. Smith, Trustee, 190 Kan. 569, 376 P. 2d 899.
Reference is also made to 5 Hatcher’s Kansas Digest (Rev. Ed.), Wills, ¶ 101; West’s Kansas Digest, Wills, ¶| 439, 440 and 441.
We shall first consider the nature of the will in question. The trial court stated in its opinion, “It is the opinion of the court that the terms of the will show that the will was joint, mutual and contractual.” A careful examination of the language used can only lead to the conclusion that the will in this case was the result of an agreement or contract of the testators. In the declaration the testators state that “We” do make and declare this to be “our” joint and mutual last will. They direct that it is “our” will and desire that “our” property be converted into cash and that “our” household goods be forthwith sold at auction. They use the plural “we” in devising one dollar to Oscar, clearly indicating that they had agreed that he should not share in the estate. It is directed that the cash accumulated and remaining after payment of debts and the $1.00 specific bequest be divided into nine equal parts and paid to the carefully listed beneficiaries. They carefully provided for disposition of a share in case of a lapse of any residuary bequest resulting from the death of any beneficiary. All of these terms as used herein clearly indicate an agreement by the testators as to the terms and provisions and the intention that they each be bound thereby. Examples of construction from similar language may be found in Beall v. Hardie, supra, In re Estate of Weidman, 181 Kan. 718, 341 P. 2d 327, In re Estate of Adkins, 161 Kan. 239, 167 P. 2d 618, Lewis v. Lewis, 104 Kan. 269, 178 Pac. 421.
Appellants claim that even though the will is contractual in nature the survivor would still have the unlimited right of disposal as to all the property. The position of the appellants cannot be maintained in this regard. Language such as used here has been construed in a number of similar cases to the effect that such language does not authorize the survivor to “give” property away.
In the case of In re Estate of Buckner, 186 Kan. 176, 179, 348 P. 2d 818, it was provided that ..." ‘the survivor shall have the right and privilege of selling, mortgaging and disposing of any property coming to him or her by the terms hereof, without restrictions of any kind . . .’” The Buckner will provided for the disposition of property on the death of the survivor in much the same manner as was provided in the Tompkins will. A suit was commenced to have transfers of property made by the survivor declared invalid. In construing the language used the court held that the words selling, mortgaging and disposing did not authorize the survivor, Edward Buckner, to give any of the property away and that such an attempt on his part would be to defeat the intention of the agreement of the testators.
In the case of In re Estate of Jones, 189 Kan. 34, 366 P. 2d 792, under the terms of the joint will of Bessie and Charles Jones, all property was bequeathed “‘absolutely and without reservations’”, and at the death of the survivor to be divided equally among their three children and their heirs. It was held that such language did not authorize a gift by Bessie and that Bessie received a life estate with power of disposal only for necessities.
In the recent case of Parsons v. Smith, Trustee, 190 Kan. 569, 570, 376 P. 2d 899, it was held that a bequest to the wife with the provision “ ‘that she shall have full power and authority to sell, mortgage, lease, transfer or otherwise dispose of any of said property and to use all or any part thereof during her life time’” with a bequest over to a nephew, did not authorize the widow to transfer property to a trust and that the estate created in the survivor was a life estate with a qualified power to dispose for her personal use and benefit during her life time and such power did not include the right to gratuitously dispose of property by a trust agreement or otherwise.
We are fully cognizant that each case involving the construction of a will must be determined, to a great extent, from the precise language used therein and offers little aid in the decision of other cases. Therefore, we do not deem it necessary to undertake to review the many cases cited by industrious counsel which may have had a bearing in assisting us in arriving at the conclusions reached herein.
We conclude, as the trial court did, that the language used in this will gave the survivor a life estate in the property with a qualified power of disposition for personal use and benefit during the survivor’s life time but that such qualified power did not include the right to gratuitously dispose of any such property.
Appellants cite the case of Ernst v. Foster, 58 Kan. 438, 49 Pac. 527, in which a devise was made to testator’s wife to use and dispose of during her natural life and the widow in her life time divided the estate among the three youngest heirs who were residuary legatees under the will. In a suit brought by a subsequent grantee of a part of said property it was held that the defendant and residuary legatee James Monroe Foster could not more than twenty years after he sold the farm for full consideration and after many transfers of the land seek to recover it back and retain the money which he had received as well. The facts clearly distinguish the situation from that involved herein.
In the case of The Fourth National Bank in Wichita v. The First Presbyterian Church, 134 Kan. 643, 7 P. 2d 81, the question involved was the power of the survivor to contract for a memorial for his wife rather than a gift as we are concerned with here.
The case of Stanolind Pipe Line Co. v. Ellis, 142 Kan. 102, 45 P. 2d 846, involves the right of the survivor to grant an easement for consideration and obviously may be distinguished from a gratuitous conveyance without consideration as attempted in this case.
The proposition that where two people plan their estates and make a joint, mutual and contractual will should have their plan exposed to defeat by the survivor giving away property without consideration in deprivation of the remaindermen is not supported by any cases cited by appellants.
While, in view of the conclusions reached herein, it is not necessary to give consideration to other points raised on the appeal, some comment, in this regard, might serve a useful purpose.
Appellants contend that the trial court erred in allowing Walter F. McGinnis, scrivener, a witness for the appellee, to testify to conversations with the deceased concerning the interpretation of the will and then based his decision on this testimony which is claimed to have been inadmissible. It is to be noted that the court found that the will was joint, mutual and contractual from the terms of the will itself and merely added the comment, “Not only does the contractual nature of the will seem to be clearly shown by the terms of the will itself, but also, further evidence thereof may be found in the testimony of the scrivener, Walter F. McGinnis, which appears to make it conclusive.”
In this connection it is to be noted that this court has often stated that the rule that parol evidence is never admissible to change or vary the terms of an unambiguous will does not render inadmissible extrinsic evidence that a will was executed pursuant to an agreement. (Eikmeier v. Eikmeier, 174 Kan. 71, 254 P. 2d 236, and cases cited therein.) The admission of such evidence may result in proving the will to have been non-contractual as well as contractual. See Menke v. Duwe et al., 117 Kan. 207, 230 Pac. 1065, Frontier Lodge v. Wilson, 139 Kan. 75, 30 P. 2d 307.
In this case the testimony of scrivener McGinnis concerning his conversations with the testators over a period of a couple of years prior to the drafting of the will, in which the witness testified discussions took place about how their estate was to be planned, was admitted without objection by the court and even though superfluous under the conclusions we have reached, such testimony could properly be admitted under the rule above stated. Subsequent testimony of the witness concerning his opinion as to the contractual nature of the will and his explanation to the testators at the time of execution was admitted over objection by the trial court. In so far as such testimony may be said to tend to change or alter the provisions or terms of the will it was inadmissible. (Guthrie v. Guthrie, 130 Kan. 433, 286 Pac. 195; In re Estate of Schnack, 155 Kan. 861, 130 P. 2d 591; In re Estate of Sowder, 185 Kan. 74, 340 P. 2d 907.) In view of the fact that we have reached our conclusions herein from a careful consideration of the language, terms and provisions of the will itself, such trial error is of no consequence.
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 for personal injuries as the result of an automobile collision.
Plaintiff has appealed from an order sustaining defendant’s motion for a directed verdict.
On the morning in question plaintiff was riding in the right rear seat of an automobile. As the car was about to pass through the gate to the Boeing plant in Wichita, it came in “contact” with the car being driven by defendant which also was attempting to pass through the gate. Both cars were proceeding slowly. When plaintiff’s driver applied his brakes plaintiff was thrown against the back of the front seat, resulting in alleged injury to his previously injured back.
Plaintiff brought this action to recover for his injuries, charging defendant with various acts of negligence. In his answer defendant admitted that an extremely minor accident had occurred but denied negligence and charged that both plaintiff and his driver were guilty of negligence which was the sole proximate cause of the accident.
The matter came on for trial before a jury. At the close of plaintiff’s evidence defendant moved for a directed verdict. The motion was taken under advisement. Defendant introduced his evidence relating to the issue of liability and then renewed his motion for a directed verdict. The motion was sustained and the jury was discharged. Plaintiff has appealed.
Rules relating to these matters are well settled.
In Casement v. Gearhart, 189 Kan. 442, 370 P. 2d 95, it was held:
“In a negligence case where no evidence is presented, or the evidence presented is undisputed and is such that reasonable minds could not accept it as sufficient to establish the existence of a fact, it becomes the duty of the court to remove the issue from the jury. (Syl. 1)
“In reviewing the propriety of an order sustaining a motion for a directed verdict, or, as here, a motion for judgment upon the entire record, this court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon the motion must be denied and the matter submitted to the jury.” (Syl. 2)
To the same effect see Schmid v. Eslick, 181 Kan. 997, 1004, 317 P. 2d 459, and Safeway Stores v. Wilson, 190 Kan. 7, 11, 372 P. 2d 551.
Examining the record in this case we are of the opinion the evidence was such that the minds of reasonable men could reach different conclusions thereon, and therefore the trial court erred in taking the matter from the jury and sustaining the motion for a directed verdict. In such a case a trial court is not permitted to substitute its judgment on questions of fact for that of the jury, nor direct a verdict merely because the evidence decidedly preponderates for the moving party.
In view of the disposition of this case other matters raised in the briefs require no discussion. The judgment is reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from a lump sum judgment entered by the district court of Barton County, Kansas, in an action brought pursuant to the provisions of K. S. A. 44-512a by the claimant in a workmen’s compensation case against the respondent and its insurance carrier.
The controlling question is whether sums due and owing the claimant under an award in a workmen’s compensation case were either refused or not paid within twenty days from the date of service of demand pursuant to 44-512a, supra.
The question presented is one of first impression in this jurisdiction, and though relatively simple to state, will require a full disclosure of the facts giving rise to this action to avoid confusion.
Paul J. Criss (plaintiff-appellee) was the claimant in a workmen’s compensation case and brought this action for a lump sum judgment against Folger Drilling Company, Inc. and Mid-Continent Casualty Company (defendants-appellants), the respondent and its insurance carrier in the workmen’s compensation action. To avoid confusion the parties will be referred to as the claimant, respondent and insurance carrier, respectively, as they appeared in the workmens compensation case.
The facts upon which this controversy is to be determined are not in dispute. They are well within the issues framed by the pleadings and may be stated as follows:
On the 16fh day of October, 1961, the claimant was injured while working for the respondent. The respondent was covered by the workmen’s compensation act and its insurance carrier was the Mid-Continent Casualty Company.
On the 11th day of September, 1963, an award was entered in favor of the claimant by the examiner. In substance the claimant was awarded 27.86 weeks of compensation at the rate of $38 per week for a total of $1,058.68, and 387.14 weeks of compensation at the rate of $31.50 per week in the sum of $12,194.91. In addition thereto the respondent was ordered to pay certain medical expenses of the claimant for services rendered to him by Dr. Marsh and Dr. Zweifel, and also up to $100 for examination of claimant by Dr. Roy B. Coffey (the claimant’s examining physician) of Salina, Kansas.
On the 24th day of September, 1963, the respondent appealed to the district court, and on the 11th day of November, 1963, the appeal was heard. Subsequently, on the 8th day of January, 1964, the district court affirmed the award made by the examiner.
Thereafter, on the 13th day of January, 1964, the claimant through counsel served a written demand for payment of all compensation due under the award pursuant to the provisions of 44-512a, supra.
It is conceded by the claimant that the respondent and its insurance carrier made payment of all items covered by the award within twenty days after receipt of the demand, with the exception of the medical bill of Dr. Roy B. Coffey in the sum of $50. This controversy centers around the payment of the medical bill of Dr. Roy B. Coffey.
On September 4,1964, the claimant filed his 44-512a action asking that the entire balance due under the award be reduced to judgment against the respondent and its insurance carrier. Both parties after taking depositions filed motions for summary judgment.
The district court of Barton County granted the claimant’s motion for summary judgment, and it is from this order that appeal has been duly perfected to this court.
The depositions of Dr. Coffey and his nurse-secretary established that Dr. Coffey examined the claimant on the 29th day of August, 1962. His report of examination, dated September 12, 1962, together with a statement concerning his charges for the examination in the sum of $50, was rendered to Mr. Nuss, counsel for the claimant. At no time did Dr. Coffey render a statement in this matter to the respondent’s insurance carrier, the respondent, or to counsel for the respondent. Dr. Coffey testified that on the 19th day of September, 1962, he received payment from Mr. Nuss, claimant’s counsel, in the sum of $50 for his examination of the claimant.
It was established by the foregoing depositions and the affidavit of counsel for the respondent, which is uncontroverted, that a specific demand was never made by the claimant or his attorneys upon either the respondent, its insurance carrier, or their attorneys for the payment of an examination fee by Dr. Coffey in the amount of $50; that no statement therefor was ever directed to a representative of the insurance company, or furnished to the attorneys of record, or attached to any transcripts furnished to the attorneys of record, or the respondent and its insurance carrier, and that no such statement was ever furnished to a representative of the insurance carrier, or directly to the insurance company, either by Dr. Coffey or the claimant or his attorneys.
It was not until the 25th day of August, 1964, that counsel for the claimant stated to counsel for the respondent that a statement of Dr. Coffey had been rendered, and remained unpaid. Immediately thereafter the insurance carrier through respondent’s counsel submitted a draft in the amount of $50 to Dr. Coffey; that upon receipt of this draft in the amount of $50 Dr. Coffey attempted to deposit the same; that prior to depositing it, but after having fixed a proper endorsement thereon, and after having reimbursed counsel for the claimant the sum of $50, instructions were received by Dr. Coffey from counsel for the claimant indicating that the amount of $50 evidenced by the draft should not be deposited, and that said check should be returned to the insurance carrier. A check for reimbursement directed to counsel for the claimant by Dr. Coffey was not accepted, but returned to Dr. Coffey. On the 9th day of September, 1964, a check in the amount of $50 drawn upon counsel for the respondent was directed to counsel for the claimant, but the same was returned to him.
In summary it may be stated that counsel for the claimant paid the sum of $50, due Dr. Coffey for examining the claimant, one week after Dr. Coffey examined the claimant, ánd long prior to the entry of an award in the compensation case by the examiner.
The question heretofore stated is thus presented.
It has been held that failure to pay any part of the compensation awarded when due and payable, including medical expenses, within the time prescribed by 44-512a after demand, makes the entire compensation immediately due and payable. (Owen v. Ready Made Buildings, Inc., 181 Kan. 659, 313 P. 2d 267.)
In the Owen case only part of the medical expenses awarded were not paid within twenty days from service of the written demand by registered mail, and there was evidence concerning uncertainty of the exact balance due because the respondent and insurance carrier had paid $86 by check on a medical bill of $396 which they were ordered to pay, but the $86 check had not been presented for payment. The court, nevertheless, held that failure to pay the unpaid balance of the medical bill within the prescribed period from the demand must be regarded as constituting a refusal to pay such amount within the period of time required by the statute.
It has also been held that 44-512a, supra, places the burden upon the respondent and its insurance carrier to determine what is due and payable where an award has been made ordering them to make payments. In Miller v. Massman Construction Co., 171 Kan. 713, 237 P. 2d 373, the court held it was the respondent, not the claimant, who was responsible for the passage of time in which it might have paid the accrued compensation and avoided the statute under which the entire award became due. The court further stated it was the respondent and its insurance carrier that had the burden of avoiding the effects following the 44-512a demand, and that neither the claimant nor his counsel was under any obligation to advise the respondent of the exact amount due.
The foregoing decisions are indicative of the law as applied to the factual situations there confronting the court. In each of these cases the distinguishing characteristic is the fact that the respondent knew the actual amount of compensation awarded, and that sums were due and payable under the award within the prescribed period from the demand.
In the instant case the record establishes that Dr. Coffey has in fact been paid for his services in examining the claimant. The sum of $50 was paid by counsel for the claimant. Had the respondent made inquiry of Dr. Coffey concerning the charge for his services., he would have answered, as he did in his deposition, that he had been paid. And since the claimant did not pay for the services of Dr. Coffey, the claimant cannot urge that compensation awarded him for the services of his examining physician was due and payable when the 44-512a demand was served upon the respondent.
Obviously, if the claimant is to prevail in the instant action, he must do so on the ground that his counsel is subrogated to the claimant’s right to receive compensation in the amount of $50 for Dr. Coffey’s services, or that his counsel is subrogated to the right of Dr. Coffey to receive payment under the award in the amount of $50.
An answer to the question posed requires an analysis of the doctrine of subrogation.
Subrogation is the substitution of another person in the place of a creditor, so that the person in whose favor it is exercised succeeds to the rights of the creditor in relation to the debt. Subrogation or equitable assignment is based on principles of natural justice and essential fairness without regard to form—its object being the prevention of injustice. (Waddle v. Bird, 126 Kan. 255, 267 Pac. 974.)
In Crippen v. Chappel, 35 Kan. 495, 11 Pac. 453, it was held that where a stranger, a mere volunteer, a mere intermeddler, pays the debt of another, he cannot be subrogated to the rights of the creditor. In the opinion the court, speaking of the doctrine of subrogation, said:
“. . . It always requires something more than the mere payment of the debt in order to entitle the person paying the same to be substituted in the place of the original creditor. It requires an assignment, legal or equitable, from the original creditor, or an agreement or understanding on the part of the party liable to pay the debt, that the person furnishing the money to pay the same shall in effect become the creditor, or the person furnishing the money must furnish the same either because he is liable as surety or liable in some other secondary character, or for the purpose of saving or protecting some• right or interest, or supposed right or interest, of his own. . . .” (p. 499.) (Emphasis added.)
For other cases treating the subject of subrogation in this jurisdiction see, Gray v. Zellmer, 66 Kan. 514, 72 Pac. 228; Lynds v. Van Valkenburgh, 77 Kan. 24, 93 Pac. 615; Finnegan v. Ihinger, 150 Kan. 357, 92 P. 2d 538; Katschor v. Ley, 153 Kan. 569, 113 P. 2d 127; and Tillotson v. Goodman, 154 Kan. 31, 114 P. 2d 845.
In 50 Am. Jur., Subrogation, § 133, it is said:
“Subrogation, being an equity springing from the relation between the parties, and created and enforced for the benefit and protection of the one in whose favor it originates, may be affected, modified, or extinguished by agreement, or be lost by acts or conduct constituting a waiver. Enforcement of the rights acquired by subrogation may be barred by limitations or precluded by delay amounting to laches.” (p. 768.)
It is apparent from the foregoing rules discussed in connection with the doctrine of subrogation that a party who asserts rights by way of subrogation must do more than assume that he is subrogated to the rights of the original creditor. This general principle was discussed in Waddle v. Bird, supra.
It is unnecessary in the instant case to determine whether counsel for the claimant was in fact subrogated to the rights of Dr. Coffey or subrogated to the rights of the claimant to claim payment of the medical expense items of Dr. Coffey under the award. We hold if counsel for the claimant are asserting rights of subrogation by reason of their $50 payment to Dr. Coffey within one week after Dr. Coffey examined the claimant, it was their affirmative duty to so notify the respondent or its counsel of this fact when service of the 44-512a demand was made upon the respondent. Having failed to do so, the respondent was entitled to rely in the trial court on the fact that Dr. Coffey had been paid, and that there was no sum due and owing either to Dr. Coffey or to the claimant with respect to this item of the award at the time the demand was served.
By reason of the foregoing disposition of the case, we find it unnecessary to consider further contentions advanced by counsel in their respective briefs.
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The opinion of the court was delivered by
Kaul, J.:
Appellant, Jerry Groene, being confined in the state penitentiary, wrote a letter to the sentencing court requesting that the sentence be vacated. The court directed the appellant’s letter be filed and considered a motion under K. S. A. 60-1507.
The appellant, referred to as defendant in the criminal proceedings, was apprehended on February 22, 1963, on suspicion of burglary and grand larceny. On March 1,1963, he was brought before a magistrate in Rush County, Kansas, without counsel. The journal entry of the proceedings before the magistrate discloses that the complaint was read to defendant and his rights explained to him. The defendant then waived a preliminary hearing and was bound over for trial in the district court.
An information was filed in the District Court of Rush county charging defendant with grand larceny under G. S. 1949, 21-520, and burglary in the second degree as set out in G. S. 1949, 21-533. On March 5, 1963, defendant was brought before the district court and after questioning the defendant the court appointed Neil Hotchkiss, a member of the bar of Rush county, as counsel for the defendant.
On the same day the defendant, with his counsel, again appeared before the court and the information was read to him. He was informed of the charges against him and as to his rights. Thereupon the county attorney asked leave to amend the information by dismissing the charge of grand larceny. Leave to so amend was granted by the court. The defendant entered his plea of guilty to the charge of burglary in the second degree, the only count left in tire information. Counsel for defendant then moved for parole and after arguments the motion was denied. Thereupon the court, in the presence of defendant’s attorney and the county attorney, inquired of the defendant if he had any legal cause or reason why sentence and judgment should not be pronounced according to law, and defendant failed to show cause or reason. Thereupon defendant was sentenced to confinement in the Kansas State Penitentiary at Lansing, Kansas, for not less than five years and not more than ten years.
On August 24, 1964, the trial court received a letter from defendant (referred to as petitioner hereinafter) asking that the sentence be vacated, that counsel be appointed and that petitioner be returned to the court for hearing. On that date the court found the petitioner to be an indigent person and appointed Ivan D. Krug, a member of the Rush county bar to act as counsel for defendant. On August 26, 1964, the court set the hearing for September 28, 1964, and notice was given to the petitioner, his attorney and the county attorney. The court notified petitioner’s counsel that no order would be made directing the return of petitioner unless counsel could make a showing of facts that were particularly within the knowledge of petitioner upon which testimony would be necessary for a proper hearing.
On September 28, 1964, the hearing was had. The court denied petitioner’s request to be returned for the hearing on the grounds that no showing was made to the satisfaction of the court by petitioner’s counsel that presence of petitioner was necessary.
On November 30, 1964, the district court made detailed findings of fact and conclusions of law on all points raised by petitioner at the hearing and the motion was denied. On the same date petitioner filed notice of this appeal.
In his statement of points, the petitioner submits five grounds upon which he relies.
For his first point, the petitioner claims that K. S. A. 62-1304 is unconstitutional on three separate grounds. First he contends that the statute is constitutionally defective because it provides for the appointment of counsel for indigent defendants in the case of felonies only, no such provision being made in the case of misdemeanors. This contention cannot be maintained for the simple reason that in this case petitioner was charged with a felony and not a misdemeanor and therefore he is not in a proper position to challenge the constitutionality of the act on this ground.
Petitioner argues that the statute is unconstitutional on the grounds that the time provided for the appoinment of counsel is inadequate under the rule announced by the United States Supreme Court in Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758. K. S. A. 62-1304 provides for the appointment of counsel when any person is about to be arraigned. The Escobedo rule was summarized in the majority opinion:
“. . . We hold only that when the process shifts from investigatory to accustory—when its focus is on the accused and its purpose is to elicit a confession—our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.” (p. 492.)
The substance of K. S. A. 62-1304 in this connection is that appointment of counsel or waiver thereof under the provisions set out must be had prior to arraignment. There are no provisions in the statute that prevent or prohibit the appointment of counsel at the request of the accused at any time subsequent to arrest and prior to arraignment. Certainly there is no language to be found in the statute that would authorize the denial of the right of an accused to consult counsel under the circumstances existing in Escobedo.
Petitioner further complains that the statute is unconstitutional because he did not have the right to the appointment of counsel for an appeal, nor was he advised of any rights to appeal. The record discloses that no attempt to appeal was made by petitioner and that he was in fact precluded from an appeal by reason of his acquiescence in the sentence and judgment of the court in making application for probation. (See State v. Mooneyham, 192 Kan. 620, 390 P. 2d 215, cert. denied, 377 U. S. 958, 12 L. Ed. 2d 502, 84 S. Ct. 1640). Even though petitioner is not in a position to challenge the constitutionality of the statute on this ground, we have no hesitancy in stating that the act meets all requirements of the federal constitution on this point as well as those heretofore considered herein.
We stated in Hardman v. Hand, 190 Kan. 148, 373 P. 2d 178, and reiterated in White v. Hand, 190 Kan. 472, 375 P. 2d 616, that the requirements of G. S. 1959 Supp. 62-1304 (now K. S. A. 62-1304) are in fact broader than those required by the federal constitution (See also Devine v. Hand, 287 F. 2d 687; Tafarella v. Hand, 294 F. 2d 67; Tibbett v. Hand, 294 F. 2d 68; Goetz v. Hand, 195 F. Supp. 194, affirmed 291 F. 2d 930).
For his second point, petitioner contends that the trial court erred in not returning him for a full and complete hearing.
Rule No. 121 (h) of the Supreme Court (194 Kan. xxvm) relating to the presence of the prisoner states:
“Presence oe Prisoner. The prisoner should be produced at the hearing on a motion attacking a sentence where there are substantial issues of fact as to events in which he participated. The sentencing court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing and requiring the prisoner to be present.”
There were no substantial issues of fact raised by petitioner in this case which made his presence necessary. The trial court acted entirely within its discretion in this regard. Counsel for petitioner appeared at the hearing and argued questions of law but made no showing of any factual issue that could have been supported by the testimony or presence of petitioner.
Petitioner further contends that an attorney should have been appointed well in advance of arraignment. The record discloses that counsel was appointed prior to arraignment and did consult with petitioner before a plea was entered and further that on arraignment one count of the information was dismissed by the county attorney. There is no showing that petitioner or his attorney requested a continuance. The record fails to disclose petitioner’s rights were prejudiced by reason of the time of appointment of counsel.
Petitioner also contends that the district court erred in not advising him of his right to appeal and in determining that a plea of guilty or application for parole waived trial irregularities and constitutional defects. An answer to both of these contentions may be found in the recent case of State v. Robertson, 193 Kan. 668, 396 P. 2d 323, wherein it was stated:
“. . . However, no rule of this court nor statute of this state imposes upon the district judge the specific duty of advising an indigent defendant of his right to appeal, with the assistance of court-appointed counsel, before sentencing. Actually, there is no need for such rule because the indigent defendant is provided with the assistance of counsel at the trial of his case. (G. S. 1961 Supp., 62-1304.) It must be assumed that such appointed counsel will fully and fairly represent the indigent defendant and fully advise him of his rights, including the right to appeal with the assistance of counsel. On die record here presented it may be assumed that the appellant was fully advised on this point.” (p. 670.)
In commenting on the rale of State v. Mooneyham, supra, that a request for parole constitutes acquiescence in the judgment and thus constitutes a waiver of the right to appeal it was stated, commencing at page 670 of the opinion in State v. Robertson, supra:
“. . . The appellant’s counsel argues that without specific advice by die trial court concerning the appellant’s right to appeal, the appellant cannot be said to have had the requisite understanding to make an intelligent waiver of that right. The fallacy of this argument lies in the fact that the underlying theory in State v. Mooneyham, supra, is that the appellant recognizes and acquiesces in the validity of the judgment by seeking probation. He is precluded from appealing, not because he expressly and understandingly waived such right, but because he expressly and understandingly took action which, in and of itself, was inconsistent with an intention to appeal. Since his request for parole, and the consequent acquiescence in the judgment and its validity, was intentionally made, the fact that the appellant may not have understood that he would be bound by the reasonable and logical implications of his action, thereby foreclosing an appeal, is immaterial.”
For that matter, the application of the rale of waiver by acquiescence is of no consequence in this case because the record fails to reveal any irregularities in the criminal proceedings which would require a cure by waiver.
In conclusion we hold that on all points raised by petitioner in this appeal; the findings and conclusions of the district court are supported by the files and the records that were before it.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This was an action to recover damages for the wrongful conversion of personal property. A motion for summary judgment was sustained by the trial court on the pleadings, exhibits and an affidavit filed by the defendant. ■
The petition commingled three separate causes of action. Damages, both actual and punitive, were requested for (1) conversion of mortgaged property where possession of the property was obtained by a replevin action and sold at public sale before answer date, (2) conversion of plaintiffs’ property sold at the public sale which was not covered by the mortgage and (3) wrongfully preventing plaintiffs from harvesting growing crops.
The first cause presents the chief controversy. We will avoid considerable confusion if we summarily dispose of causes two and three before considering the issues of fact and law raised by the former.
The trial court did not rule separately on the claims but simply sustained the motion for summary judgment addressed to the action as a whole.
It should also be explained at this point that the amended petition which we are considering named an officer of the defendant bank and the bank’s surety on the replevin bond as parties defendant. These parties were taken out of the cause by a demurrer. No appeal was taken therefrom and the State Bank of Parsons was left as the only party defendant.
First considering appellants’ claim that the appellee wrongfully sold property not covered by the mortgage in question, we find it to be without merit. The appellee did sell three cows, several calves and some miscellaneous dairy equipment at the public sale which were not covered by the mortgage. There is a dispute as to how this property got to the public sale and under whose instructions it was sold. However, it is not disputed that the appellants did attend the sale; they stood by and watched this property sold in the normal course of a public sale without protest, and accepted and cashed the bank’s money order for the full amount of the sale price.
We are forced to conclude that the appellants did acquiesce in the sale of such non-mortgaged property and, having accepted the proceeds of the sale with full knowledge of all the facts and circumstances, are bound by the results thereof. (Hazel v. Lyden, 51 Kan. 233, 32 Pac. 898. See, also, Bank v. Commission Co., 113 Kan. 545, 215 Pac. 828; Westhusin v. Landowners Oil Ass’n, 143 Kan. 404 55 P. 2d. 406; Pelischek v. Voshell, 181 Kan. 712, 313 P. 2d 1105.)
Considering appellants’ claim as set out in the amended petition to the effect that appellee wrongfully prevented appellants from harvesting certain com and maize, it appears the alleged claim has been abandoned. The issue is not presented in the statement of points on which appellants intend to rely, neither is it covered in appellants’ brief.
The only questions left for our consideration are the propriety of the sale of the mortgaged property and the propriety of the accounting.
The facts which will determine the validity of the summary judgment must be gleaned from the pleadings, the exhibits and the affidavit submitted in support of the motion for summary judgment.
On the hearing of a motion for summary judgment there should be no attempt to resolve conflicting questions of fáct. The party who moves for a summary judgment has the burden of establishing without a doubt that there is no genuine issue of fact (Warner v. First National Bank of Minneapolis, 236 F. 2d 853, certiorari denied, 352 U. S. 927, 77 S. Ct. 226, 1 L. Ed. 2d 162); Any doubt as to the existence of such an issue is resolved against the movant (Zampos v. United States Smelting Refining and Min. Co., 206 F. 2d 171). The pleadings are to be liberally construed in favor of the party opposing the motion (Purity Cheese Co. v. Frank Ryser Co., 153 F. 2d 88). He is to be given the benefit of all reasonable inferences to be drawn from the evidentiary matter and all facts asserted by the party opposing the motion and supported by affidavits or other evidentiary material must be taken as true. These and other rules applicable to the consideration of a motion for summary judgment will be found in 3 Barron & Holtzoff, Federal Practice and Procedure, § 1231, et seq.
The facts which we must accept as true may be summarized.
On May 5, 1961, plaintiffs mortgaged certain property, consisting of cows and heifers, to the defendant to secure a note in the amount of $4,600 due on January 5, 1962. The mortgage contained the following provision:
. . if the said mortgagee shall at any time in good faith deem said debt insecure or fear waste of said property, then, and in either such case the mortgagee may take possession of the said property or any part thereof. Upon taking possession of said property, the said mortgagee, or his legal representatives may proceed to sell the same or any part there of at public or private sale, and after satisfying the necessary costs, charges and expenses incurred in connection with such sale, including attorney’s fees, the balance of proceeds realized from said sale shall be paid on the debt and interest secured hereby, and thereafter they shall pay over the surplus, if any, to said mortgagor. ...”
On November 20, 1961, the defendant filed a replevin action alleging itself to be insecure and seeking judgment for possession of the mortgaged property on the strength of its chattel mortgage. A writ of replevin was issued and possession of the mortgaged animals was taken from plaintiffs and given to defendant on the 24th day of November, 1961. The answer date in the replevin action was fixed as December 20,1961.
The plaintiffs in the action being considered never appeared in the replevin action although they were personally served with summons.
On or about December 16, 1961, at a duly published sale the defendant sold all the mortgaged animals.
Following the sale the bank made an accounting to plaintiffs, the defendants in the replevin action, and delivered to them the bank’s money order for $388.33, the amount of the sale price less the balance due on the mortgage and expenses. The accounting was refused and the money order was not cashed.
On December 21, 1961, the bank took a default judgment in the replevin action in which it was awarded possession of the mortgaged property and the replevin bond was released.
Sometime in the fall of 1963, the date not being disclosed by the record, the plaintiffs brought the present action for conversion.
In addition to the facts hereto stated the petition alleged:
“That at the time of the filing of said replevin action, the said note and chattel mortgage were not due and the statement and affidavit of the state bank of parsons and j. j. flynn, jr. to the effect that it deemed itself insecure was untrue and not made in good faith, but made for the purpose of fraudulently appropriating and converting to its own use and to the loss and detriment of plaintiffs, plaintiffs’ property, as more specifically alleged hereinafter.”
The prayer was for actual damages in the amount of $14,200.00 and punitive damages in the amount of $30,000.00. It will be understood that commingled with the claim for damages for conversion of the mortgaged property was also the claim for conversion of the property that was not mortgaged and also damages for wrongful prevention of harvesting of crops. It cannot be determined just what is claimed as the value of the mortgaged property. However, plaintiffs do not contend that the sale did not produce the full value of the mortgaged chattels.
Although the appellants state several points on which they rely for reversal, they reduce their argument to a simple contention in their brief: “. . . It is appellants’ position that the sale held prior to the answer date by appellee amounted to a conversion of appellants’ property covered by the chattel mortgage- . .
The appellants have with commendable frankness made a further concession which materially simplifies the issue to be determined. They stated:
“Appellant freely admits that insofar as the replevin action itself is concerned there was subsequent to the premature sale a journal entry filed which decreed that the plaintiff in that case, the State Bank of Parsons, be awarded possession of the mortgaged property which was the subject of the replevin action. Insofar as the possessory aspects of the mortgaged property are concerned, appellant concedes that the replevin action is res judicata. However, it is what transpired before the obtaining of judgment that is the real basis of the case at bar.”
A replevin action does determine the right to possession. It will also determine title where the right to possession depends on title. The plaintiff in a replevin action must recover on the strength of his own title or right to possession. (Rauh v. Dumler, 170 Kan. 698, 228 P. 2d 694.) In Johnson v. Beach, 146 Kan. 781, 73 P. 2d 1040, it is stated:
“At common law (54 C. J. 418) and under our statutes, G. S. 1935, 60-1002 and 61-502, replevin is a possessory action. To maintain replevin under our statutes the plaintiff must show (a) that he owns the property, or that he has a special ownership or interest therein; (b) that he is entitled to the immediate possession of the property, and (c) that the property is wrongfully detained by the defendant. (Batchelor v. Walburn, 23 Kan. 733.)” (p. 782.)
We believe the replevin action involved in this case determined more than the bare right to possession. The bank claimed no right in the petition for replevin other than that given by the mortgage. The bank had no right to possession of the property other than for the purpose of selling it and accounting to the mortgagees for the surplus after satisfying the mortgage. Implicit in the judgment giving right to possession under the mortgage was the duty under the mortgage to sell the property.
We are forced to conclude that the judgment in replevin was not only res judicata as to the right to possession but was also res judicata of the rights and duties of the mortgagee to sell under the terms of the mortgage. Had the court found that the bank was not entitled to possession of the mortgaged property because it did not in good faith deem the debt insecure, the bank would have been guilty of conversion in selling the property and the judgment in replevin would have been res judicata of that fact.
There are, however, other matters which are not adjudged in a replevin action as a matter of course. A mortgagee who takes possession of mortgaged property under a replevin action has no greater right to dispose of the property than is granted by the terms of the mortgage. If the mortgagee makes a fraudulent or improvident sale of the property he is liable to the mortgagor for the actual value of the property, even though tibie sale was conducted in the manner provided in the mortgage. Also, if he claims unnecessary expense or refuses to pay over the balance of the sale price the mortgagor may seek a proper accounting. (Watkins v. Layton, 182 Kan. 702, 324 P. 2d 130.)
The appellants make no claim that in their petition the sale price was not a fair one. In their petition they allege only that the bank had no right to sell and that it should be held liable for conversion, or in the alternative that they should have an accounting. Since the judgment in the replevin action determined the right of the bank to sell the property as an incident to possession, the only question remaining for determination is a proper accounting. This question could not be reached by a motion for summary judgment as a disputed factual question is presented.
The appellee contends that the appellant could have litigated the question of a proper accounting in the replevin action and therefore it cannot now be raised in a separate action. No doubt the question could have been raised in the replevin action had appellants seen fit to do so. This court has taken a rather liberal approach as to the numerous issues which a defendant may raise in defense to an action in replevin. (Petersime Incubator Co. v. Ferguson, 143 Kan. 151, 53 P. 2d 505; General Refrigeration Sales Co. v. Roberts, 145 Kan. 333, 65 P. 2d 269; United States Hoffman Machinery Corp. v. Ebenstein, 150 Kan. 790, 96 P. 2d 661; Federal Deposit Ins. Corp. v. Cloonan, 169 Kan. 735, 222 P. 2d 533.)
There are many claims which a defendant may permissibly raise by way of counter-claim or cross-petition but which are "not compulsory. This was particularly true under the old code.
The rule that all matters which could be litigated in an action become res judicata does not have as severe an application as appellee would have us make in this case.
Matters which the defendant could have raised by cross-petition but which are not raised by the pleadings or could not have been litigated under the facts constituting the cause of action under the first suit are not res judicata. (Kenoyer v. Board of Barber Examiners, 176 Kan. 424, 271 P. 2d 267.) Also, in Green v. Kensinger, 193 Kan. 33, 392 P. 2d. 122, this court held: “A judgment is not conclusive as to matters incidentally brought into a trial and not substantially in issue.” (Syl. 5.)
In Ferguson v. Petersime Incubator Co., 146 Kan. 815, 73 P. 2d 1026, we stated:
“. . . We may consider what was actually done at the trial of the counterclaim according to the record as pleaded in the case at bar. If we assume that the damages arose from different wrongful acts, and that each constituted a separate cause of action, then in that situation the rule most favorable to appellant is that stated in Stroup v. Pepper, 69 Kan. 241, 76 Pac. 825:
“ ‘The rule that a judgment in bar, or as evidence in estoppel, is binding not only as to every question actually presented and considered and on which the court rested its decision, but also as to every question that might have been presented and decided, does not apply to a different cause of action between the same parties, except as to questions shown to have been actually decided in the former action.’ (Syl. f 1.)
“This rule has been followed repeatedly in this state.” (P. 820.)
The actual issues in a replevin action are quite limited. In American State Bank v. Holding, 189 Kan. 641, 371 P. 2d 167, this court stated at page 644 of the opinion:
“. . . In substance, the only issue in a replevin action, such as the instant case, is whether the plaintiff is entitled to the possession of the replevin property at the time of the commencement of the action, and the rights of the parties are determined as of that time. . . .”
We must conclude that the appellants have a right to a full and complete accounting of the disposition of the proceeds from the mortgage foreclosure sale including the propriety of the expenses claimed by appellee.
The judgment is affirmed as to all issues except the right to an accounting; it is reversed insofar as it denies to plaintiffs a full and complete accounting of the proceeds from the foreclosure sale.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from an order of the district court reviving a dormant judgment.
On July 19, 1957, First Federal Savings & Loan Association of Coffeyville, plaintiff-appellee, recovered judgment against Harrison S. Tanner in the amount of $5,124.20 in a real estate foreclosure action and the judgment was made a lien upon the described real estate. No execution or order of sale was issued thereon and no revivor proceedings had within six years from the date of judgment, and the mortgage was released of record under the provisions of G. S. 1949, 67-314.
We are concerned in this appeal only with the order reviving the money judgment. The judgment became dormant July 19, 1962, by virtue of G. S. 1949, 60-3405, which provides that if execution shall not be issued within five years from the date of the judgment or of the last execution thereon, such judgment shall become dormant. On December 2, 1963, plaintiff filed its motion to have the judgment revived, and before the motion was heard Tanner died on December 15. On May 20, 1964, T. Richard Liebert, hereinafter referred to as appellant, was appointed and qualified as executor of Tanner’s estate. On June 1 plaintiff filed a motion and notice of hearing of the same to revive the dormant judgment, and service was had upon the named executor of Tanner’s estate.
Pursuant to a summons caused to be served upon him requiring him to plead tó the motion to revive the dormant judgment, the appellant filed his written objections to the motion, stating he was not the proper party, that the court had no jurisdiction over his person as executor, and asking that the summons and motion of the plaintiff be quashed.
On the issues joined,' the trial court, on July 1, found that the trial and entry of judgment, the order quashing the order of sale, and all other proceedings had prior to the filing of the present motion to revive the dormant judgment were had and done under the provisions of G. S. 1949, chapter 60, article 32, and that the present motion to revive the dormant judgment was filed after the new code (K. S. A., Ch. 60, Art. 24) became effective. Under the provisions of K. S. A. 60-2608 the trial court applied both the prior and existing provisions of the code where applicable and revived the action in the name of T. Richard Liebert as executor of the estate of Harrison S. Tanner, deceased. From this order of revivor the executor appeals.
A revivor of a'judgment is purely statutory in its origin and can be accomplished only in the manner and under the conditions prescribed by statute.
G. S. 1949, 60-3209, provides that the order of revivor may be made by a motion of the adverse party suggesting the death of the party against whom revivor is sought and the names and capacities of his representatives or successors, and G. S. 1949, 60-3213, provides that upon the death of a defendant in an action wherein the right survives against his personal representatives, the revivor shall be made against them.
Appellant concedes he was served with the notice and motion to revive the dormant judgment. The record reveals the forms of the same were in compliance with the pertinent statutes. Thus, T. Richard Liebert, having been duly appointed and qualified as executor of Tanner’s estate, is a proper party in the instant case, being decedent Tanner’s personal representative.
G. S. 1949, 60-3220, provides that if either or both parties die after judgment but before satisfaction thereof, their representatives may be made parties in the same manner as is prescribed by reviving actions before judgment. This court has long adhered to the rule that the right to revive a judgment in the name of the representative of a deceased judgment debtor is not a matter of discretion with the court, but when an application by a proper party is made in due form and within the time prescribed by statute, the order of revivor must be granted as a matter of right. (Chumos v. Chumos, 93 Kan. 33, 143 Pac. 420.)
G. S. 1949, 60-3221, provides: “If a judgment become dormant it may be revived in the same manner as is prescribed for reviving actions before judgment at any time within two years after it becomes dormant.” In Butler v. Rumbeck, 143 Kan. 708, 709, 56 P. 2d 80, it was stated that this court has always construed our revivor statutes to the effect that the judgment creditor has an absolute right, if he proceeds within the requisite time, to have a dormant judgment revived. And in the instant case the provisions of the mentioned statutes were complied with.
Appellant questions the court’s jurisdiction of his person and the subject matter. We need not cite authorities to sustain the universally accepted rule that when a party appears generally in an action the court obtains jurisdiction as to his person. (Buehne v. Buehne, 190 Kan. 666, 672, 378 P. 2d 159.) Furthermore, it is also settled law that the trial court which rendered the judgment is the only court with jurisdiction to revive the judgment rendered by it, irrespective of any incidental proceedings elsewhere. (Rodgers v. Smith, 144 Kan. 212, 219, 58 P. 2d 1092.)
We have carefully considered other issues raised by the appellant and find they are without sufficient merit to justify reversal. In the instant case the judgment creditor, in compliance with our statutes, had properly filed its motion and given notice to the decedent’s representative.
The order of the trial court in reviving the judgment against T. Richard Liebert as executor of the estate of Harrison S. Tanner, deceased, was proper, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzeb, J.:
On November 10, 1964, the appellant, Jack D. Zumalt, filed his motion in the district court of Reno, County, Kansas, pursuant to K. S. A. 60-1507 and Rule No. 121 (194 Kan. xxvn), to vacate and set aside the judgment of that court finding him guilty of first degree robbery in criminal case No. 6163, and sentencing him to confinement in the Kansas State Penitentiary for a term of not exceeding twenty years under the provisions of the Kansas Habitual Criminal Act. (K. S. A. 21-107a.)
It being made to appear from the appellant’s motion that he was an indigent person, the district court appointed Dennis O. Smith, a member of the Bar of Reno County, to represent him on the motion then pending. On November 20, 1964, the district court filed a memorandum opinion in which it found from an examination of the motion and from the files and records in the case, that the petitioner was entitled to no relief and the appellant perfected an appeal from that ruling. In accordance with Rule No. 121, supra, (i) and (m), the district court appointed Dennis O. Smith to assist the appellant in perfecting and presenting this appeal.
The only question presented in the appellant’s statement of points (Rule No. 6, Record on Appeal to Supreme Court, [d], 194 Kan. p. xxvrt; K. S. A. 60-2701), and briefed by the appellant, is the claim that he was denied due process of law by reason of the fact that he was not represented by counsel at his preliminary examination. (K. S. A. 62-805.)
As stated in his brief, the appellant was arrested and taken before a magistrate of the City Court of Hutchinson, Kansas, on July 9, 1958, and was given a preliminary examination on July 18, 1958, without having counsel appointed to represent him. An Information was filed in the district court of Reno County charging the defendant with first degree robbery. On September 9, 1958, F. Duane Roberts and James H. Rexroad, members of the Reno County Rar, were appointed to represent the appellant. James H. Rexroad is presently judge of the district court of Reno County. Following a plea of not guilty, the appellant was tried by a jury, and on October 16, 1958, was found guilty of the offense of first degree robbery as charged in the Information. On November 1, 1958, the district court overruled the appellant’s motion for a new trial and in accordance with the Kansas Habitual Criminal Act, he was sentenced to confinement in the Kansas State Penitentiary.
Questions of law presented in this appeal were concisely stated by the appellant in his statement of points, which are:
“1. That the Appellant was not represented by counsel at a preliminary hearing heard in the City Court of Hutchinson, and that such denial of counsel is a violation of due process of law as guaranteed by the United States Constitution and the laws of Kansas.
“2. That the trial court erred in denying the Appellant’s motion for relief under K. S. A. 60-1507.”
The only real question involved is whether an indigent defendant who is charged with a felony has a constitutional right to have-counsel appointed to represent him at a preliminary examination.
In State v. Atkins, 195 Kan. 182, 403 P. 2d 962, the precise question was involved, and in the course of the opinion it was said:
“The question has been before this court many times—particularly within the past year or two—and it uniformly has been answered in the negative. There is nothing about the facts of this case to bring it outside the general rule. No useful purpose would result from discussing the matter further. It has been dealt with in many cases. See State v. Daegele, 193 Kan. 314, 393 P. 2d 978 (cert. den. 379 U. S. 981, 13 L. Ed. 2d 571, 85 S. Ct. 686), Tarr v. State, 194 Kan. 798, 402 P. 2d 309, Portis v. State, 195 Kan. 313, 403 P. 2d 959, and the many cases cited in those opinions.” (1. c. 183.)
See, also, State v. Latham, & York, 190 Kan. 411, 375 P. 2d 788 (cert. den. 373 U. S. 919, 10 L. Ed. 2d 418, 83 S. Ct. 1310; State v. Young, 194 Kan. 242, 398 P. 2d 584; State v. Richardson, 194 Kan. 471, 399 P. 2d 799; Bergin v. State, 194 Kan. 656, 400 P. 2d 978, wherein many previous decisions are cited and discussed, and State v. Lewis, 195 Kan. 389, 405 P. 2d 796.
No showing is made that the appellant requested that counsel be appointed to represent him at his preliminary examination; likewise, no claim is made that at his trial in the district court evidence was introduced with respect to any testimony introduced at the preliminary examination. The record is devoid of any showing that the appellant’s rights were in any way prejudiced by the fact that he was not represented by counsel at his preliminary examination.
In view of the foregoing, the appellant’s contention is rejected; he was entitled to have counsel represent him at his trial in the district court—not at his preliminary examination. (Latham v. Crouse, 320 F. 2d 120, 122 (cert. den. 375 U. S. 959, 11 L. Ed. 2d 317, 84 S. Ct. 449.)
The judgment is affirmed.
Fontron, J., not participating. | [
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The opinion of the court was delivered hy
Harman, C.:
This action was one initiated by the Topeka Presbyterian Manor, Inc., a corporation, hereinafter called Manor, to recover taxes paid by it under protest for a part of the year 1963, and to enjoin defendants, the taxing authorities of Shawnee County, Kansas, wherein Manors property is located, from assessing and collecting taxes on such property and to have it removed from the tax rolls. After trial in the district court, but before overruling of motion for new trial, the Director of Property Valuation of the State of Kansas was permitted to intervene in the action as a co-party defendant.
The case was submitted to the trial court upon the pleadings and an agreed statement of facts which may be summarized as follows:
Manor is a nonprofit Kansas corporation, with no stock issued, and along with similar Manors located at Newton and Sterling, Kansas, is under the management of the United Presbyterian Foundation of Kansas, Inc., likewise a nonprofit Kansas corporation, which in turn is under the authority of the Synod of Kansas, the governing body of the affairs of the United Presbyterian Church of the United States of America for the State of Kansas; that upon dissolution of the Manor any net assets would never go to the resident members or contributors but would pass to the Foundation, whose assets in turn in case of dissolution would go to the Synod and not to any individual; that one of Manor’s purposes, as expressed in its articles of incorporation, is to provide elderly persons on a nonprofit basis with housing facilities and services, especially designed to meet the physical, social and psychological needs of the aged, and to contribute to their health, security, happiness and usefulness in longer living; that the Manor was built and equipped with approximately $400,000.00 in gifts and a Federal Housing Administration secured commercial loan in the sum of approximately $1,000,000.00; that a State Board of Health survey shows that in August, 1963, certain named counties in Kansas paid for the care of welfare clients in adult care homes varying amounts from $200.00 per month to as high as $305.00 per month, and that the Shawnee County Welfare Department for private nursing home care pays $30.00 per month more than for those in church homes; that Manor makes an effort to secure an entrance fee of $2,000.00 and a minimum monthly payment for board and room, laundry and ordinary care, with sick ward provided, in the sum of $200.00 but of the eighty-two persons in residence on January 31, 1964, eleven persons had paid no membership fee, three pay only the welfare rate and two others pay less than the desired minimum monthly charge; that preference is given for admission of members of the United Presbyterian Church but admission is not restricted to such members and on January 31, 1964, there were sixty-on'e Presbyterians and twenty-one persons of eight other denominations in residence; that a chapel is operated in conjunction with other facilities of the Manor with regular weekly religious services being held by staff members who are former pastors; also included in the facilities is an infirmary with room for seventeen patients with registered nurses on duty at all times.
Manor began operating August 1, 1963, and its operating statement for the first seven months showed an excess of receipts over disbursements in the sum of $8,341.28, the receipts including approximately $59,000.00 in gifts; that Manor’s income from residents will not alone cover operating costs and make the required monthly mortgage payment and it will have to continue to receive gifts in order to operate; that the average monthly deficit in December, 1963, was the sum of $76.17 per person; that during construction application was made to the Director of Revenue for exemption from sales and compensating use tax upon the ground Manor would be a religious, charitable and benevolent operation, and such exemption was granted March 9, 1959; no individual profits from Manor’s operation and only reasonable compensation is paid its employees; its Executive Director and Board of Directors receive no salary from Manor; that Manor was organized and its monthly rates set based on rulings of tax exempt status; that a companion home at Newton operated on the same basis was granted exemption in 1949, and another at Sterling was likewise declared tax exempt, date not given; that homes for the aged sponsored by numerous other church denominations, fraternal organizations, as well as hospitals operating in Kansas, have been granted tax exempt status as either religious, charitable or benevolent, or a combination thereof, by the highest taxing authorities of the State of Kansas, and none operated as Manor has been operated has been denied exemption until Manor was so denied by the State Board of Tax Appeals on December 18, 1963; that Manor paid the first half of its 1963 property tax under protest.
The trial court made findings of fact in accordance with the fore going and further found that Manor’s property after August 1, 1963; was “exclusively used as a religious, charitable and benevolent home for the aged” and, therefore, was exempt from taxation. From this, and the order overruling motion for new trial, the defendants, hereinafter referred to as appellants, have appealed.
As the matter is now presented to us there is no effort to sustain the ruling made upon the basis that the property is used for religious purposes, and hence the sole question involved in the appeal is whether Manor’s property is exempt from taxation by reason of being used for charitable and benevolent purposes.
Article 11, Section 1, of the Constitution of Kansas provides in part: “. . . All property used exclusively for . . . benevolent and charitable purposes . . . shall be exempted from taxation.”
The pertinent part of K. S. A. 79-201 is as follows:
“That the property described in this section, to the extent herein limited, shall be exempt from taxation:
“Third. All real property, and all tangible personal property, actually and regularly used exclusively for . . . benevolent or charitable purposes: Provided, That this exemption shall not apply to such property, not actually used or occupied for the purposes set forth herein, nor to such property held or used as an investment even though the income or rentals received therefrom is used wholly for such . . . benevolent or charitable purposes.”
Appellants urge that the constitutional and statutory provisions for exemption must be strictly construed, that the burden is upon those claiming exemption from taxation to show that the use of the property in question comes fully within the terms of the exemption, and that the proper test for exemption from ad valorem taxation for benevolent or charitable purposes is that the property be used exclusively for those purposes. There can be no contention with respect to any of these as general propositions. For the first, see Manhattan Masonic Temple Ass’n v. Rhodes, 132 Kan. 646, 296 Pac. 734, wherein it was stated:
“. . . Kansas is properly classified with the jurisdictions which adhere to the rule that constitutional and statutory provisions exempting property from taxation are strictly construed and all doubts resolved against the exemption. The rule of strict construction of statutes making exemptions from the burden of taxation which rests on the generality of persons and property has always prevailed in this state.” (p. 649.)
And in Federal Land Bank v. Board of County Commissioners, 187 Kan. 148, 354 P. 2d 679, it was held that the burden of estab lishing exemption from taxation is on the one claiming it. And see Masonic Home v. Sedgwick County, 81 Kan. 859, 106 Pac. 1082, wherein it was in substance stated that the constitutional exemption from taxation depends solely upon the exclusive use made of the property and not upon the ownership or the character, charitable or otherwise, of the owner.
First of all let us look at what is meant by the terms charitable and benevolent. It has been said the word “charity,” like many others, has both a lay and a legal meaning, and that in legal parlance the term has a much more extended significance than in common speech. (See 15 Am. Jur., 2d, Charities, §§ 2 & 3, pp. 7-8.)
In Rlack’s Law Dictionary, 4th ed., we find this discussion of charity:
“It may mean or apply to:
“Accomplishment of some social interest, In re Tollinger’s Estate, 349 Pa. 393, 37 A. 2d 500, 501, 502 . . . Amelioration of persons in unfortunate circumstances, Second Nat. Bank v. Second Nat. Bank, 171 Md. 547, 190 A. 215, 111 A. L. R. 711 . . . Any purpose in which the public has an interest, Collins v. Yyon, Inc., 181 Va. 230, 24 S. E. 2d 572, 580 . . . assistance to the needy . . . Improvement of spiritual, mental, social and physical conditions. Andrews v. Young Men’s Christian Ass’n of Des Moines, 226 Iowa 374, 284 N. W. 186, 192 . . . Whatever proceeds from sense of moral duty or feeling of kindness and humanity for relief or comfort of another. Doyle v. Railroad Co., 118 Mass. 195, 198, 19 Am. Rep. 431.” (pp. 296, 297.)
The same work defines benevolent as follows:
“Philanthropic; humane; having a desire or purpose to do good to men; intended for the conferring of benefits, rather than for gain or profit; loving others and actively desirous of their well being.” (p. 201.)
In Mason v. Zimmerman, 81 Kan. 799, 106 Pac. 1005, it was stated:
“ ‘Charity’ is a gift to promote the welfare of others in need, and ‘charitable,’ as used in such constitutional and statutory provisions, means intended for charity, and “benevolent’ is, as used therein, entirely synonymous with ‘charitable.’ ” (Syl. f 2.)
In In re Estate of Carlson, 187 Kan. 543, 358 P. 2d 669, we find this:
“A charity is broadly defined as a gift for general public use . . . Gifts for the purpose of establishing or maintaining hospitals, or like institutions for the benefit of the sick, injured, aged, infirm, or other persons in unfortunate circumstances are for a purpose recognized by the courts as charitable.” (p. 546.)
Thus it may be seen that the term “charity” in a legal sense is rather a matter of description than of precise definition, and there fore each case involving a determination of that which is charitable must be decided upon its own particular facts or circumstances.
The gist of appellants’ three contentions mentioned heretofore may be succinctly stated: That the evidence before the trial court did not warrant its finding that Manor’s property was used exclusively for charitable and benevolent purposes, stressing that the facts as established do not meet the required test of exclusive use. In support of this argument appellants take one by one certain factors shown by the evidence and urge that these, taken either individually or collectively, do not establish that Manor’s property was used exclusively for benevolent and charitable purposes.
Appellants properly stress the expression “used exclusively” in both the constitutional and statutory provisions. This expression simply has reference to the primary and inherent use of property as against a mere secondary or incidental use. That is the clear import of this court’s definition of the term “exclusively” as set forth in Sunday School Board of the Southern Baptist Convention v. McCue, 179 Kan. 1, 5-6, 293 P. 2d 234.
Appellants first argue that the fact an entrance fee of $2,000.00 and the sum of $200.00 per month is sought, and received in about eighty-five percent of the cases, takes it out of the domain of charity. In the case of Nuns of St. Dominic v. Younkin, 118 Kan. 554, 235 Pac. 869, this court considered a similar contention and stated:
“The fact that it charges and receives pay for patients able to pay, does not detract from the charitable nature of the service rendered. In Hospital Association v. Baker, [40 S. D. 226] ... 95 percent of the patients were pay patients. In City of San Antonio v. Santa Rosa Infirmary, [sic] [259 S. W. 926] . . . 87!z percent were pay patients. In Sf. Elizabeth Hospital v. Lancaster County, [109 Neb. 104] . . . only a small percent did not pay.
“If these incomes from pay patients and donations are used for the purpose of caring for or relieving the sick or disabled and increasing the facility of the institution for that purpose, and are not used for the purpose of declaring dividends or the financial profit (other than the paying of necessary operating expenses) of those connected with or having charge of the institution, such use is simply an extended use for charitable purposes.” (pp. 559, 560.)
Appellants say the Nuns case is to be distinguished on the basis that it is a hospital case, and not a rest home case, but they do not further point out the distinction. Be that as it may, absent specific constitutional or statutory authority for exemption of hospitals, they must qualify for such exemption if at all on the basis of charitable institutions, the same as homes for the aged.
In 51 Am. Jur., Taxation, § 602, we find this:
“It is a well-established principle of law that a charitable institution does not lose its charitable character and its consequent exemption from taxation merely because recipients of its benefits who are able to pay are required to do so, where funds derived in this manner are devoted to the charitable purposes of the institution.” (p. 585.)
Appellants next urge the fact that Manor’s articles of incorporation and bylaws provide that it shall operate on a nonprofit basis does not necessarily make its property tax exempt, and with this proposition we cannot quarrel. While it could be pertinent to inquire into its corporate powers as to the expectation or possibility of profit, we believe ihe manner in which it is actually being operated is of more significance. We are here concerned with present and not future operations. In this connection appellants also argue that the deficit during the period of actual operations does not necessarily control the tax exempt status. As heretofore stated, appellants attempt to distinguish the Nuns case, supra, and thereby avoid its holding which was as follows: “The test which determines whether a hospital is charitable is whether it is maintained for gain or profit.” (Syl. ¶ 1.)
Without detracting from what was said in the Nuns case, we recognize that the failure to make a profit does not convert a business into a charitable institution. It would probably be more accurate to say that an institution, in order to be exempt as charitable, must not be operated for private profit or gain, and no profit can be distributed to any members, stockholders or officers and they may not have any pecuniary interest in the property. (See 84 C.J.S., Taxation, § 282b. [4] [&].)
To pinpoint the matter further, and again without any effort to equate hospitals and homes for the aged, the test of whether an enterprise is charitable for ad valorem tax exemption purposes is whether its property is used to carry out a purpose recognized in law as charitable. The other side of the coin, of course, would be use for a purpose not so recognized including use for profit, gain or private advantage. (See 14 C. J. S., Charities, § 2, p. 416.)
Manor’s operating statement indicated a deficit of approximately $50,000.00 would have occurred during the first seven months of operation but for the fact approximately $59,000.00 was received in gifts. Here again we cannot know what the future may hold but it was stipulated in the agreed statement of facts that Manor will have to continue to receive gifts in order to operate.
Appellants likewise urge that the method of financing construction of the facilities does not establish any particular usage, charitable or otherwise. Conceding and without laboring the point, we can see that voluntary contributions made from charitable motives probably made the construction of the facilities possible. It does not appear to be of too great significance whether in a given period of time such contributions go to the capital costs or to the operating expenses of the institution.
Appellants conceded that the fact that the residents could be limited to Presbyterians (which the record reveals is not the case) does not necessarily deprive it of tax exempt status, and this is in line with the holding of Masonic Home v. Sedgwick County, supra, where this court clearly adopted the rule that the fact that the facilities of a home for the aged were available only to members of a particular group or class did not require a holding the property was not being used exclusively for charitable and benevolent purposes. The same rule was restated and readopted in A. T. & S. F. Hospital Ass’n v. State Commission of Revenue & Taxation, 173 Kan. 312, 246 P. 2d 299.
Traditionally special concern has been shown for the aged. Their peculiar needs arising out of the. infirmities of body, mind and spirit that come with advanced age have received the attention of government at all levels and of citizens generally. In 1910 in Ingleside v. Nation, 83 Kan. 172, 109 Pac. 984, this court considered the constitutionality of an appropriation to a private organization whose purpose was to furnish a permanent Christian home at Topeka for homeless and aged women, and a temporary home for women seeking employment. To enter the home as a permanent resident the woman had to be not less than sixty-five years of age, and pay an admission fee of $300.00. The admission fee was not always required. Shawnee County paid a small monthly amount and the association depended to some extent upon contributions from persons who were charitably inclined. The court, in recognizing the association as a charitable institution, stated:
“It seems to us that the protection and comfort of aged women who are homeless and without means or near relatives able to provide them with subsistence is a matter of general public concern—a charity which will be regarded with universal favor.” (p; 174.)
Financial standing is not necessarily a criterion. Long ago this court in Troutman v. DeBoissiere, 66 Kan. 1, 71 Pac. 286, quoted with approval the classic definition of Lord Camden, Eighteenth Century Chancellor of England, that charity is “A gift to a general public use, which extends to the poor as well as the rich,” (p. 6) and in the same case, the court further stated: “Charity is not exclusive, and draws no distinction of class or caste.” (p. 19.)
Many of the people who have been or will be received in Manor, where the average age is said to be eighty-two, will in the main be self-supporting persons who would not be willing to be classified as recipients of charity in the ordinary meaning of that term, yet the state does have a distinct interest in the well-being of this class of citizens by reason of their advanced age. In any event, insofar as Manor is concerned, it appears that its services are available to people of limited means and no more than a reasonable standard of care is provided.
Historically, courts and taxing authorities alike, including our own highest taxing authorities, have generally treated homes for the aged as charitable organizations.
In Estate of Henderson, 17 Cal. (2d) 853, 112 P. 2d 605, the court said: “Since the enactment of the Statute of Charitable Uses during the reign of Elizabeth, aid to the aged and infirm has been recognized as charitable . . .,” and again,
“Relief of poverty is not a condition of charitable assistance. If the benefit conferred has a sufficiently widespread social value, a charitable purpose exists . . . aged people require care and attention apart from financial assistance, and the supply of this care and attention is as much a charitable and benevolent purpose as the relief of their financial wants.” (p. 857.)
The same court said later in Fredericka Home v. County of San Diego, 35 Cal. (2d) 789, 221 P. 2d 68:
“The concept of charity is not confined to the relief of the needy and destitute. Apart from financial assistance, it comprehends the supply of care and attention to aged people.” (Syl. f 2.)
The manner of operation of the Fredericka home was substantially similar to the operation of Manor except Fredericka used a “life care contract” basis for admission, with a more substantial entrance fee. The fees were inadequate to mantain operation of the home without gifts or donations. The court held that in spite of the substantial entrance fee, where the payments were within reach of persons of limited means and were not commensurate with the costs of the benefits they received, and there was no element of private gain with all of the organization’s income devoted exclusively to affording a reasonable standard of care to such persons, the home’s property was used exclusively for charitable purposes.
We have noted other matters mentioned by appellants but from all the precedents and an examinaton of the general overall nature of Manor’s operation, we are constrained to hold that the facts in the record indicate its property is used to carry out a purpose recognized in law as charitable. It therefore, follows that the trial court’s order was correct and it is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an appeal from a judgment overruling appellant’s motion, brought under K. S. A. 60-1507, to vacate a sentence previously imposed against him by the. District Court of Bourbon County.
The case comes to us on a stipulation between the appellant (herein called plaintiff) and the State which shows that on February 3, 1964, the plaintiff was arrested on a forgery charge and brought before the judge of the county court where he waived preliminary hearing and bond was fixed; that on February 4, 1964, plaintiff appeared in district court before Judge Robert H. Miller, where counsel was appointed to represent him and the cause was continued; that on February 19, 1964, the plaintiff, accompanied by his appointed counsel, entered a plea of guilty to second-degree forgery and was sentenced to the Kansas State Industrial Reformatory for a term of not to exceed ten years.
Thereafter, on August 28, 1964," the plaintiff wrote Judge Miller asking to have an attorney appointed to file a motion to vacate his sentence. Judge Miller treated this letter as being a motion to vacate sentence under K. S. A. 60-1507, and denied the same in an order wherein he found that all four of the contentions advanced by plaintiff were without merit.
A subsequent letter was addressed to Judge Miller on September 17, 1964, again asking for the appointment of an attorney to vacate and set aside the conviction. This letter, likewise, was considered by the court as a motion to set aside the sentence previously imposed, and Judge Miller denied the same by written order of September 30, 1964, in which he discussed the same four contentions contained in plaintiff’s first communication, and concluded that the files and records conclusively showed that plaintiff was entitled to no relief.
After denying plaintiff’s motion for rehearing, the court appointed Howard Hudson, a Fort Scott lawyer of good repute, to represent the plaintiff on this appeal. In such fashion the case has made its way before us for determination.
Two points, only, are raised in this appeal. First, that plaintiff was not provided with counsel prior to or during his appearance before the county court of Bourbon County, and second, that the sentencing court failed to inquire of plaintiff if mental coercion or promises had been made by prosecuting officials. We shall consider these in order.
Turning to the first point raised, this court, in an unbroken line of decisions, has held that a person accused of felony has no constitutional right to counsel at the preliminary examination provided for by our statutes. (State v. Daegele, 193 Kan. 314, 393 P. 2d 978, certiorari denied, 379 U. S. 981, 13 L. Ed. 2d 571, 85 S. Ct. 686; State v. Jordan, 193 Kan. 664, 396 P. 2d 342, certiorari denied, 380 U. S. 920, 13 L. Ed. 2d 805, 85 S. Ct. 917; State v. Blacksmith, 194 Kan. 643, 400 P. 2d 743; Portis v. State, 195 Kan. 313, 403 P. 2d 959.)
We find no reason in the present case to depart from the rule clearly expressed in the foregoing decisions, and in many more of our cases, as well. There is no suggestion that anything transpired, either at the time plaintiff waived preliminary examination, or on any occasion prior thereto, which can be said to have jeopardized or adversely affected the fundamental rights of the accused. The plaintiff’s first contention lacks merit.
As to the second question posed by the plaintiff, we are not aware of, nor has our attention been directed to, any statute which requires a sentencing court to inquire of an accused, at the time he enters a plea of guilty, whether coercion has been used or promises have been made by prosecuting officers. Nothing appears in this record to suggest coercion or any improper inducement. Furthermore, it is significant that the plaintiff does not even allege that he was coerced or lured by promises of any sort in entering his guilty plea.
If plaintiff knew of circumstances vitiating his plea of guilty, he should have called them to the court’s attention at the allocution. K. S. A. 62-1510 provides, in substance, that when a defendant appears for judgment, the court shall ask whether he has any legal cause to show why judgment should not be pronounced against him. We must presume that the court performed its duty in such regard, since the record bears no evidence, or indication, to the contrary. (Community of Woodston v. State Corporation Comm., 186 Kan. 747, 757, 353 P. 2d 206; Homback v. Missouri-Kansas-Texas Rld. Co. 193 Kan. 395, 396, 395 P. 2d 379.)
The allocution affords an accused the chance to present before sentence, either in person or through his counsel, whatever grounds he claims may exist for impugning the integrity of the proceedings. No inference can be drawn from the record in this case that either the accused or his counsel, whose competency is not here in question, ever proposed any reason whatsoever why sentence should not be pronounced in accordance with the plaintiff’s plea of guilty.
The plaintiff calls attention to Machibroda v. United States, 368 U. S. 487, 82 S. Ct. 510, 7 L. Ed 2d 473, as supporting his second contention. We do not so consider that decision. In Machibroda, a case involving a motion to vacate a sentence under 28 U. S. C. § 2255, the United States Supreme Court remanded the action to the district court for an evidentiary hearing of allegations that the petitioner’s pleas of guilty had been induced by promises made by the prosecution. In the case béfore us, however, the plaintiff does not allege that his plea was either coerced or induced by promises. In this vital respect, the present action differs fundamentally from Machibroda.
One aspect of the Machibroda decision does bear an analogy to the present action, although it does not sustain the plaintiff’s claim. One of the grounds alleged by Machibroda for vacating his sentence was that, in violation of Rule 32 (a) of the Federal Rules of Criminal Procedure, the court had not inquired if the defendant wished to speak in his own behalf before sentence was imposed. Such an inquiry would seem to be similar to and serve much the same purpose as the allocution under K. S. A. 62-1510. In denying Machibroda relief in this specific ground, the court held:
“For the reasons stated in Hill v. United States, ante, p. 424, we hold that the failure of the District Court specifically to inquire at the time of sentencing whether the petitioner personally wished to make a statement in his own behalf is not of itself an error that can be raised by motion under 28 U. S. C. § 2255 or Rule 35 of the Federal Rules of Criminal Procedure.” (p. 489.)
In the Hill case (368 U. S. 424, 82 S. Ct. 468, 7 L. Ed. 2d 417), cited and relied on in Machibroda, the Supreme Court had this to say:
“The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognizable under a writ of habeas corpus. It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. . . (p. 428.)
We are constrained to hold that the second ground for relief advanced by the plaintiff is without merit.
From an examination of the entire record, we are of the opinion that no error has been shown. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action brought by plaintiff (appellee) Janice Bolyard against defendant (appellant) Emil Zimbelman for damages for the wrongful levy of an execution. On the issues as joined the case was tried to a jury which returned its verdict in favor of the plaintiff. From an order overruling defendant’s motion for a new trial, he appeals.
We are first confronted with appellee’s motion to strike from the files of this court appellant’s record on appeal and to dismiss the appeal for failure on the part of the appellant to comply with Rule No. 6 of this court (191 Kan. xiv).
The facts pertinent to appellee’s motion are as follows: On May 25, 1964, the trial court overruled defendant’s motion for a new trial and entered judgment in favor of the plaintiff and against the defendant on the verdict of the jury. On June 1 defendant filed his notice of appeal from the trial court’s order overruling his motion for a new trial and from the judgment entered thereon. It is apparent the transcript was ordered, and on September 17 appellant was given an additional fifteen days in which to serve and file his designation of contents of the record on appeal, and on October 1 was given an additional ten days for the same purpose. Within the time extended, and on October 9, appellant filed with the clerk of the district court his designation of the record and statement of points on which he intended to rely and his narrative statement of the transcipt but failed to submit to or serve the same upon the appellee, and immediately thereafter had the clerk transmit the record, together with the district court file, to E. L. Mendenhall, Inc., a printing company in Kansas City, Missouri, for the purpose of printing the record on appeal. The record was so printed and twenty copies of the same were filed by Mendenhall with the clerk of this court on October 21. On October 22, 1964, appellant served by mail on appellee’s counsel five copies of the record on appeal. On October 26 appellee filed her motion to dismiss the appeal as aforestated.
Rule No. 6, subdivision (a), insofar as pertinent, provides that appellant shall serve and file his designation of the record within twenty days after the completion of the transcript.
Subdivision (c) provides that a party shall file with his designation a narrative statement of such part of the testimony as he is designating to be included in narrative form, and any other party to the appeal, if dissatisfied with the narrative statement, may require testimony in question and answer form to be substituted for all or part thereof.
Subdivision (d), insofar as pertinent, provides that the appellant shall serve and file with his designation of the record a concise statement of the points on which he intends to rely and which will be briefed in the appeal. After the expiration of the period for designation of additional portions of the record, an appellant may not amend his statement of points relied on except by stipulation of the parties or order of the judge on such terms as will be just for the opposing parties. Within twenty days after the service and filing of the appellant’s designation of the record and his statement of points, any other party to the appeal may serve and file a designation of additional portions of the record, proceedings, and evidence to be included, and may make objections to a narrative statement proposed by the appellant, or offer an alternative statement.
Subdivision (g) provides:
“Within thirty (30) days after all statements of points and designations of the record have been served and filed, the appellant shall cause the record to be reproduced and twenty (20) copies thereof filed with the Clerk of the Supreme Court, . . . When said copies are filed, the Clerk of the Supreme Court shall docket the appeal. . . .”
It is apparent from the record that appellant failed to comply with Rule No. 6 (d) in that after he filed his designation of the record and statement of points he failed to allow appellee twenty days in which to serve and file a designation of additional portions of the record, proceedings and evidence to be included, or to make objections to a narrative statement proposed by appellant, or to offer an alternative statement, thus depriving appellee of the right to adequately present her portion of the record covering the statement of points relied on by appellant for review.
Due to the recent adoption of the mentioned rules, we have made an exception and reviewed the record and find the trial court did not err in any of the respects asserted by appellant. The case must be dismissed.
It is so ordered. | [
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The opinion of the court was delivered by
Hatcher, C.:
This was an action to recover permanent damages for the depreciation of plaintiffs’ home allegedly caused by the separate operation of feed lots owned by the three defendants.
This particular appeal was filed by the Cattlemen’s Feed Lots, Inc., claiming certain trial errors. This is the fifth appeal arising; out of the same pleadings, trial, findings of fact, general verdict and. judgment.
The appellees have filed a motion to dismiss the appeal contending that appellant’s remedy was by cross-appeal rather than by a. direct appeal.
The same facts and the same legal questions were before this; court in Fields v. Blue Stem Feed Yards, 195 Kan. 167, 403 P. 2d 796. The only difference in the two cases is the name of the appellant, one of the joint defendants. What was said in the Fields v. Blue Stem Feed Yards, supra, just decided, is controlling here. It would serve no useful purpose to repeat what was. said there.
The appellant’s procedure for review was by cross-appeal in the-first appeal filed by plaintiffs.
The appeal is dismissed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Harman, C.:
The original opinion in this case (Continental Slip Form Builders v. Labor Local, 193 Kan. 459, 393 P. 2d 1004) affirmed the trial court’s orders enjoining stranger picketing in violation of G. S. 1961 Supp. 44-809 and 44-809a. Rehearing has been granted as to the question of jurisdiction of that court and the case has been reargued. A complete factual account appears in the original opinion and restatement will be made only to the extent necessary to consider the jurisdictional question.
It is now well settled that Congress, in the exercise of its constitutional authority to regulate interstate commerce, has preempted the field in labor relations matters affecting interstate commerce and has vested the National Labor Relations Board (hereinafter referred to as the board) with exclusive power to adjudicate those labor practices which are either protected or prohibited by the Labor Management Relations Act of 1947 as amended (hereinafter referred to as the act). (Garner v. Teamsters Union, 346 U. S. 485, 98 L. ed. 228, 74 S. Ct. 161; Guss v. Utah Labor Board, 353 U. S. 1, 1 L. ed. 2d 601, 77 S. Ct. 598; Binder v. Local Union No. 685, 181 Kan. 799, 317 P. 2d 371; Asphalt Paving v. Local Union, 181 Kan. 775, 317 P. 2d 349.)
Although it is true that where the questionable labor conduct regulated by state law is also an unfair labor practice under federal law the doctrine of preemption excludes state action, state courts need not presume jurisdiction is preempted merely because the question is raised by a party to the dispute. In order for there to be a preemption of state court jurisdiction, it is necessary that it be shown (1) that the employer is engaged in interstate commerce or that his business operations substantially affect interstate commerce and (2) that the challenged activities expressly or arguably constitute either a protected activity or an unfair labor practice under the act. (Plumbers’ Union v. Borden, 373 U. S. 690, 10 L. ed. 2d 638; 83 S. Ct. 1423; San Diego Unions v. Garmon, 359 U. S. 236, 3 L. ed. 2d 775,79 S. Ct. 773.)
It should be noted that the act is not restricted in its scope and applicátion to employers actually engaged in interstate commerce. Any employer whose business operations “affect commerce” comes within its scope. This term is defined in section 2 (7) as follows:
“The term ‘affecting commerce’ means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.” (29 U. S. C. A. § 152 [7].)
Under the “affecting commerce” criterion the board often asserts jurisdiction over businesses which would normally be considered as local in nature such as mining, manufacturing and construction work on the theory that work stoppages in them would necessarily affect the flow of interstate commerce where those businesses either buy goods from other states or furnish goods or services to other states (see annotation at 16 A. L. R. 2d 775).
This court has previously held that whether an alleged unfair labor practice affects interstate commerce is a question of fact upon which jurisdiction rests. Whenever an action involving a labor dispute is commenced in a state court and the court’s jurisdiction is challenged, that court is empowered to determine whether it has’ jurisdiction based upon the jurisdictional facts presented to it. (Binder v. Local Union No. 685, supra; Asphalt Paving v. Local Union, supra.)
For budgetary and other reasons the board has never been willing to exercise jurisdiction over all labor disputes affecting interstate commerce under the authority delegated to it by Congress, but has limited its jurisdiction to enterprises whose operations have, or at which labor disputes would have, a pronounced impact upon the flow of interstate commerce, and to this end it has at various times established certain minimal dollar value jurisdictional standards.
The board’s policy of refusing to exercise jurisdiction over all labor disputes was confirmed by Congress with the amendment of the act by the Labor-Management Reporting and Disclosure Act of 1959, which provides:
“The Board, in its discretion, may, by rule of decision or by published rules . . . decline to assert jurisdiction over any labor dispute involving any class or category of employers, where, in the opinion of the Board, the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction. . . .” (29 U. S. C. A. § 164 [c] [1].)
And state courts may now assume jurisdiction over cases which the board declines pursuant to the foregoing (29 U. S. C. A. § 164 [c] [2]). Theiboard’s discretion is limited, however, in that it may not decline jurisdiction over any case which would have been accepted under the standards prevailing on August 1, 1959. (29 U.S. C.A. §164 [c] [1].)
Those standards prevailing on August 1, 1959, for a nonretail enterprise such as the employer involved in the instant case are outlined in Siemons Mailing Service, 122 NLRB 81, at page 85 as follows:
“For the Board has concluded that it will best effectuate the policies of the Act if jurisdiction is asserted over all nonretail enterprises which have an outflow or inflow across State lines of at least $30,000, whether such outflow or inflow he regarded as direct or indirect. For the purposes of applying this standard, direct outflow refers to goods shipped or services furnished by the employer outside the State. Indirect outflow refers to sale of goods or services to users meeting any of the Board’s jurisdictional standards except the indirect outflow or indirect inflow standard. Direct inflow refers to goods or services furnished directly to the employer from outside the State in which the employer is located. Indirect inflow refers to the purchase of goods or services which originated outside the employer’s State but which he purchased from a seller within the State who received such goods or services from outside the State. In applying this standard, the Board will adhere to its past practice of adding direct and indirect outflow, or direct and indirect inflow. It will not add outflow and inflow.”
It has been the board’s established policy, continued under its present jurisdictional standards, to apply the concept that it is the impact on commerce of the totality of an employer’s operations that should determine whether or not the board will assert jurisdiction. (Appliance Supply Company, 127 NLRB 319, 320; Siemons Mailing Service, supra.) More specifically, the board has on numerous occasions stated that in the construction industry it determines whether to assume jurisdiction over a case on the basis of the over-all operations of an employer rather than on the basis of a particular project. (Paul W. Speer, Inc., 94 NLRB 317; Miller Electric Company, 101 NLRB 1014; Acme Equipment Company, 102 NLRB 153.) In Paul W. Speer, Inc., supra, the board said:
“The Respondents contend that the Board should dismiss the complaint because the alleged unfair labor practices occurred in connection with a purely local construction job, which, by itself, has no effect on interstate commerce. We find no merit to this contention, as we believe that in the construction industry, as in others, the Board should determine jurisdiction based on the overall operations of the employer.” (p. 318.)
Upon the first hearing of this case emphasis was placed only upon a single factual element involved in jurisdictional standards, namely, that of direct inflow wherein it was shown that structural steel costing $7,000.00 was purchased outside the state of Kansas and this was considered insufficient. The record does disclose that appellee between December 26, 1962, and March 25, 1963, functioned as a general contractor in building the grain elevator at Edgerton, Johnson County, Kansas, where the alleged unfair labor practice occurred, and at the same time was so functioning in the building of another grain elevator at Miami, Missouri, at a contract price of $140,000 to $150,000. On this facet of jurisdiction it seems clear that the board, upon timely application, would have been required to assert jurisdiction over appellee on the basis of its direct outflow test, assuming that a labor dispute existed. Cases in which the board has asserted jurisdiction over contractors who performed more than $50,000.00 out of state services include Local 148, 114 NLRB 1494; K. M. & M. Construction Co., 120 NLRB 1062; Local 173, Wood, Wire and Metal Lathers Etc., 121 NLRB 1094; Local 176, United Brotherhood of Carpenters, Etc., 122 NLRB 980; Ernest Renda Contracting Co., Inc., Etc., 130 NLRB 1515; Plumbers & Pipe Fitters Local Union 214, Etc., 131 NLRB 942; Los Angeles Bldg. & Construction Trades Council, 140 NLRB 1249.
In view of the fact that the controversy involved only peaceful picketing, and having determined that appellee’s business operations met the commerce jurisdictional requirements of the board, the remaining question is whether the controversy was one which involved an unfair labor practice or protected activity under the act.
The picketing in the case at bar was not by an employee of the appellee but was by what is generally referred to as a stranger picket. This particular type of, picketing does not defeat the jurisdiction of the board in an otherwise preempted case under the act. (Hyde Park Dairies v. Local Union No. 795, 182 Kan. 440, 446, 321 P. 2d 564; Texas Const. Co. v. H. & P. E. Local Union No. 101, 178 Kan. 422, 286 P. 2d 160; Kaw Paving Co. v. International Union of Operating Engineers, 178 Kan. 467, 290 P. 2d 110.) Furthermore, the fact there was no labor dispute between the appellee and its employees does not defeat the board’s jurisdiction under the provisions of 29 U. S. C. A. §152 (9) which defines the term “labor dispute” as including:
“. . . any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.” (Emphasis supplied.)
This court in Ready-Mix Concrete Co. v. Truck Drivers & Helpers Local Union, 195 Kan. 154, 403 P. 2d 191, followed the rule laid down by the Supreme Court of the United States in San Diego Unions v. Garmon, 359 U. S. 236, 3 L. ed. 2d 775, 79 S. Ct. 773, that a state court may not enjoin peaceful picketing which is either arguably protected or prohibited under the act, quoting therefrom as follows:
. . when an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.’ ” (p. 157.)
From the foregoing it is obvious that state courts must relinquish jurisdiction not only over those controversies actually found to be within the jurisdiction of the board, but also over controversies arising from activities arguably subject to the board’s cognizance.
State courts need only determine whether the facts reasonably bring the controversy within sections 7 and 8 (29 U. S. C. A. §§ 157, 158), and if so, should decline jurisdiction. (Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 99 L. ed. 546, 75 S. Ct. 480; Hyde Park Dairies v. Local Union No. 795, 182 Kan. 440, 321 P. 2d 564.) In Weber v. Anheuser-Busch, supra, it was said:
“. . . where the moving party itself alleges unfair labor practices, where the facts reasonably bring the controversy within the sections prohibiting these practices, and where the conduct, if not prohibited by the federal Act, may be reasonably deemed to come within the protection afforded by that Act, the state court must decline jurisdiction in deference to the tribunal which Congress has selected for determining such issues in the first instance.” (p. 481.)
Therefore, unless we are able to say that the picketing in the case at bar was not within the board’s power to protect or prevent, we must acknowledge the board’s primary power to deal with.it, appellants having interposed a timely demand that the district court recognize the case as one primarily within the board’s jurisdiction. Our duty is no less compelling because thé'board might have determined that the picketing was neither protected nor prohibited under the act.
. Appellee plainly states in its brief that it charged appellants with an unfair labor practice under section 8 of the act. The district court found that appellants’ picketing was:
“. . . designed to coerce and compel plaintiff to recognize the defendants as the exclusive bargaining agent of their employees when the defendant unions did not represent any of plaintiff’s employees.” -
While the coercion which appellee charged and proved may have constituted, inter alia,. a violation of state .law, it may also have violated the act inasmuch as picketing of a type-commonly referred to as recognitional picketing is made an unfair labor practice by section 8 (b) (7) which provides:
“(b) It shall be an unfair labor practice for a labor organization or. its agents . . .
“(7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative. . . .” (29U.S. C.A. §158 [b] [7].)
In Construction Laborers v. Curry, 371 U. S. 542, 9 L. ed. 2d 514, 83 St. Ct. 531, respondents, partners in a contracting business in Atlanta, failed in an attempt to obtain a temporary injunction from a state court for the purpose of restraining picketing at a construction site. Petitioner maintained that the picketing was for the sole purpose of publicizing the facts about respondents’ low wage scales and that its activities were within the exclusive jurisdiction of the board. The banner carried by the picket was essentially the same as the banner in the instant case, being what is sometimes called a sub standard wage banner. The Georgia Supreme Court reversed the lower state court on the ground that the record showed the purpose of the picketing was to force respondents to employ only union labor, which was a violation of Georgia’s right-to-work law. The Supreme Court in reversing the Georgia Court held:
“Tlie allegations of the complaint, as well as the findings of the Georgia Supreme Court, made' out at least an arguable violation of §8 (b) of the National Labor Relations Act, 29 U. S. C. § 158 (b). Consequently, the state court had no jurisdiction to issue an injunction or to adjudicate this controversy, which lay within the exclusive powers of the National Labor Relations Board. . . . Nor is the jurisdiction of the Georgia courts sustainable, as respondents urge, by reason of the Georgia right-to-work law. . . .” (pp. 546, 547.)
See, also, Liner v. Jafco, Inc., 375 U. S. 301, 11 L. Ed. 2d 347, 84 S. Ct. 391.
We hold that the appellants’ activities as depicted by the record were such that they were arguably within the provisions of the act, and consequently that until jurisdiction had affirmatively been declined by the board, jurisdiction of the Johnson County District Court was preempted to the extent that the exclusive power to adjudicate the matter was in the board. In view of our holding it is unnecessary to discuss the other points raised by counsel for appellants and amicus, curiae in their briefs.
Having concluded the district court was without jurisdiction, the original opinion of affirmance is set aside and the judgment is reversed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an action for damages arising out of an automobile collision at a city intersection. The trial court after hearing the plaintiff’s evidence sustained the defendant’s motion for judgment on the evidence. Appeal has been duly perfected from this order.
The only question is whether the plaintiff’s evidence, viewed together with all inferences reasonably to be drawn therefrom in the light most favorable to the plaintiff, establishes that the plaintiff’s insured driver was guilty of contributory negligence as a matter of law.
The plaintiff-appellant in this action, an insurance company, is subrogated to the rights of its insured driver and brings this action in its own name against George A. Dennis, defendant-appellee, who was driving the other automobile involved in the collision. The case was tried to the court without a jury.
Under the new code of civil procedure we are confronted at the outset with the nature of the motion presently before the court.
Under the general heading “Dismissal of actions” K. S. A. 60-241 (b) provides in part:
“. . . After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. In an action tried by the court without a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all of the evidence. . . .”
We construe the defendant’s motion for judgment on the evidence as the equivalent of a motion for involuntary dismissal, based “on the ground that upon the facts and the law the plaintiff has shown no right to relief,” embraced within the foregoing language of the statute.
Mindful, that a demurrer directed to the plaintiff’s evidence (authorized by the old code of civil procedure) has been abolished under the new code, the question immediately posed is by what rule is the plaintiff’s evidence to be considered under a motion for involuntary dismissal.
The last sentence of 60-241 (b), supra, above quoted, tends to suggest that the trial court is authorized to weigh the evidence to determine the facts.
Commenting on the above quoted section of the new code of civil procedure, Gard in his work on the Kansas Code of Civil Procedure Annotated, section 60-241 (Z?), p. 202, says:
“Instead of demurring to the evidence after it has all been presented in support of a claim, the new rule provides that the defendant may move to dismiss, which is the same thing. He need not stand on his motion but, as was the former practice, he may proceed with his defense and renew his motion at the end of the trial. In any event if the action or claim is dismissed for lack of supporting proof it is a final adjudication on the merits, the same as though the adjudication turned on conflicting evidence and findings resulting from the trial.
The foregoing comment, construing the language in question would suggest that the plaintiff’s evidence is to be considered by
the same rules that were previously applied in testing the sufficiency of the plaintiff’s evidence on demurrer.
It is noted the provisions of 60-241 (b), supra, are identical to the provisions of Rule No. 41 (b) of the Federal Rules of Civil Procedure. (28 U. S. C. A., following section 2072.)
Under section 919, entitled “Insufficiency of Evidence,” 2B Barron and Holtzoff, Federal Practice and Procedure, appears the following:
“After the plaintiff has presented his evidence at the trial and closed his case, the defendant may move for a dismissal under the express terms of Rule 41(b) ‘on the ground that upon the facts and the law the plaintiff has shown no right to relief.’ Moreover the rule expressly provides that by making the motion the defendant does not waive his right to offer evidence in the event his motion is denied. A motion for involuntary dismissal at the close of the plaintiff’s case takes the place of the old motion for a nonsuit and in a non-jury action somewhat fulfills the function of a motion for a directed verdict in a jury case. . . .” (p. 146.)
Under the Federal decisions, construing Rule No. 41(b), supra, of the Federal Rules of Civil Procedure, where a defendant’s motion for involuntary dismissal is made after the plaintiff has completed the presentation of his evidence, the motion is held to be the equivalent of a motion for a directed verdict, and the evidence and all reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the plaintiff. (Federal Deposit Ins. Corporation v. Mason, 115 F. 2d 548, 551 [3d Cir. 1940]; Shaw v. Missouri Pac. R. Co., 36 F. Supp. 651 [W. D. La. 1941]; Gunning v. Cooley, 281 U. S. 90, 74 L. Ed. 720, 50 S. Ct. 231 [see more detailed and informative opinion of same case in Circuit Court of Appeals, 58 App. D. C. 304, 30 F. 2d 467]; United States v. Russian, 73 F. 2d 363 [3d Cir. 1934]; and see, Sano v. Pennsylvania Railroad Company, 282 F. 2d 936 [3d Cir. 1960]; and Makowsky v. Povlick, 262 F. 2d 13 [3d Cir. 1959].)
Upon the foregoing authorities we hold, in a nonjury action where the defendant moves for involuntary dismissal after the plaintiff has completed the presentation of his evidence, the plaintiff’s evidence is to be determined by the same rules that are applied in determining a motion for a directed verdict in a jury case.
Under our previous ’ decisions in reviewing the propriety of an order sustaining a motion for a directed verdict—as in the case of a demurrer under the old code—the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied. (Casement v. Gearhart, 189 Kan. 442, 445, 370 P. 2d 95; and Lackey v. Price, 190 Kan. 648, 657, 378 P. 2d 19.)
Therefore, under the rule to be applied in the instant case, the court in testing the sufficiency of the plaintiff’s evidence shall consider all of the plaintiff’s evidence as true, shall consider that favorable to the plaintiff, together with all reasonable inferences to be drawn therefrom, and disregard that unfavorable to the plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between direct and cross examination, and give the evidence of the plaintiff a liberal construction resolving all doubt against the defendant; and if so considered there is any evidence which sustains the plaintiffs claim on any theory, the motion should be overruled.
Turning now to the facts as they must be viewed under the foregoing rule, the evidence established that as Carpenter, plaintiff’s insured, was driving his automobile in an easterly direction on Pawnee Street in the city of Wichita on the 10th day of January, 1963, at about 7:30 p. m., he proceeded to make a left turn at the intersection of Pawnee and Mosely Streets. The headlights and windshield wipers on Carpenter’s vehicle were on and his left turn signal lights were in use. It was a dark night and light snow or freezing rain was falling. The intersection was lighted by a street lamp.
As Carpenter was making his left turn, his automobile was struck on the right side by the defendant’s vehicle which was traveling west on Pawnee Street without its headlights burning.
There were no stop lights or stop signs controlling traffic on Pawnee Street for the movement of traffic in an east-west direction, but there were stop signs controlling traffic entering from Mosely Street onto Pawnee.
After hearing argument of counsel at the close of the plaintiff’s evidence on the foregoing motion, and before pronouncing judgment in favor of the defendant, the trial court stated from the bench:
“. . . In fact, an automobile without lights can be seen at a lighted intersection and this one was not. We can’t just turn on our signal lights and make a left hand turn and say we didn’t see a thing as large as an automobile in a lighted intersection that was so close to .hit us. It was there to be seen even if it didn’t have lights on. The law says we must look carefully enough to have seen it. We have no conclusion except to say both sides were not exercising due care for their own safety. . . .”
Going further, the court said:
“. . . The plaintiff’s failure to see this automobile at the lighted intersection was a greater contributing factor to be hit than the fact the other automobile didn’t have lights. At least the laws says we have got to look carefully before we proceed to make turns or before we proceed into traffic and anyone looking carefully to see an unlighted vehicle just a few feet away at a lighted intersection—anyone driving carefully could see that. So, under the law of contributory negligence, we don’t compare which side may have contributed more. If either side contributes at all to cause the collision, we can’t give damages. We have to deny damages to either side and leave the parties to suffer their own damages except as they may be covered by insurance policies.”
Counsel for the appellee (defendant below) in their brief simply defend the judgment of the trial court by arguing that where findings of the trial court are supported by competent substantial evidence, they are binding and conclusive on appeal. (Citing, Nichols Co. v. Meredith, 192 Kan. 648, 391 P. 2d 136.) Counsel argue the trial court found as a matter of fact, based on the plaintiff’s evidence, that it was not safe for the plaintiff to make such a turn.
It is apparent from the foregoing comments of the trial court that it weighed the evidence of the plaintiff and found the defendant’s vehicle was clearly visible to Carpenter. It then applied the “physical fact” rule, which states that if a driver does not see that which he could or should have seen, he is guilty of negligence as a matter of law. (Sullivan v. Johnston, 164 Kan. 386, 190 P. 2d 417.)
The evidence presented in the record does not disclose the speed at which the defendant’s vehicle was approaching the intersection in question, nor does the evidence disclose the visibility of an unlighted vehicle approaching an intersection, where a street lamp in time of darkness reflects upon, freezing rain or snow which is falling in the intersection. From. Carpenter’s position in his automobile at the intersection, viewing the evidence and all inferences reasonably to be drawn therefrom in the light most favorable to the plaintiff, it must be assumed the defendant’s vehicle, approaching the intersection at the time in question without its headlights burning, could not be seen by Carpenter before he committed himself to a left turn with his vehicle.
Clearly, one who operates a motor vehicle upon a public highway in the nighttime without its headlights burning is guilty of negligence. This is conceded by the appellee.
Under the facts and circumstances presented by the record in the instant case the applicable rule of law is that the operator of an automobile on a public highway may assume others using the highway will observe the laws of the road, and he is not guilty of contributory negligence in such an assumption, unless and until he has knowledge to the contrary. (Gibbs v. Mikesell, 183 Kan. 123, 325 P. 2d 359.) The relationship of this rule and the “physical fact” rule was analyzed and applied in Sullivan v. Johnston, supra.
Considering the evidence under the foregoing rules, there was no showing in the instant case upon the record presented that plaintiffs insured, Carpenter, failed to exercise reasonable care in driving his motor vehicle under the existing conditions at the time of the collision. There is no showing that he was unobservant or failed to look for approaching vehicles while going into his left turn, and no showing that he could or should have seen the defendant’s oncoming unlighted vehicle.
The order of the lower court is reversed. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an appeal by the State of Kansas, pursuant to K. S. A. 62-1703, from an adverse ruling of the District Court of Reno County, Kansas. For convenience, the appellant will be referred to as the state, and the appellee as the defendant.
The material facts are not in dispute. On December 2, 1964, a complaint, containing three counts, was filed against the defendant in the City Court of Hutchinson, Kansas. Count I charged the defendant with being drunk on public highway U. S. 50, 1.5 miles west of Hutchinson, on or about September 26, 1964; Count II charged that, at the same time and place, the defendant drove a motor vehicle while under the influence of intoxicating liquor; and Count III charged defendant with failing to drive at a reduced speed when approaching and going around a curve.
Upon trial in city court, the defendant was found guilty of Counts I and II and sentenced accordingly; on Count III, he was found not guilty. From his conviction, the defendant appealed to district court. The matter first stood for trial at the January 1965 term of court, but was continued over that term because the state was unable to subpoena an essential witness.
At the April term, the defendant, through counsel, moved to dismiss his appeal as to Count I, but not as to Count II. The state objected to this motion. After hearing arguments and taking the matter under advisement, the trial court entered judgment sustaining defendant’s motion to dismiss his appeal on Count I and further ruled that, upon such dismissal, the sentence imposed by the city court on Count I precluded the state from further prosecuting the defendant on Count II. The latter ruling was predicated on the theory that double jeopardy was involved under the decision of State v. McLaughlin, 121 Kan. 693, 249 Pac. 612.
The state takes a jaundiced view of the court’s ruling, the obvious net effect of which is to release the defendant entirely from the charge of driving while intoxicated. Two errors are specified: First, that the trial court erred in sustaining the defendant’s motion to dismiss his appeal as to Count I, and second, that the court erred in ruling that, upon the dismissal of the defendant’s appeal as to Count I, the state was barred from prosecuting the defendant on Count II.
We believe it may be said that, in general, a litigant who has taken an appeal may dismiss his appeal without the consent of the appellee. The right of dismissal is not, however, absolute or without limitation. The rule is aptly stated in 5 Am. Jur. 2d, Appeal and Error, § 919, p. 350:
“In the absence of a statute expressly or impliedly prohibiting the withdrawal of an appeal or error proceeding, an appellant or plaintiff in error may ordinarily dismiss his appeal or writ of error without regard to the consent of the appellee or defendant in error, unless the latter will be prejudiced thereby. . . (Emphasis supplied.)
To guard against the possibility of prejudice, the prevailing rule requires that the considered consent of the court in which the appeal is pending shall be obtained before an effective dismissal can be accomplished. This view finds expression in 5 Am. Jur. 2d, Appeal and Error, § 920, pp. 350,351:
“Whether or not the appellant or plaintiff in error will be permitted to dismiss or withdraw his appeal or error proceeding is a matter within the discretion of the court, and not a matter of right on the part of the appellant or plaintiff in error, although it is usually granted unless some special reason for retaining the appeal is shown. The appellant must, accordingly, make application to the proper court for leave to dismiss, and show, if called upon, that no prejudice will result to the appellee or defendant in error or to co-appellants.” (Emphasis supplied.)
The foregoing view, we believe, has peculiar application to appeals from convictions had in summary courts. In 22 C. J. S., Criminal Law, § 397, p. 1033, we find the principle phrased as follows:
“Accused cannot as a matter of right dismiss his appeal. The court to which the appeal is taken, not accused, is vested with the power of dismissal; an application therefor is addressed to the discretion of the court, and the court does not abuse its discretion in refusing a motion to dismiss. In jurisdictions where, on appeal, the case is tried de nono in the court to which the appeal is taken, accused occupies on the appeal the same relative position of accused, and has no greater right, in the absence of express statutory authority therefor, to have the appeal dismissed on his own motion than he had to have it discontinued below.”
A discussion of the rules summarized above is found in Dressman v. Commonwealth, 204 Ky. 668, 265 S. W. 3, where the defendant, who had appealed a conviction from police court, sought by motion to dismiss his appeal at the time his case was called for trial in circuit court. The defendant’s motion to dismiss was overruled and this ruling was upheld by the Supreme Court on appeal. In its decision, the court said:
“The general rule appears to be, both in criminal and civil cases, that where one prosecutes his appeal from a trial court to a court of purely appellate jurisdiction, he as a matter of right may dismiss his appeal in the appellate tribunal unless by so doing the rights of the appellee are thereby affeoted. The reason of this is that he may at any time waive his right of appeal and elect to accept the judgment of the trial court as final.
“But where he prosecutes an appeal from one inferior court to another, and in the latter court the whole matter is to be tried anew, when that court properly has the whole case before it for hearing as if it had never been heard in any other tribunal, there is no more reason that the one prosecuting the appeal should control the course of the litigation, and as a matter of right have his appeal dismissed, than there would be if the case had originated in the court to which he appealed it.” (p. 669.)
A similar opinion was expressed by the Mississippi court in Thigpen v. State, 206 Miss, 87, 39 So. 2d 768, where, in deciding that the trial court had not abused its discretion in overruling a motion to dismiss an appeal, it said:
“This question has been set at rest in this State by the decision in Bang v. State, 106 Miss. 824, 64 So. 734. It was there decided that one appealing a conviction from the Justice of the Peace court to the Circuit Court stands there for trial de novo as defendant and he occupies in that court the same attitude of a defendant as he did in the court of the Justice of the Peace and as such is impotent to dismiss the case. He had no more right to dismiss the appeal in the Circuit Court than he had to enter a nolle prosequi in the court of the Justice of the Peace. No defendant charged with a crime for the commission of which he is upon trial has a right to dismiss the case from the docket. . . (p. 94.)
See also Wisehart v. The State, 104 Ind. 407, 4 N. E. 156; NeSmith v. State, 28 Ala. App. 66, 178 So. 461; Peeples v. State, 216 Miss. 790, 63 So. 2d 236.
A situation similar in many respects to the one presented here was considered in Seay v. Commonwealth, 155 Va. 1087, 156 S. E. 574. There, the defendant had been charged in one count with obstructing justice, a misdemeanor, and in a second count with aiding and abetting a violation of the liquor law, a felony. He was convicted in justice court on the first count and indicted on the second count, the indictment being filed in circuit court. Following his conviction in justice court, the defendant appealed to the circuit court. Sometime later, but before the felony charge was tried, the defendant paid the fine and costs assessed in justice court and the justice dismissed the warrant. Thereupon, a plea in abatement was filed to the felony charge remaining untried in the circuit court on the ground that, since both offenses grew out of one transaction, the misdemeanor conviction in justice court barred prosecution on the felony accusation. In disposing of this contention, the Virginia court said on appeal:
“We will now consider the contention that the right of appeal is a personal one and that the accused could satisfy the judgment and dismiss the appeal afterwards, even though the same had been perfected in the magistrate’s court. Our conclusion is that he had no such right. When one convicted of a criminal offense by a justice of the peace elects to appeal from the judgment, then ipso facto jurisdiction is conferred upon the court appealed to, and the Commonwealth is then as much a party to the transaction as it was in the proceedings before the justice of the peace, and the court—not the accused— is vested with the power of dismissal. Having acquired jurisdiction by the election of the accused to exercise his right of appeal, the case is on the docket of the court and is to be tried de novo.” (p. 1094.)
Expressing what might be termed a converse application of the rule, the Oklahoma Criminal Court of Appeals in Caudill v. State, 9 Okla. Cr. 66, 130 Pac. 812, held:
“An appellant has the right to dismiss his appeal whenever this can be done without prejudice to the rights of the state and the administration of justice. (Syl. f 1.) (Emphasis supplied.)
We believe it cannot be denied that in the present case the state was prejudiced by the action of the trial court in sustaining the defendant’s motion to dismiss his appeal from the conviction of drunkenness and, at the same time, ruling that such conviction, being now unappealed, barred prosecution of the defendant on the charge of driving while intoxicated. The result of such a package decision was to deprive the state, which had initiated the proceedings, of that control of the prosecution which the orderly and efficient administration of justice demands.
We conclude it was error for the trial court to permit the accused to dismiss a portion of his appeal from city court where it also held that, upon such partial dismissal, the state would be precluded from prosecuting the other charge contained in the appeal.
We have not overlooked State v. Curtis, 29 Kan. 384, nor ignored the language cited by the court therefrom to support its decision. In Curtis, the defendant appealed a liquor conviction from justice court. The county attorney then filed an original information in district court and dismissed the prior proceedings. The defendant filed a plea in bar insisting that the earlier prosecution barred action on the information. This court rejected this contention, holding that the state might dismiss the prosecution pending the defendant’s appeal and commence another prosecution for the same offense.
The language said to sustain the trial court’s judgment appears on page 386: “. . . Further, while doubtless the appellant may dismiss his appeal, and thus reinstate and make final the judgment against him, yet the appeal conditionally vacates the judgment. . . .” (our italics.) This language was not essential to the decision. It constitutes dictum and is not controlling on the issue raised here.
We believe the holding in Curtis actually accords with the general view that where, as in this state, an appeal is tried de novo, a defendant is not entitled to control the ultimate disposition of the charges brought against him.
The trial court also relied on K. C. Ft. S. & G. Rld. Co. v. Hammond, 25 Kan. 208. The appeal in that case was from a judgment in a civil action. No rights of the appellee were shown to have been prejudiced and, certainly, no public rights were endangered or compromised. In People v. Finucan, 151 App. Div. 92, 135 N. Y. S. 936, the court, in distinguishing the right of an accused to discontinue his appeal from the right of a civil litigant, had this to say:
“. . . The principles applicable are not the same in a criminal case. In a private action the questions involved are between the parties to the action alone, and do not concern the body public. . . (p. 95.)
We think there is much to be said in favor of the distinction made by the New York court.
Although the trial court held the right of appeal was personal, giving defendant the right to dismiss his appeal in part, we are aware of its. further statement that it felt it was not an abuse of discretionary power “to permit the defendant to do as he desires.” Under the circumstances heretofore related, we cannot agree.
The discretion lodged within a court is not a boundless, but a judicial, discretion. It is a ■ discretion limited to sound judgment to be exercised, not arbitrarily, but with regard to what is right and equitable under the circumstances and the law.
Nothing mentioned by the trial court as justifying partial dismissal of the appeal comes within the ambit of what we consider sound judicial discretion. The state’s inability to subpoena an essential witness is not shown due to lack of diligence on its part. Nor is blame to be inferred from the state’s failure to make an election in city court, where the record does not show that a motion to require an election was made. A third reason given by the court provides no sounder basis for permitting piecemeal dismissal of the appeal. In this connection, we may note that it has been held an appeal may not be dismissed in part (5 Am. Jur. 2d, Appeal and Error, § 923, p. 353). However, we do not base our disapproval of the trial court’s holding specifically on this ground.
Because of the conclusion we have reached, it becomes unnecessary to consider the effect upon this case of State v. McLaughlin, supra. Accordingly, we decline to re-examine that decision despite the state’s insistence that its rationale is faulty and that it should be overruled. We might add, however, that although the offenses of drunkenness and driving while intoxicated were held, under the evidence in that case, to be parts of the same criminal delinquency, so. that conviction of the first offense would bar prosecution of the second, this court did not arbitrarily throw out the conviction of driving while intoxicated, but returned the case with directions that the trial court sustain the defendant’s motion to require the state to make an election.
The judgment of the district court is reversed, and this cause is remanded with instructions to overrule the defendant’s motion to dismiss his appeal as to Count I of the complaint and to proceed with the case in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This was an action in the nature of a suit to quiet title for the purpose of having the will of Christian P. Smith construed.
Christian P. Smith, a resident of Illinois, died testate on March 20, 1908. He owned seventeen quarter sections of land in Stafford County, Kansas and had rather extensive land holdings in the State of Illinois where his estate was probated. He left surviving him Frances Smith, his widow, and six children.
His will made separate specific devises and bequests to his widow and each of his six children consisting of the land in Illinois and stock in the Citizens State Bank of Ellinwood, Kansas. The nature of the estates devised varied from life to fee absolute. The specific devises and the provision for payment of debts and funeral expenses made up the first eight paragraphs of the will.
It is the last three clauses of the will, particularly clause nine using language applicable tó a determinable fee, that are involved in this controversy. These will be presented later.
One of the sons died December 30, 1919. The widow, Frances Smith, died July 11,1925. All of the other children except one have since died. Ida C. W. Mueller, one of the children of Christian P. Smith, died March 30,1935, leaving no children surviving her. Her estate passed to her husband, Otto H. Mueller, and at his death to the devisees under his will. It is the real property in Stafford County passing to Ida by the residuary clause in the will of Christian P. Smith that is the actual subject of this controversy.
On March 12, 1963, George Garfield Giese, a grandson, brought the action from which this appeal stems to construe the will of Christian P. Smith. All of the descendants of Christian P. Smith were made defendants, as united in interest with the plaintiff, and the devisees under the will of Otto H. Mueller (appellants) were made principal defendants. The purpose of the action was to quiet title against the three devisees named in the will of Otto H. Mueller. The petition alleged in effect that inasmuch as Ida C. W. Mueller died leaving no children, the real estate devised to her, including the Stafford County property, reverted to and became the absolute property of the children of Christian P. Smith living at the time of the death of Ida, under the provisions of paragraph nine of the will in controversy. The appellants in their brief summarize their answer to the petition as follows:
“The defendants-appellants answered the claim of appellees and alleged that by the terms of the residuary clause of the will of Christian P. Smith his six children each were vested with one-seventh (%th)- interest in fee simple in the [Stafford County] real estate. The defense of res judicata was also set up on the ground that the Manning Case had determined all matters herein and it was alleged that the appellants and their predecessors in title had been in possession of this interest for more than fifty-five (55) years under claim of ownership; that the action is in fact an action to construe the will of Christian P. Smith; that the claim made is without foundation in fact or law; and that the appellees and their predecessors in title had ratified and acquiesced in the allocation of rents and oil runs to appellants and their predecessors in title and were guilty of laches."
The issues were submitted to the trial court on affidavits of the parties, a stipulation admitting facts, a stipulation admitting numerous documents and exhibits.
The trial corut concluded that (1) the will of Christian P. Smith created a determinable fee as to the land in Stafford County which passed to the widow and six children under the residuary clause; (2) the action to construe the will of Frances Smith was not res judicata as to this action, and (3) the doctrine of ratification, estoppel or laches did not apply.
The principal defendants, the devisees under the will of Otto H. Mueller, have appealed specifying as their points relied on for reversal, error in the three conclusions mentioned above.
We will first consider appellants’ suggestion that the trial court erred in concluding that the will of Christian P. Smith created a determinable fee in his widow and children as to the property which passed by the residuary clause, including the real estate in Stafford County.
Obviously, in view of the contention of the parties and the conclusions of the trial court, the will requires construction as to the intention of the testator. We will, therefore, before considering the specific provisions of the will, review the general rules of construction which will guide us in reaching our conclusion.
The cardinal rule in the construction of a will is that the intention of the testator must be ascertained and the will so construed as to carry out that intention. Once the intention of the testator is ascertained a court should not interest itself with the wisdom or equities of the result if it does not conflict with any positive rule of law or public policy. (In re Estate of Johnson, 175 Kan. 82, 259 P. 2d 176; In re Estate of Dees, 180 Kan. 772, 308 P. 2d 90; In re Estate of Weidman, 181 Kan. 718, 727, 314 P. 2d 327.)
We have held in In re Estate of Chevalier, 167 Kan. 67, 204 P. 2d 748, syllabus 1:
“In construing a will the court must put itself as nearly as possible in the situation of the testator when he made the will and from a consideration of that situation, and from the language used in every part of the will, determine as best it can the purposes of the testator and the intentions he endeavored to convey by the language used.”
In the construction of a will a court must ascertain the intent of the testator, as revealed by all the language used by the testator, not in isolated words, clauses or paragraphs, but in the entire instrument. All provisions of a will must be considered and construed together. (In re Estate of Weidman, supra; Beall v. Hardie, 177 Kan. 353, 279 P. 2d 276; In re Estate of Randall, 185 Kan. 92, 98, 340 P. 2d 885; Commercial National Bank v. Martin, 185 Kan. 116, 120, 340 P. 2d 899; In re Estate of Freshour, 185 Kan. 434, 345 P. 2d 689; In re Estate of Kelly, 185 Kan. 752, 347 P. 2d 428; In re Estate of Cribbs, 180 Kan. 840, 308 P. 2d Ill; In re Estate of Roberts, 190 Kan. 248, 373 P. 2d 165; Parsons v. Smith, Trustee, 190 Kan. 569, 376 P. 2d 899.)
Where an estate is created by will it will be deemed to be an estate in fee simple, if a lesser estate is not clearly indicated, and a testator desiring to give a qualified estate instead of an absolute one must employ language clearly importing an intention to do so. In In re Estate of Houck, 170 Kan. 116, 223 P. 2d 707, we stated at page 121 of the opinion:
“. . . Under repeated decisions of this court the law favors the early vesting of testamentary gifts, and we are committed to the rule that unless a contrary intention clearly appears an interest will be regarded as vested rather than as contingent. See Cramer v. Browne, 159 Kan. 423, Syl. ¶ 4, 155 P. 2d 468, and cases cited in that opinion. . . .” (See, also, In re Estate of Paulson, 188 Kan. 467, 363 P. 2d 422; In re Estate of Kelly, supra.)
Previous judical decisions may give us rules for construction, but in construing a will each case must be governed by its own particular facts and circumstances; little aid can be derived from other judicial decisions and opinions unless the words of the two wills are substantially identical.
Guided by the above rules and rules to be more specifically applied, which will be considered later, we have no difficulty in concluding that the property devised by the residuary clause in fee was not subject to the limiting provisions of paragraph nine and reduced to a determinable fee.
The three paragraphs of the will before us for construction read:
“Ninth: In case any one or more of my children herein named should die without leaving a child or children surviving him or her, then and in that case all the property which I have in and by this will given to such of my said named child or children thus dying without leaving a child or children at the time of his or her death, shall revert to and become the absolute property of such of my said named children as are then alive.
“Tenth: I give, bequeath and devise to my wife, Frances Smith, and my six above named children, in equal parts, all the rest and residue of my property of every kind and character, wherever situated, which is not by this will expressly disposed of, which I own at the time of my death.
“Eleventh: I do hereby constitute and appoint my sons, Henry P. S. Smith, Edward L. Smith, and my son-in-law, William C. Kriege, or the survivor or survivors of them, to be executors of this my last will and testament, with full power to sell and convey any and all of my property in order to divide the same among the devisees and legatees of this will, their heirs or assigns, without any order of court.”
The seventeen quarter sections of land in Stafford County are not mentioned in the will. The land, therefore, passes under the residuary clause. Paragraph ten of the will, the residuary clause, is clear and unambiguous. The devise is unrestricted. Standing alone the clause would pass a fee absolute. The only matter for construction is whether the fee title devised under the residuary clause is diminished by the provisions of paragraph nine providing for a determinable fee.
The first question that presents itself is—if the testator intended paragraph nine to apply with equal force to paragraphs two to eight, which contained separate individual devises, and paragraph ten, why did not the diminishing language follow rather than precede the devise in paragraph ten as it did the other seven devises?
It will also be assumed that the testator wrote the first part of his will before the last. When paragraph nine was written containing the language “all the property which I have in and by this will given to such of my said named child or children” we assume, there being nothing to indicate the contrary, that he was referring to what he had written in clauses two to eight, not to what he had not yet written in clause ten.
It should also be noted that by paragraph ten of the will the testator intended to make disposition of any and all property he had not previously bequeathed or devised. The residuary clause reads in part:
“. . . all the rest and residue of my property of every kind and character, wherever situated, which is not by this will expressly disposed of,
The scope of the language covered both real and personal property. It would hardly be contended that the title to perishable personal property, or personal property subject to obsolescence, passing under paragraph ten, would be subject to the determinable language found in paragraph nine of the will.
Even more convincing proof of the intention of the testator appears in paragraph eleven of the will. This clause, after appointing the executors, states:
“. . . with full power to sell and convey any and all of my property in order to divide the same among the devisees and legatees of this will,
It could not have been anticipated that the specific property devised to separate individuals in paragraphs two to eight of the will would need be sold for the purpose of division. This was devised in separate complete tracts. The authority to convey as provided by paragraph eleven could only apply to the property devised by the residuary clause in paragraph ten. The power to sell and convey is not in harmony with the nature of a determinable fee.
There is yet another rather convincing circumstance which tends to indicate the intention of the testator. It appears that the immediate children of the testator had for years placed their interpretation upon the will. They never questioned Otto H. Muellers right to the one-seventh interest in the Stafford County real property which was devised to his wife, Ida, by the residuary clause. They acquiesced in the division of the rents and oil royalties from 1935, to 1963, with the full knowledge of the amount claimed and received by Otto H. Mueller as the heir of Ida C. W. Mueller. We must assume that the children of Christian P. Smith knew more about the conditions and circumstances under which the will was drawn, and the intention of the testator, than did a grandson who attempts to place his interpretation upon the will some 55 years after the death of the testator.
What inferences are to be drawn from circumstances and conditions of the testator s estate at the time the will was drawn? In In re Estate of Dobrovolny, 182 Kan. 138, 318 P. 2d 1053, we stated at page 142 of the opinion:
“. . . Further, a will is to be construed not alone by its language, but by the conditions of the testator’s family and estate, and the court should put itself so far as possible in the position of the testator and take into consideration the circumstances surrounding him when the will was executed. (Ernst v. Foster, 58 Kan. 438, 49 Pac. 527; Johnson v. White, 76 Kan. 159, 90 Pac. 810; Beall v. Hardie, 177 Kan. 353, 279 P. 2d 276; Walker v. Koepcke, 177 Kan. 617, 282 P. 2d 382.)”
It would appear that the testator desired to keep the Illinois property where the family made its home in the lineage or blood line. It must be recognized, however, that in 1908, Stafford County land as compared to land in Illinois had only a nominal value. The testator thought so little of the Stafford County land that it was not specifically mentioned in the will. It was left to pass under the residuary clause. There is nothing to indicate in connection with the Stafford County land that the testators wishes were in accordance with lineage or blood line.
Finally, if there is any question as to the intent of the testator we must apply the rule that unless a contrary intention clearly appears a divised interest will be regarded as vested rather than a contingent or determinable fee, and further, we must give heed to the legislative mandate which was in effect at the time the will in controversy was written, which reads:
“The term ‘heirs,’ or other words of inheritance, shall not be necessary to create or convey an estate in fee simple; and every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear, or be necessarily implied in the terms of the grant.” (G. S. 1901, Ch. 22, Sec. 2, now K. S. A. 59-614, with some change in language.)
We conclude that under the will of Christian P. Smith, Ida C. W. Mueller was devised an interest in fee simple in the real property in Stafford County and that such interest was not diminished by the language in paragraph nine of the will.
The will having been construed in favor of the appellants, their contentions as to the application of the doctrine of res judicata, ratification, estoppel and laches become immaterial and do not require attention.
The judgment is reversed with instructions to render judgment for those defendants appearing as appellants in this appeal.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a workmen’s compensation case in which the respondent appeals from an order of the district court dismissing its appeal from the director’s award, on the ground that it had become moot by reason of an action pursuant to K. S. A. 44-512a which went to judgment in the district court.
The instant workmen’s compensation case, docketed as case No. 15,892-B in the district court, was duly appealed to this court and assigned No. 44,146. The companion case resulting from the 44-512a demand, docketed as case No. 16,257-B in the district court, was duly appealed to this court and assigned No. 44,127, Scammahorn v. Gibraltar Savings & Loan Assn., 195 Kan. 220, 404 P. 2d 165.
The respondent, Gibraltar Savings & Loan Association (defendant-appellant) was engaged in the ordinary business of a savings and loan association. One of the homes upon which it had made a construction loan was repossessed, and the respondent undertook to complete the construction before putting it on the market. In so doing it employed the claimant, Dale F. Scammahorn (plaintiffappellee) as a carpenter to do work at an hourly wage to complete the construction of the dwelling which the respondent had repossessed. On May 2, 1962, while installing a ledge, on a swimming pool located in the basement of this dwelling, the claimant fell into the deep end of an empty pool, suffering serious injuries.
A workmen’s compensation claim was filed and tried. On October 28, 1963, the examiner awarded the claimant forty-six weeks of temporary total disability, a 25% permanent partial disability and medical benefits of $1,937.20. Upon respondent’s petition the director reviewed the award, and on November 20, 1963, affirmed the examiner’s decision. On November 22, 1963, the respondent filed an appeal to the district court of Wyandotte County (No. 15,892-B).
On the 5th day of December, 1963, the claimant filed a demand for all compensation due to date under the award. The respondent refused to pay all sums due under the award, but did pay the $1,937.20 medical benefits and tendered checks for the ten weeks next preceding the director’s decision and the weeks up to the date of demand. The claimant accepted the medical benefits but refused and returned the other compensation checks.
On the 24th day of January, 1964, the claimant filed suit under 44-5l2a, supra, for the full amount of the award in the district court of Wyandotte County (No. 16,257-B). This 44-5l2a action went to judgment in the district court before the appeal in the workmen’s compensation case in the district court was heard. (See, Scammahorn v. Gilbraltar Savings & Loan Assn., supra, [No. 44,127].)
The primary question presented to the district court by the respondent’s appeal in the workmen’s compensation case (No. 15,892-B) was whether the workmens compensation act governed the employment of the claimant by the respondent. This was recognized by the district court in its memorandum opinion, when it stated that upon the evidence it would have no difficulty in making an award of compensation were it not for two unusual questions presented, the first of which is italicized above, and the second of which it said arose by reason of the following circumstances:
rfThe Examiner in the Workmen’s Compensation case rendered his' decision óh October 28, 1963. 'The Workmen’s Compensation Director rendered his decision, affirming the Examiner, on November 20, 1963. Respondent appealed to the District Court on November 22, 1963. Claimant filed a demand for all compensation due to date under the award on December 5, 1963, and filed suit under 44-512a for the full amount of the award (case number 16,257-B) on January 24, 1964, after respondent faded to pay up all compensation due as per the demand.
“Section 44-556 of tire 1961 Supplement to G. S. Kansas, provides for the taking of appeals to the District Court from final awards of compensation. It provides that ‘Such appeal shall be taken and perfected by the filing of a written notice of appeal with the director within 20 days after the decision’ shall have been made. Respondent’s notice of appeal was filed within time.
“But Section 44-556 goes on to provide that ‘no compensation shall be due or payable until the expiration of such 20-day period and then the payment of past due compensation awarded by the Director shall not be payable’ if the employer is insured or is a self-insurer and does certain things.
[The trial court then disposed of the case on the second question as follows:]
“As I ruled in Case 16,257-B, Gibraltar is neither an insured nor a self-insurer.
“Conversely, then, 44-556 provides that part due compensation shall be payable in a case such as we have here.
“Section 44-512a of the 1961 Supplement to G. S. Kansas provides: ‘That if any compensation awarded . . . shall not be paid to the employee . . . when due, and service of written demand for payment has been made . . . and payment of said demand is thereafter either refused or not made within 20 days . . . then the entire amount of compensation awarded . . . shall become immediately due and payable and said employee . . . may maintain an action in any court of competent jurisdiction for the collection thereof in like manner as for the collection of a debt. . . .’
“I hold that a respondent in the position of Gibraltar, neither an insured nor a self-insurer, when demand is made upon it for all compensation due to date under an award, has no choice but to comply with the demand if it wants its appeal heard, and that the failure of respondent to pay all compensation due to the date of the demand results in claimant having an absolute right to a judgment for the full amount of the award and effectively precludes respondent from having the award reviewed by the district court.
“The result of what has heretofore been said in this opinion is that the Court rules that the appeal became moot on December 25, 1963 (20 days after the demand was served, within which time respondent did not pay up the compensation due to the date of the demand), and that respondent is not entitled to have the district court pass on the merits of the appeal.”
In its journal entry the trial court found:
“8. That claimant was not employed by respondent in the course of employer’s trade or business.”
It also found, among other things, concerning the 512a demand:
“13. That on December 18, 1963, respondent tendered claimant a check in the amount of $232.50, representing 10 weeks’ compensation, and a check in the amount of $209.28, representing 9 weeks’ compensation, and on January 3, 1964, January 11, 1964, January 18, 1964, and January 24, 1964, respondent tendered claimant checks in the amount of $23.25 each, representing one week’s compensation, and in so doing respondent was attempting to take advantage of the provisions of Section 44-556 of the 1961 Supplement to the General Statutes of Kansas.”
The trial court in its journal entry, among other things, concluded:
“3. That respondent by tendering checks for compensation to claimant, as per finding numbered 13, acquiesced in the rulings of the Workmen’s Compensation examiner and Director that it had jurisdiction over the claimant’s claim against the respondent for compensation and is now estopped from objecting to such jurisdiction.”
On the appeal to this court in the 512a action it was held the district court erred in holding the respondent was not a “self-insurer” under K. S. A. 44-556. The court said:
“Generally speaking, the legislature has classified ‘every employer’ under the Workmen’s Compensation Act who shall secure compensation to his employees, into two broad categories—those who are insured by workmen’s compensation liability, and tiróse who carry their own risk and are known as self-insurers and are financially able to pay all compensation allowed. (K. S. A. 44-532.) In the instant case, Gibraltar was not insured for workmen’s compensation liability, but it carried its own risk, and we think it is to be classified as a ‘self-insurer’ as that term is used in 44-556. It is evident that by the 1961 amendment, the legislature sought to reheve employers from the holding in the Teague case [Teague v. George, 188 Kan. 809, 365 P. 2d 1087], and intended by its use of the term ‘self-insurer’ to cover any employer who carried his own risk and was not insured by workmen’s compensation liability. . . .” (Scammahorn v. Gibraltar Savings & Loan Assn., supra, No. [No. 44,127] p. 220.)
Under all of the facts, conditions and circumstances presented by the instant case (including the companion case) it could hardly be said the legislature under 44-556, supra, intended to provide no forum for an employer to litigate whether or not the employment of a workman was governed by the workmen’s compensation act.
The reasons assigned by the trial court for its dismissal of the workmen’s compensation appeal, as moot, made its finding No. 8 immaterial. Such finding was unnecessary to the decision and it is not binding upon the parties.
The rule of estoppel applied by the district court to the respondent was likewise erroneous. The respondent by making payments and tender pursuant to the provisions of G. S. 1961 Supp., 44-556 (now K. S. A. 44-556), where the procedure for self-insurers is outlined on appeal in workmen’s compensation cases to the district court, is not an acquiescence in the award. It is merely a compliance with the procedure outlined by the statute where appeal is taken. (See, Scammahorn v. Gibraltar Savings & Loan Assn., supra, [No. 44,127].)
We hold the decision of the district court dismissing the workmen’s compensation appeal, as moot, is erroneous, and the appeal should be reinstated to determine the issues presented.
The judgment of the lower court is reversed.
Wertz and Fatzer, JJ., dissent for the reason stated in the dissenting opinion of Justice Fatzer in Scammahorn v. Gibraltar Savings & Loan Assn., 195 Kan. 220, 404 P. 2d 165. | [
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The opinion of the court was delivered by
O’Connor, J.:
This action was instituted under K. S. A. 60-1507 by the appellant, James W. Shores, hereinafter referred to as petitioner, a prisoner in custody under sentence of the district court of Douglas county, claiming the right to be released upon the grounds the sentence was imposed in violation of his constitutional rights and said court was without jurisdiction to impose such sentence.
The facts for the most part are not seriously disputed. Those required to dispose of this appeal will be related as briefly as the state of the record permits.
On December 12, 1963, petitioner was charged with armed robbery committed on December 9. He was taken before the Douglas county court on a warrant where he was duly advised of the charge and of his rights relative to, and the purpose of, a preliminary hearing. Petitioner at first waived but then requested a preliminary hearing.
At the time of his arrest petitioner was regularly employed. He tried, unsuccessfully, to retain out-of-town counsel to represent him, and later endeavored to obtain the services of Gerald L. Cooley, a Lawrence attorney, who declined to represent him. In late December petitioner wrote to the county attorney suggesting that if counsel could be appointed immediately, the preliminary hearing could be waived. Despite this letter, a preliminary examination was held on January 14, 1964. The petitioner appeared without counsel. He made no request to. the examining magistrate that counsel be appointed. Petitioner was bound over to the district court for the offense of armed robbery.
On January 21 the petitioner requested counsel be appointed by the district court, stating he had accumulated no funds except $100 of vacation pay which he had not yet received. He stated two attorneys had visited him at the jail, but never came back. The court then appointed Mr. Cooley, the same attorney previously mentioned, and the petitioner stated he was satisfied with this appointment.
Sometime after Cooley’s appointment the petitioner received his vacation pay of $210 and gave it to a bondsman and another attorney. When he did not hear from them he so advised Cooley, who, by writing to the attorney, secured the return of $150 to the petitioner. The petitioner never told the court he had this money, nor that he wanted other counsel. His only complaint was that Cooley did not come to see him with sufficient frequency. Cooley was urged by the petitioner to contact the county attorney about the possibility of a plea to a lesser offense. This was done, resulting in the plea upon which petitioner now stands convicted. Petitioner was fully advised by Cooley of the penalty for this lesser offense, as well as the offense with which he was originally charged, and that it was unlikely he would be given probation should petitioner enter such a plea.
On February 3 petitioner and his court-appointed counsel appeared before the district court for arraignment, at which time petitioner entered a plea of not guilty to the charge of armed robbery. On motion of petitioner’s counsel, a sanity commission was appointed and, according to its report subsequently filed, the petitioner was found able to comprehend his position and make his defense. Then on March 6 petitioner entered a plea of guilty to an amended information charging him with the crime of assault with intent to maim or rob.
On March 16 petitioner was sentenced to the penitentiary. He filed his motion under K. S. A. 60-1507 on December 4, and on December 11 Mr. James W. Paddock, a member of the Douglas County Bar, was appointed to represent him. The court held a pretrial conference at which respective counsel were present. Issues were determined and the court found “. . . there are substantial issues of fact as to the events in which the Movant participated necessitating a full evidentiary hearing and requiring that the Movant be present at such hearing, ...”
We pause to commend the trial court in the manner in which it went about determining the necessity for a full evidentiary hearing and the presence of the petitioner. This is a good example of the effective use of the pretrial conference as a procedural tool in 1507 proceedings. By this means the court is also in an excellent position to determine sagaciously the triable issues of fact as well as the questions of law involved. For a discussion of the use of the pretrial conference in 60-1507 proceedings see Foth and Palmer, Post Conviction Motions Under the Kansas Revised Code of Civil Procedure, 12 Kan. L. Rev. 493 (May 1964).
Petitioner contends he was deprived of his constitutional rights under the sixth amendment of the United States Constitution when he was denied the right of counsel at his preliminary hearing, inasmuch as the facts show the hearing constituted a critical stage of the proceedings. Counsel for the petitioner candidly acknowledges the many decisions of this court holding that an accused has no constitutional right to have an examining magistrate furnish him with counsel at his preliminary examination, and that a preliminary hearing in this state, as it is ordinarily conducted, is not a critical stage in the criminal proceeding. (State v. Richardson, 194 Kan. 471, 399 P. 2d 799; State v. Daegele, 193 Kan. 314, 393 P. 2d 978, cert. den. 379 U. S. 981, 13 L. Ed. 2d 571, 85 S. Ct. 686.) He contends, however, that under the decisions of the United States Supreme Court cited in State v. Richardson, supra, the accused’s right to counsel arises when the proceedings reach a critical stage, and a critical stage is that point when there is at least a reasonable possibility of prejudice to the accused later in his trial. As a practical matter, counsel is asking us to reappraise our holding in the Richardson case in light of the facts of the instant case.
We have no difficulty in upholding the trial court’s finding that petitioner was not deprived of his constitutional rights by failure to have counsel at his preliminary hearing. Petitioner’s letter to the county attorney, which suggested that if an attorney would be appointed “right away” the preliminary- hearing could be waived, cannot reasonably be construed as a request for counsel. Absent in the record is any request by the petitioner to the examining magistrate, either at or prior to the preliminary hearing, for appointment of an attorney. While it is true a defendant has the right to be assisted by counsel at a preliminary examination, we have held many times that there is no statutory or constitutional requirement that counsel be appointed. (See State v. Cox, 193 Kan. 571, 396 P. 2d 326, cert. den. 380 U. S. 982, 14 L. Ed. 2d 276, 85 S. Ct. 1350; State v. Young, 194 Kan. 242, 398 P. 2d 584.)
The -facts herein clearly show no proceedings transpired at the preliminary examination which could prejudice the petitioner had he stood trial in the district court. True, he did not cross-examine the state’s witnesses, and he made a sworn statement in the nature of argument after the state’s case in which he- said the state’s witnesses could not be believed and that there could be no probable cause to bind him over, for the reason he was in Topeka when the crime had been committed. The state, however, did not attempt to cross-examine the petitioner, and no record was made of any of the proceedings at the preliminary hearing. There is not the slightest indication the petitioner made any incriminating statements during the proceedings that could have been used against him later at the trial. In fact, the record is barren of any showing that petitioner’s rights were prejudiced by lack of counsel at his preliminary examination.
Under facts similar to the instant case, in that a preliminary examination was held without counsel being appointed for the defendant, this court, in Cleveland v. State, 195 Kan. 544, 407 P. 2d 488, said:
“Under the often stated and clearly defined purpose of a preliminary examination in this jurisdiction,' an indigent accused does not have a constitutional right to have counsel appointed by the examining magistrate and the same rule applies regardless of whether or not preliminary examination is waived by the accused.” (Syl. f 1.)
Also, see Bergin v. State, 194 Kan. 656, 400 P. 2d 978, and Portis v. State, 195 Kan. 313, 403 P. 2d 959, and numerous cases therein cited.
Although in State v. Richardson, supra, the defendant waived preliminary hearing without counsel, what was said by this court in analy-zing the same federal decisions to which counsel in the instant case alludes is singularly applicable:
“The foregoing federal decisions indicate a sharp contrast with the facts in the instant case where at the preliminary hearing no defenses were lost, no plea was taken, and no incriminating statements were made in the.absence of counsel.
“It is herefore held under both the state and the federal law the lower court erred in holding the appointment of counsel was necessary at the preliminary hearing. It is not a critical stage of the criminal proceeding under Kansas law.” (p. 486.)
Petitioner further contends our rule that a voluntary plea of guilty by a defendant with counsel waives any irregularity pertaining to a preliminary examination (State v. Daegele, supra; Portis v. State, supra) is inapplicable in (1) that a plea óf guilty to an information is an admission of only nonjurisdictional facts, (2) that a preliminary examination is jurisdictional, and if an accused’s constitutional rights have been violated therein, the examination is void, and (3) that the district court in the instant case had no jurisdiction to arraign the petitioner on the amended information. Petitioner’s contention is patently untenable, inasmuch as we have already determined herein that his constitutional rights were not violated by the absence of counsel at his preliminary hearing.
Petitioner’s remaining contention is that Cooley did not adequately represent him in that he refused to seek out witnesses, the names of whom petitioner had given him. Both the petitioner and Cooley testified at the hearing on petitioner’s motion. Their testimony on this particular matter was sharply conflicting. There was ample evidence, however, to support the trial court’s finding that the petitioner did not give Cooley a list of witnesses, nor did he name anyone who might be a witness except he “. . . did mention a filling station attendant and drug store clerk, neither by name. . . .”
The burden rests upon the petitioner to show his attorney was so incompetent and inadequate in representing him that the total effect was that of a complete absence of counsel. The burden is never sustained by the petitioner’s unsupported and uncorroborated statements. (State v. Richardson, supra; Huston v. State, 195 Kan. 140, 403 P. 2d 122. See, also, Rule No. 121 (g) of the Supreme Court, 194 Kan. xxvm.)
The record establishes Cooley faithfully and diligently performed his duties and counseled at length with the petitioner. Out of an abundance of caution Cooley asked the court to have the peti tioner examined by a sanity commission. As indicative of further efforts by Cooley, the petitioner was able eventually to plead guilty to a lesser offense.
In Call v. State, 195 Kan. 688, 408, P. 2d 668, we said:
“The adequacy of services rendered a client by his attorney must be gauged by the totality of his representation, not by analyzing fragmentary segments thereof in isolation.” (Syl. ¶[ 4.)
As pertinent to this point also see State v. Calhoun, 194 Kan. 878, 399 P. 2d 886.
This is but another instance of a convicted felon who has received the legal benefit of able and competent counsel, as disclosed by the record, who now, as mere afterthought, baldly asserts, without any basis whatsoever, that his counsel was incompetent and inadequate.
Having examined each of the petitioner’s contentions and finding them without merit, we have no difficulty in upholding the trial court’s action in denying petitioner’s motion to vacate and set aside the judgment and sentence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment in a mandamus action refusing to compel the State Superintendent of Public In struction to issue an order transferring territory under the provisions of the Unified School District Act, K. S. A. 72-6743.
The act provides, insofar as material here, one planning unit for each county (K. S. A. 72-6736) and, recognizing that there were existing school districts extending over county lines, makes provision for the inclusion of such area in a planning unit by K. S. A. 72-6743. The area is designated as “gray-area” and described as follows:
“. . . any part of a joint rural high-school district which is not . . . located in the same planning unit as the main school building of such joint rural high school is located.”
The section then provides the method of determining in which planning unit the gray-area is to be placed. Highly summarized, (1) a meeting of the electors of the gray-area is to be called by the county superintendent of the county in which the main school building is located, (2) each elector present is to mark a ballot for or against the transfer of the territory, (3) if a majority favor the transfer the county superintendent shall so certify to the chairman of the planning units interested, and (4) the two planning boards involved shall then consider the advisability of such transfer. The section concludes:
“. . . If either one or both of such planning boards are in favor of such transfer, the same shall be transferred, subject only to the approval thereof by the state superintendent as hereinafter provided. The chairman of each of such planning boards shall promptly, and prior to October 5, 1963, report to the state superintendent the result of the vote taken in each gray-area and the desire of his planning board with respect to such transfer. Upon the receipt of any such report the state superintendent shall determine whether such gray-area shall be transferred from one planning unit to the other, and shall promptly issue an order transferring the same or refusing to transfer the same. Such determination by the state superintendent shall be conclusive, and upon issuance of his order for any transfer under the provisions of this section, such gray-area shall be included in and be a part of the planning unit to which it is transferred by such order.” (K. S. A. 72-6743. Emphasis supplied.)
Such a gray-area existed at the eastern edge of Grant County, comprising some fifteen sections of land. This gray-area formed a part of the territory of Joint Rural High School District No. 2, which had its school building at Satanta, Haskell County, Kansas. The gray-area also formed a part of the Red Rock Common School District and all of its territory was located in Grant County. The statutory procedure for determining to which planning unit the area would be attached was duly commenced. Eighty-five percent of the electors in the gray-area cast ballots resulting in 52 votes being cast in favor of the transfer of the territory to the Haskell County Planning Unit and 44 opposed.
Following the completion of the statutory procedure the Haskell County Planning Board reported to the state superintendent its approval of the transfer of the gray-area to the Haskell County Planning Unit and the Grant County Planning Board reported its opposition.
On November 27, 1963, the state superintendent issued an order denying the transfer of the territory in the gray-area in which he concluded:
“Wherefore, it is hereby determined that the above described gray-area should not be transferred from the Grant County planning unit to the Haskell County planning unit and such transfer is hereby refused and such gray-area territory shall remain in the Grant County planning unit.”
The order stated the source of the information on which it was based:
“Now, therefore, After considering all of the information, facts, arguments, letters, forms, maps, and evidence of every kind concerning the below described gray-area from the staff of the state superintendent and from the county superintendents, school officials, residents, and interested persons in and of Haskell County and in and of Grant County, the state superintendent finds the following to be true”:
The order set out the assessed valuation of the disputed area and the school districts affected; gave the distance to the various school buildings from the gray-area, and stated specific and controlling reasons for the order refusing the transfer as follows:
“The Red Rock School is located on the main highway between Ulysses and Satanta as is the described residential area; the Red Rock School is an 11 teacher elementary school with a school plant which has been built within the past 15 years and which cost in excess of $200,000; it has complete facilities including music, physical training, hot lunches, bus transportation, and kindergarten; the Red Rock School will accommodate more than 180 students; the elementary students living in the gray-area constitute 39% of the present enrollment of the Red Rock School; there are no other convenient areas outside of its district from which this school might draw replacement students; the Red Rock Elementary School is a good elementary school which offers its students and the community one of the better educational institutions of its type in the state of Kansas. A sudden decrease of 39% in enrollment would materially impair the efficiency, quality and standing of the Red Rock School; transportation of the 55 elementary school children in this gray-area a distance of about 25 miles every day would be expensive, inconvenient and educationally unsound when good school facilities are available at a distance of 2 miles.”
The above order was issued without notice and without a formal hearing giving the interested parties an opportunity to be heard.
Certain interested parties petitioned the state superintendent for a hearing. On December 27, 1963, the state superintendent issued an order for a hearing to be held on January 7, 1964, in the House of Representatives at the State House. The order laid down rather restrictive “ground rules.” Each side was given one hour to present its case and one-half hour for rebuttal. No cross-examination was permitted but each side could ask the other questions during the rebuttal period. The chairman of the planning board of each county was to control each delegation and determine who was to speak and when.
On June 16, 1964, following the hearing as above provided, the state superintendent issued a second order ratifying and confirming his previous order of November 27, 1963. It does not appear that this last order was before the district court at the time of the hearing.
On May 28, 1964, Joint Rural High School District No. 2 and two taxpayers interested in the gray-area brought this action to enjoin the Grant County Planning Board from forming a unified school district with the gray-area included, and to compel the state superintendent to transfer the gray-area to the Haskell County Planning Unit.
The petition alleged facts substantially as presented here but embellished with such phrases as “purported findings of fact,” “star chamber proceedings,” “denial of due process” and “unlawful usurpation of power.” A motion for a temporary restraining order was denied and defendants filed a motion to dismiss, stating among other grounds failure to state a claim upon which relief can be granted.
The motion to dismiss was heard July 1, 1964, at which time the parties by stipulation introduced evidence of a copy of the orders of the state superintendent dated November 27, 1963, a copy of the healing order dated December 27,1963, a plat showing the territory involved, and agreed that the first eight paragraphs of plaintiffs’ petition were a correct statement of the facts.
The trial court overruled the motion to dismiss stating:
“. • • Consequently, since the stipulation by the parties as to the facts, together with the introduction of the stipulated exhibits, require a determination, this Court considers the same as a motion for summary judgment.”
The court made findings of fact and conclusions of law and rendered judgment for the defendants.
Plaintiffs have appealed. They first contend that the trial court erred in entering summary judgment because appellants’ petition presented genuine issues as to material facts which were not controverted.
The above contention will be more readily disposed of if we first consider the second contention which goes to the merits. Appellants ask:
“Does K. S. A. 72-6743 authorize the State Superintendent of Schools to ignore and set aside the majority vote of the resident electors of a gray-area as to the inclusion of such area in an authorized planning unit under the 1963 School Unification Act? If so, is such provision unconstitutional?”
Appellants’ entire argument is based on the fallacious assumption that the legislature could not delegate to the state superintendent absolute authority to establish school district boundaries where the majority of the electors had voted to the contrary.
We find no merit in appellants’ contention that the legislature did not by K. S. A. 72-6743 authorize the state superintendent to refuse to transfer territory after a majority of the electors in the area had voted in favor of the transfer.
The statute (K. S. A. 72-6743) is clear and unambiguous. It provides that if a majority of the electors in a gray-area vote in favor of transferring the territory—
“. . . If either one or both of such planning boards are in favor of such transfer, the same shall be transferred, subject only to the approval thereof by the state superintendent as hereinafter provided. . . .” (Emphasis supplied. )
It appears from the above quoted provision that the vote of the electors and the approval of one or both of the planning boards is subject to the approval of the state superintendent.
The section further provides:
“. . . Upon the receipt of any such report the state superintendent shall determine whether such gray-area shall be transferred from one planning unit to the other, and shall promptly issue an order transferring the same or refusing to transfer the same. Such determmation by the state superintendent shall be conclusive, . . .” (Emphasis supplied.)
We do not know how the legislature could have made it clearer that the state superintendent shall determine whether the gray-area shall be transferred and his determination shall be conclusive.
The legislature was no doubt attempting to avoid the rule an nounced in numerous decisions by this court prohibiting the delegation of legislative authority to determine boundary lines for governmental subdivisions. A consideration of a few of these decisions will tend to disclose the fallacy of appellants’ contention that the result of the election by the electors in the area is conclusive.
In the School Reorganization Act of 1945, where the legislature sought to create in each county of the state a school reorganization committee it granted to the county reorganization committee (G. S. 1945 Supp., 72-5607) the power and authority to reorganize the school districts of the county. The School Reorganization Act of 1945 also provided for hearings and provided for a review by the District Court. This court held that law to be unconstitutional in State, ex rel., v. Hines, 163 Kan. 300, 182 P. 2d 865, and held:
“Legislative powers, as distinguished from administrative, cannot be delegated unless there is constitutional sanction therefor. There is no provision in the constitution of Kansas authorizing the legislature to vest in school reorganization committees the power to make legislative regulations concerning the establishment of school districts.
“The establishment of a uniform system of schools is not a subject of ‘local legislation which can be conferred upon ‘tribunals transacting the county business’ under section 21 of article 2 of the constitution of Kansas.” (Syl. 2 and 3.)
In State, ex rel., v. School District, 140 Kan. 171, 34 P. 2d 102, this court, in considering a statute permitting a landowner to withdraw from a school district by petition to the county superintendent, stated:
“Every annexation of land to or exclusion of land from the corporate limits of a municipal or quasi-municipal organization is to that extent a reorganization, and it is not debatable that the legislature is powerless to clothe a private individual or a group of private individuals with power over corporate organization. An attempt to confer such power is said to be an attempt to delegate legislative power, which is futile. This is settled by a long line of decisions, beginning with Comm’rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 34 Pac. 416, and extending to Barrett v. City of Osawatomie, 131 Kan. 50, 289 Pac. 970. . . .” (p. 174.)
See, also, Comm'rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 34 Pac. 416, at page 166, where the following language is found:
“. . . Even if the legislature has the power to confer an authority or discretion as to the execution of such a statute as Chapter 214, it ought not to have the power, and we do not think it has the power, to confer an authority or discretion as to the execution of such a statute upon the resident landholders of a special and small taxing district, when other districts and other taxpayers are interested, and must bear a part of the burden of the improvement or special assessment. . . .”
In the case of Hutchinson v. Leimbach, 68 Kan. 37, 74 Pac. 598, the constitutionality of a law permitting a city of the second class to enlarge the limits from territory adjacent to the city was in question. The court held that an ordinance was an unconstitutional delegation of legislative power and said at page 46:
“. . . Under the provisions of tire act the will that the corporate boundaries shall be changed proceeds not from the legislature or from the council, but from the signers of the petition, who are under no official responsibility, and of whom no other qualification is required than that they desire the change. These provisions are therefore void.”
In the recent case of School District, Joint No. 71 v. Throckmorton, 189 Kan. 590, 370 P. 2d 89, this court considering the constitutionality of the 1961 Unified School District Act held:
“The Unified School District Act (G. S. 1961 Supp. 72-6701 et seq.) is considered and found to be unconstitutional in that it contains invalid delegation of legislative power and violates the state constitution in certain other ways as more fully explained in the opinion.” (Syl.)
It should be noted that in the cases just considered we were not called upon to determine the constitutionality of delegated authority where the legislature had laid down policies and standards as a guide to the exercise of the delegated authority. Although there may be constitutional prohibitions or lack of constitutional authority to delegate legislative power, the legislature is not denied the necessary flexibility and practicality which will enable it to perform its functions by delegating to select instrumentalities some of the legislature’s functions where the policy is fixed and standards are definitely established which determine the manner and circumstances of the exercise of such power. (Johnson v. Reno County Comm’rs, 147 Kan. 211, 75 P. 2d 849; Ritchie v. Johnson, 158 Kan. 103, 144 P. 2d 925; State, ex rel., v. Fadely, 180 Kan. 652, 308 P. 2d 537.) What constitutes adequate standards will of necessity depend upon the nature of the power delegated in each particular case and the constitutional grants or prohibitions pertaining thereto.
Neither is there any merit to appellants’ contention that the granting of authority to the state superintendent to refuse to approve the transfer after the approval by a majority of the electors in the area is in violation of sections 1 and 21 of article 2 of our constitution.
The vote of the electors is merely advisory under the statute as is the approval of the planning boards. The electors have no vested right in school boundaries, nor does such right vest after they have exercised their vote in connection therewith. The legislature may use the vote of the electors in such advisory capacity as it sees fit, either for its consideration in fixing school boundaries or for the consideration of the instrumentality to whom the authority is properly delegated.
The people have by their constitution divested themselves of all control over school boundaries and placed such authority in the hands of the legislature.
The people have also by their constitution placed the responsibility for the general supervision of the educational interests of the state in the state superintendent. He is, therefore, the logical officer to be delegated legislative authority in connection with school matters.
This issue has been fully covered by this court and it would serve no useful purpose to extend the argument further than was done in State, ex rel., v. Storey, 144 Kan. 311, 58 P. 2d 1051. In the Stox'ey case the court had under consideration a contention that because the state superintendent is an administrative officer the legislature could not confer legislative authority upon him. We stated, beginning at page 316 of the opinion:
“. . . Forceful as this argument is, it overlooks article 6 of our constitution dealing specifically with education, the pertinent portions of which read:
“ ‘The legislature shall encourage the promotion of intellectual, moral, scientific and agricultural improvement by establishing a uniform system of common schools, and schools of a higher grade, embracing normal, preparatory, collegiate and university departments.’ (Art. 6, § 2.)
“ ‘The state superintendent of public instruction shall have the general supervision of the . . . educational interests of the state, and perform such other duties as may be prescribed by law. . . .’ (Art. 6, § 1.)
“By these provisions of the constitution the legislature was required to establish a uniform system of common schools and schools of a higher grade. Realizing that many questions pertaining to educational matters naturally would arise, and which would need the attention of a competent official who could investigate and determine what is best to be done, our constitution gave to the superintendent of public instruction ‘the general supervision of the . . . educational interests of the state,’ and specifically authorized him to ‘perform such other duties as may be prescribed by law,’ without limiting those duties to such as might be classified as executive or administrative only. He is authorized to perform any duties pertaining to the educational interests of the state which the legislature deems wise and prudent to impose upon him. Under these provisions it cannot be said that the legislature is without authority to authorize the state superintendent of public instruction to perform duties, or determine questions, with respect to the educational interests of the state which, in the general classification of powers of government, would be regarded as legislative in character.”
The same rule was followed in State, ex rel., v. Brooks, 160 Kan. 526, 163 P. 2d 414, and it was stated: “The state superintendent is better equipped to ascertain what is good for the particular school district than a court would be.”
What has been said also disposes of appellants’ contention that the trial court erroneously disposed of the case on summary judgment. The facts alleged in the petition and stipulated into the record at the hearing left no genuine issue of material fact in controversy on the question of whether the state superintendent’s actions were within the purview of the Unified School District Act. The Act laid down no standards to control the manner in which the state superintendent would obtain the facts and information which would govern his discretion in granting or denying transfer of the gray-area. In Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964, we held:
“Where a motion for summary judgment is sought, the provisions of K. S. A. 60-256 (c) authorize the judgment to be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Syl. 1.)
The steps taken by the state superintendent, being in harmony with the statute which we have held to be constitutional (Tecumseh School District v. Throckmorton, 195 Kan. 144, 403 P. 2d 102), cannot be made the subject of a charge of unlawful and arbitrary conduct.
The judgment is affirmed.
APPROVED BY THE COURT.
Parker, C. J., not participating. | [
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The opinion of the court was delivered by
Parker, C. J.:
The all-decisive question involved in this case is whether the plaintiff (Tommy Hammett a/k/a Tommie Hammett), who is imprisoned in the Kansas State Penitentiary for a term less than life, may institute or maintain the instant action against the defendants (San Ore Construction Company Inc., and Jerry Dennison) to recover damages for personal injuries alleged to have been sustained by reason of their negligence.
The salient facts upon which the rights of the parties must stand or fall are not in dispute and will be highly summarized.
In a petition filed in the district court of Reno County on November 6, 1963, and subsequently amended, plaintiff alleged that he received severe and lasting injuries as a result of an accident occurring October 15, 1962, by reason of the defendants’ negligence and prayed for judgment against such defendants in the amount therein stated.
Subsequent to the fifing of the petition interrogatories were served upon plaintiff among which was the following:
“4. If your present address is Kansas State Penitentiary, Lansing, Kansas, state if you are under sentence of a Court, and if so, the crime of which you were adjudged guilty and the term of your sentence, and the date you were sentenced.”
The foregoing interrogatory was answered by the plaintiff as follows:
“4. The plaintiff is under a sentence at the Kansas State Penitentiary, Lansing, Kansas, by a sentence of the District Court of Lyon County, Kansas, for the crime of second degree burglary and the sentence is for a term of not less than 5 years or more than 10 years, and of which said sentence was commenced on July 15, 1963.”
Following the return of the foregoing interrogatory the defendants filed a “Motion to Dismiss” for the reason that the pleadings and documents on file in the proceeding disclosed that the plaintiff had no legal capacity to bring or maintain the action. After a hearing the trial court in a memorandum opinion sustained the “Motion to Dismiss” for the reasons therein assigned.
Thereupon plaintiff perfected the instant appeal and brings the case to this court under the following statement of points:
“1. The Court erred in ruling that the plaintiff lacked capacity to sue.
“2. The Court erred in dismissing the plaintiff’s petition in the above entitled action.
“3. The Court erred in stating that the civil rights of the plaintiff were suspended.”
Appellant’s claim with respect to point 3 lacks merit and cannot be upheld.
Since 1868 our statute (now K. S. A. 21-118) has specifically provided that: “A sentence of confinement and hard labor for a term less than fife suspends all civil rights of the person so sentenced during the term thereof, ...
Moreover, almost from the date when it was first enacted, this court has always recognized, by inference if not directly, that the foregoing quoted provisions of 21-118, supra, mean exactly what they say.
See, e. g., Harmon v. Bowers 78 Kan. 135, 96 Pac. 51, where it is held: “The suspension of the civil rights of a person sentenced to the penitentiary for a term less than life begin at the date of his imprisonment under the sentence.” (Syl. ¶ 1.)
See Handrub v. Griffin, 127 Kan. 732, 275 Pac. 196, which holds: “The civil rights of a person sentenced to the penitentiary for a term less than life are not suspended until he is imprisoned in the penitentiary.” (Syl. ¶ 1.)
See, also, Everly v. Byrd, 159 Kan. 187, 152 P. 2d 831, where, in construing the provisions of 21-118, supra, and G. S. 1935, 21-134, now K. S. A. 21-134, we said:
“. . . When construed together they simply mean that even though the civil rights of the individual referred to in both sections are suspended his contracts with respect to his property when made by him are nevertheless recognized as valid and enforceable. . . .” (p. 191.)
And see First National Bank v. Bryant, 170 Kan. 658, 228 P. 2d 534, where it is held and said:
“The loss of civil rights attendant upon confinement in the penitentiary for a term of hard labor pursuant to G. S. 1949, 21-118, does not begin until the person sentenced is actually confined in the penitentiary.” Syl. f 1.)
We have little, if any, difficulty in concluding that, under, the confronting facts and circumstances, appellant’s claim with respect to point 1 is equally devoid of merit and must be rejected.
Under .well-estabished authorities it is recognized (1) that the use of court process is a “civil right” within a statute providing that sentence of imprisonment in state prison for a term less than life suspends all civil rights during the term of sentence and (2) that the right to sue is a right which is suspended under a statute providing that sentence of imprisonment in state prison for a term less than life suspends all civil rights during term of sentence. See Nastasi v. State, 61 N. Y. S. 2d 438; Lipschultz v. State, 78 N. Y. S. 2d 731; Application Of White, 2 N. Y. S. 2d 582.
For a well-recognized legal treatise, supporting the rule announced in the foregoing decisions, see 18 C. J. S., Convicts, § 7, where the following statement appears:
“In jurisdictions where, as appears in § 4 supra, the convict does not lose his civil rights as a result of his conviction, it is held that he may sue. Such suit should be brought in his own name, and it is improper to join another person as prochein ami. On the other hand, where the convict is regarded as losing his civil rights as a result of his conviction, it is generally held that he cannot sue while under such disability, even, in the absence of a special enabling act, to recover for injuries received during his imprisonment, although he may sue for such injuries after the completion of his term, except as such right to sue may be restricted by the statute of limitations. It has been held that a convict who has so lost his civil rights can maintain actions which concern his personal liberty and are based on natural rights as distinguished from legal rights.” (Emphasis supplied.) (pp. 105, 106.)
In the face of what has been heretofore stated and held it simply cannot be successfully argued, as claimed in point 1, that the trial court erred in ruling that appellant had no legal capacity to maintain the action.
We are cited to, and our somewhat extended research discloses, no authorities supporting appellant’s position on point 2.
However, having concluded that appellant had no legal capacity to maintain the action it necessarily follows that the trial court did not err in dismissing such action without prejudice to any rights possessed by appellant after his present sentence has been duly terminated.
The judgment is affirmed. | [
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The opinion of the court was delivered by
HobtoN, C. J.:
The petition in this case alleged that the plaintiff, at the time of the injury complained of, was in the employ of the railway company and about its business in repairing its track in Leavenworth county, in this state. The speciaFfindings also show that the plaintiff and his coémployés were section-men, engaged at work upon the railway of defend ant, as alleged in the petition; that it was their duty'in repairing the track to take the old rails out of the track and put in new ones; that the plaintiff was injured by the negligence of his coemployés in removing an iron rail from a push-car to the ground; that his coemployés negligently permitted the rail to fall upon his right foot; that in handling the rails for the purpose of repairing the track, it was the practice for all parties handling the same to hold on to the rail until one of the parties gave the word to throw the rail; that the rail left the hold of two of the employés handling the same with the plaintiff, before any word was given to throw the same.
To the following question, “Does the evidence show that it was any part of the duty of plaintiff to ride upon the cars of defendant?” the jury, in their special findings of fact, answered “No.” At the common law, it is well settled that the railway company would not be liable to the plaintiff for the damages sustained by him, under the findings of fact. The rule of the common law, however, has been changed in this state by the statute of 1874, §1, ch. 93. This statute reads:
“Every railroad company organized or doing business in this state shall be liable for all damages done to any employé of such company, in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employés, to any person sustaining such damage.”
The question therefore arises, whether, under the statute of 1874, the plaintiff is entitled to recover for the personal injuries inflicted upon him through the negligence of his coém-ployés. The contention on the part of the railway company is, that the employé, in order to recover under the statute, must have received his injury through the negligence of a coem-ployé while they, or either of them, were in the use and operation of the railway; and it is the further contention, that the findings in this case do not establish that either the injured employé or the negligent ones were engaged in the use and operation of the railway. As conclusive, counsel cites Smith v. Railway Co., 59 Iowa, 73; Malone v. Railway Co., 61 Iowa, 326. This state adopted the statute of 1862 of Iowa. The ■statute of that state, however, was changed in 1872 so as to •■allow employés of railway companies to recover against the ■companies for injuries received from the negligence of coern-ployés, only “ when such willful wrongs are in any manner ■connected with the use and operation of the railroad so owned and operated, or on or about which they shall be employed.” The code of Iowa for 1873, now in force, slightly changed the statute of 1872, but embraces the words, “when such wrongs are in any manner connected with the use and operation of any railway.” (Iowa Code of 1873, § 1307, p. 239.) The decisions of the supreme court of Iowa construing the statute of 1872 and 1873 are therefore not strictly applicable to the case at bar.
In Malone v. Railway Co. — decided in December, 1884— Mr. Justice Read, after referring to the Iowa statute of 1862, .speaking for the court, said:
“But the subsequent legislation has established a new rule as to the class of acts for which the companies are liable, so that to entitle an employé now to recover against the company for injuries which he has sustained in consequence of the negligence, mismanagement or willfulness of a coemployé, he must ■show, first, that he belonged to the class of employés to whom the statute affords a remedy; and second, that the act which ■occasioned the injury was of the class of acts for which a remedy is given.” (19 Reporter, 238.)
While the statute of 1862 of Iowa was in force, the supreme court of that state decided, as the statute applied to all railroad corporations then in existence or which might thereafter exist, therefore that the law was general and of uniform operation throughout the state. (McAunich v. Railway Co., 20 Iowa, 338.) The limitation placed upon the statute by that decision was as follows: “ If there is an employer and em-ployé, but not business of a railroad company to be engaged in, then the case is not within the act.” (Railway Co v. Haley, 25 Kas. 53.) With this construction and limitation of the .statute, we fully concur.
We are, however, referred to Deppe v. Railway Co., 36 Iowa, 52, as limiting the statute of 1862 to employés engaged in the business of operating a railway. In that case the employé was. injured by the falling of an impending bank, while shoveling dirt. The employé was held to be within ' the protection of the statute, yet he was not injured “through the negligence of a coémployé while they, or either of them, were in the actual operation of the cars or trains of the railway.” It is true that the connection of the injured employé with the dirt train was stated as the ground for the affirmance of the judgment, but beyond the conclusion that the employé in that case was within the terms of the statute, much of the language of the opinion seems to be obiter, therefore not authority; other portions evidently are based upon provisions in the Iowa constitution not embraced in the constitution of this state. See also, Ditberner v. Railway Co., 47 Wis. 138, where a section-hand employed by the railway company was held to be entitled to recover for personal injuries under the statute of that state making railway companies liable for injuries to employés, from the negligence of coémployés.
In the case before us, at the time of the injury complained of, plaintiff below was in the employ of the railway company, and was actually engaged in the business of the company upon its road-bed and track, in the work of replacing old rails of the track with new ones, and while assisting in removing a rail from a push-car upon the track, he was injured without fault on his part by the negligence of his coémployés. With our construction of the statute, there is nothing in the petition or findings of fact to prevent his recovery.
' Finally, our attention is called to the finding of the jury that the iron rail which fell upon the plaintiff was not thrown purposely or accidentally, and therefore it is insisted there was no culpable negligence on the part of the coémployés. The findings show that the dropping of the rail by the coémployés was not done intentionally, or by mere accident. It follows, therefore, under the general verdict, that the coémployés were guilty of negligence in letting the rail fall.
The ruling of the district court in refusing to order a re moval of the case to the federal court was properly denied. (Railway Co. v. Dyche, 31 Kas. 120. )
The judgment of the district court will be affirmed.
All the Justices concurring.
[* Reporter’s Note. — In the case of U. P. Rly. Co. v. Dyche, 31 Kas. 120, the Supreme Court held that the court below properly denied the petition of the defendant railway company, filed for a removal of the action to the federal court. The court made the same ruling in U. P. Rly. Co. v. Harwood, 31 Kas. 388, 394. This latter case the Pail-way Company removed to the Supreme Court of the United States, where it was heard with six other similar cases, at the October Term, 1884, and decided May 4,1885. The judgments were reversed in all the cases, the court holding that corporations of the United States, created by and organized under acts of Congress like the plaintiffs in error in these cases, are entitled as such to remove into the circuit courts of the United States suits brought against them in the state courts, under and by virtue of the act of March 3d, 1875, on the ground that such suits are suits “ arising under the laws of the United States.” This decision of the U. S. Supreme Court was made after the decisions rendered by the Kansas Supreme Court in U. P. Rly. Co. v. Harris, supra, and in U. P. Rly. Co. v. Diehl, post. In the latter case the plaintiff in error filed a motion in the Kansas Supreme Court to revoke and set aside its judgment rendered therein, affirming the judgment of the district court. June 2,1885, the court allowed said motion, ordered that the judgment of affirmance be revoked; that this cause be remanded to the district court of Riley county, with the direction to that court to set aside the judgment therein in favor of Diehl, and to cause the case to be removed to the Circuit Court of the United States for trial.] | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action brought by the plaintiff-appellant, administratrix of the insured’s estate, to recover death benefits in the sum of $5,000 from John Hancock Mutual Life Insurance Company under a group accident and health insurance policy. The insurance policy provided that no payment should be made for any loss of life caused by “injuries arising out of and in the course of employment for wage or profit.” Trial was by the court which made findings of fact and found in favor of the defendant-appellee. No posttrial motions were filed and judgment was rendered for the defendant. The plaintiff has appealed.
On April 29, 1962, Carl L. Dehmer, Jr., his wife, and two other passengers, were killed near Fountain City, Indiana, while Dehmer was flying his personal airplane.
Dehmer and Bion A. McBride were partners in the construction business, doing business under the firm name of McBride & Dehmer Construction Company, of Wichita, Kansas. In the fall of 1961, Dehmer obtained a subcontract for foundations and concrete work on a construction job which General Engineering Corporation, of Sapulpa, Oklahoma, had with the Mennel Milling Company, to construct railroad scales and grain unloading facilities at Fostoria, Ohio. Lloyd Clifton and Robert Ivers were president and vice-president, respectively, of General Engineering, and Ivers was a personal friend of Dehmer. It was through Ivers that McBride & Dehmer obtained the subcontract on the Mennel job. McBride & Dehmer commenced their work on the Mennel job about January 1, 1962. Ivers and Dehmer made several trips to Fostoria during construction to check on the progress of the work. About the end of April, 1962, McBride & Dehmer’s work neared completion. Several small items were to be finished, and McBride & Dehmer had submitted a statement for extra work done and which needed to be discussed and adjusted before the job was accepted by General Engineering and the Mennel Milling Company.
On Monday or Tuesday of the week preceding April 29, 1962, James A. Toombs, supervisor for McBride & Dehmer on the Mennel job, called Dehmer and asked him to come to Fostoria to inspect the job and finalize the contract. Dehmer contacted Ivers and both agreed that Saturday, April 28, 1962, would be a suitable date for their meeting at Fostoria to discuss extra work done by McBride & Dehmer as well as work which remained to be done. This date was desirable to Donald H. Mennel, president of Mennel Milling Company.
On Friday morning, April 27, 1962, Dehmer and his wife left Wichita in Dehmers private plane and picked up Ivers and his wife at Tulsa, Oklahoma, and flew to Columbus, Ohio. They were met at the airport by John Cavaflero and his wife, friends of the Dehmers, who took both couples to their home where they visited for several hours. The Dehmers and Ivers drove Mrs. Cavallero’s car to a motel where they spent the night. On Saturday morning, April 28, 1962, Dehmer and Ivers drove Mrs. Cavallero’s car to the airport where Dehmer had left his plane the night before, and flew to Fostoria, some 90 miles north and west of Columbus. Upon arrival at Fostoria, a meeting was held at the Mennel Milling Company, which started around noon and lasted two or three hours. Ivers and Chet Hosley represented General Engineering. Dehmer and Tooms represented McBride & Dehmer, and Mennel and two other officers represented the Milling Company. The charge for extra work amounting to something in excess of $1,000 was discussed and it was mutually adjusted. Other work had to be done after April 28, to keep out water seepage, leveling of the unloading platform, and work on the control room and scale beam.
At the conclusion of the meeting, Dehmer and Ivers left Fostoria in Dehmers plane for Columbus to join their wives. About 7:30 Saturday evening the Cavalleros picked up the Dehmers and the Ivers for dinner. The Dehmers and the Ivers stayed at the motel on Saturday night, and on Sunday morning they went to the Cavallero’s home for coffee. About noon they were driven by the Cavalleros to the Columbus airport. On their return to Tulsa and Wichita, the plane crashed and all were killed.
Dehmer had previously used the same airplane on partnership business and had flown it to Fostoria in connection with the Mennel job on two previous occasions, one of which he had been accompanied by Ivers. The partnership of McBride & Dehmer paid for the insurance on the plane and for the gasoline it used and the expenses of Dehmer’sj previous trips to Fostoria.
After hearing the evidence, the argument of counsel, and examining the authorities submitted, the district court found:
“(1) That the insured, Carl L. Dehmer, Jr., was on a business trip at the time his plane crashed, in which he was killed;
“(2) That said accident and death arose out of and in the course of the insured’s employment for wage or profit; and
“(3) That the defendant’s rejection of the claim was not without just cause or excuse.”
In her brief, the appellant states:
“The only issue ... is whether or not Carl L. Dehmer, Jr., suffered injuries resulting in his death, which injuries arose out of and in the course of employment for wage or profit. . .’’
The parties are agreed that the burden of proving the issue whether Dehmer’s death arose out of and in the course of his employment rests entirely upon the defendant. While the plaintiff must prove that the decedent’s death was caused by accidental means, which was conceded, the defendant must show that the circumstances surrounding his death came within the exclusion clause in its policy. In Sears v. Insurance Co., 108 Kan. 516, 196 Pac. 235, it was held:
“Where an accident insurance company seeks to avoid liability because of a specific exception to its general liability under the terms of its policy, and on the ground that the accident and injury were within such exception, the burden of proof rests upon the insurance company to show that the facts of the case fell within the exception clause in the policy which relieved the company from liability.” (Syl. ¶ 1.)
The appellant contends that in determining whether a particular injury “arose out of and in the course of employment” within the meaning of the exclusion clause of the defendant’s policy, this court should apply the construction it has placed on that phrase in cases involving claims under our Workmen’s Compensation Act. We think there is merit to the contention.
Our Workmen’s Compensation Act (K. S. A. 44-501) provides that in order to be compensable an accidental injury must “arise out of and in the course of” the employment. The terms “arising out of” and “in the course of” the employment have, by judicial decision, acquired definite meanings which are generally recognized. It has been held they are used in the conjunctive and both conditions must exist with respect to the application of the statute. In Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197, they were defined as follows:
“The term ‘in the course of’ employment as used in G. S. 1949, 44-501 relates to the time, place and circumstances under which the accident occurred; and means the injury happened while the workman was at work in his employer’s service. If personal injury by accident befalls a workman while he is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time, the injury occurs ‘in the course of’ employment.
“The term ‘arising out of’ employment as used in G. S. 1949, 44-501 points to the cause or origin of the accident and requires some casual connection between the injury and the employment. An injury arises out of employment if it arises out of the nature, conditions, obligations or incidents of employment.” (Syl. ¶13, 4.)
When those terms are used in a group insurance policy, as here, we see no reason to doubt that they were intended to have the same meaning which they have in our Workmen’s Compensation Act. The words “for wage or profit” refer only to the kind of employment out of and in the course of which the injury must arise. They serve to emphasize the requirement in our Workmen’s Compensation Act that the employment must be under a contract for hire. (Towle v. John Hancock Mutual Life Ins. Co., 333 Mass. 345, 130 N. E. 2d 685.) We are of the opinion that the phrase as used in the exclusion clause of the defendant’s policy was intended to exclude from the benefits of the policy persons whose claims might be based on injuries compensable under the Workmen’s Compensation Act. In the instant case, the group insurance policy was designed primarily for employees of McBride & Dehmer, and the fact that Dehmer was not an employee makes no difference. The certificate covering him was issued under and subject to the terms of the group insurance policy.
It should here be stated that in the many cases where this court has applied the terms “arising out of” and “in the course of” the employment as used in our Workmen’s Compensation Act, it has uniformly held that the scope of appellate review is limited to' “questions of law,” which in the final analysis, simply means that it is the duty of the Supreme Court to determine whether the district court’s factual findings are supported by substantial, competent evidence. (Kafka v. Edwards, 182 Kan. 568, 322 P. 2d 785; Whitely v. King Radio Corporation, Inc., 190 Kan. 439, 375 P. 2d 593.
We turn to the appellant’s contention that there are at least three reasons why the judgment of the district court cannot be sustained. First, that the evidence was insufficient to establish that Dehmer’s death arose “out of and in the course of employment” arguing that the deceased was not at a place where his employment took him at the time of his death and that his death did not follow as a natural incident from his work. Second, that Dehmer’s death did not arise out of and in the course of his employment for the reason that while there was evidence Dehmer’s trip had some business purpose insofar as he was concerned, the main purpose of the trip was personal and social and the company business was merely incidental thereto. And third, that even if it is assumed that Dehmer’s trip was a business trip, the business had been concluded prior to his accidental death and this compels a ruling that his death did not arise out of and in the course of his employment.
The question presented is simply drawn. Was there substantial evidence to support the district court’s finding that Dehmer was on a business trip at the time his plane crashed? Or, to restate the question, was there substantial evidence to establish the necessity for Dehmer to travel to Fostoria, Ohio, to inspect the work and finalize the contract? The appellant argues that the general rule with respect to a dual-purpose trip such as she contends Dehmer was on, is that where the primary purpose of a trip is personal and social and business is accomplished which is merely incidental thereto, an injury which occurs on the trip is not one that arises out of and in the course of employment. In Tompkins v. Rinner Construction Co., 194 Kan. 278, 398 P. 2d 578, which was decided after the appellant’s brief in this case was filed, this court adopted the formula stated by Chief Judge Cardozo in Matter of Marks v. Gray, 251 N. Y. 90, 93, 167 N. E. 181, 183, which Larson said, when rightly understood and applied, has never yet been improved upon.” (Vol. 1, Larson, Workmen’s Compensation Law, § 18.12 et seq.) Larson then quotes the following from the Marks case.
“. . We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled. . . . The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. ... If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.’ ”
Under the dual-purpose rule as stated in the Tompkins case, it is evident appellant’s claim that Dehmer’s primary purpose in making the trip to Fostoria was for pleasure, is not relevant. There is no need to weigh the business and personal motive to determine which is dominant. Mr. Justice Cardozo used no such language. He said it was sufficient if the business motive was a “concurrent cause” of the trip. He then defined “concurrent cause” by saying that it meant a cause which would have occasioned the making of the trip even if the private mission had been canceled. Larson states one detail must be stressed to make this rule complete: it is not necessary, under this formula, that, on failure of the personal motive, the business trip would have been taken by this particular employee at this particular time. It is enough that someone sometimes would have had to take the trip to carry out the business mission. (Vol. 1, Larson, op. cit., supra.)
Applying the foregoing rule to the instant case, Dehmer was not serving a purpose of his own which was inconsistent with his duties in traveling to Fostoria to inspect and finalize the Mennel contract. The fact that his wife as well as Ivers and his wife were present did not convert his prearranged business trip into a trip “purely for pleasure” as urged by the appellant.
There was ample evidence to sustain the district court’s finding that Dehmer was on a business trip at the time his plane crashed. Likewise, there was substantial evidence to establish the necessity for Dehmer to travel to Fostoria to inspect the work and finalize the contract. It is clear that his trip was required to accomplish this task and that his personal objectives were so far subsidiary that the trip would not have been insisted upon for personal reasons had he elected not to make the trip for business purposes. Hence, it must be said that Dehmer’s trip involved the performance of a service for McBride & Dehmer which was a concurrent cause of the trip. We conclude that Dehmer’s work created the necessity for the trip to Ohio and that his death arose out of and in the course of his employment even though at the same time he served a purpose of his own when he visited friends in Columbus.
We think the appellant’s contentions that Dehmer was not at a place where his employment took him when his plane crashed; that his death did not follow as a natural incident from his work, and that his business had been concluded prior to his accidental death, cannot be sustained.
In Blair v. Shaw, 171 Kan. 524, 233 P. 2d 731, three mechanics employed by a Chevrolet dealer in Fort Scott, Kansas, drove to Pittsburg, Kansas, to take what was known as “approved mechanics’ examinations” given by the Chevrolet Division of General Motors. After the examinataions were concluded and while returning to Fort Scott, the mechanics were involved in a collision and all three died as a result of their injuries. The compensation commissioner and the district court held the deaths to be compensable under the Workmens Compensation Law. It was contended in this court that the deceased employees were not in the course of their employment in taking the examinations, and that if they were, they had completed them and were on their way home when they met their death. In affirming the award of compensation, this court said:
“Having concluded that the trip to Pittsburg to take the examination was a part of the employment, it seems entirely logical to conclude that the entire underaking is to be considered from a unitary standpoint rather than divisible. To take the examination it was necessary for decedents to make the round trip to Pittsburg. That involved travel by private autombilé—going and returning—one project, so to speak, and included the normal traffic hazards inherent in such an undertaking. The act does not require that the injury be sustained on or about the employer’s premises . . .
“. . . we hold that under all of the facts and circumstances of the case, the lower court was correct in ruling that the trip, to Pittsburg to take the examination was an integral part of the employment, and that at the time and place in question decedents had not left the duties of such employment . . .” (1. c. 529, 530.)
In the instant case, the return trip to Tulsa and Wichita was a necessary part of the business excursion. There is nothing in the record to indicate that Dehmer, who was in charge of the trip, intended that the journey home be otherwise than the final step of the business expedition. To inspect the work and finalize the contract, it was necessary for Dehmer to make a round trip to Fostoria. The mode of travel selected by him was in his private plane upon which the partnership of McBride & Dehmer had paid for the inr surance, and had paid for gasoline and Dehmer’s expenses on two previous trips to Fostoria. We know of no reason which would require the district court to conclude that the trip to Fostoria was divisible from the trip home. Inherent in its finding that Dehmer was on a business trip at the time his plane crashed was the finding that the trip to Fostoria was unitary in character and the return flight to Tulsa and Wichita was an integral part of the business trip.
We have examined, not overlooked, the authorities cited by the appellant and they do not control this case; hence, it is unnecessary to discuss them. Overall, this case presents a question of fact. We have repeatedly stated our rule in.such a situation. The.evidence and the inferences to be drawn therefrom amply sustain the findings of the district court.
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Tlie opinion of the court was delivered by
JOHNSTON, J.:
This action was brought by Patrick Mackey against the Missouri Pacific Railway. Company, to recover for personal injuries sustained by him while employed by the defendant company as fireman upon a switch engine, and which injuries he alleges were occasioned solely by the gross carelessness and negligence of the employés of the railway company other than himself.
Among the facts about which there is little if any dispute, may be stated the following: The railway company has control of two track yards, in and adjacent to the city of Atchison, commonly designated as the “upper yard” and the “lower yard,” and which are about one mile apart. On February 11, 1882, the defendant company was using and operating two switch engines with their crews in these yards in running and switching cars; the engine designated as number 166 being chiefly used in the upper y^rd, and the other, known as number 154, being principally used in the lower yard, although each engine also hauled and pushed cars from one yard to the other, and both engines and their crews were used in the common employment of the defendant. The plaintiff was serving as fireman on engine number 166. On the day the accident occurred, number 154 started from the lower yard with from ten to fifteen loaded cars for the purpose of placing them upon the side tracks in the upper yard, where engine number 166 was at the same time employed in transferring cars from one point to another in the upper yard. About the time that number 154, going westward, entered the upper yard, engine number 166 was backing eastward, when the two engines collided, wrecking the engines, and crushing plaintiff’s foot and leg so that it became necessary to amputate it, which was done on that day. The collision occured on a bright clear day, between eleven and twelve o’clock in the forenoon. The ground was level, and the track was straight for a distance of about a quarter of a mile east of the point of collision, and the engi neer in charge of engine number 154 could have seen engine number 166 that distance, and he testifies that he did see engine number 166 at work in the upper yard while he was approaching, and when he was a thousand feet away, but he did not ring the bell, sound the whistle, or give any signal or warning of the approach of his engine, until he was within a few feet of engine number 166, and only three or four seconds before his engine collided with the other. No danger-signal or other warning was given of the approach of number 154, by the engineer in control of 166. Number 166, headed westward, had just pushed some cars west on the side track, and returning, backed down upon the main track a distance of four or five hundred feet to the point of collision. AVhen 166 started to back down, the plaintiff tapped the bell several times, looking west in the meantime for signals from one of the crew, when he got down and began to break and shovel coal into the engine; while thus engaged he was bent over with his back. toward the east, and just as he completed this work and straightened up for the purpose of taking his seat, the collision occurred.
The case has been twice tried in the district court of Atchi-son county. At the first trial a verdict was rendered awarding the plaintiff $11,000, in damages. This verdict was by the court set aside for error in the admission of testimony; and upon a second trial, occurring nearly a year afterward, a verdict was rendered in favor of the plaintiff for the sum of $12,000. Numerous errors are assigned and discussed by counsel for defendant, which we will consider.
I. It is first urged that if the plaintiff can recover at all, it must be under and by virtue of an act of the legislature approved February 26,1874, which provides that: “ Every railroad company organized or doing business in this state shall be liable for all damages done to any employé of such company, in consequence of any negligence of its agents, or by any mismanagement of its engineer or other employés, to any person sustaining such damage;” that under this statute a liability is attempted to be created against a railroad company where none existed at common law, and that it subjects railroad corporations to liabilities and penalties not imposed upon other corporations and persons under like circumstances. It is argued with great earnestness and ability, that railroad corporations are therefore, by this statute, denied the equal protection of the laws guaranteed by the fourteenth amendment' to the constitution of the United States, and the statute should be held invalid. That question was presented to this court in the case of The Missouri Pacific Rly. Co. v. Haley, 25 Kas. 35. In that case it was decided, after full argument and a careful investigation of the question, that the statute is not in conflict with the fourteenth amendment to the constitution of the United States. Upon a reexamination of the question, we are satisfied that it was correctly decided, but we think it would be profitless to again review the authorities,- or enter upon a further discussion of the subject. We must regard this ruling as the settled law of the state, unless it shall be declared to be erroneous by the supreme court of the United States. We might add, that in Iowa a similar statute exists. Very recently its validity was challenged upon the same grounds as are urged here. The supreme court of that state upheld the statute, and in deciding the case said:
“ The argument, briefly stated, is, that under the statute railroad corporations are subjected to penalties and liabilities, which other persons and corporations engaged in like business are not subjected to. That the business of operating a railway is peculiarly hazardous to employés engaged in the operation of the road, must be admitted. Counsel have not called our attention to any business which is equally hazardous, and as the statute is applicable to all corporations or persons engaged in operating railroads, it seems to us it does not discriminate in favor of or against any one. We think it is a pure question of legislative discretion, whether the same penalties or liabilities should be applied to carriers by canal and stage coach, or to persons and corporations using steam in manufactories, as is prescribed by statute in relation to railroad companies. The provisions of section 30 of article 3 of the constitution of this state are quite similar to the fourteenth amendment to the constitution of the United States,.if not in spirit identical, in so far as either can be said to prohibit the legislature from conferring exclusive privileges on any person, or imposing penalties upon any corporation, which are not shared by others under like circumstances; and it was held in McAunich v. M. & M. R. Co., 20 Iowa, 338, that the statute under consideration did not conflict with the constitution of this state, and for like reasons we do not think it conflicts with the constitution of the United States.” (Bucklew v. Cent. Ia. Rly. Co., 21 N. W. Rep., p. 103.)
II. A witness named John Steele was produced in behalf of plaintiff, who in response to questions gave the following testimony:
“Q,. What business were you engaged in on the 11th of February, 1882? A. Running an engine on the Central Branch.
“ Q. How long had you been running an engine there ? A. About two years.
“Q. Had you any experience as a fireman before that time? A. Between three and four years.
“ Q.. Had any experience as a fireman on a switch engine at Atchison, Kansas, before that time? A. Yes, sir; fired a switch engine here in the yard for six months.
“Q,. What was the general duty of a fireman on a switch engine, while the engine is being moved from one point to another in the yard, at that time?”
The defendant objected to the question last asked, stating as a ground of its objection that it called for the opinion of the witness without any proper foundation having been laid to ask the question; and further, that it was not a proper subject of expert testimony.
While wTe are inclined to agree with the counsel in their claim that the inquiry did not relate to that which was a subject of expert testimony, we still .think that it was unobjectionable, and that the witness was competent to answer the same. It was not a question involving special skill or scientific knowledge. What the general duties of a fireman in the Atchison yards were, or, what is equivalent thereto, what duties were generally performed by firemen in the yards at that time, was a question of fact within the common observation of a great many people; and as stated by Chief Justice HoktoN in Monroe v. Lattin, 25 Kas. 354, “it is a-familiar rule that witnesses must speak to facts, and that they are not allowed to give opinions, unless they are experts, and then only upon questions of science and skill.”
The facts here inquired of are such that anyone having personal knowledge thereof is competent to testify to the same, no matter how such intelligence may have been gained. But it will be observed that the witness Steele assumed to speak from personal knowledge. The preliminary testimony given by him shows that his opportunity for learning the facts was amjüe. He was engaged as an engineer in the service of the defendant at the time Mackey was injured; had been running an engine for two years; had had experience as fireman between three and four years, and had actually served as a fireman on a switch engine at Atchison, Kansas, and in the yai’d where the plaintiff was injured. Possibly the master mechanic, yardmaster, or the person who had the direction and control of the firemen on these switch engines, might, by reason of their position and experience, have had more exact information upon the subject than this witness, yet the testimony of common observers upon such subjects is admissible so far as such observation goes. (Commonwealth v. Dorsey, 103 Mass. 420; Funston v. C. R. I. & P. R. Co., 61 Iowa, 452.)
Whether he was acquainted with the facts, or whether he stated them correctly, could have been inquired into by defendant, and tested upon cross-examination. The answer he gave was: “ The duty of a fireman on an engine is to keep the engine hot, to keep steam on, and to assist the engineer in watching for signals.”
It is claimed by counsel that this testimony wras in effect an opinion of the witness that the plaintiff was in the exercise of ordinary care at the time the accident occurred. Not so. There v'as obviously no purpose to get from the witness his judgment, or an opinion in regard to the manner in which plaintiff had performed this work, or whether he was properly discharging his duty at the time of his injury, nor did the testimony given by him go to that extent. The inquiry went only to the work generally performed by a fireman on an engine in those yards at that time. These facts might be testified to by anyone having personal knowledge of the same, and these, together with many others that were shown concerning the action of the plaintiff at the time of the accident, were proper and necessary to enable the jury to reach an opinion upon one of the leading issues in the case, whether there was contributory negligence on the part of the plaintiff.
In Allen v. Railroad Co., 57 Iowa, 626, which was referred to by counsel in support of their objection, the court decided that while a witness ought not to be permitted to express an opinion that a particular manner of performing the services was required of a brakeman in the discharge of his duty, yet it ■was competent for the witness to state as a fact what services were performed by the brakeman in the discharge of his duty. It may be added, that testimony of a like character was offered on the part of the railway company, and all the testimony given in behalf of either party upon this subject agrees substantially with that given by the witness Steele.
We think there was no error in admitting this testimony; and what is said respecting its admissibility is applicable to other testimony of a like character objected to by defendant.
III. Objection is made by the defendant to the ruling of the court in restricting the cross-examination of the plaintiff. After he had testified in chief in relation to the work performed by him as fireman, the defendant asked him the following question upon cross-examination, which -was objected to and excluded: “Did you consider it the proper discharge of your duty at that time for each of you to be looking west, and that train going east as fast as a man could walk?” Under the latitude which is usually allowed in the cross-examination of a plaintiff, we think the question might have been allowed without doing any injustice to the plaintiff. However, it was not strictly pertinent or material to the issue in the case. "What he considered to be his duty was unimportant. The question was, what were his duties, and was he in the proper performance of the same at the time and immediately prior to the collision? There was no error in its exclusion.
IV. Complaint is made of the refusal of the court to give certain instructions which were requested by the defendant on the trial of the case. A number of them relate to the law of contributory negligence, and its application to the facts of this case. Counsel for defendant1 say, that while the court in its general charge to the jury instructed them that contributory negligence on the part of the plaintiff would bar a recovery, yet it failed to instruct what degree of negligence would defeat the action. If the charge of the court had been given as stated, without explanation or qualification, it would appear that the plaintiff had cause of complaint rather than the defendant. It is only ordinary care that the plaintiff was bound to exercise, such care as men of ordinary judgment, intelligence and prudence would exercise under like circumstances. Slight negligence on his part is not enough to defeat a recovery, providing the negligence of his fellow-servant is established, and the term contributory negligence is broad and inclusive enough to embrace the slightest negligence. But the court in the instructions which it gave did not stop with the mere statement that contributory negligence would bar a recovery. The jury were told that it was not enough that the injuries were received by reason of the negligence of the fellow-servants of plaintiff; that the plaintiff could not recover unless it also appeared by a preponderance of the testimony that the plaintiff was in the exercise of ordinary care — such care and diligence as men in general exercise in respect to their own concerns under like circumstances. The court went farther, and in defining contributory negligence, and the duties of the plaintiff, directed the jury as follows:
“The plaintiff, in accepting employment as a fireman upon one of the defendant’s yard engines, assumed the ordinary hazards of that occupation. It was his duty to take ordinary care to avoid danger to himself, and he had a right to assume that his fellow-servants engaged in the management and operation of said two engines and their respective trains, would exercise ordinary care toward him. But he had no right to assume that they would exercise extraordinary care, or the highest degree of diligence, to avoid injury to him.”
“And if the jury find from the evidence that, under the circumstances, it was the duty of the plaintiff to look out for obstructions in the direction that his engine was running, and that if he had been in the exercise of ordinary care he would have seen engine No. 154 in time to have avoided the collision,, but that he negligently omitted to keep a proper lookout, and his injury was the result of said negligence on his part, or the result of said negligence on his part together with the negligence of his fellow-servants, then the plaintiff is not entitled to recover, and your verdict should be in favor of the defendant.”
Other of the instructions asked were to the effect that any negligence on the part of the plaintiff would prevent a recovery. These would imply and hold the plaintiff to a higher degree of care than is by the law required of him. He was not bound to exercise extraordinary care and prudence, and the instructions were properly refused.
Some other exceptions are taken by the defendant to the ruling of the court, both upon the instructions refused and given, but in view of the decisions heretofore made by this court we think it is needless to discuss them. It is enough to say that we have examined them carefully, and that every rule of law proper and necessary to be stated to the jury, embraced in those that were requested, was included in the instructions given to the jury, and that the charge of the court, in its entirety, states the law applicable to the case fully and clearly.
V. The defendant assigns as error the refusal of the court to submit a few special questions of fact. We have examined them, and find no error in the refusal. There were one hundred and thirty-nine special questions submitted to the jury, embracing almost every material fact in the case. Some of those that were requested were modified so as to make them harmonize with others allowed. A part of them had been submitted in different form, and the remainder of the questions refused do not appear to have been material.
VI. It is next urged that the court erred in overruling the motion for a new trial; that the testimony is not sufficient to show that the coémployés of the defendant were culpably negligent; and that it does show that the plaintiff was at fault, and that his negligence contributed to the injury.
The findings of fact returned by the jury all consistently show that the coemployés of plaintiff could, by the exercise of ordinary care, have avoided the collision; and the further finding is made that the plaintiff was performing his duty, and in the use of ordinary care, when the accident occurred. We have read the testimony, and have reached the conclusion that it abundantly sustains the finding that the engineer in charge of engine number 154 was culpably negligent in the management of his engine. He saw the other engine at work in the upper yard long before reaching it, but he came on at a speed of from four to six miles an hour, the other engine being all the timé in plain view, and yet he never gave any signal or warning of his approach, nor did he make any effort to stop his engine until he was within a few feet of the other engine, and only two or three seconds of time elapsed between the sounding of the danger-signal and the collision. There is no v doubt from the evidence that he could have stopped his engine after the danger of collision became apparent to him. Whether the engineer in'charge of engine number 166 noticed the approach from the east of engine number 154, does not appear; His engine had been running backward and forward in the upper yard switching cars, and shortly before 154 came into the yard it had been pushing cars in the opposite direction from which engine number 154 was coming. He then backed his engine east at the rate of from four fix six miles an hour a distance of about five hundred feet to the point of collision. Some reason may be found for his failure to observe the approach of engine number 154, though in backing that distance, and at that rate, in a track yard where other engines were employed, ordinary care and prudence would seem to require that he should have looked for obstructions in the direction in which he was moving. It is strongly urged that it Avas equally the duty of plaintiff to keep a lookout for obstructions, and if he had done so the accident might have been avoided.
The evidence in the record tends to show that the engineer has direct control of the engine, and that the fireman is under his direction as well; that the primary duty of plaintiff as fireman on a switch engine in that yard, as indicated by the name of the employment, was to fire the engine and to keep steam on, and when not thus engaged to assist the engineer to keep a lookout for signals from the crew, and for obstructions on the track. It also tends to show that just before the accident occurred, and when engine number 166 started to back east, the plaintiff was looking west, from which point he had been receiving signals from one of the crew, and after tapping the bell a few times, stepped down from his seat and began to break and shovel coal into the engine, and that while he was thus engaged he was stooped over and facing west, and could not have seen the approach of engine number 154, except by straightening up and turning around. It is said that if he had looked in the direction they were moving before he began to fire the engine, he would have observed number 154 coming, and failing to do so, he was at fault. This is not necessarily so. Engine number 154 was then about eight hundred feet away, and switch engines were frequently passing and re-passing in the yard, and there was still ample time in which to stop the engines. Besides, the plaintiff had a right to presume that the engineers in charge of their respective engines would act with prudence, and would exercise reasonable care in the management of their engines. In the language of Chief Justice HoktoN in Moulton v. Aldrich, 28 Kas. 300, “negligence is not attributable to a person, when under the surrounding circumstances he has no reason to suspect any.” It is not claimed that the plaintiff was needlessly engaged in firing the engine, and the jury find that he was in .the performance of his duty and in the exercise of ordinary care at the time his injury was received. In the face of this finding, based on the testimony recited, we cannot say that the .plaintiff was guilty of negligence which contributed to his injury.
It is finally urged that the judgment should be reversed because thedamages awarded to the plaintiff by the jury are excessive. We are free to state that the award made by the jury is exceedingly liberal, and perhaps too great; but under the circumstances of the case we cannot say that the amount is so disproportionate to the injury as to show that it was given as a result of passion or prejudice, or by reason of any improper influences having been exercised upon the jury.
The plaintiff was thirty-nine years of age at the time of the injury, with an able body and good health. His lower leg and foot was badly crushed, and was amputated about twelve inches below the knee; his suffering was great and protracted, so that he was confined to his bed for about two months, and he has been under medical treatment more or less ever since that time. It is stated by one of the physicians, who testified in the case, that as an effect of the amputation he has what is called degeneration of the nerves of the stump, and that he will probably suffer more or less pain from it during his lifetime; that it will affect his nerves, disturb his sleep, and impair his general health, with a likelihood that the affliction will increase with time. Another physician, who testified, stated that the plaintiff has not since the amputation been as strong as formerly; that he suffers pain; that the stump is unduly sensitive on account of the inflammatory action of the nerve, causing the surrounding muscles to be very sensitive, and as a result there is a constant irritation of the nerves; that this irritation and suffering will continue at least until another amputation is made; that in the present condition of his stump, he cannot wear a cork leg, nor will he ever be able to wear one without undergoing a secondary amputation, which would be attended with danger and with the risk that the same condition of the stump might exist afterward.
On all these considerations, the jury awarded the plaintiff twelve thousand dollars. A former jury allowed eleven thousand dollars. Considering these facts, together with other circumstances that need not be mentioned, we cannot say that the award is so excessive as to lead to the conclusion that the jury were actuated by passion, prejudice, or corruption. The ver- diet was approved by the learned court that presided at the trial, and we do not feel that we would be justified in setting it aside.
The judgment of the court below must be affirmed.
VALENTINE, J.:
I differ to some extent from my brethren, and radically from the Chief Justice, as to what constitutes knowledge of a primary character as contradistinguished from mere opinion, inference, or conclusion; and the decision in this •case illustrates such difference.' The court below, over the objection of the defendant, permitted John Steele, a witness for the plaintiff, to answer the following questions, to wit:
“1. What was the general duty of a fireman on a switch engine, while the "engine is being moved from one point to another, in the yard at that time?
“2. Suppose at a given time the fireman is feeding his engine, is it his duty then to look out?
“ 3. State, in the order in whieh they eome, what the general duties of a fireman on a switch engine were on the 11th day of February, 1882, when moving from one point to another in the yard?”
The court below also on the cross-examination of the plaintiff, who was a witness on his own behalf, and who had previously testified that he was a fireman on a railroad engine of the defendant, and had testified with regard to his duties as such fireman, sustained an objection of the plaintiff to the following question asked by the defendant, to wit:
“Did you consider it the proper discharge of your duty at the time for each of you to be looking west, and that train going east as fast as a man could walk?”
A majority of this court sustains all these rulings of the court below, upon the theory that the views or beliefs entertained by a person as to what constitute the duties of a fireman on a railroad engine are, when derived from personal observation, not merely matters of opinion or inference, but is knowledge of a primary character. In this I differ from my brethren. I believe that all mental conceptions or operations are merely opinions, inferences, or conclusions, except the di rect and immediate cognitions of tbe person’s own primary senses. And it is clear to my mind that no person can either see, hear, feel, taste or smell a duty. His conception of duty when derived from personal observation is merely the result of inference, comparison, reasoning.
One of the questions which was to be proved on the trial of this case was, whether it was the duty of the plaintiff, while he (as fireman) and the engineer were operating a switch engine in the engine yard of the defendant, to look out for dangers, or not. The defendant claims that such was his duty/ and that if he had so looked out no injury would have occurred • while the plaintiff claims — first, that it was not his duty to so look out; and, second, that if such was his duty, still, “that in the order in which they [the duties] caihe,” this duty was the last to be performed, and was to be performed only when he had nothing else to do; and that in the present case when the injury occurred he was already engaged in the performance of another and paramount duty. All the foregoing questions were asked for the purpose of showing what was or what was not the duty of the plaintiff in this respect. All the questions asked of the witness Steele are approved by a majority of this court, because, as a majority of this court holds, they were put to him in such a manner as to obtain evidence which is not opinion, or inference, or conclusion, but is evidence of a higher character. Also, it is held by a majority of this court that the question put to the plaintiff himself on cross-examination might be excluded without error, because it was put to him, not to obtain his knowledge, but merely to elicit an opinion from him, or, in other words, to obtain what he considered to be his duty. In all these matters, the majority of this court treats the mental conception of what is or is not a duty, when such conception is derived from personal observation, as original and primary knowledge, and not as opinion or inference or conclusion. Hence the approval of the questions asked the witness Steele, and the disapproval of the question asked the plaintiff on cross-examination.
In my opinion, the mental conception of what are or what are not the duties of a fireman, when the same is obtained from personal observation and experience, is merely the opinion of the person who entertains such conception. One cannot see a duty, nor hear it, nor feel it, nor taste it, nor smell it, nor can he have any conception of it except by inference, comparison, reasoning. His first observation of the work of a fireman might lead him to think one way, a second another, and so on indefinitely. His first observation might lead him to think that it was the duty of the fireman to look out for dangers in a case like this; a second might lead him to think otherwise; a third might lead him to modify both of his former opinions ; and a fourth might lead him to still further modify, and so ou indefinitely. His inference from his first observation would of course be worth but little; but its value would be increased with every observation; and after many observations and a varied and extended experience the inference would become exceedingly valuable. The mental process leading to such inference would be in such a case a vast induction. Of course if the mental conception of duty is primary knowledge, there is no necessity for laying any foundation for the introduction of evidence to prove such duty; for a person may'always testify with respect to his primary knowledge — that is, with respect to what he has seen, heard, etc., without any preliminary proof being offered; and he may testify with regard to what he has seen, heard, etc., although he may not have seen or heard the same more than once. Could he testify as to what the duties of a fireman on a railroad engine are or are not, if he had never seen an engine operated more than once?
Some of the duties of firemen on railroad engines may come within the common knowledge of people in general, and if they do the courts may then take judicial notice of them without proof. Others, undoubtedly, are matters of experience and skill, and come within the knowledge of a class of persons only, usually called experts, and can be testified to only by such class. And others still may not be matters of judicial knowledge at all, nor the subjects of expert, testimony at all, but can be proved only by proof of the detailed facts which tend to show Avhat they are. And then it is the duty of the jury to determine what the duties are. There are cases where ordinary witnesses may testify to opinions, but it is not necessary now to mention them. My opinion on these subjects is more explicitly stated in the case of The City of Parsons v. Lindsay, 26 Kas. 426, 432. My opinion is also shown in the case of Monroe v. Lattin, 25 Kas. 351.
I am inclined to think that a sufficient foundation was laid for the introduction of Steele’s testimony, provided a foundation would render it competent; and I also think that the question asked the plaintiff on cross-examination, included an assumption of the existence of a fact not warrrnted by the previous evidence; and therefore, with considerable doubt, I shall concur in affirming the judgment of the court below. | [
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The opinion of the court was delivered by
JOHNSTON, J.:
A. G. Ritz brought his action in the district court of Greenwood county against the St. Louis & San Francisco Railway Company, to recover damages which he suffered and were occasioned, as he alleges, by the failure of the railway company to construct and maintain proper cattle-guards where its road entered and left the plaintiff's inclosure. The railroad of the defendant passes through plaintiff's farm where a crop of corn was growing, and he alleges that by reason of the railway company's neglect and refusal to make and maintain proper guards, a large number of cattle and horses entered upon his premises over the defective guards, and ate up and destroyed corn of the value of $175; and he also claims, that by reason of the defendant’s neglect in this regard he necessarily expended in an effort to save his crop from destruction the sum of $175, for which he asked judgment.
A trial was had with a jury, resulting in a verdict and judgment for the plaintiff for the sum of $221. The railway company brings the case here, assigning several errors, which will be briefly noticed.
I. It is first urged that the court erred in sustaining an objection to the questions asked T. J. Kelley, a section foreman of the railway company who was engaged upon the section of the railroad passing through plaintiff's land. After showing that he was experienced in railroading and in the building and repairing of cattle-guards, and also that he was acquainted with the cattle-guards in question, the inquiries were made: If in his opinion the cattle-guards in question were properly constructed ? Were the cattle-guards constructed in the usual and ordinary way of constructing cattle-guards by railways? And if it was possible to construct a guard that would prevent breachy stock from crossing it?
- These questions called merely for the opinions of the witness, and we think there was no error in excluding them from the jury. As a general rule, opinions of witnesses are not admissible in evidence. The facts should be stated, and the jury left to draw inferences and form opinions upon the facts. There are exceptions to this rule, as upon a question of skill or science, or where the subject-matter of inquiry is of such a character that jurors not having experience would not be apt to reach a correct judgment without the aid of expert testimony. But we think the case at bar does not come within any of the exceptions. Cattle-guards are in such common use and are so simple in construction, that practical business men of common experience, when given the facts, can, without the aid of opinion, reach a correct conclusion as to whether the guards were proper and sufficient to complete the inclosure. A jury, coming as it does from the body of the people, many of whom are necessarily familiar with the habits of domestic animals, and with what is necessary to restrain them, is probably more capable of determining whether a cattle-guard is proper and sufficient to prevent stock from crossing it than the man who is experienced only in building cattle-guards.
The supreme court of New York has passed upon this question, and held that the inquiry, whether a cattle-guard on a railroad is properly constructed, is not the subject of expert testimony, but that when the manner of construction is shown, the jury is competent to determine whether it is suitable and sufficient, without opinion evidence. In deciding the question, the court say:
“ That when the manner of its construction was shown, the jury was competent to speak of its fitness for use, as was any person engaged in its construction, or in the construction of such guards, however numerous. It does not require experience in the construction of cattle-guards to know that if the timbers composing the superstructure are so near each other that the feet of horses or cows will not pass between them, the guard furnishes no obstruction to cattle desiring to pass over it. If the opening between the timbers is only two inches, and the animal’s foot is five inches in length, it can pass almost as easily as if the timbers were in actual contact. No amount of opinions could justify the finding that a cattle-guard so constructed was fit for the use for which it was constructed, however skillful and competent the witnesses might be.” (Swartout v. Rld. Co., 7 Hun, 571; Rogers on Expert Testimony, 10; Lawson on Expert and Opinion Evidence, rule 24; St. L. & S. F. Rly. Co. v. Edwards, 26 Kas. 72; Exright v. Railroad Co., 33 Cal. 236.)
The facts in regard to the manner in which the guards were constructed, and in respect to whether they served to complete the inclosure and obstruct cattle from passing within, were not only available, but were fully offered in evidence. The testimony tended to show that the pits underneath the guards were only from 14 to 16 inches deep, and some of the timbers across the pits were so close together that the foot - of a horse or cow could not pass between them, and that cattle crossed over them with but little difficulty. Altogether, the testimony abundantly shows that they were insufficient.
II. It is next urged as error, that the jury assessed damages against the railway company for the injury done to plaintiff’s corn by stock which entered his inclosure at points other than over the alleged defective cattle-guards. Of course the company cannot be held liable in this action beyond the damage caused by its failure to construct and maintain proper cattle-guards. . It is true there was some testimony to the effect that stock once gained an entrance into plaintiff’s corn field through the fence; and the jury, in answer to special questions, say that 575 bushels of corn were destroyed by cattle and other animals on the plaintiff’s premises, and that the damages sustained by plaintiff by reason of this injury to his corn was $161. In their general verdict they evidently allowed the plaintiff this amount for damages done to the corn by the railway company. The special questions immediately preceding these, however, related to stock which came into plaintiff’s inclosure over the defective cattle-guards, and obviously the corn referred to by the jury in their answers was that which was destroyed by the cattle that crossed over the defective guards. ' The jury had been specially charged that the railway company was not liable for injury done by cattle crossing at other points. The findings, when read together, will fairly bear the interpretation that the jury took into account and computed in their allowance to the plaintiff, only the injury done to the plaintiff’s corn by cattle crossing over the cattle-guards; and where a finding of fact made by the jury is susceptible of two interpretations, that one should be given it which would make it consistent with the other findings and with the general verdict, rather than [an interpretation which would overturn and destroy the general verdict. (Simpson v. Greeley, 8 Kas. 586.)
III. It is finally urged that the court erred in telling the jury that in addition to the value of the corn destroyed, the owner of the crop can recover a reasonable compensation for the time and labor necessarily expended in trying to protect his crops from injury by guarding the opening in the inclosure caused by the defective cattle-guards, and erred in including such compensation in the judgment rendered. This rule was enunciated by the court in the case of the St. L. & S. F. Rly. Co. v. Sharp, 27 Kas. 134, and of its correctness and justness we have no question. In that case it was said: “The owner of the crops, upon ascertaining that injuries were being done thereto by the cattle and other animals which had entered at the places where the railway company had failed to erect suitable cattle-guards, was bound to use proper diligence to prevent further injuries to his crops.” This duty being enjoined upon the plaintiff, the expense necessarily incurred in its performance is the natural and direct consequence of the neglect of the railroad company, and for which it should be held liable. Counsel say that under this rule there would be no limit to the expense which the owner of the crop might incur in an effort to protect his crops, and that the expense might even be made to exceed the value of the crop, or the injury which could have been done had not the effort to protect the crop been made. He is only entitled to reasonable compensation for the time and labor necessarily expended in a reasonable effort to protect his crops, and would not be entitled to compensation beyond the damage which might be done by reason of the railway company’s neglect. For instance, if the extent of the injury which could be done to his property by the failure of the railway company to maintain proper cattle-guards did not exceed $500, he could not recover for time and labor spent in protecting such property an amount exceeding that sum. The rule requiring the owner of the crop to use an ordinary and reasonable effort to protect his crop, and giving him compensation therefor, must generally operate beneficially in the interests of the railway company whose neglect makes such expense necessary. The effort must generally have the effect of preventing greater injury and loss, and to that extent reduces the amount for which the company would be liable.
In Iowa, under a like statute, the supreme court has well said—
“That there was no error in an instruction given to the effect that a plaintiff might recover as damages a reasonable compensation for time and labor necessarily expended in trying to save his crops from destruction. If he, in the exercise of ordinary efforts to prevent the destruction of his crops because of defendant’s fault, expended money or labor, he should be compensated therefor. This is one of the natural and ordinary consequences of the neglect of the appellant to comply with the statutory requirement to put in the cattle-guard, and if plaintiff is not allowed to recover for this, the law fails to compensate him fully for the injury inflicted, while it required at his hands the performance of this duty. So, also, if his cattle were necessarily injured because of the failure of defendant to put in the cattle-guard, the plaintiff should upon the same principle of compensation be allowed to recover therefor.” (Smith v. C. C. & D. R. R. Co., 38 Iowa, 518.)
The authorities cited by counsel for the railway company contain nothing inconsistent with this rule, or the views herein expressed. Seeing no error in the record, the judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Price, J.:
This is a direct appeal from a conviction of the offense of forgery in the second degree.
At both his preliminary examination and trial, and also in this appeal—defendant was represented by Mr. Peirce, his court appointed counsel.
Only two contentions are made.
The first is that the trial court erred in allowing evidence of defendant’s character to be introduced over his objection when the issue of “character” had not been raised by him, in violation of that portion of K. S. A. 60-421, which reads:
“If the witness be the accused in a criminal proceeding, no evidence of his conviction of a crime shall be admissible for the sole purpose of impairing his credibility unless he has first introduced evidence admissible solely for the purpose of supporting his credibility.”
With respect to this matter the record shows that in the state’s case in chief a deputy sheriff was questioned as to events leading up to the filing of the charges. Counsel for defendant cross-examined the witness as to his investigation of the case. On redirect examination it was brought out that the officer had checked F. B. I. “rap sheets” and records in the sheriff7s office, including a “mug shot” of defendant, and that from such photograph the complaining witness had identified defendant. An object to this line of testimony on the ground it was an attempt to show “character” was overruled. Under the circumstances related—the ruling was proper.
Defendant took the witness stand. While being cross-examined by the county attorney he was asked if he was then on parole for forgery. The question was objected to on the ground it was an attempt to show “character” and that defendant had not “opened up” such issue. The jury was then excused for the noon recess and, following argument on the objection, the court advised counsel that the objection would be sustained. The county attorney then stated that he had one more question he desired to ask defendant. The court stated that if the further question was of like nature he also would sustain an objection to it.
After the jury returned from recess the court ruled that defendant’s objection to the question was sustained. The county attorney then asked defendant if he had ever been convicted of forgery, burglary, or grand larceny. An objection was likewise sustained— the result being that evidence of alleged prior convictions of forgery, burglary or grand larceny was not introduced before the jury.
Under the circumstances related we believe it was improper for the county attorney to ask the further question and that he should have refrained from doing so. ..
The contention, however, that the court erred in allowing evidence of defendant’s character to be introduced over objection when the matter had not been placed in issue by him, cannot be sustained. Assuming, but not deciding, that evidence of prior convictions would fall within the scope of such contention, the fact remains that objections to questions relating to alleged prior convictions were sustained and such evidence was not introduced.
The remaining contention is that the trial court erred in not striking the objectionable material from the record and in not admonishing the jury to disregard it.
This contention—for all practical purposes—is answered by what has heretofore been said, namely, since evidence of alleged prior convictions was not admitted—there was nothing to strike, and, not being a matter of evidence, there of course was no occasion to admonish the jury with respect thereto.
No error being shown, the judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
The plaintiffs-appellants, William F. Shear and Edith L. Shear, commenced this action for a rescission of a contract for the sale of real estate and to recover $2,000 paid as earnest money. The defendants-appellees, Keith Helm and Katherine Helm, answered, denying they had breached the contract, and in their cross petition sought specific performance of its terms on the part of the plaintiffs-appellants, alleging that they were able to convey a merchantable title in accordance with the contract of sale.
There was little dispute concerning the facts which are summarized: On March 14, 1963, the Shears and the Helms entered into a real estate contract, hereafter referred to as the Shear-Helm contract, whereby the Shears agreed to buy and the Helms agreed to sell a certain residence property in Topeka. The sale was handled by Robert N. Kirk, doing business as The Kirk Co., Realtors, Topeka, who acted as agent for the Helms. At the time the Shear-Helm contract was signed, the Shears deposited $2,000 earnest money on the purchase price. Ry agreement of the partiés and upon order of the court, the earnest money was deposited with the clerk o£ the district court to await the final outcome of the action.
Previously, and on December 21, 1961, Thelma Brown Wright Shuck and her husband entered into a contract with the Helms, hereafter referred to as the Shuck-Helm contract, whereby the Shucks agreed to sell to the Helms the residence property involved. The contract provided that a warranty deed be executed by the Shucks and put in escrow with the Columbian Title and Trust Company of Topeka, to be delivered to the Helms after the full amount of the purchase price had been paid. After the execution of that contract, it was discovered by the Helms that the Shucks only owned an undivided 11/12 interest and that an undivided 1/12 interest was owned by Robert Bruce Wright, the minor son of Mrs. Shuck. To correct that situation, the Shucks and the Helms entered into a supplemental agreement providing that if the Helms desired to sell the real estate, the Shucks would commence guardianship proceedings to clear the property for resale. This all occurred in the late 1961 and early 1962, prior to the time the Helms contracted to sell to the Shears.
When the Shear-Helm contract was signed, the Helms were aware of the status of their title and did not mention that defect either to Kirk or the Shears, nor was any mention made of it in the Shear-Helm contract. Kirk first learned of the defect in the Helms’ title on March 18, 1963. Twelve days later, on March 30, 1963, the Shears first learned that an undivided 1/12 interest in the property was owned by Mrs. Shuck’s minor son Robert, who lived in California with his mother and Mr. Shuck. After Shear learned of the defect, he telephoned Kirk, expressing his dissatisfaction, and told him the sale had been mishandled.
On April 2, 1963, Kirk wrote Shear and advised him, among other things, that prior to March 23, 1963, Mr. Shuck telephoned him from California that they (the Shucks) preferred not to institute proceedings to have a guardian appointed for the minor in order to obtain his undivided 1/12 interest, and suggested several alternatives to the contract between the Helms and the Shears so that guardianship proceedings would not be necessary. Kirk’s letter further stated:
“What you evidently do not realize is that the title is not fully marketable until the minor’s l/12th interest is obtained. . .. . There is nothing that would require the minor to deed his l/12th interest after reaching his majority . . . no legal move could be made to force the boy to execute a deed if he did not desire to do so.
“Actually no problem is involved if the Shucks carry out their agreement with Mr. Helm. On March 23rd, I wrote the Shucks asking them again to start the proceedings as it was not possible to secure a mortgage either now or ten months from now (when the minor would reach majority) unless the title was cleared . . .”
On April 3, 1963, Shuck wrote Kirk acknowledging his letter of March 23, and again expressed the Shucks’ objections to a short-term guardianship and suggested alternatives whereby a guardianship could be avoided and that they would have the minor, Robert, clear the title immediately upon his 21st birthday on January 31, 1964. The Helms did not own the legal title to an undivided 11/12 interest and did not own either the legal or equitable title to an undivided 1/12 interest in the property.
On April 9, 1963, a Preliminary Report of Title Insurance, which had been issued by The Columbian Title and Trust Company on April 2,1963, was furnished to counsel for the Shears for an opinion, and the title was rejected for the reason that the sellers did not own an undivided 1/12 interest in the property.
The Shear-Helm contract made time the essence and provided that the seller would convey the real estate free of all encumbrance, by a general warranty deed which “shall be executed at once and held by the escrow agent,” and further provided that the transaction would be closed on or before April 26, 1963, “unless additional time is required to perfect title as set forth in paragraph 5 hereof,” and that possession would be delivered to the purchaser on or before May 1, 1963. After the Shears signed the contract, and relying on possession of the property on May 1, 1963, they notified their landlord that they would vacate the rented premises on May 1, 1963. When they discovered on March 30, 1963, there was little likelihood they could get possession on May 1, 1963, they attempted to extend the time on their lease, but were unable to do so.
On April 15, 1963, Kirk wrote Shears’ attorney, inquiring whether the Shears planned to take possession of the property on May 1, or whether they preferred delaying possession until the guardianship proceedings were completed. He stated that if the Shears preferred waiting until those proceedings were completed, that the Helms would not make any arrangements for the few weeks between May 1, and the date they were to move from Topeka. Two days later, on April 17, 1963, counsel wrote Kirk that the Shears would not take possession of the property on May 1, 1963, unless the Helms could furnish full title to the property on that date.
On April 23, 1963, no proceedings to acquire the minor’s interest in the property having been filed, counsel for the Shears wrote Kirk that the Shears considered the Helms to be in default and were rescinding the contract and demanding return of the $2,000 earnest money which they deposited when the contract was signed. His letter further stated:
“. . . The seller was well aware at the time he entered into the written contract with my client, Mr. William F. Shear, on March 14, 1963, that it would be necessary to take legal proceedings to acquire the title of Robert Bruce Wright, a minor. ,, If proceedings had been started at that time they would have been completed by the exercise of ordinary diligence on or before April 26, 1963, and this matter could have been closed on April 26, and possession given my client on May 1.”
This letter was in response to Kirk’s letter to counsel on April 22,1963, advising that the Helms would not be able to complete the contract and close the same on April 26, 1963, as provided therein and that the Helms were relying upon the provision of the contract to the effect that “this transaction shall be closed on or before April 26, 1963, unless additional time is required to perfect title as set forth in paragraph 5 hereof.”
Thereafter, and on April 30, 1963, the Shucks filed a petition in the probate court of Shawnee County for the appointment of a guardian for the estate of Robert Bruce Wright, a minor. On the same date, the probate court appointed a guardian and issued letters. On May 13, 1963, the guardian filed a petition to sell the undivided 1/12 interest owned by the minor, Robert Bruce Wright, and on June 5, 1963, the probate court authorized the sale of the minor’s interest in the property.
During oral argument we were advised that no subsequent proceedings were had in the probate court to sell the minor’s interest and that the probate court did not issue an order directing the sale of the property to the Helms, nor was there a guardian’s deed executed to convey the minor’s 1/12 interest to anyone.
Thereafter, and on June 10, 1963, nothing else having occurred in the meantime, the Shears commenced this action.
On April 30, 1964, approximately ten months after the action was commenced, and after numerous pretrial conferences, the case was tried by the court. During the trial, it was admitted in open court that, the Helms had not secured title to the undivided 1/12 interest owned by the minor and that they had no contract with him to purchase that interest. Upon the completion of the evidence, both parties requested findings of fact and conclusions of law.
On June 10, 1964, the court filed its findings of fact, conclusions of law, and memorandum opinion, and on that date, entered judgment decreeing specific performance of the Shear-Helm contract. The journal entry, recognizing that the Helms did not have title to the property, stated, in part:
“. . . that the Defendants Helm are allowed thirty (SO) days from this date to either furnish to the Plaintiffs an Abstract of Title, certified to date, showing marketable title in the Sellers or, at their option, by furnishing a Standard Owners Policy of Title Insurance to the Purchasers which will insure the Purchasers against loss or damage to the extent of the purchase price by reason of defects in the title of the Sellers. . . .” (Emphasis supplied.)
On July 10, 1964, the parties met in chambers at which time counsel for the Helms furnished counsel for the Shears a supplemental report for title insurance policy. This report showed an undivided 11/12 interest vested in Thelma Brown Wright Shuck, and an undivided 1/12 interest vested in Robert Bruce Wright. Thereafter, and on July 11, 1964, counsel for the Shears received another title report which had an addendum written on it to the effect that The Columbian Title and Trust Company had deeds properly executed, in its escrow file to convey full title to the Shears. The Shears’ motions for a new trial; to modify, strike and amend, and to make additional findings of fact and conclusions of law were overruled, as was their motion requesting the court to order the $2,000 deposit returned to them. Thereafter, they perfected this appeal.
In support of its findings of fact and conclusions of law, the district court prepared a detañed memorandum opinion and discussed the law and facts and set forth the rationale of its decision decreeing specific performance of the contract. Memorandum opinions of districts courts serve to illuminate the decisions they accompany, and the practice of filing them is commendable. (Robbins v. Hannen, 190 Kan. 711, 378 P. 2d 1.) In State v. Baxter, 121 Kan. 852, 250 Pac. 294, this court held that a memorandum opinion, “is to be considered as a finding of facts, to the same extent as if it had been spread on the journal.”
It may be said the district court’s decision was premised basically üpon two findings. First, that the Shears’ letter of April 23, 1963, effected a repudiation of the contract and constituted a refusal on their part to give the Helms additional time to perfect the title, thereby making a formal tender of title by the Helms unnecessary, and, second, that the Helms took proper steps within a reasonable time to satisfy any objection to the title and to obtain the outstanding interest of the minor, Robert Eruce Wright.
The pertinent parts of paragraphs 5 and 7 of the Shear-Helm contract are summarized and quoted: Paragraph 5 obligated the seller to promptly furnish to the purchaser an abstract of title certified to date, showing marketable title in the seller, or at their option, furnish a standard owner’s policy of title insurance to insure the purchaser against loss or damage to the extent of the purchase price by reason of defects in the seller’s title. It then provided:
“If an abstract of title is furnished to purchaser and valid objections are made to the marketability of the title shown thereby, seller may then at his option either correct such objections to make the title marketable, or may in lieu of said abstract furnish to purchaser an owner’s policy of title insurance for the amount of the purchaser price.
“Seller shall have a reasonable time to satisfy any valid objections to the title, and make the title marketable to purchaser; and, if legal proceedings shall be necessary, such proceedings shall be begun promptly after return of the abstract or title report to the seller, and shall be completed as soon as possible. . . .”
Paragraph 7 obligated the seller to deliver possession to the purchaser on or before May 1, 1963, and provided:
“This transaction shall be closed on or before April 26, 1963, unless additional time is required to perfect title as set forth in paragraph 5 hereof.”
Under the facts and circumstances, was the district court’s finding that the Helms took proper steps to perfect their title within a reasonable time as required by the contract, supported by substantial evidence or correct as a matter of law? The facts of the case have heretofore been detailed. Despite the fact that the probate court entered its order for sale of the minor’s 1/12 interest on June 5, 1963, no sale was actually made under that order and no guardian’s deed was ever issued to perfect the Helms’ title. The record is silent as to why no sale was made or deed issued during the five days that elapsed between the probate court’s order to sell the minor’s interest and when this action was filed on June 10, 1963, or for that matter, why that authority was never used.
Up to and including the trial of the action, the Helms were never able to convey a merchantable title to the Shears without the prom ise and acquiescence or voluntary act of a third party. Robert Brown Wright, who was not a party to either the contract or to the litigation. In such a situation, the Shears should not reasonably have been expected to proceed with the contract after they discovered the condition of the Helms’ tide. The rule is stated in 55 Am. Jur., Vendor and Purchaser, § 277, p. 722, as follows:
“. . . he should not be expected to proceed with the contract where the fact develops that there are defects or encumbrances the removal of which rests upon mere hope and conjecture, as where, in the acquisition of title, the vendor must necessarily be wholly dependent upon the will and volition of a third party." (Emphasis supplied.)
More than that, the Helms were unable to deliver merchantable title on June 10, 1963, when the district court entered judgment, decreeing specific performance. The memorandum opinion conceded the Helms did not then have marketable title and it allowed them an additional 30 days from that date to perfect tide. If the Helms were able to establish that they had or could secure merchantable tide, the burden of proof was upon them to come forward with their evidence and establish such fact. (Carnine v. Bacon, 131 Kan. 643, 293 Pac. 392, Syl. ¶ 2.) Instead, the Helms relied entirely on the mere allegation in their cross petition of their ability to convey marketable tide, which was denied in the Shears’ reply.
In arriving at its decision, the district court held that at the time of the execution of the contract, the Shears were not entitied to and had no right to believe and act upon the belief that the Helms were the owners of the property. The undisputed evidence established that when the contract was signed, the Shears believed the Helms were the owners in fee simple of the property they were selling and there was nothing in the contract to indicate to the contrary. The Shears testified that if they had known the Helms were not the owners of the property, and that they needed to acquire the undivided 1/12 interest of the minor, they would not have signed the contract. In other words, they would have purchased other property to avoid the title question. Likewise, Kirk testified that if he had been advised of the outstanding interest of the minor, he would have shown that interest in the contract before asking the Shears to sign it. The Helms were well aware of the condition of their title. Their failure to disclose their lack of title to their agent Kirk and to the Shears entrapped the parties into signing the contract. This is not the kind of honest and forthright action which is required of one seeking relief in a court of equity. In Durham v.
Hadley, 47 Kan. 73, 27 Pac. 105, an action was begun to recover purchase money paid on a contract for the sale of real estate. The purchaser refused to accept title because of the reported mortgage which was unreleased. This court held:
“In every contract for the sale of land there is always an implied warranty by the vendor that he has good title, unless such warranty be expressly excluded by the terms of the contract. The implied warranty exists so long as the contract remains executory, i. e., until the deed is given.” (Syl. f 1.)
The case of Ely v. Joslin, 111 Kan. 638, 208 Pac. 628, was an action for specific performance of a real estate contract. The question there was the rights of the seller under the contract when he was not able to convey merchantable title at the inception of the contract. The Durham case was followed, and the court held:
“In a contract for the sale of land there is an implication that the vendor has a good title and a right to convey unless such implication is expressly excluded by the terms of the contract.” (Syl. If 1.)
Here, there was no exclusion of the warranty in the contract nor was there any notice to the Shears that the Helms could not convey full title to the property, although they obligated themselves to immediately execute a general warranty deed conveying fee simple title to the Shears and to place the same in escrow. In this respect, the rule is stated in 49 Am. Jur., Specific Performance, § 52, p. 67, as follows:
“Unfairness which will defeat the right to specific performance of a contract may consist in the suppression or concealment of facts known by one party but unknown to the other which would have influenced the action of the latter. Such unfair concealment or suppression may have the same effect as affirmative misrepresentation as a ground for the refusal of a court of equity to grant specific performance.”
Apparently, the rationale of the district court was that a reasonable time for the Helms to perfect their title had not expired on April 30, 1964, when the action was tried, which was more than one year after the date set for performance of the contract itself, and, further, that a reasonable time still had not expired as of the date of judgment on June 10, 1964, thirteen months after the date originally set for the closing of the transaction, and to give the Helms an additional 30 days thereafter to perfect title, demonstrates to this court that the district court, sitting as a court of equity, erred in holding the Shears did not give the Helms a reasonable time to correct their title. See Durham v. Hadley, supra.
Moreover, the holding that the Shears were required, in equity, to take possession of the property on May 1, 1963 before the Helms were able to furnish marketable title was also erroneous. In this connection, the district court found:
“Had the plaintiffs Shear cooperated with the defendants Helm, they could have taken possession of the premises on May 1, 1963, and marketable title to the property could have been provided to the plaintiffs within a short period of time after June 5, 1963.”
Events subsequent to June 5, 1963, established that this finding was speculative and erroneous. The Helms were not able to deliver marketable title when the action was tried or when judgment was rendered some thirteen months after the time fixed to close the contract. Under these circumstances, the district court’s finding had the effect of substituting the Shears for the Helms in their untenable position in the Helm-Shuck contract and would have made the Shears the purchasers of a lawsuit. In Durham v. Hadley, supra, it was said that specific performance will never be decreed in the action of the vendor whenever the doubt concerning his title is one which can only be settled by further litigation, and that “A vendee will not be compelled to buy a lawsuit.”
The district court further found “that the filing of this lawsuit and the refusal of the Shears to go through with the contract prevented the Helms from making the title marketable. We think there was no evidence to support this finding. The court apparently reasoned that the Shears’ action excused the Helms from their duty to be able to perform. Throughout the entire period of the contract and the litigation, the Helms needed a deed from Robert Rrown Wright, the minor, and they needed a deed from the Shucks’ to maintain their action for specific performance. In what manner the Shears’ notice decreeing a default or the filing of the lawsuit prevented the Helms from obtaining those deeds, is unexplained, either by the evidence, the findings of fact, or in the memorandum opinion. The Shears’ notice of default was the activating factor that caused the Helms and the Shucks to proceed in an attempt to acquire title by getting authority from the probate court to sell the minor’s interest. As previously indicated, no deed was ever obtained between June 5, when the order of sale was entered, and June 10, 1963, when the action was commenced, or at any subsequent time. It was not because of notice of default that tihe Helms did not acquire title to the property, but it was for some other reason that was entirely undisclosed by the evidence. See DeHart v. Eveleigh, 141 Kan. 341, 41 P. 2d 725. The inability of the Helms to acquire title was due to a cause or causes unknown and the action of the Shears in notifying the Helms of default and the filing of the action in no wise contributed to the failure of the Helms to acquire the title to the property they had contracted to sell.
Other points have been briefed and argued by the parties, but in view of the conclusions heretofore announced it is unnecessary to discuss them.
For reasons heretofore stated, the judgment of the district court is reversed with directions to enter judgment for the Shears rescinding the contract and to order the clerk of the district court to pay the Shears the $2,000 earnest money now on deposit in that office.
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The opinion of the court was delivered by
Doster, O. J. :
This is an appeal from á conviction of the offense of what is commonly designated as “statutory rape” ; that is, of carnally knowing a female under eighteen years of age, without force and not against her will. Several claims of error are made : (1) That the court lost jurisdiction to try the case because there had been a continuance of it from one term to the succeeding one when the defendant was not present in court; (2) that a comparison of the testimony given upon the preliminary examination and upon the trial proper showed that the defendant was convicted of an offense which the prosecutrix did not have in her mind when she swore to the complaint and about which she did not testify upon the preliminary trial, wherefore the defendant did not have a preliminary trial for the offense of which he was convicted; (3) that the testimony showed that the offense of which the defendant was convicted was barred by the statute of limitations ; (4) that two like offenses were testified to under an information containing a single count and charging but a single offense, and between which the state was not required to elect for purposes of conviction; (5) that the court erred in certain of its instructions ; (6) that prejudicial evidence was erroneously admitted. We have examined all of these claims of error. None of them possesses any merit whatever. They are all predicated upon either partial or mistaken views of the case.
It would serve no useful purpose to con over the record for the purpose of showing wherein counsel for appellant has fallen into error. One question, however, deserves to be noticed. It raises the con stitutional validity of the act establishing the state industrial reformatory and providing for the punishment of youthful offenders in that institution. (Gen. Stat. .1897, ch. 134.) The judgment of- conviction was in accordance with the provisions of that act. It reads as follows : “That said William G. Page be and' is hereby sentenced to confinement in the Kansas State Industrial Reformatory, there to remain until discharged by the authorities of said reformatory according to law.” Section 11 of the act in question reads as follows:
‘ ‘Any person between the ages of sixteen and twenty - five who shall be convicted for the first time of any offense punishable by confinement in the state penitentiary may in the discretion of the trial judge be sentenced either to the state penitentiary or to the Kansas State Industrial Reformatory; and any person who upon such conviction shall be sentenced to imprisonment in the Kansas State Industrial Reformatory shall be imprisoned according to this act, and not otherwise, a'nd the courts of this state imposing such sentence shall not fix a limit of duration thereof. The term of such imprisonment of any person so convicted and sentenced shall be terminated by the managers of the reformatory as authorized by this act; but such imprisonment shall not exceed the maximum term provided by law for the crime for which the prisoner was convicted and sentenced.”
Several sections succeeding this outline a system of punitory and reformatory discipline, the administration of which is confided to a board of managers. This system among other things provides for a record of merits and demerits in the inmates, and for parole privileges to those of exemplary conduct. Section 20 reads as follows :
“When it appears to the said managers that there is a strong or reasonable probability that any prisoner •will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society, then they shall issue to such prisoner an absolute release from imprisonment. But no other petition or other form of application for the release of any prisoner shall be entertained by the managers. Nothing herein contained shall be construed to impair the power of the governor to grant a pardon or a commutation of sentence in any case.”
The punishment inflicted upon an offender sentenced to the reformatory under this act is the kind commonly spoken of as “indeterminate,” and it is assailed by counsel for appellant as violative of that constitutional provision which vests judicial power in the courts, and also that one which vests the pardoning power in the governor. Similar acts have been for the same reason drawn into question in other courts but have been approved by a great preponderance of the authorities, and by a cogency and strength of reasoning entirely satisfactory to us. (The State, ex rel. Attorney-general, v. Peters, 34 Ohio St. 629, 4 N. E. 81; Conlon’s Case, 148 Mass. 168, 19 N. E. 164; Miller v. The State, 149 Ind. 607, 49 N. E. 894; The People, ex rel., v. State Reformatory, 148 Ill. 420, 36 N. E. 76; George v. The People, 167 Ill. 447, 47 N. E. 741; contra, People v. Cummings, 88 Mich. 249, 50 N. W. 310.)
It is undeniably true that the sole power to provide for the punishment of offenders belongs to the legislature. It alone has the power to define offenses and affix punishments. Its authority in these respects is exclusive and supreme. Courts are empowered only to ascertain whether an offense has been committed, and if so to assess punishment, wdthin the terms of the law, for its commission. It cannot be doubted that the legislature, in virtue of its exclusive and sovereign authority over such matters, may affix conditions to the punishment it ordains, and among other things may set to it limits of duration, terminable upon conditions. To these conditions the courts in assessing punishment must conform. Into every sentence of conviction the terms and conditions which beforehand the legislature had prescribed enter as much as though they were written into and made a formal part of the record of sentence. Into the before-quoted sentence of conviction the law wrote, as provisos and as constituent parts of it, sections 11 and 20 of the act establishing the state industrial ¡reformatory. (Miller v. The State, supra.) It is not, ¡therefore, an interference with judicial authority, nor : an assumption of judicial power, for the supervisors of penal institutions to administer the very conditions of punishment or clemency which the law prescribed and itself wrote into the judge’s sentence. Where conditions of punishment are beforehand prescribed, and form constituent parts of the sentence of conviction, it is not an assumption of judicial power for an administrative officer, acting within the lawT and the terms of the sentence; to take upon himself the task . of ascertaining whether the conditions have been observed.
Under the statute quoted, if rightly construed, the sentence of the appellant was to the maximum punishment, so far as duration was concerned, which the law prescribed for the offense of which he was convicted. The judge did not say so, but the law said so, but at the same time it provided conditions under which he can secure an earlier discharge. If the law had provided that the period of punishment prescribed by it, or by the sentence of the court, might be extended in duration, or made more onerous, in the discretion of the managers of the reformatory, a different question would be presented, but it sets a limit beyond which confinement shall not be extended and prescribes punishment to which additions shall not be made. It provides for the mitigation, not the cumulation, of punishment. It vests in the board of managers no judicial power to sentence and condemn, but the gracious power to acquit and release. This power it must be confessed is assimilated to the pardoning power, which by the constitution is exclusively vested in the chief executive of the state, but the power to grant paroles on honor and the power to release from penal confinement are not the powers to pardon. A power to pardon is something more than a power to parole or a power to release from servitude. “ ‘ Pardon is the remissionof guilt; amnesty, oblivion, or forgetfulness.’ (And. L. Dict. 745.) The act of the board only shortens the term provided by the sentence and leaves the convictionof guiltunaffected.” (Miller v. The State, supra, 623.) “The effect of such pardon by the king is to make the offender a new man ; to acquit him of all corporal penalties and forfeitures annexed to that offense for which' he obtains his pardon, and not so much to restore his former, as to give him a new, credit and capacity.” (4 Blackst. 402.)
“A pardon reaches both the punishment prescribed for the offense and the guilt of the offender, and when the pardon is full it releases the punishment and blots out of existence the guilt, so that, in the eye of the law, the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights — it makes him, as it were, a new man, and gives him a new credit and capacity.” (Ex parte Garland, 4 Wall. 333, 380.)
“The doctrine of the authorities is, that ‘a pardon reaches both the punishment prescribed for the offense and the guilt of the offender,’ and that ‘ it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as. if he had never committed the offense.’ ‘ If granted after conviction, it removes the penalties and disabilities and restores him (the convict) to all his civil rights ; it makes him, as it were, a new man, and gives him a new credit and capacity.’ (Ex parte Garland, 4 Wall. 333, 380; United States v. Padelford, 9 id. 531; United States v. Klein, 13 id. 128; Carlisle v. United States, 16 id. 147; Knote v. United States, 95 U. S. 149.) In the case last cited it is said that ‘ a pardon is an act of grace by which an offender As released from the consequences of his offense, so far as such release is practicable and within the control of the pardoning power, or of officers under its direction.’ ‘In contemplation of law, it so far blots out the offense that afterwards it cannot be imputed to him to prevent the assertion of his legal rights.’ ‘A pardon of treason or felony, even after an attainder, so far clears the party from the infamy and all other consequences thereof that he may have an action against any who shall afterwards call him traitor or felon ; for the pardon makes him, as it were, a new man.’ (Bac. Abr., tit. Pardon [H].) ‘ There is only this limitation to its operation : it does not restore offices forfeited, or property or interest vested in others, in consequence of the conviction and judgment.’ Id.” (Jones v. Board of Registrars, 56 Miss. 766, 31 Am. Rep. 385.)
A pardon in its primary, and we think according to the above authorities its legal sense, is, as above defined, simply the remission of guilt. rThe effect of a pardon is to release from confinement; to restore to the status of citizenship and to the enjoyment of civil rights. Mere release from confinement therefore is not a pardon, and none of tlie effects of a pardon other than corporal liberty follows from it; hence, as a majority of th,is court have recently held, in The State v. Clark, ante, p. 450, 56 Pac. 767, a release from the state reformatory without a pardon from the governor did not remove the disqualification to testify as a witness.
The law allowing releases from the state reformatory before the expiration of the sentence, which, under the statute as rightly construed, is the maximum period of time, is of a kind with that which allows releases from the state penitentiary before the expiration of the period of sentence. In the former case it is made by the board of managers of the state reformatory, in view of the good conduct of the prisoner as shown by the record ; in the latter case it is made by the warden,' in view of the same conduct as shown by the same kind of record. In the former case the board of managers establish a system under which they determine the number and character of credit marks to be earned by a prisoner a-s a condition of release ; in the latter case the law more largely determines it than do the prison officials ; but in both cases the essential thing, to wit, what is good conduct entitling the prisoner to credit marks, is left, and left of necessity, to the managing officers of the respective institutions. The law having conferred upon them the power to mitigate punishments — to shorten terms of confinement — not to adjudge and condemn to imprisonment, it cannot be said to be judicial; and this power not being the power to remit guilt nor to restore to civil rights, it is not the executive power to pardon. It is administrative merely.
Objection is made that there is nothing in the record showing the appellant to be over sixteen years of age nor under that of twenty-five, nor that he had not been previously convicted of a penitentiary offense, and therefore that the court did not have before it the jurisdictional facts authorizing sentence to the state reformatory. This objection was not made to the court below; it cannot be made for the first time in this court. A defendant in a criminal action who would object that the evidence did not tend to show him to be above the age of sixteen and below that of twenty-five, and who would object that it did not appear that he had not formerly been convicted of a felony, and therefore liable to sentence to the state industrial reformatory instead of the state penitentiary, must make the objection to the court below, and not to this court for the first time ; and in the absence of evidence in the record as to his age it will be presumed that the court determined the fact from his appearance, and likewise indulged in the legal presumption of his innocence of former offenses, and therefore found him to be within the terms of the act allowing sentence to the reformatory. (The State v. Robinson, 38 Ore. 43, 48 Pac. 357.)
The judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by
Allen, J. :
This action was brought by J. G-. Wood-rum against the Washington National Bank to recover a balance of money claimed to be due to the plaintiff from the defendant, and also to obtain the cancela tion of a certain judgment rendered in favor of Clay, Robinson & Co. against the plaintiff and by them assigned to the defendant. The defendant answered, setting up, among other things, the judgment in favor of Clay, Robinson & Co., and the assignment thereof to the defendant as a set-off and counter-claim against the plaintiff, and asked for an affirmative judgment for divers sums of money claimed to be due the defendant from the plaintiff.
The substance of the plaintiff’s claim was, and he offered testimony tending to show, that on the 19th of October, 1891, he owed the bank one note for $4551.45 and no more; that at that time the bank held- as security for this indebtedness a check given by Clay, Robinson & Co., dated July 11, 1887, for $3500, a cash deposit of $500, and the collateral notes executed by Mrs. Woodrum, secured by mortgage on her land, which was the basis of litigation in the case of Susie E. Woodrum against the Washington National Bank, just decided (ante, page 34) ; it also held á judgment against Clay, Robinson & Co. for $3878 recovered for the wrongful destruction, by Texas fever, of certain cattle belonging to the plaintiff in this action, on which the bank held a mortgage to secure his indebtedness to it. This judgment was rendered in an action brought by Woodrum against Clay, Robinson & Co., George E. Elwood and the bank to recover his damages occasioned by the introduction of Texas fever into a large herd he then owned, by Elwood and Clay, Robinson & Co. At that time Clay, Robinson & Co. held a note against Woodrum for $8000 with ten per cent, interest, dated March 4, 1887. The bank answered in that action setting up its chattel mortgage on certain of the cattle affected by the fever, and claiming damages to the extent of the value of its security lost through the destruction of the cattle covered by its mortgage. The trial resulted in the allowance to Woodrum of the damages to his herd, but he was charged with the amount of the $8000 note and interest, and his damages, less $3878 awarded to the bank in lieu of its lost security, were deducted from the amount of the note. The final judgment in that action, which was rendered on the 17th of November, 1891, was in favor of Clay, Robinson & Co. against Woodrum for $5677.25, and in favor of the bank against Elwood and Clay, Robinson & Co. for $3878. There was litigation instituted by Clay, Robinson & Co., to restrain the collection of the $3500 check, but this terminated in favor of the bank, and on the 3d of March, 1893, the check, then amounting to $4696.53, was paid. The bank claimed the right, before applying this amount on the indebtedness of Woodrum to it, to deduct costs and expenses incurred in the litigation in relation to the check. These with interest, as figured in an itemized statement furnished by the bank, amounted to $1487.57, leaving a balance of something over $3000 to be applied on Woodrum’s indebtedness.
Although it is contended on the part of the defendant in error that the evidence fails to show what agreement was entered into between the bank and Clay, Robinson & Co., we think the evidence offered by the plaintiff fairly tended to show, and in the absence of ahy counter proof was sufficient to establish that on the 27th of September, 1894, Clay, Robinson & Co. executed an assignment to the bank of the judgment in their favor against Woodrum, which amounted to $5677.25, and interest, and on Octoher 9, 1894, the bank by its president and cashier entered a release and satisfaction of its judgment for $3878 against Clay, Robinson & Co. At the same time, and as a part of the same transaction, Clay, Robinson & Co. paid the bank $3000. No other consideration passed from the bank to Clay, Robinson & Co. for the assignment of their judgment against Wood-rum than the balance of the $3878 judgment over and above the $3000 cash payment.
After the plaintiff had introduced his testimony the bank moved for judgment in its favor for the balance due under the judgment rendered in favor of Clay, Robinson & Co. against Woodrum, claiming that the evidence of the plaintiff showed the following state of accounts at the date of the judgment: That the plaintiff owed the defendant on the judgments assigned to the bank by Clay, Robinson & Co. with interest computed to date $8271.42, and was entitled to a credit for the amount claimed in the petition with interest computed to date $3536.61, and- for the further sum of $1941.22, being the difference between the amount of the $3878 judgment and interest to date and the $3000 cash payment" made by Clay, Robinson & Co. to the bank at the time of the assignment of the judgment. The court sustained this motion and entered judgment in favor of the bank for $2793.59. The theory of the case held by counsel for the bank is very simple. Woodrum owred the bank a note of $4551.45 and interest. He owed Clay, Robinson & Co. originally $8000. Allowing him all that was recovered as damages to his cattle and all that has been collected by the bank, including $500 cash deposited, there is still due on these two debts the amount for which judgment was entered; that it is no concern of Woodrum’s whether the judgment entered in favor of Clay, Robinson & Co. is collected by them or by the bank, as the debt was not increased ' by the assignment of the judgment to the bank, and Woodrum was not injured by it. Woodrum’s claim is less susceptible of ready apprehension. It is that the judgment rendered in favor of the bank against Clay, Robinson & Co. stood in lieu of the mortgaged cattle as security for the payment of his debt to the bank ; that at the time the compromise was made which resulted in the payment by Clay, Robinson & Co. of $3000 and the assignment of their judgment against Woodrum to the bank the cash payment exceeded Woodrum’s indebtedness to the bank, and that the bank did not then own the uncollected surplus of its judgment against Clay, Robinson & Co., but that Woodrum himself owned it, as he would own any surplus cattle remaining after the sale of sufficient of them to satisfy his debt to the bank; that this uncollected surplus was exchanged by the bank for the judgment which Clay, Robinson & Co. held against Woodrum; that the whole consideration paid for this assignment belonged to Woodrum and that he is entitled to his election whether he will take the specific property taken in exchange for that which in equity belonged to him, or will charge the bank with the uncollected balance of its judgment against Clay, Robinson & Co. ; that in this case the court has permitted the bank to elect rather than Woodrum, and has allowed the bank to purchase a judgment against Woodrum and pay for it with a fund which belonged to Woodrum alone.
It is a general rule of law that where a trustee or custodian of the property of another makes an unauthorized exchange of it for other property the owner has his election to charge the trustee with the value of the property as for a conversion or to take the specific property received in exchange for it. In other words, if one enters into unauthorized specula tion with the funds of another which he holds in trust, the owner of the funds may affirm the bargain and take the benefit of it, or repudiate it and recover judgment against the trustee for his money. In this case, when the $3000 was paid by Clay, Robinson & Co. to the bank on its judgment it had received more than enough, according to the testimony before us, to discharge all of Woodrum’s indebtedness to it, and the whole surplus remaining uncollected from Clay, Robinson & Co. on the bank’s judgment in equity belonged to Woodrum. The whole consideration paid for the assignment of the judgment of Clay, Robinson & Co. against Woodrum belonged to Woodrum. Not a dollar belonging to the bank was invested in it. While the bank had a perfect right to buy up judgments against Woodrum with its own funds and to enforce them against him, when it bought this judgment solely with Woodrum’s funds it took it in trust for him if he should so elect. He does so elect, and is entitled to enforce that election in this action.
But it is said that this allows Woodrum a discharge from a part of the debt he honestly owed without payment of it, and that this is unjust. It is answered, however, that the bank has in this case obtained a large judgment against Woodrum, for which it not only paid nothing itself but which it obtained by using a fund belonging in equity to Woodrum when Woodrum’s debt to it had been more than paid and it was justly owing him a considerable balance ; that as the case stands the bank has received a considerable sum in excess of all that was due to it from every source, and also has obtained a judgment in this case for $2793.59, which does not in fact represent a dollar of indebtedness that Woodrum or any one else owes to it. Certainly the bank has no superior equities to urge. The plaintiff had a right to treat the purchase of Clay, Robinson & Co.’s judgment as made for his benefit, and to allow the bank credit for the identical property belonging'to him which it exchanged for the assignments. It follows, therefore, that for the $3878 judgment held by the bank against Clay, Robinson & Co., under the facts as now disclosed by the record before us, the bank must account to Woodrum for the $3000 in cash it received and the $5675.25 judgment recovered by Clay, Robinson & Co. against Wood-rum, assigned to the bank, will be treated as assigned to Woodrum, and therefore canceled and satisfied. This will leave the case for an accounting between the parties as to the other transactions.
What has been said in the foregoing opinion is based solely on the pleadings and the testimony offered on behalf of the plaintiff. What may be developed by evidence from the other side we do not know, and, of course, have no purpose of prejudicing the case of the defendant on another trial if the facts be made to appear differently from those now presented, but it has seemed necessary to say so much in order to express our view of the law for the guidance of the court on another trial. The view taken by the trial court on the case presented was erroneous. The judgment must be reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Johnston, J. :
Lou Holland collided with a locomotive and passenger-train of the Atchison, Topeka & Santa Fe Railroad Company at a railroad and highway crossing, and she seeks to recover for the injury sustained. The case was before the court in Railroad Co. v. Holland, 58 Kan. 317, 49 Pac. 71, when a judgment in her favor was reversed because some of the findings of the jury were held to be contrary to the evidence and inconsistent with each other. The case having been remanded, another trial was had, which again resulted in a verdict against the company, and with it were returned special findings of fact. There is complaint, and not without cause, that some of the findings were made without due regard to the evidence, and, further, that they are in conflict with one another-. Without stopping to investigate the merits of this complaint, we pass to the consideration of the claim that the failure of the plaintiff to look for a train when she approached and was about to pass over the crossing bars a recovery. The negligence alleged against the company was the failure of those in charge of the train to sound the whistle eighty rods from the crossing, or to give any warning of the approach of the train to the crossing. Although some of her own witnesses testified that signals were given, others stated that the train approached the crossing without' signal or warning of any kind, and under this testimony and the finding of the jury we must assume that the negligence of the company is established.
As to the care exercised by the plaintiff the facts are not in dispute. It is conceded that she had lived in the vicinity of the crossing for twelve years and was familiar with the surroundings. The collision oc curred on a bright, clear day, when she was returning to her home from Winfield. She was driving a gentle horse, attached to a top buggy, but the top of the same was down, and when she was about to cross the track there was nothing to obscure the view or prevent her from seeing the approaching train at any point within 525 yards of the crossing. She knew the train was due and had not passed. She had in mind the coming of the train, and knew that it would not stop at the station of Hackney, which was near the crossing. She kept a lookout for the train as she traveled from the store, across the switch, and over to a highway which parallels the track, but did not look for the train while traveling down this parallel road for a distance of thirty-seven yards, nor when she arrived at the crossing. On the former trial there was testimony tending to show that she kept a lookout while traveling along the parallel road and before she entered upon the crossing, but at the last trial she expressly stated that she did not look for the train at any time after she reached the parallel road.
Among other findings, the jury state that she knew when the regular train was due, was familiar with the crossing, and could have seen an approaching train just prior to the time she attempted to cross the track if she had looked. It was also found that if the plaintiff had looked for the train during the last seventy-five feet before she drove on the crossing she could have seen it in time to have avoided the disaster, and that if she had stopped her buggy and looked, for it during the last 100 feet before she drove on the-crossing she could have seen the train. There is also-a finding that she knew that the train was likely to-come from the north at any time while she was driving the last 100 feet before reaching the crossing, and that she drove on without turning her face toward the back of the buggy for the purpose of looking for the train that wTas following her. In this connection the jury found that she could not obtain a view of the track without stopping her vehicle, and in answer to a question as to whether she could see the train when she was about to cross, the jury answered : “ No ; not without neglecting her horse.” In view of the testimony that the horse was gentle, moving along on a jog-trot, at the rate of five miles an hour, with nothing to excite either horse or driver, that the top of the buggy was down, and that there was nothing to obstruct the view or prevent her from seeing the train if she had looked over her shoulder, these findings were little less than absurd, and, like the one finding that she was wantonly run down by those in charge of the train, were without support.
In answer to other questions, the jury expressly found that if she had looked up the track just before going upon the crossing, or while traveling the last thirty-seven yards of the parallel road, she would have seen the approaching train. Although finding that she did not look while traveling that distance, or •when she was about to cross', and that she could have .-avoided the collision if she had looked, the jury found that she was not negligent, and that she exercised due icare and prudence in approaching the crossing as she ñid. These findings, together with the undisputed facts, present the bald question whether a traveler who is expecting a train, approaches the railroad-crossing, having looked for a train when thirty-seven yards away, and then- travels the last thirty-seven yards of the highway without looking along the track, does not look when she is about to cross the railroad, when by looking she could have seen the train and avoided the injury, is guilty of contributory negligence.
The standard' of duty of the traveler as measured by the law in such cases is well established, and has been frequently stated by this and other courts. In U. P. Rly. Co. v. Adams, 33 Kan. 430, 6 Pac. 530, it was said:
“ It is the duty of a traveler upon a highway about to cross a railroad-track to make a diligent use of his senses in order to ascertain whether there is a present danger in crossing. This is required not alone for his own safety, but also for the protection of the lives of the passengers upon the railway-trains. The traveler* who fails to take this precaution is not using ordinary care.”
In that case it appeared that the traveler drove upon the. railroad-track without looking, and although it was shown that the company was negligent in failing to sound the whistle for the crossing, it was held as a matter of law that the plaintiff’s negligence barred a recovery. In Beach on Contributory Negligence, § 23, it is said to be “ well settled that under such circumstances (where a railroad-track crosses a highway upon the same level) a traveler must look up and down the track attentively ; and a failure to do this is generally negligence as a matter of law.’’’
In A. T. & S. F. Rd. Co. v. Townsend, 39 Kan. 115, 17 Pac. 804, the plaintiff, who was injured at a crossing, looked for the train when he was seventy feet from the track, and then ceased to look, although he had an unobstructed view while traveling the last sixty feet before crossing, and it was held that he was not excused for failing to use his senses in discovering the approach of a train from a point where he could have seen or.heard it. The court there recognizes the rule that where the facts are such that different men might arrive at different conclusions as to the degree of care exercised the question is for the jury, but felt bound to hold that .a person who went upon a railroad-track without using his senses to discover whether there was danger, when by looking he could have seen and avoided the danger, is negligent.
In Roach v. St. J. & I. Rld. Co., 55 Kan. 654, 41 Pac. 964, a traveler was killed on a railroad-crossing. It was clear from all the evidence that he could have seen the approaching train, which collided with him, when he was thirty feet away from the track. He was familiar with the crossing and the surroundings, .and it was held to be negligence per se for him to drive upon a crossing when a regular train was about due without looking for an approaching train which he might have seen in time to have avoided injury to himself if he had looked ; and that such negligence will bar a recovery, although the railroad company had failed to give any signals or warning of the approach of the train.
In Young v. Railway Co., 57 Kan. 144, 45 Pac. 583, a person injured in a collision at a railroad-crossing stated that she looked and listened for the train several times after she was within 100 feet of the crossing, and although she could see along the track for eighty rods she saw no train until she was struck by the locomotive. Notwithstanding her testimony the court held as a matter of law that she was guilty of contributory negligence, on the theory either that she did not look añd listen as the law requires, or that having looked and listened she saw the train or ought to have have seen it in time to have avoided the injury. It is generally held that the track itself is a warning, and the traveler in possession of his senses is bound to recognize a crossing as a place of danger, and the fail ure to make vigilant use of the senses in order to ascertain whether there is a present danger in crossing the track bars a recovery. On account of the great number of accidents which occur on crossings, the law requires vigilance by both railroad employees and travelers upon the highway ; and, as remarked by the chief justice in Railroad Co. v. Willey, 57 Kan. 770, 48 Pac. 27, “regard for one’s own personal safety and that of others to whom he may stand in dangerous relations requires the exercise of diligence and caution, and the policy of the law should be to impose penalties upon the negligent injurer, and likewise to withhold relief from the negligent sufferer.” See, also, Clark v. Mo. Pac. Rly. Co., 35 Kan. 350, 11 Pac. 134; W. & W. Rld. Co. v. Davis, 37 id. 743, 16 Pac. 78; A. T. & S. F. Rld. Co. v. Priest, 50 id. 16, 31 Pac. 674; Railway Co. v. Bartley, 59 id. 776, 53 Pac. 66; Mann v. The Belt Railroad and Stock-yard Co., 128 Ind. 138, 26 N. E. 819; Haines v. The Ill. Cent. Rld. Co., 41 Iowa, 227.
The plaintiff was of mature years, in the full possession of her senses, was anticipating the coming of the train, and was well acquainted with the crossing. Her horse was tractable, and there was nothing at the crossing to obscure her view or prevent her from discovering the danger. She did look for a train when she drove into the parallel road, but not afterward, and with the fact in mind that the train would soon pass she heedlessly drove upon the parallel road a distance of 111 feet without looking for the train; and, worse than that, did not look when she reached the crossing and was about to pass over. These facts being conceded and found, there is no escape from the conclusion that she was culpably negligent. If there was any dispute as to whether she had looked when about to cross, or a question as to whether looking would have availed her, or if the presence of a flagman or the surroundings of the crossing had been such as to allay apprehension of danger or blunt her caution, there might have been a question for the jury as to whether there was any excuse for omitting to take the ordinary precautions for her own safety. There was nothing, however, in the existing conditions which prevented her from seeing the danger if she had looked, nor in escaping injury if she had taken this precaution. Under our cases the minimum of care to be exercised by her was to look and listen for the train, where the surroundings admit of this precaution ; and some courts go to the extent of holding that it is also the duty of a traveler to stop, look, and listen. In this state it has been held that ordinarily it is not the duty of a traveler on approaching a railroad-track to stop ; but that if the view of the track is obstructed, or the conditions surrounding the crossing are such that the traveler cannot by looking and listening determine whether it is prudent to cross the track, he must stop, and whether the circumstances require him to stop is ordinarily a matter for the determination of the jury. (A. T. & S. F. Rld. Co. v. Hague, 54 Kan. 284, 38 Pac. 257; C. R. I. & P. Rly. Co. v. Williams, 56 id. 333, 43 Pac. 246.)
The failure of a traveler to use his senses to ascertain if there is danger before crossing a railroad, and at least to look and listen for an approaching train, is so manifestly contrary to the conduct of an ordinarily prudent person that the law regards it as negligence. The standard of duty and care in such cases being fixed by law, and the facts, about which there is no controversy, being such as to show beyond question that the plaintiff’s conduct did not come up to the prescribed standard, but was a plain and palpable want of care, nothing remains for this court but to determine the matter of liability. It is clear that she neglected to exercise the care which the law required, and as we have seen, there is nothing in the circumstances which excuses her negligence or gives her a right to damages for injuries which would have been averted if she had taken the care dictated by common prudence.
The judgment will, therefore, be reversed, and the cause remanded with directions to enter judgment for the defendant below.. | [
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The opinion of the court was delivered by
Smith, J. :
John S. Cunningham, the plaintiff in error, sued one Arthur E. Neeley before a justice of the peace in Wyandotte county, and garnished the railway company, defendant in error, in whose employ Neeley was working. The railway company is a Missouri corporation, but its road runs into and through a part of Wyandotte county. Its principal office is in Nansas City, Mo., where Neeley lived, his wages being payable there. Neeley was the head of a family which resided with him, and under the laws of Missouri the wages due him from the railway company at the time of garnishment were exempt from attachment or execution. These facts were set up in the answer of the garnishee. Neeley appeared in the justice court with his attorney and filed an affidavit claiming the wages garnished to be exempt under section 1, chapter 268, Laws of 1889 (Gen. Stat. 1897, ch. 95, § 509). This section reads :
“ That the earnings of a debtor, who is a resident of this state, for his personal services at any time within three months next preceding the issuing of an execution,, attachment or garnishment process, cannot be applied to the payment of his debts when it; is made to appear by the debtor’s affidavit or otherwise that such earnings are necessary for the maintenance of a family supported wholly or partly by his labor : Provided, that at the time of filing such affidavit the debtor shall notify the plaintiff or his agent or attorneys thereof in writing : And provided, that nothing herein contained shall prevent the adverse party from controverting the matters sought to be proven by such affidavit by counter-affidavit, or if sought to be proven in any other manner the same may be controverted by any competent evidence; And provided further, That such counter-affidavit shall be filed within twenty-four hours after the notice of the filing of the said debtor’s affidavit, and final hearing shall be had thereon at a time to be fixed by the court within ten days from the notice of the filing of the debtor’s affidavit if pending in the justice’s court, and if pending in the district court it shall be tried at the first term held after filing such affidavit.” (Gen. Stat. 1889, ¶ 4589.)
A hearing was had, both parties, plaintiff and defendant, appearing by their attorneys. The motion and application of the defendant Keeley was overruled. Thereafter judgment was rendered in favor of Cunningham against him for $41.03 debt and $18.50 costs. The justice made an order on the railway company, ordering it to pay into his court $59.53, the amount of the judgment and costs.
About the same time one Louis Katz brought suit before the same justice against Arthur E. Keeley upon an account, and caused garnishment summons to issue to said railway company. The defendant Keeley filed an affidavit of exemption in that case, and the plaintiff filed a counter-affidavit under the provisions of the statute above set out. Both parties appeared at the hearing of the motion by their attorneys. After a hearing the same was overruled and Keeley’s claim of exemption denied. The proceedings in the Katz case differ from those in the Cunningham case only in the fact that in the former the motion to discharge the garnishee and the claim of exemption were made after judgment. Judgment in the Katz case was rendered for $27.85 debt, and costs, and the garnishee ordered to pay money owing by it to the defendant Keeley into court to be' applied in payment of the judgment. In neither case was there any appeal from the judgment or proceedings in error taken from the ruling and order of the justice refusing to release the money garnisheed.
Thereafter, by written assignment, Louis Katz transferred his judgment to the plaintiff in error, John S. Cunningham, who, joining this with the judgment obtained by him, brought an action against the railway company in the court of common pleas of Wyandotte county for the amount of the two judgments, the company having refused to obey the order of the justice directing it to pay into court the amount stated in its answers as owing to Keeley, which was enough to pay both judgments. The railway company answered in the common pleas court, averring that the money due from it to Keeley was for wages exempt under the laws of Missouri. The court of common pleas held the railway company liable, and rendered judgment against it. This judgment was reversed by the court of appeals. (Railway Co. v. Cunningham, 7 Kan. App. 47, 51 Pac. 972.)
We shall consider but one question raised in the briefs of counsel. If the hearing on the motions and applications of the defendant Keeley to discharge the garnishee and release the money in its hands as exempt was subject to be reviewed on error or appeal, or was a final order, then no proceedings of such a nature having been instituted, the matter was res judicata, and could not be relitigated in the suit brought in the common pleas court against the garnishee to recover the amount of the judgments, which amount the railway company answered in the justice’s court that it owed the defendant. It will be seen that section 509, chapter 95, General Statutes of 1897, above set out in the statement of this case, makes provision for a trial of the question of exemption by affidavits, counter-affidavits, or any other competent evidence, and that final hearing shall be had thereon. This statute, passed in 1889, wrought a radical change in the procedure prevailing at that time in such cases. Theretofore, by a law passed in 1886 (ch. 111, Laws 1886), the proof contained in the affidavit of the debtor that his earnings were necessary for the maintenance of a family supported wholly or partly by his labor was conclusive on the question of his right to the exemption, and no further inquiry or trial, could be had; and it was made the duty of the court, immediately on the filing of such affidavit, to release all moneys held by garnishee process.
The defendant in error contends that the ruling or finding of the justice of the peace, holding the money in the garnishee’s hands not exempt to the debtor, was neither final nor appealable. The court of appeals adopted this view, holding that the proceeding was a summary one, to be had upon motion and affidavit; that there was no way either party could have a jury trial on the questions involved, and hence they were deprived of valuable rights. We cannot concur in this conclusion. In the case of Comm’rs of Wilson Co. v. Mc Intosh, 30 Kan. 234, 1 Pac. 572, Justice Brewer, in discussing the question, says :
“ The only reason given is, as heretofore stated, that the one litigation was carried on by motion and the other by action. But why should not a decision, upon a motion be as conclusive as that upon a trial? The reasons given are that motions are often made in the hurry of a trial, and decided with comparatively little examination and consideration; that the decision cannot be taken up for review; and that they are tried upon affidavits rather than oral testimony. None of these reasons exist in the case at bar. The motion was not made until after judgment. It could not have been regarded as in any sense interlocutory, or one whose subject-matter could thereafter be more carefully examined, but must have been considered as a final determination as to the rights of the sheriff. It could have been taken up for review to this court, and indeed time was given to make a case. . . .We think there is a growing disposition to enlarge the scope of the doctrine of res adjudicata, and to place more regard on the substance of the decision than on the form of the proceedings. One thing which indicates this is the increased facility of review in the appellate courts. It used to be the practice that no ruling of the trial court went up for review until after final judgment; any preliminary rulings, if errqneous, might up to that time be corrected by the trial court. Then it was assumed that a final examination in that tribunal had been had, and the whole record was ready to be transferred to the appellate court; and hence it was argued that no prior decision should be considered as final or res adjudicata. But our present practice provides for taking immediately to the appellate court a vast number of rulings prior to the final judgment. Now that the decision of a motion can be preserved in a separate record and taken up by itself, presupposes a full and careful consideration in both the trial and appellate courts ; and when that is had it would seem that the question thus separately and carefully considered should be finally disposed of, and not be thrown back for further litigation at the mere caprice of either party.”
In the above case it was contended by counsel that the rule of res judicata could not obtain as to motions like the one involved there, for the reason, first, that the merits of the question were not wholly capable of being tried, but were in fact tried on the motion, and second, that it was a question upon which the parties were not entitled to a jury, but upon which the decision is by statute expressly given to the court. Section 582, chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶ 4639), reads : “A judgment rendered or final order made by a justice of -the peace or any other tribunal, board or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court.” It follows from this statute and the decisions that the order and ruling of the justice of the peace in the Katz case refusing to release the money of the defendant in the suit, having been heard and decided after judgment against the debtor, .was the proper subject of review by proceedings in error in the district court, and hence was conclusive of the rights of the parties unless set aside or reversed by direct proceedings. (Carlyle v. Smith, 36 Kan. 614, 14 Pac. 156; Axman v. Dueker, 45 id. 179, 25 Pac. 582.)
The case of Watson v. Jackson, 24 Kan. 442, is relied on by defendant in error as decisive of the question involved in the case at bar. It was held there that the decision of a motion made before a justice of the peace to discharge from seizure certain property taken on attachment on the ground that it was exempt is not conclusive, and the question of exemption may be tried thereafter in an action of replevin brought by the judgment debtor. In the opinion Justice Brewer said :
“It will be noticed that the statute provides expressly for a ruling and decision upon questions affecting the truth of the affidavit and consequent sufficiency of the attachment proceedings, and for a review in this court by proceedings in error of the decision of the district court on a motion to dissolve an attachment. (Code, §§ 228, 542; Justices’ Act, §53.) But the question of exemption turns not at all upon the sufficiency of the attachment proceedings, and is nowhere in terms committed to the decision of the court.”
The last expression is significant. The act of 1889 does in terms commit the question of exemption of earnings to the decision of the justice, but goes further, and provides for a final hearing at a time to be fixed by the court.
In Healey v. Deepwater Clay Co., 48 Kan. 618, 29 Pac. 1089, a judgment creditor of a corporation, after execution returned unsatisfied, on motion obtained an execution against Healey by order of the justice of the peace before whom the judgment was rendered. He appealed. In passing on the question of his right to appeal, the court said, after quoting the section of the statute providing for appeals from justices of the peace :
“This statute provides only for an appeal from a final judgment, and there is no statute anywhere to be found providing for an appeal from a final order, or from any order. . . . Now, Healey might have taken the ruling of the justice of the peace in the present case to the district court for review upon a petition in error, but he could not take the ruling or the' case to the district court upon an appeal, for no statute can be found authorizing the same.”
It follows, from the position this court has taken upon the question, that Keeley had the right to a re view by proceedings in error to the district court, of the action of the justice in refusing to release his wages as exempt in the Katz case, the motion having been heard and overruled after judgment against him on the claim sued on.
We are of the opinion also that the statute under which the proceedings before the justice were had contemplates that the hearing shall be final, whether had before or after judgment, and that the debtor in either case, if he feels aggrieved at the decision, may invoke the action of the district court by petition in error. We think a party claiming the exemption, and whose claim has been denied, need not wait for the rendition of judgment before instituting proceedings in error. Thus a complete remedy is secured. The statute provides for a final and speedy hearing of the question of exemption both in the justice’s and district court; a hearing upon affidavits or any competent evidence. After this trial is had and a decision rendered the rights of the parties are concluded, as in any other judgment, and the matters litigated are res judicata. The debtor in the case at bar had his day in court. He litigated with the opposite party his Tight of exemption under a statute authorizing the inquiry. He acquiesced in the final order of the justice by taking no steps to -have it reviewed. His rights being thus concluded by the judgment of the justice on the question of exemption, the garnishee, being a mere stakeholder, could not again interpose defenses to the suit against it which were considered and determined in the former contest between the debtor and creditor. (Wilson v. Burney, 8 Neb. 39.)
The judgment of the court of appeals will be reversed, and the judgment of the court of common pleas affirmed. | [
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The opinion of the court was delivered by
Smith, J. :
There is but one question necessary to be considered in this case, and that is decisive of the ihghts of the parties. There is no allegation in the petition of an accounting between John H. Wilder in his lifetime and Andrew Palm, his partner, or between the plaintiffs below and Andrew Palm. The absence of such an accounting is an insuperable obstacle to a recovery by the plaintiffs below.
John H. Wilder, deceased, and Andrew Palm Avere partners. The judgment rendered against them on February 8, 1886, in the district court of Douglas county, Kansas, in the suit of Edwin O. Watson, administrator of the estate of Luther Pease, deceased, was based upon a partnership debt. As early as 1866 this court decided that where suit is brought by one partner against another, as for a balance upon an accounting, it is necessary that an actual balance shall have been struck, or the items so agreed upon that nothing is left to be done but the computation. (Treadway v. Ryan and others, 3 Kan. 437.) Later, in the case of Stone v. Boone, 24 Kan. 337, the case of Treadway v. Ryan was followed. In O’Brien v. Smith, 42 Kan. 49, 21 Pac. 784, relief was denied to a partner, after a dissolution of the firm but before, an accounting, who sued his copartners for services. These decisions of our own court are but the reiteration of an elementary and long-established principle. In Sadler v. Nixon, 5 Barn. & Ad. 936, decided by Lord Denman, it was held that where one of several partners in trade pays money on account of his co-partners he cannot maintain an action against them for contribution on the ground that he made such payment not voluntarily but by compulsion of law.
Mr. Justice Story, in 1 Equity Jurisprudence, in a note to section 664, says: "There is no case in the English courts where any action at law, except an account, has been held to lie generally to settle partnership accounts, or for a contribution by one partner against the others, for money paid by him for the use of the partnership.” In Westerlo v. Evertson, 1 Wend. 532, it was held that the rule above stated applied to a partnership between practicing attorneys, although the same was not a trading concern. So, in Arnold v. Arnold et al., 90 N. Y. 580, it was decided that one member of a firm cannot recover from the representatives of a deceased copartner any portion of moneys received by the latter belonging to the former, unless upon an accounting or settlement of the affairs of the partnership a balance is found due to him. The reasons for the rule, with a collection of the authorities, are to be found in 2 Bates on Partnership, sections 849, 859, 881.
There may be cases where the transaction out of which the liability arises is independent of or outside of the partnership business, or where the partnership covers a single venture or but one transaction, so that no accounting is necessary. In such cases the rule is said to be different, but in a business involving a general partnership, and the allegations of the peti tion in this case indicate that the partnership covered a variety of transactions, we know of no exception to the rule stated. It will be noticed that the petition contains no averments as to the nature and amoupt of the indebtedness of this partnership ; and while it alleges that partnership property of Wilder & Palm was sold under execution and the proceeds applied in payment of the judgment, and after the death of John H. Wilder other property was sold by the order of the probate courts of Douglas county, Kansas, and Jackson county, Missouri, and the proceeds applied to the payment of the judgment, there is no statement or showing but that Andrew Palm, the other member of the partnership, paid out money on behalf of the firm to persons to whom the partnership might have been indebted. This shows the importance of the rule referred to and the necessity for an accounting ; for how could one partner know the state of account between the firm and the other partner when there has been no settlement of partnership business? And how unreasonable it would be to allow him or his representatives to maintain an action against the other for the proportion of what he paid without reference to the question as to what the other partner, defendant in the suit, might have paid? It might have appeared upon an accounting that Andrew Palm had paid debts for the firm of Wilder & Palm, and thereby decreased his liability to plaintiffs below, if he had paid less than the amount realized out of Wilder’s property. Or he might have paid more towards the liquidation of the firm’s liabilities than has been realized out of the property of John IT. Wilder, deceased, in which case Wilder and his representatives would be liable to Palm. These matters could only be settled by an accounting, and when the balance was struck the party in whose favor it was determined could then proceed in an action at law for its recovery.
Further, the petition assumes that the partnership was equal. This may or may not have been the case. This suit appears to have been tried upon the theory that, Wilder and Palm being partners, if Wilder has paid a debt, say for $1000, against the firm, without any accounting or settlement, he can sue Palm for $500 without any allegation or proof of the equality of the partnership or that an accounting had been had. The fallacy of this is self-evident.
It is contended by the defendants in error that paragraph 1 of the answer of defendant below, set forth in the statement of this case, healed the infirmities in the petition consequent on the failure to allege an accounting between the partners. It is claimed that, because the answer alleged that the partnership of Wilder & Palm had been dissolved by mutual consent for more than five years previous to the date on which the plaintiffs below alleged the partnership to have existed, this implies that an accounting had been had between the parties. We cannot agree to this proposition. The fact, as contended by counsel for defendants in error, that this answer alleges a dissolution of the copartnership and a suspension of business for more than five years prior to the time the judgment was rendered, may be admitted. Yet, this being true, it does not imply that an accounting had been had. In practice a dissolution almost always precedes an accounting. Partnership credits may be in process of collection, and other assets of the firm turned into money, before a satisfactory acounting between the partners can be had. The answer falls much short of containing an admission that an accounting had been had between the parties and the balance struck.
The decision of this case rests upon an old established principle of the law of partnership which has prevailed unshaken for years, and which is based upon the soundest reason. The judgment of the court below will be reversed. | [
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The opinion of the court was delivered by
Johnston, J.:
This litigation results from an .attempt to take the deposition of Daniel P. .Wyatt for use in an injunction proceeding pending in the district court of Shawnee county, wherein the state of Kansas is plaintiff and L. R. Hoffman is defendant. Wyatt refused to testify, on the ground that he was a resident of Shawnee county and intended to remain there ; that he was.in good health, and knew of no reason or cause to prevent him from attending the trial of the cause ; and further, that his fees, which he had demanded, had not been paid. On his refusal, the justice of the peace before whom the depositions were being taken found him guilty of contempt, and the judgment was that Wyatt be imprisoned until he would submit to testify and give his deposition. At once he prosecuted a proceeding in habeas corpus in the district court, alleging that the imprisonment was illegal; that the deposition was not taken in good faith, with the intention of using the same ; that he was a resident of the county, and had no intention of leaving it or of evading the process of the court; that he expected to be present at the next term of the court; and further, that the witness fees, which he had demanded, were not paid. Considerable testimony was produced on the hearing, upon which the district court decided that the petitioner was entitled to his discharge, for the reason that, being a resident of the county, and intending not to depart therefrom, and not being sick or infirm at the time the deposition was to be taken, the plaintiff in the injunction suit had 'no right to take his deposition. After the discharge, the sheriff, who had been holding the petitioner, undertook to appeal from the decision. The petitioner, among other objections, challenges the right of the sheriff to prosecute the appeal or to institute a proceeding in error.
It is a serious question whether the decision of the district court discharging the petitioner is reviewable at the instance of any one. Many authorities hold that in the absence of statutory provisions the decision in a habeas corpus case is not so far final and conclusive in its character as to support a review or give an appeal. They hold that the doctrine of res judicata has no application to such cases, and that a party who has been refused a discharge on one writ may pursue the remedy by applying for other writs before other courts until he has exhausted the entire judiciary power of the state. (9 Encycl. Pl. & Pr. 1070-1072.)
But assuming, without deciding, that a review may be had in some cases, and by a party having an appealable interest, it seems clear that the sheriff has no such interest, nor any right to institute a proceeding in error in this case. The public is interested in the vindication of the law and the punishment of offenders, but the sheriff is not charged with the duty of taking appeals or instituting proceedings in error on behalf of the state. While it is within the power of the legislature to make the sheriff a representative of the state in initiating legal proceedings in behalf of the state, that duty and responsibility have been confided to other offficers. “So, where a public duty is neglected, the party wronged, the public, should be the complainant and her officers should conduct the suit. The great business of the public is carried on by agents, officers whom the people select, and if the public suffers wrong it is the duty of these agents to see that such wrong is righted. The county attorney and attorney-general are the officers specially charged with the duty of representing the public in all litigation.” As representatives of the state, they are authorized by law to use the name of the state in bringing actions, and may institute proceedings to correct public grievances, enforce public rights, and protect public interests, but no such power has been conferred on the sheriff. Neither the attorney-general nor the county attorney asked for a review in this case, but the proceeding was begun by the sheriff, whose only function and interest was the execution of the process which had been placed in his hands and the observance of the orders made by the court. He acts under the direction of the court, and when the court ordered the discharge of Wyatt, his duties in the matter were ended. Why should he assume that the court, whose officer he is, had committed an error against the state, and that he, as the champion of the state, should begin a legal proceeding to demonstrate that the court was in error and that there had been an infraction of the rights of the public ?
. It is not difficult to see that the state may have an interest which would warrant the institution of legal proceedings, but that must be done, if at all, through her proper law officers. (The State v. Anderson, 5 Kan. 90; Craft v. Jackson County, 5 id. 518.)
A refusal of a witness to testify, when legally required to do so, is a contempt of a criminal nature. In a somewhat similar case it was said : “ When the petitioner refused to answer the question and a controversy arose, he was in effect accused of an Offense. The state was the plaintiff and the petitioner the defendant.” (In re Sims, 54 Kan. 12, 37 Pac. 138.) The sheriff to whom process was issued for the enforcement of the judgment of the court stands in no different relation to the court and the parties than he does in an ordinary criminal proceeding. In the present case it was the state that was seeking to take the testimony and the state which had a right to appeal from the discharge of the witness by the district court, if any right of appeal existed. As, the duty and power, of commencing and carrying on litigation in behalf of the public are vested in the prosecuting officers of the state, the sheriff was without authority to institute this review, and therefore the motion to dismiss will be sustained. | [
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The opinion of the court was delivered by
Johnston, J. :
This is the second time that we have been called upon to review the proceedings in the trial court in this case. (Mo. Pac. Rly. Co. v. Moffatt, 56 Kan. 667, 44 Pac. 607.) On the first review it was held that the averments of the petition were not sufficiently specific to justify the admission of proof of the negligence of the company beyond its failure to give proper signals and due warning of the approach of its trains, and because the trial court admitted testimony and submitted grounds of negligence to the jury not definitely pleaded, the case for that and other reasons was remanded for a new trial. After it was so remanded the plaintiffs below amended their petition by alleging that the railway company was negligent in failing to give signals other than those required by the statute, and in failing to have a gate, a flagman or an electrical alarm at the highway crossing where Andrew C. Moffatt was struck and killed by a locomotive attached to one of its passenger-trains. Several years intervened between the filing of the original petition and the amendment, and it is now claimed that the court-was not warranted in permitting the plaintiff to set up the additional grounds of negligence.
The company assumes that a new cause of action is-stated in the amended pleading, and it is contended that as to such new cause of action it must be deemed to have been commenced when the amendment was made, and not when the action itself was commenced, and'therefore that it was barred. This contention cannot be successfully maintained. No new cause of action was set forth in the amended petition. The cause of action set forth in each of the pleadings was the negligent killing of Andrew C. Moffatt. In the original petition it is alleged that on the morning in question the company ran its engine and cars at a high rate of speed over a dangerous crossing without giving any warning of the approach of the train, and without using the bell or blowing the whistle, “and without using any other lawful, safe and prudent methods of notifying the public or said Andrew C. Moffatt of the-approach of said engine and cars.” It will be observed that the only negligence specifically alleged, was the failure to blow the whistle and ring the bell,, and for that reason the petition was held to be defective. The pleading did set forth in a somewhat indefinite way that the company failed to take other precautions which it should have taken, and which might have averted the inj ury. The amended petition set forth definitely that which had been pleaded generally in the original petition, and therefore it cannot be said that a new cause of action or a new ground of recovery was introduced.
The next exception was to the allowance of a new next-friend to appear for the three infant plaintiffs.
It appears that after the first trial Eliza M. Moffatt, who acted as the next-friend for three of the minor children, died, and when the last amended petition was filed Charles Moffatt, who in the meantime had reached majority, was named as the next-friend of Wilbur and Florence Moffatt. It is contended that by the death of Eliza M. Moffatt the action become dormant as to the infant plaintiffs, and that another next-friend could only be substituted by proceedings in revivor, and that as •there had been no revivor the action was abated. While the action of an infant under the statute may be brought by his guardian or next-friend, the infant is the real party to the proceeding. The infants were parties to the proceeding from its inception, and their rights, which were involved in the action, belonged to themselves. The next-friend had ho title to or right in the subject-matter of the action, but was merely brought into court to protect the rights of the infant. The court in which the proceeding is pending guards the interest of the minors, and in the exercise of its power may, when it becomes necessary, remove one next-friend and appoint another. It is also true that when the inf ant ‘ arrives at majority during the pendency of the suit, that fact may be entered upon the record, and he may thenceforth proceed in the suit alone. No formal proceedings to revive are necessary, as the next-friend is neither technically nor substantially a party to the action, but only appears as an agency of the court to guard and protect the interests of the minors, who are the real parties to the proceeding. The statute with reference to the revivor of proceedings has no application to cases where there is a •change of next-friend, and hence there was no abatement of the action.
We are unable to agree with the claim that the evidence and special findings of the jury' show contributory negligence on the part of Moffatt. The negligence of the railway company was sufficiently shown. The injury was. carelessly inflicted on a foggy morning and at a dangerous crossing, when and where extraordinary precautions should have been taken by the traveler as well as the trainmen. It was shown and found that Moffatt was familiar with the crossing and appreciated the danger of passing over it; that on previous occasions, and when his son accompanied him, before attempting to make the crossing he required his son to get out of the buggy and go forward to the track-to ascertain if a train was approaching ; that he was alone when the accident "occurred, and that lie then knew and appreciated the danger of attempting to make the crossing without taking the same precautions that he had previously taken when his son was with him. The testimony as to the care exercised by Moffatt in approaching the track is very meager, but there is no affirmative testimony, or any finding of a want of care on his part. There were only two eyewitnesses of the collision — the engineer and fireman on the train which struck Moffatt — and on account of the fog he was only discovered a moment before he was struck. They stated that the team was upon the track and that he appeared to check them. In the statement which he made before he died, Moffatt said that he did not discover the train until he was upon the track, and that the team would neither go forward nor backward. The train was traveling from thirty to thirty-two miles an hour, and it is evident that there was not sufficient time for him to get out of the way after he saw the train or after the trainmen had discovered him. One of them states that he was not seen until the train was within forty feet of the crossing, and the other that,he was not seen until the train was within 50 to 120 feet from the crossing. Whether he stopped and listened for the train, or whether he left his team and went forward to look for the train upon his approach to the crossing, is not shown, nor does anything appear to indicate that he failed to take reasonable precautions for his safety.
We cannot assume that he was guilty of contributory negligence. Aside from the instinct of self-preservation, there is proof that he was a sober, careful man, and had previously exercised due care for his safety on approaching the same crossing. Who can say that he did not stop, look and listen before going upon the crossing, or that he failed to exercise that degree of care which the conditions and circumstances required? He was a middle-aged man, with good health and the instinct of self-preservation strong within him, sober and exceedingly careful, and these facts and circumstances are not without weight in repelling any inference of negligence that might arise from the mere fact that he was upon the track and was struck by the locomotive. The plaintiffs are not required to show the absence of negligence, but before it can avoid the consequences of its negligence the company must show that Moffatt’s injury and death were due to his own negligence. The claimed mismanagement of the team is of but little importance, since it is clear from the testimony that there was not sufficient time for him to drive the team off the track after the peril was discovered. The general verdict in effect finds that he was not negligent, and we discover nothing in the special findings inconsistent with the general verdict.
It is next contended that the evidence in the case did not afford a basis for the award of substantial damages. It was shown that at the time of the accident Moffatt was fifty-one years old, in good health, and that he supported a family of six children, four of whom were girls. One of the children only assisted in the support of the family. It is further shown that during the last years of his life he had been engaged in painting and calcimining, and also in the wall-paper and piano business. At the same time he was carrying on a farm near Kansas City. The testimony is that he was sober and industrious, but there is nothing in the testimony to show the amount of the earnings or profits which he derived from his labor and business. The standard for the measurement of damages is the pecuniary value of the life of the person killed to the beneficiaries. It is difficult to show direct and specific pecuniary loss which the next-of-kin suffer from the death, as the real value of a life is problematical and speculative to a certain extent. No fixed rule of measurement can be laid down, and much is necessarily left to the judgment and discretion of the jury. In estimating the damages the jury should take the facts proved in .connection with the knowledge and experience possessed by them in common with men in general to determine the pecuniary value of the life taken. Mathematical accuracy in measuring the pecuniary.loss suffered is not practicable, and in general it may be said that the basis for the allowance of damages may be found in the character, habits, capacity, business and condition of the deceased, as well as the age, sex, circumstances and condition in life of the next-of-kin. The court is of the opinion that with the elements thus furnished the jury may make a fair estimate of the damages that are recoverable.
The writer is inclined to the view that the evidence is not sufficient as a basis on which to compute pecuniary loss. No evidence was given as to the amount which Moffatt earned or had earned, nor as to the amount of pecuniary aid or benefit which it would have been possible for him to give to his children in the future. The jury may very well consider his character and condition and his capacity for earning money and his expectancy of life, but some evidence should certainly be given of the profits of labor of the deceased, and what in all probability he might earn for the future support of his wife and children. While much must be left'to the discretion and judgment of the jury, it is not unlimited; they must be guided by the fixed rules of law, and they cannot award substantial damages without proof of the extent and character of the pecuniary loss suffered. What his income was,-what it had been, how much he was capable of earning, how much he had been in the habit of contributing to his children, and how much he would be able to contribute in the future, were facts which could have been easily proved, and which would have afforded a basis for the verdict rendered. No evidence of this kind was offered, and not even the expectancy of life was shown. In the absence of proof the jury were left to guess at or speculate upon the pecuniary value of Moffatt's life, and although they had no real basis for determining the extent of the plaintiffs' loss, they found a verdict for $5000. In the absence of proof .of the extent,of the pecuniary loss, the jury can allow nominal damages only.
Complaint is made that the court refused to submit three special questions requested by the company. Out of seventy-nine special questions proposed by the company only three were refused by the court, and these, in our judgment, are not material, and their refusal was not error. The court also submitted sixteen particular questions of fact which were presented by the plaintiffs, and when the , , ,, .. ,,, -mry returned their general verdict these 0 J ° questions were left unanswered. Upon the application of the plaintiffs they were withdrawn from the consideration of the jury over the objection of the company. We think no error was committed in allowing the withdrawal of these questions. They had not been requested by the party objecting to the withdrawal, nor does it appear that the fact that they were presented influenced or affected the company in presenting interrogatories in its own behalf. It does not appear that the questions asked in behalf of the company were framed with reference to those asked by the plaintiffs below, or that the list presented in behalf of the company would have been longer or shorter by reason of the presentation of those which were subsequently withdrawn. In the absence of a showing of prejudice by reason of the withdrawal it cannot be regarded as a reversible error.
It is finally claimed that some of the findings are not supported by the evidence, and it appears that two of the answers are not strictly accurate. In the view we take of the case, however, they are not deemed to be very material, and when the findings of the jury are considered together they do not betray any passion or prejudice, nor such a wilful disregard of the evidence as would warrant the overthrow of the verdict. The judgment will be affirmed. | [
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The opinion of the court was delivered by
Smith, J. :
The questions of law being identical in the two cases, a statement of facts in the first will be sufficient.
An action in ejectment was commenced by the plaintiff below, Hattie R. Douglass, on March 7, 1890, against the defendant for the recovery of the possession of real estate and damages for its detention. The defendant answered, alleging as one defense that on June 10, 1887, the plaintiff commenced an action in the district court against the defendant for the recovery of the premises in controversy, and for damages for their detention; that defendant filed an answer denying plaintiff’s claim of title, and setting up title in himself; that thereafter, on March 28, 1888, upon a trial had, judgment was duly rendered' thereon in favor of the plaintiff, Hattie R. Douglass, against defendant for the recovery of the premises; that thereupon on the same day the defendant, by notice on the journal, duly demanded another trial in said action, and the judgment was then vacated, and the cause continued until the next term of the court; that afterward, on March 22, at the March term, 1889, said plaintiff voluntarily dismissed her said action, and judgment was rendered in favor of the defendant and against said plaintiff for costs in the action ; that by reason of the premises alleged plaintiff abandoned her claim of title, and waived a right to commence and prosecute this action. A general demurrer was filed to this paragraph of the answer.
The question to be determined here is whether the existence of said facts constitutes a defense to this action of ejectment. The demurrer should have been overruled. Sections 6 and 7, chapter 96, General. Statutes of 1897 (Gen. Stat. 1889, ¶ ¶ 4702, 4703), read:
Ҥ6. In an action for recovery of real property, the party against whom judgment is rendered may at any time during the term at which the judgment is rendered demand another trial by notice on the journal, and thereupon the judgment shall be vacated and. the action shall stand for trial at the next term.
“§7. No further trial can be had in such action, unless for good cause, shown a new trial be granted,/ or the judgment be reversed, as in other actions.”
This is the only form of action under our statute in-which two trials are granted as a matter of right. The plaintiff below could only get the benefit of a sec-' ond trial by virtue of the statute, which provides a-form of procedure in such cases. She was entitled to' a second trial of the action in the court in which the- action was commenced. The granting of a second trial is one of the steps toward the final disposition of an action for a recovery of real property. A dismissal by the plaintiff after the first judgment is vacated amounts to the waiver of another trial. It is a surrender. In Alice Frazer v. Charles Weller et al., 6 McLean, 12, it was held that the institution of a subsequent action after dismissal of the first “would be a fraud upon the law. For aught that appears the first judgment could not have been set aside except under the provisions of the statute.. This remedy having been claimed under the statute, the party is bound to go on with another trial. Having set aside the bar to another suit, he does so under an obligation to pursue the special remedy under the statute. Pie cannot claim the remedy in part to his advantage and then abandon it to the injury of the other party.” To the same effect see Cunningham v. The City of Milwaukee, 13 Wis. 120.
As we interpret our statute, the granting of a second trial permits a new trial of that identical caiise of action, which must be had before the court in which the suit is then pending, unless the place of trial be legally changed. If the practice adopted by the defendant in error be approved, then there could not only be one but a dozen or more first trials in ejectment, if the plaintiff in the suit saw fit to dismiss after the first judgment had been set aside. As was said in the Frazer case, supra, this would be a fraud on the law. The reason would not apply were not this a purely statutory action. Plaintiff having asserted the right, she must be satisfied with the remedy. It can make no difference that the first judgment was favorable to the plaintiff below. . If the first trial had not been set aside it would have been final, but the judgment being vacated the plaintiff was obliged to proceed in that court and have her rights adjudicated at the second or final trial there. (Hyatt v. Challiss, 55 Fed. 267.)
The case of Hyatt v. Challiss was before this court in 59 Kan. 426, 53 Pac. 467, where the doctrine in Alice Frazer v. Charles Weller et al. was quoted approvingly. The question decided was the effect of the judgment in the federal court as an adjudication of the rights of the parties. In the opinion, however, the question here was referred to by Mr. Justice Johnston, as follows: "The reasoning in these authorities is strongly against the claimed right of the plaintiff to abandon his suit in ejectment after judgment on the merits, and to prosecute a new one before the same or any other court.”
Defendant in error insists that section 17, chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶ 4100), preserved her right to prosecute the case at bar. We cannot agree with counsel in this. Said section is in the nature of a statute of limitation only. It does not confer any new right .to commence a subsequent action, but merely prescribes such right, if any, plaintiff might otherwise have had to commence another action for the same cause. If not barred by limitation, the right to sue would have existed independently of the statute. Statutes of limitation relate to the remedy and not directly to the right. (Suth. Stat. Const., § 479.)
The allegations of the answers were sufficient in law to constitute a defense, and the demurrers thereto should have been overruled. The judgment of the court is reversed, with directions to overrule the demurrers. | [
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The opinion of the court was delivered by
Johnston, J. :
In an information Al. Start was charged wTith deliberate and premeditated murder, and at the trial he was convicted of manslaughter in the fourth degree. In his appeal many errors are assigned, but the controlling one is based on the rulings of the trial court in impaneling the jury. Ten of the persons called as jurors were challenged by the defendant, and although it appears that they had formed and expressed opinions as to the homicide and guilt of the appellant the challenges were overruled. Some of them held only the opinion that the defendant had killed Peter Herman, and had no fixed opinion as to whether it was purposely done ; but several of them held positive and fixed opinions not only of the killing but also as to the guilt of the defendant. They had heard and read elaborate and detailed accounts of the homicide, from which they had formed well-settled opinions as to material facts in the case. Jurors were held to be qualified who stated on examination that their minds were already made up as to the guilt of the defendant, and that they had strong and fixed opinions which would remain with them until removed by evidence. Others stated that they believed what they had heard and read of the case, and had then no doubt of the truth of the statements or of the guilt of the defendant. Most of them expressed the belief that they could fairly tty the case upon the testimony ; but however honest and conscientious these men may be, they cannot be regarded as impartial jurors. Their minds, having been made up, were to a certain extent closed against the testimony offered in opposition to the opinion entertained; or, at least, the settled opinions which they entertained would naturally combat the testimony which defendant might offer, and would in a degree neutralize its force.
The presumption of innocence with which the law clothes the defendant was of little avail so far as these jurors were concerned, for they each came to the consideration of the case with the settled conviction that he was guilty — an opinion which they would hold until he proved his innocence. An opinion that Herman was killed by a bullet discharged from a revolver in the hands of the defendant is hardly sufficient to disqualify a juror, as the record indicates that there was no real controversy on this point. Defendant claims that if Herman was killed by a bullet discharged from his revolver it was wholly accidental; but some of the jurors, as we have seen, held positive and fixed opinions that he was guilty of the charge of murder. There is no disposition to make a rule so rigid that it will bar intelligent, reading men from jury service, and it has uniformly been held that mere impressions gained from reading the newspapers, which are not of a fixed and positive character, will not render those holding them unfit for jurors. (The State v. Medlicott, 9 Kan. 257.) On the, other hand, it is well- settled that those who come to the trial of a cause with opinions of a fixed and positive character as to the guilt of the defendant are not qualified jurors, although they may state that they believe they could give the accused a fair and impartial trial. (The State v. Beatty, 45 Kan. 492, 25 Pac. 889; The State v. Snodgrass, 52 id. 174, 34 Pac. 750; The State v. Vogan, 56 id. 61, 42 Pac. 352; The State v. Beuerman, 59 id. 586, 53 Pac. 874.)
The difficulty of securing a jury because so many of the residents of the county in which the offense was committed are foreigners who do not understand the English language is urged as a reason why the rulings of the court should be overlooked, but this consideration cannot weigh, as under the constitution every one charged with a criminial offense has a right to be tried by an impartial jury, and the statute expressly provides that “it shall be a good cause of challenge to a juror that he has formed or expressed an opinion on the issue of any material fact to be tried.” (Gen. Stat. 1897, ch. 102, § 203; Gen. Stat. 1889, ¶ 5270.) If competent jurors cannot be found in that county, ample provision is made by which the defendant can procure the removal of the cause to a county where fair and impartial jurors may be secured.
For the error mentioned the judgment of the district court will be reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Johnston, J. :
This was an action bjr Alfred Blaker, executor of the last will of John Hood, deceased, against O. E. Morse, receiver of the firm of Hood & Kincaids, to have a certain claim of about $8000 held by the executor against Hood & Kincaids declared a trust claim upon the funds and assets in the hands of the receiver. On and prior to January 3, 1883, Hood was a member of the firm of Hood & Kincaids, which was engaged in the banking business at Pleasanton; Kan., the other members of the firm being Zalmon, Robert and Joseph Kincaid. On the date mentioned: Hood died testate, and by his will his property, other than his partnership interests, was bequeathed absolutely to certain legatees, and Alfred Blaker was designated as executor. The partnership interest was bequeathed to his copartners, to be used and disposed of in the following manner : The will directed the continuance of the partnership business for a period of five years after the death of Hood, the partners .to conduct it as they deemed best, using their own judgment and discretion in all business affairs, without the interference of the executor or legatees, or other persons, except as expressly provided in the will. The executor and the partners were to make an inventory of all the property, credits and effects of the partnership as at the time of the testator’s decease, together with a schedule of its liabilities, and file the same in the probate court. It was directed that the partners were to account for and pay to the executor annually a certain proportion of the net profits of the business for the preceding year, and there was a provision that the partners or trustees retain the trust funds in the business for the term of five years after the death of the testator, and that at the expiration of that time, unless an agreement was made between the trustees and the executor to continue the business, they settle and close' up the trust business. Upon a settlement of the partnership business the funds belonging to the estate were to be paid to the executor, to be distributed by him in the manner directed in the will.
Soon after the death of Hood, Blaker qualified as executor, and the surviving partners elected to continue and carry on the business in accordance with the provisions of the will. At the end of five years the executor notified the partners that he desired to settle and close up the partnership business, and in an application to the probate court he represented that he had entered into negotiations with the surviving partners, and that a settlement had been made which he deemed to be fair and reasonable and most advantageous to the estate. All of the parties appeared in the probate court, where a full settlement was had of the partnership affairs, which was approved and entered of record in that court. By the terms of the settlement the surviving partners were to retain, the greater part of the partnership assets of the firm of Hood & Kincaids, and were to assume and discharge all the indebtedness and liabilities of the firm. They were given the right to carry on the business in the old firm name of Hood &.Kincaids, but with no liability against the Hood estate. The executor was .to receive an insurance policy for $10,000 and certain promissory notes, and the remaining property and assets were to be sold and transferred to the surviving partners, in consideration of which they were to pay the sum of $20,000, giving the executor therefor four notes of $5000 each, due in six, twelve, eighteen and twenty-four months, with four of their brothers as sureties thereon. .A formal bill of sale and transfer was made by the executor to the surviving partners, conveying the property sold, and in pursuance of the settlement the four notes were duly executed and delivered to the executor.
The new firm continued the business for some time, and paid off two of the notes and a part of the third. On July 17, 1893, it became insolvent, when the district court, upon application of the attorney-general, appointed O. E. Morse receiver thereof to settle up its affairs. Soon after the adjudication of insolvency and the appointment of the receiver the executor began a suit in the district' court upon the last two notes to recover the balance due thereon, and made an unsuccessful attempt to attach the property of the firm in the possession of the receiver. In this action the executor recovered a judgment for the balance due upon the notes at that time, amounting to $10,-500. Subsequently the executor made application to the.district court, where the insolvency proceedings were pending, that the judgment be allowed and listed as a regularly proved claim against the receiver and the estate, but the same was denied. Later, and on February 15, 1896, the executor brought the present action, asking that the balance due be declared a trust fund in the hands of the receiver, and that he be required to turn the same over to the executor. In bringing this action the executor ignores the settlement and adjudication in the probate court, the action and judgment in the district court upon the notes given in the settlement, and the subsequent proceedings against the receiver. He accepted the fruits of the settlement, collected two of the notes, retained and placed the other two in a judgment which he has since endeavored to enforce, and then, eight years after the settlement, comes into court seeking to repudiate the settlement and the orders and judgment which he sought and obtained. It is not. claimed that any fraud was practiced in making the settlement, or that it was other than fair and just toward the Hood estate. The contention is that the terms of the will and the trust relation of the parties precluded such an arrangement and transfer of the property as was made.
No reason is seen why the settlement should not be held binding upon all parties, nor why the plaintiff is entitled to maintain this proceeding after having elected to pursue another remedy to judgment upon the debt in question. Although the surviving partners occupy a trust relation toward the estate, it is not such as to bar them from purchasing the partnership property and business when a sale of the same was authorized by the probate court. At the death of the testator they owned three-fourths of the partnership business and effects, and the provision in the will for the continuance of the partnership business could only become effective with their consent. If they had declined to continue the business, the partnership estate must have been closed up at ¿Dee under the supervision of the probate court in the manner provided by statute. If a settlement had been made at that time, the surviving partners certainly could have purchased the business and property and made payment therefor in the same manner that the purchase and payment was subsequently made. The continuance of the partnership under a direction of the will — which is not an uncommon practice — only served to postpone the settlement for a period of five years. The settlement; whenever made, must have been under the direction and with the approval of the probate court. It was for that court to decide which was the most advantageous method of closing»up and disposing of the' partnership estate — whether all should be sol'd to gether or disposed of at retail, and whether there should be a forced sale for cash or that it should be disposed of on credit, with security, similar to what was given in this case. The will provided for settling and closing up the partnership affairs, but did not undertake to prescribe the particular method in which it should be done. A settlement such as was made appears not to be inconsistent with the provisions of the will nor with the law governing such settlements.
In any event the plaintiff is not now in a position to repudiate the settlement and to insist on the remedy which he seeks. It is wholly inconsistent with his former attitude and with the remedy which he then pursued. Assuming that at the beginning he could have ignored the settlement and treated the amount due as a trust fund, he, as we have seen, adopted a contrary course and proceeded upon an entirely different theory. He ratified the settlement by accepting the results of the same ; and he not only accepted the secured notes given in pursuance of the settlement, but he brought an action upon them and pursued that action to judgment, and that judgment he presented to the district court and asked to have it listed and allowed as a regularly proved claim against the receiver. It will be readily seen that the present action is incompatible with his previous course, and that the remedies are conflicting and inconsistent. In Burrows v. Johntz, 57 Kan. 778, 48 Pac. 27, it was said that “ a party having a right to resort to two inconsistent remedies is bound by an election made with the full knowledge of the facts, and cannot thereafter pursue the other remedy because it promises better results.” See, also, Plow Co. v. Rogers, 53 Kan. 743, 37 Pac. 111; City of Larned v. Jordan, 55 id. 124, 39 Pac. 1030.
The judgment of the district court will be affirmed.
Doster, O. J., concurring.
Allen, J., not sitting. | [
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The opinion of the court was delivered by
Doster, C. J. :
This is an action of quo warranto to try the right of defendants to hold the offices and exercise the rights and powers of police and fire commissioners of Kansas City, under the authority of chapter 4, Laws of 1898. Such portions of the act as are material to be quoted are as follows :
“ Section 1. In all cities of the first class having a population of forty thousand inhabitants or more, according to the census of the United States or of the state of Kansas or of such city, the government, management and control of the police and fire departments shall be in a board of fire and police commissioners, consisting of three commissioners of fixe and- police, elected and to hold office and be succeeded and empowered as hereinafter provided.
“Sec. 2. The legislature shall divide each city of the first class having a population of forty thousand inhabitants or more into three fire and police commissioner districts, such districts to b'e as nearly equal as possible, and to be composed of not less than one whole ward each, and no ward of such city to be divided and part thereof in a district different from the whole ward. That said three commissioners of fire and police shall be elected one from each of said districts in such city.
“Sec. 3. That for the purpose of this act the city of Kansas City, Kansas, is divided into fire and police commissioner districts, as follows : The first district to be composed of the first and second wards of said city ; the second fire and police commissioner district to be composed of the third and fourth wards of such city ; the third fire and police commissioner district to be composed of the fifth and sixth wards of such city.
“Sec. 4. That on the first Thesday after the first Monday in April, 1899, the next general city election, there shall be elected in each city herein provided for three fire and police commissioners, whose terms of office shall be as follows, to wit: The commissioner of fire and police elected from the first district to hold office for a term of one year, or until his successor is elected and qualified ; the commissioner of fire and police elected from the second district to hold office for a term of two years, or until his successor is elected and qualified ; the commissioner elected from the third district to hold office for a term of three years, or until his successor is elected and qualified; at the expiration of which respective terras of office of the said fire and police commissioners in each of said districts respectively, and every three years thereafter, a commissioner of fire and police shall be elected to hold office for a term of three years, or until his successor is elected and qualified.
“Sec. 5. That any city herein provided for extending its limits, and creating additional wards which are not included in the districts provided for by the legislature, the mayor and council of such city shall add such wards as are not wholly included in fire and commissioner districts already created to such district or districts as they may see fit; provided, that no city .shall at any time be divided into more than three fire and police commissioner districts. '
“Sec. 6. That any city not herein provided for which shall become a city of the first class shall with a population of forty thousand inhabitants, if the legislature has failed to divide the same into districts, elect three fire and police commissioners at large, whose term of office shall be two years, unless before the expiration thereof said city shall have been divided into districts, and commissioners elected from such districts, and such city shall continue to elect such commissioners every two years until the legislature shall divide such city into districts.”
It is contended by the state that the above-quoted portions constitute a special act conferring corporate powers and are repugnant, therefore, to section 1, article 12, of the constitution, which declares that “the legislature shall pass no special acts conferring corporate powers,” and section 5 of the same article, which ordains that “ provision shall be made by general law for the organization of cities, towns, and villages . ’ ’ Two questions are involved in this contention : (1) Are the powers conferred “corporate ” within the meaning of that word as used in the constitution? (2) If so, is the act a special one? The latter of these questions, much more than the former, has been pressed upon our attention. However, the negative of the former has been more than suggested through th’e citation'of cases which, if applicable, would seem to place the powers conferred by the act under consideration without the list of those called “corporate” .within the constitutional meaning. Therefore, in order to -a clear understanding of the case, it will be well to notice the question first stated.
In Beach v. Leahy, Treasurer, 11 Kan. 28, it was held that a special act authorizing a school district to issue bonds to build a schoolhouse was not unconstitutional, because only public corporations were included within the scope of article 12 of the constitution, whereas school districts belong to that class of political organizations called quasi corporations. Of these and the like, Mr. Justice Brewer, in the case cited, remarked :
“ They are denominated in the books and known to the law as quasi corporations, rather than as corporations proper. They possess some corporate functions and attributes, but they are primarily political subdivisions — agencies in the administration of civil government;— and their corporate, functions are granted to enable them more readily to perform their public duties. The legislature have created the regents of the agricultural college and the¡ regents of the state university bodies corporate and given them certain corporate powers (Gen. Stat., p. 75, § 3; p. 1100, § 6), yet are they thereby inhibited from special legislation concerning them? Giving corporate capacity to certain agencies in the administration of civil government is not the creation of such an organization as was sought to be protected by article 12 of the constitution.”
After explaining as above the character and functions of the class of political entities called quasi corporations, the learned justice proceeded, partly in his own language and partly by quotations from other authorities, to state the differing character and functions of municipal corporations or cities. Among other things he said :
“ ‘A municipal corporation proper is created mainly for the interest, advantage and convenience of the locality and its people. A county organization is created almost exclusively with a view to the policy of the state at large for purposes of political organization and civil administration in matters of finance, of-education, of provision for the poor, of military organiza tion, of the means of travel and transport, and especially for the general administration of justice.’ Dillon in his late and elaborate treatis.e on Municipal Corporations, after noticing the distinction, draws attention to one fact which will help to make it clearer. ‘The primary and fundamental idea,’ he says, ‘of a municipal corporation is an agency to regulate and administer the internal concerns of a locality in matters peculiar to the place incorporated, and not common to the state or people at large.’ ”
From the above it appears that municipal corporations, or that class of public agencies whose powers are corporate and which cannot, therefore, be conferred by special act, have a limited sphere of operation as to locality and as to subject-matter of authority. These agencies are designed to conserve and regulate those local and peculiar interests which arise and exist only in densely populated places or districts and with which the general public has little or no concern. They may be and often are, as special agencies, entrusted with the discharge of some one or more of the general functions of government, as, for examples, the establishment and maintenance of schools, the collection of revenue, the administration of justice ; but the primary purpose of their creation is inclusive only of the special concerns of those agglomerations of population, the close and constant interrelation of whose units begets conditions and necessities beyond those of the general mass. Among such concerns are sewerage, the supply of water, the prevention of fires, and the like. These considerations make the cases of Beach v. Leahy, Treasurer, supra, and Knowles v. Board of Education, 33 Kan. 692, 7 Pac. 561, and other like cases cited by counsel for defendants, distinguishable from this case. The powers conferred by the acts involved in those cases were political; that is, the acts in question were in execution of one of the public policies of government and not in execution of the special and internal affairs of a prescribed locality. Education is an interest of the whole state ; a police aiid fire department for a city, of the city alone. The one may be administered through yuffsi-political agencies, the other only through agencies corporate in character. It will thus be seen that the act in question and partially quoted above assumes to confer powers of the last-mentioned character. The omitted portions provide an elaborate system of organization and government of the police and fire departments of the cities falling within their purview.
The question now arises : Is it special in its nature? Does it confer upon a specially named or specially designated city or cities the corporate power to maintain a police and fire department in a manner and under regulations different from other like cities? Within the former decisions of this court and within its own plain provisions it does. Every question necessary to reach this conclusion has heretofore been considered and decided in City of Topeka v. Gillett, 32 Kan. 431, 4 Pac. 800. The act is made to apply alone to cities of the first class having populations of 40,000 or more. We take judicial notice of the census returns and, .therefore, of the fact that there is but one city in the state of that population — Kansas City. This of itself would not be sufficient to bring the act within the constitutional objection if its operation were not in some particulars limited by its own language, and in others by necessary effect, to Kansas City. An act general in its provisions, but which can' presently apply to only one city on account of there being but one of requisite population or other qualification, but which was designed to, and can in all sub stantial particulars apply to other cities as they become possessed of the requisite population or other qualification, cannot be regarded as a special act. The act in question, however, while general in its terms as to nearly all matters, makes special provision for Kansas City different from any other city hereafter to come within its scope. The vice of the act is that its general provisions can have no application to any other city than Kansas City, because it is the only one in the state having 40,000 population, while that city can secure the benefit of these general provisions only through the operation of a special dispensation made in the act in its behalf.
Section 2 of the act ordains that “the legislature shall divide each city of the first class having a population Of 40,000 inhabitants or more into three fire and police commissioner districts,” etc. As a command to future legislative assemblies, as well as to the one enacting the bill, this direction is, of course, an impotent fiat. It has absolutely no force or meaning, and as a part of the general scheme of the act may be put entirely out of view. Section 3 then divides Kansas City by name into three districts called police and fire commissioner districts. Section 4 following declares that “on the first Tuesday after the first Monday in April, 1899, the next general city election, there shall be elected in each city herein provided for three fire and police commissioners, whose terms of office shall be as follows,” etc. The remainder of the section provides for varying terms of office for the commissioners elected at this first election, and thereafter for terms for them of three years’ duration. This section is general in its language, but as the only city provided for, that is provided with election districts, or that could within the title of the act be so provided, is Kansas City, the use of these general terms does not obscure to the slightest extent the evident fact that the section was intended as a requirement for an election in Kansas City alone, and thus to set in motion specially as to that city the machinery of a police and fire commissioners’ government. Section 6 declares : “Any city not herein provided for which shall become a city of the first class shall with a population of 40,000 inhabitants . . . elect three fire and police commissioners at large, whose terms of office shall be two years.” This requirement as to the length of term is hinged by other language in the section upon the non-observance by future legislatures of the mere brutum f ulmén of section 2, before noted. Eor purposes of ascertaining the legal meaning of section 6 and giving it effect in this act, its language amounts to nothing more than a requirement to elect police and fire commissioners in cities other than Kansas City, as they shall grow info the requisite population, for terms of two years each, differing, therefore, in that respect from Kansas City.
Other provisions of the act might be observed indicative of a legislative sense of the fact that this measure was in reality designed to apply specially to Kansas City, and that its intricate and extended mechanism was to be a part of the enginery of local government there and nowhere else. As a municipal machine it can be set in motion only through the leverage of sections 3 and 4 before mentioned, and they, as seen, are exclusive to the one city. We do not mean to say that the mere fact that varying lengths of official term for. the commissioners in cities which come or might be made to come within the operation of an act of the character of this one would of itself constitute it a special enactment. We look, however, to this among other things for evidence intro the act to discover the legislative purpose. Counsel for defendants, however, contend that sections 3 and 4, which, as we have seen, apply specially to Kansas City, may be disregarded — eliminated, as it were — from the act and the remainder upheld. What we have said above sufficiently indicates our disagreement with this conclusion. Besides, the defendants hold their offices under the claimed authority of sections 3 and 4. They,have no standing to defend this action except upon the basis of the constitutional validity of these sections, and hence it may be said that they are hardly in a position to raise the question. If sections 3 and 4 were to be stricken from the acts the defendants’ claim of right to hold office would be at an end.
The questions above considered arise upon a demurrer to the petition of the state. We understand the whole case to be submitted upon this demurrer, and, therefore, in addition to the order overruling it, judgment of ouster as prayed for by the state is granted. | [
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The opinion of the court was delivered by
Doster, C. J. :
This was an action brought by Grace File, a little girl, against the city of Kansas City, Kan., and the Consolidated Electric Light and Power Company, to recover damages for injuries sustained on account of the negligence of the defendants in allowing one of the conducting wires of the light company to break and f.all to the street, and with which, while remaining in the street, and when-charged with an electric current, she came in contact^. While not pertinent to any legal aspect of the case, it is interesting to note that the broken ends of the wire were about eighty feet apart, one of them lying upon the ground, the other suspended in the air, or possibly resting against one of the supporting poles. This breakage in the wire, as electricians explain, and as is common observation, destroyed the continuity of the circuit so far as the usual conducting medium was concerned. However, the electric current was on at the time of the little girl’s injuries, and therefore must have been passing between the broken ends of the wire through the earth and the supporting pole spoken of, or through space without any visible conducting medium — a rare, if not hitherto unobserved, phenomenon, as experts stated. The plaintiff ignorantly and innocently took hold of the end of the wire lying upon the ground, and was severely and ^permanently injured by the consequent shock. A verdict -and judgment were rendered in her favor. The defendants filed separate motions for a new trial. That of the electric-light company was sustained, that of the city overruled, and it, therefore, prosecutes error to this court.
The first claim of error and the one principally discussed is the misjoinder of the city and the light company as defendants. It is contended that the obligation of these two parties to prevent the electric wires from becoming obstructions or agencies dangerous to the people of the city proceeds from different sources ; that no relations of contract or of public or municipal policy existed between them making the care of the wires a joint duty; that no obligation rested upon the city to inspect the wires of the light company or to superintend the business of lighting the streets so as to charge it jointly with the company for damages resulting from the latter’s delinquencies. We are constrained, however, to take a view of the rule of practice different from that taken by the city. . ■
There is no question but that separate actions might have been maintained against the defendants and separate judgments recovered. However, but one satisfaction could be had. The policy of the code is to settle the whole subject-matter of any controversy in one action. This rule of policy is collectible out of several of the sections relating to the joinder of parties and of causes of action. Whatever may have been the rules of practice at common law, the code, which in legal as well as in equitable actions seeks the adjustment of interrelated controversies in a single suit, lends strong countenance to the joinder of defendants in such cases, if the plaintiff so elects. But aside from the rules of the code, and going to the metaphysical question of relationship between the two defendants, there was a community of action, or rather of negligent omission, upon their part. Each was under obligation to see that the electric wire in question did not fall down and remain upon the ground — the city because of the general oversight of its streets which the law requires it to take, the light company because of its obligation to prevent its property from becoming a dangerous menace to the public safety. If it be admitted that these obligations are different, or spring from different sources, they nevertheless concur to one end — to the end of avoiding, among other and similar consequences, just such injuries as the plaintiff sustained. The concurring neglect of these respective obligations produced a single consequence and must therefore be viewed as joint and mutual. The petition alleged that the wire in question broke and remained down for three weeks before the accident occurred. This was time enough to charge the city, as.well as the company, with knowl edge of its condition, and from which its concurrent disregard of its duty is plainly to be inferred. Inasmuch as the duty in question rested upon both city and company, and inasmuch as each possessed knowledge of the other’s failure to discharge the obligation, it can be fairly said that each so concurred in the other’s negligence as mutually and jointly with it to conduce to the plaintiff’s injury.
Error is claimed because of the refusal of the court to grant a new trial to the city while allowing one to the light company. The case against the two defendants was of course tried as a single action. What the reason was for awarding a new trial to one while refusing it to the other is not satisfactorily shown by the record. Counsel in argument say the court thought that the evidence of the light company’s ownership of the line of wire upon which the accident occurred was not satisfactorily established. If so, its action was justifiable. Be that as it may, no legal reason exists why a new trial might not be granted to one defendant and denied to the other. The plaintiff could have prosecuted actions against them separately and recovered separate judgments. Neither one had the right to insist upon the joinder of the other with it, and in fact, as already stated, the city objected to the joinder of the light company with it. Inasmuch as separate actions could have been maintained against each of the defendants, neither one of them had the right to insist that the other be retained in the case until final trial and judgment. The plaintiff in error in support of its position cites the cases of Raymond v. Keseberg and another, 83 Wis. 303, 54 N. W. 612; Everroad et al. v. Gabbert, 83 Ind. 489; and Albright v. McTighe, 49 Fed. 817. The reasoning of these cases, however, does not commend itself to us.
Many other claims of error are made. We have carefully examined all of them, but do not find any of them well founded. The judgment of the court below is therefore affirmed.
Johnston, J., and Allen, J., concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
At the last session of the legislature there was passed a law entitled “An act to provide for the taxation of contracts of insurance made with insurance companies not authorized to do business in Kansas, and providing for the enforcement thereof.” (Laws 1899, ch. 249.) On May 26, 1899, Thomas Page, owner of the Mid-Continent mills in Topeka, wrote to the Indiana Millers’ Mutual Fire Insurance Company, of Indianapolis, Ind., proposing to take out insurance on his mill property with that company. At the same time he remitted thirty dollars to pay for a five-year policy on $2000 of insurance. The money was received and accepted by the company, and on May 29, 1899, the company, at its office in Indianapolis, issued a policy in accordance with the request of Page, placed it in the post-office, and by due course of mail it was received by Page at Topeka. The company was not authorized to do business in Kansas, and had no office*-agent, solicitors or representatives in the state. In June, 1899, the superintendent of insurance made a demand on Page to exhibit his contracts and policies of fire insurance, and especially those issued by companies not authorized to do business in Kansas, but the demand was refused. Page never reported the policy mentioned to the superintendent of insurance, and never paid any tax on the premium therefor. The demand was made and the payment of the tax required in an attempt to enforce the act above mentioned. The statute provides that persons insuring property in Kansas with companies not authorized to do business in the state shall report the contracts of insurance to the superintendent of insurance for the purpose of taxation. All such contracts are to be taxed “in a sum equal to ten per cent, of the amount of premiums paid or contracted to be paid thereon, which said tax shall be paid by such insured to the superintendent of insurance, and the payment thereof shall be enforceable by process of law as other like taxes are, and said tax shall be a lien on said property so insured together with other taxes lawfully assessed against the same.” It further provides that the taxes when collected shall be applied as follows: “Three-fifths thereof to the payment of the expenses of the insurance department, and two-fifths thereof shall be paid by said superintendent of insurance to the treasurer of the city or township in which said property so insured is situate for the benefit of the fire department thereof, if such department exists or be organized, whether paid or volunteer ; otherwise, to be used in the general fund of said city or township.” There is a provision requiring the owners of property to exhibit on demand to the superintendent of insurance, and to certain city or township officers, all policies or contracts of insurance, other than life and accident, made by companies or parties not authorized to do business in the state, but such policies or contracts are not required to be exhibited oftener than once every six-months. Any violation of the provisions of the act is deemed to be a misdemeanor, and the failure to report the making of such a contract of insurance to the superintendent of insurance is punishable by a fine not exceeding $100; and a like penaltj^ is inflicted on any person who fails or refuses to exhibit such insurance policies on de mand of the officers. Page denied the validity of the law and refused to comply with its requirements, and with a view of testing its validity and to enforce its provisions the superintendent of insurance caused the arrest of the petitioner. It is challenged on several grounds, one of which is that it conflicts with section 1, article 11, of the constitution, requiring that “the legislature shall provide for a uniform and equal rate of assessment and taxation.”
It will be observed that the burden imposed by the act is not a license, nor a charge placed upon a privilege, franchise, or occupation. It is specifically designated as a tax, and is levied upon insurance contracts, which are treated as taxable assets and property of the insured. The act is an anomaly in the method of raising public revenues, and constitutes a wide departure from the means of taxation heretofore employed in this state. It is said that a tax is ordinarily levied on the property, income or receipts of the taxpayer, and not upon what he has paid out. Counsel for the petitioner assert that ‘ ‘ this is the pioneer effort to tax losses and disbursements, instead of profits and accumulations. It is the only recorded instance of requiring a man to pay a tax, not upon what he hath or seemeth to have, but confessedly upon what he hath not.” Such contracts, however, indemnify the insured against loss, and have some of the characteristics of bonds, mortgages and other like securities which are made the subjects of taxation. They have property value susceptible of measurement, and it was competent, therefore, for the legislature to treat them as property, as it did, and to make them subject to taxation. (4. T. & S. F. Rld. Co. v. Howe, Treasurer, 32 Kan. 737, 5 Pac. 397.) Being a property tax, the constitutional limitations upon the taxation of all the property in. the state are applicable and controlling. In the absence of constitutional restrictions, the sovereign power of the state may be exercised almost without limitation in determining what should be subject to taxation, and the manner of levying and collecting taxes. Of course, arbitrary and unequal exactions cannot be levied upon persons or property, nor can revenues raised by the exercise of this power be expended for other than public purposes. Unless, however, a tax for public purposes be imposed on false and unjust principles, or violate an express provision of the constitution, the will of the legislature is conclusive. Our constitution contains an express limitation on the power to tax by requiring the legislature to “ provide for a uniform and equal rate of .assessment and taxation.” While this provision has no application to license, capitation or special taxes, it does apply to direct taxes on property. (Hines and others v. The City of Leavenworth and others, 3 Ran. 200; Comm’rs of Ottawa Co. v. Nelson, 19 Kan. 234.) As will be observed, the constitution contemplates that there will be an assessment or valuation of the property to be used as a basis of the levy; and in this way equality and uniformity of taxation may be had upon all the property within -the taxing district. Although assessment is the most important of all the steps in the imposition of taxes, no assessment or valuation is required by the act or made upon the property sought to be taxed in this case. “It will be observed that the constitution does not in terms require that the prop-, erty in the state should be taxed according to its value, but it must be apparent to every one that such was the intention of the constitution makers. Taxes cannot be levied upon equal and uniform rate except upon the value.” (Hines v. Leavenworth, supra.) To ac complish the uniformity and equality required by the constitution, it would appear that assessment or valuation is indispensable, and yet in this case the legislature, without assessment or valuation of the property, attempts to make an arbitrary exaction. All other property in the state is required to be taxed at its true value in money, but here no account is taken of the solvency of the company or the value of the security or policy. However values of other property may fluctuate or the rate of taxation thereon may change from year to year, no change is made in the tax levied on the property in question.
The lack of uniformity is manifest in another way : One taxpayer has a policy written in the state by a company with authority on which no tax is imposed, while his neighbor has one written by an unlicensed company at Indianapolis, or other place outside of the state, which is subject to taxation. Taxes are uniform and equal when imposed on all property of the same character within the taxing district, and yet here the insured pays a ten per cent, tax upon a policy written outside of the state, while his neighbor pays nothing on a policy of equal value and affording the same protection because it is written within the state. - Contracts of insurance written outside of the state cannot be regarded as illegal. Aside from the consideration that they may not be Kansas contracts and are therefore beyond the reach of the legislature, the act itself contemplates that such contracts may and will be made, and when made are to be treated as property within the state and become the subject of taxation here. This is an invidious discrimination, purposely made, and is a distinct departure from the constitutional rule of uniformity. (The State, ex rel. the Attorney General, v. Commissioners Leavenworth Co., 2 Kan. 61; Hines v. Leavenworth, supra; Graham v. Com’rs of Chautauqua Co., 31 Kan. 473, 2 Pac. 549; A. T. & S. F. Rld. Co. v. Howe, supra; M. & M. Rly. Co. v. Champlin, Treas., 37 Kan. 682, 16 Pac. 222; People v. Hastings, 29 Cal. 449; Marsh v. The Supervisors of Clark Co., 42 Wis. 502; Slaughter, etc., v. City of Louisville, 89 Ky. 112.)
Another ground on which the act is assailed is, that in part the tax is levied for a private and illegal purpose. Two-fifths of the taxes to be raised are to be used for the benefit of the fire department of a city or township, whether paid or volunteer. All will agree that taxation for other than public purposes is unjustifiable. For the maintenance of a fire department public money may be raised and expended, and if the municipality incurs any legitimate expense in providing such an organization taxes may be imposed therefor. The taxing power of the state, however, can hardly be exercised in order to bestow public money on a department made up of volunteers who are not employed by the municipality, and for whose services no expense is assumed or incurred by it. However commendable the object of such an organization maybe, and however valuable the services of the members may be, it is clear that public money can only be used to discharge a public liability. As will be observed, the money when collected is to be applied to the benefit of such a department and not for the benefit of the municipality, but taxes cannot be imposed nor public money expended for the benefit of private individuals or enterprises, nor can it be given away for such purposes.
For the reasons stated, we conclude that the statute is invalid and the tax illegal, and therefore the petitioner will be discharged. | [
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The'opinion of the court was delivered by
Johnston, J. :
The First National Bank of" Fort Scott recovered a judgment against Charles H. Elliott for $3205.89, and the court having refused to stay the execution of the judgment an execution was at once issued which was levied on the property of the defendant. To prevent the enforcement of the judgment 'until a review of the same could be had, the following stipulation was entered into and signed by the attorneys of the respective parties :
“Whereas, on the 30th day of April, 1892, in said district court above named, said plaintiff recovered a judgment against said defendant for the sum of $3205.39 debt, and the further sum of-dollars, cost of suit; and whereas, on the same day execution was issued out of said court against said defendant to collect said judgment, and said execution is now in the hands of the sheriff of said Cowley county; and whereas, said defendant is intending to file in the supreme court petition in error to review and endeavor to obtain a reversal of said judgment:
“Now therefore, for the purpose of saving cost and expense and damage by reason of further proceedings which may be taken by plaintiff to enforce said judgment, pending the determination of said matter by the supreme court, it is here stipulated by and between said parties that said defendant shall forthwith pay to said plaintiff the sum of $2655.37, which, if said j udgment shall become final, shall be in full satisfaction of the judgment aforesaid, except for costs, but if said judgment shall be reversed by said supreme court then said sum so paid, with interest thereon at the rate of six per cent, per annum from this date, shall be refunded to said defendant, his legal representatives or assigns, on demand, and the right of each of the parties shall be the same as if this stipulation and such payment had not been made. And if such petition in error shall be filed, each of the parties agrees to use every possible effort to have the same brought to hearing by said.supreme court at the earliest practicable time.”
In pursuance of the stipulation the defendant immediately paid to plaintiff the sum of $2655.37, and thereupon the execution was returned, and proceedings in error were prosecuted in this court, which resulted in the reversal of the judgment. (Elliott v. Bank, 58 Kan. 813, 48 Pac. 1115.) After the reversal of the judgment the defendant demanded the repayment of the money in compliance with the terms of the stipulation, but the demand was refused, when he filed a motion in the district court to require compliance with the stipulation, and the restoration of the money which had been paid thereunder. Upon the hearing of the application, proof was offered by the plaintiff to the effect that when the notes were executed by the defendant he was solvent and able to pay them, but that since the stipulation was made the defendant had incumbered and transferred the property, so that there was nothing left which was within the reach of his creditors. The motion of the defendant was allowed, and an order made that the plaintiff restore to the defendant the amount paid under the stipulation, together with interest thereon, and awarding execution for the enforcement of the order. Complaint is made of this ruling, and the point at issue is whether the plaintiff is entitled to the summary remedy in the pending proceeding, or whether he should have brought an independent action upon the stipulation.
No question is raised as to the authority of the attorneys who entered into the stipulation, and there can be little doubt as to its binding effect on the parties to the action. (Railway Co. v. Pavey, 57 Kan. 521, 46 Pac. 969.) We see no good reason why it may not be enforced in the action in which it is made. Instead of making an agreement outside and independent of the action, the parties stipulated about an incidental matter and agreed what should be their rule of conduct in that action. Indeed, it would seem as if the defendant would have been entitled to a restoration of the money he was compelled to pay, if no stipulation had been made. At common law a party appealing in a civil case who obtains a reversal of a judgment is entitled to be restored to all he has lost by the enforcement of the judgment. While the writ of restitution formerly employed appears to be obsolete in this country and is unknown to our procedure, it is generally ruled that the court may order restitution in a summary manner in cases where at common law the writ would lie. (21 A. & E. Encycl. of L. 298. ) The prayer for reversal in the petition in error is that the complaining party may be restored to all things lost by reason of the erroneous judgment sought to be reversed, and the judgment of reversal entitled him to have the original status restored and to be repaid the money obtained from him under the sanction of the erroneous judgment.
It is contended that the summary remedy in this case does not fall within those provided by the code, namely, actions and special proceedings, and that, there being no writ of restitution in our procedure, the practice adopted was not permissible. There is no difficulty there ; the motion and order were only steps in a pending action. The parties being before the court, and the matter of restoration being incidental to the action, there can be no question of the power or duty of the court to enforce restoration in that proceeding. Instead of multiplying cases, it is the policy of our code that the rights of the parties be determined as far as practicable in a single litigation, and we think the court was warranted in enforcing restitution in a summary manner upon the motion, of the defendant. (Bickett v. Garner, 31 Ohio St. 28; Ex parte Walter Bros., 89 Ala. 237, 18 Am. St. 103, 7 South. 400; The Bank of the United States v. The Bank of Washington, 31 U. S. 8; Breading v. Blocher, 29 Pa. St. 347; Grant v. Oliver, 91 Cal. 158, 27 Pac. 596, 861; Keck v. Allender, 42 W. Va. 420, 26 S. E. 437; Gregory v. Litsey, 48 Ky. 43; In re Enderlin State Bank, 4 N. Dak. 228, 26 L. R. A. 604; Freeman, Judg., § 482.) The judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
Smith, J. :
This action was brought for the purpose of setting aside the will of Palmer Osborne for lack of mental capacity in the testator, and for the further purpose of having paragraph 9 of the same declared void for uncertainty. The court submitted to the jury three particular questions of fact respecting the mental condition of the testator at the time the will was executed. After the jury were instructed and arguments of counsel made, they returned anwers to the questions propounded and were discharged from further consideration of the case. Thereupon plaintiffs below filed a written motion asking leave to dismiss the action without prejudice, stating that the action was equitable in its nature, triable by the court, and further that the issues were not finally submitted. The motion for leave to dismiss was denied. The case proceeded for hearing before“the court upon the issues which had not theretofore been considered by the jury, the plaintiffs below refusing further to participate in said trial and objecting to the same.
"We think the plaintiffs in error were entitled, as a matter of right, to dismiss their action at the time they applied to the court for leave to do so. In the case of Hudson v. Hughah, 56 Kan. 152, 161, 42 Pac. 704, which was an action to set aside a will, the court said :
“In cases of this character the parties are not, as a matter of right, entitled to a jury, but the issues may be submitted to one for the information of the court, and to relieve it from the burden of determining controverted questions of fact. The court may accept findings in whole or in part, or if not satisfied with them may ignore them and proceed to make findings of its* own upon evidence submitted.” See also Franks, Ex’x, v. Jones, 39 Kan. 236, 17 Pac. 663; Garard v. Garard, 135 Ind. 15, 34 N. E. 442.
The jury acted in a purely advisory capacity. The statute provides that the plaintiff may dismiss his action without prejudice to a future action before the final submission of the case to the jury or to the court where the trial is by the court. (Gen. Stat. 1897, ch. 95, § 393, Gen. Stat. 1889, ¶ 4493.) The trial was before the court. At the time plaintiffs in error attempted to dismiss, a part of the issues had not been submitted to nor decided by the court. In the case at bar the submission to the court and jury were not concurrent acts, and a cause is not finally srrbmitted -until the parties have introduced all the evidence upon the issues made by the pleadings.
The answers of the defendants did not amount to counter-claims upon which they might obtain affirma tive relief. The answers ask no more than the law would give the defendants if the will were sustained. They do not ask that anything be taken from the plaintiffs. The legal effect of the answers is a demand that the will be sustained and a construction given to it in accordance with the intention of the testator. (Corlett v. Insurance Co., ante, p. 134, 55 Pac. 844.)
The judgment is reversed, with directions to dismiss the action. | [
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