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The opinion of the court was delivered by
Doster, C. J. :
This was an action brought by Caroline and R. J. Yoeman, wife and husband, ■against H. T. Trice to recover upon an agreement alleged by them to have been made, by Trice to pay certain indebtedness of theirs, but which agreement he had failed to fulfil. Thé Yoemans were the owners of a tract of land which was encumbered to the amount of about $9000. They were also indebted to various parties to the amount of several thousand dollars more. They were desirous of freeing themselves from their obligations, and accordingly entered into an ■agreement with Trice by the terms of which they were to convey their land to one Townsend for him, in consideration of which he was to discharge their indebtedness in full, as they claim, but as he claims, only to the extent of several specified debts. This agreement was wholly evidenced, as Trice says, by the following written documents :
“Winfield, Kan., September 4, 1892.
“ Know all men by these presents, that we recently formed the acquaintance of H. T. Trice, Winfield, Kan., and as he seems to us more active and more competent to effect a sale of our lands, we hereby give him full control and sale of same, and as other real-estate men have had several months and effected no sale, and he has taken hold of the matter with him, and photographed and advertised the premises, and using every effort to make a sale to meet our mortgages and security debts and accumulated interest, taxes, judgments, and costs, which have been a great annoyance to us recently (because of our inability to meet them), we hereby promise our every effort to aid him in making the sale of the 395 acres we have now under foreclosure, and as we have been desirous of making said lands meet our obligations and release our crops, live stock and implements from encumbrance, we do most heartily wish and hope that he may make a sale of said land and stop the accumulations of interest and debt, and as compensation for his efforts and this favor to us we hope to aid him in every way to effect sale, and follow instructions given, and will feel glad to help him make a sale that will pay him well, and are perfectly willing that he shall have all he can get out of said lands over and above what he may need to satisfy the judgment and claims of H. B. Schuler, Scott & Brier, $5000 and $500 mortgage and accrued interest, and a $1200 mortgage, interest and costs on said premises, and D. M. Osborn & Co., and McCormick Harvester Company, and W. C. Robinson; and the more he gets out of the place to pay him for making this sale the better we shall feel, and we will feel satisfied at getting released from these debts — which other real-estate men have failed to do, although have tried for months! In witness whereof, we set our hands the day first above written.
Caroline H. Yoeman.
R. J. Yoeman.”
“Wineield, Kan., September 24, 1892.
“Stafford & Albright: You will please deliver to H. T. Trice the deed signed by us conveying our lands to Wm. S. Townsend, which we have agreed to turn to him upon thé conditions that he shall have same and all the proceeds he may get from same over and above the amount he may need to satisfy the Scott & Brier $5000 mortgage and $500 mortgage and the $1200 mortgage and claim of EL B. Schuler, $1800 or less, and Osborn & Co. and McCormick Machine Company and W. C. Robinson, and costs and interests on same, and what he may save by discounting said claims, it being our wish and aim to gladly give him all he can get out of said lands after paying or satisfying said above accounts and claims, and hope you will aid him every way to make the turn and make a nice sum for himself, that we may save our stock and crops, which we will lose otherwise.
Caroline Yoeman.
R. J. Yoeman.”
Stafford & Albright, to whom the above letter was addressed, had been made the custodians in escrow of the deed to Townsend. Trice paid all the indebtedness mentioned in the above-quoted writings. The Yoemans claimed that at and before the time of the execution of these papers, and as a part of the contract made with Trice, he agreed to pay all other indebtedness owing by them, the items of which were not at the time specified .but were stated to be in amount between $800 and $1000. Because of his failure to make such payment, suit was brought against him and a verdict and judgment of $725 recovered. The district court, over the defendant’s objections, held that parol evidence was admissible to prove the previous and concurrent agreement to pay the additional sums. Error was prosecuted to the court of appeals, which affirmed the judgment of the district court. (Trice v. Yoeman, 8 Kan. App. —, 54 Pac. 288.) To review its judgment of affirmance a discretionary order of certification to this court was made.
The reception of parol evidence in proof of the agreement to pay sums additional to those specified in the above-quoted written instruments constitutes the principal claim of error. We think this claim is well founded. These papers made up a contract of sale of real estate. Upon them Trice, the vendee, could have maintained an action for specific performance. In quite a number of instances parol evidence is admissible to show the real consideration for a deed or for an agreement of conveyance of land, or to show that the consideration has not been paid notwithstanding a recital of its payment; and parol evidence is admissible to show a consideration for the deed or the agreement additional to the one expressed in the writing, if not inconsistent with such writing; and parol evidence is also admissible to complete any kind of agreement which has only been partially reduced to writing, the added portion being in completion and not in contradiction of the writing. Possibly parol evidence of facts and circumstances in such cases as this may be received to charge the vendee with the payment of sums additional to those expressed in the written agreement, but we know of no cases which allow the consideration named in a contract for conveyance to be varied by parol evidence of an agreement to pay sums additional to that which the parties have expressed in the instrument as the whole consideration. The above-quoted papers constitute a unilateral agreement for the sale of land. They are signed by the Yoemans alone, but they were accepted and acted upon and their terms fulfilled by Trice. They constitute as much his agreement as though he had signed them. They constitute his agreement to pay so much money for the land. In addition to the express mention of the sums to be paid, which of course implies the exclusion of an obligation to pay any greater or other sums, they negative by their terms the obligation to pay anything additional. The one first quoted declares :
“ We are perfectly willing that he (Trice) shall have all he can get out of said lands over and above what he may need to satisfy the judgment and claims of H. B. Schuler, Scott & Brier, $5000 and $500 mortgage and accrued interest, and a $1200 mortgage on said premises, and D. M. Osborn & Co., and McCormick Harvester Company, and W. O. Robinson; and the more he gets out of the place to pay him for making this sale the better we shall feel, and we will feel satisfied at getting released from these debts.”
In the paper last quoted the vendors declare :
“ We have agreed to turn (the land) to him (Trice) upon the conditions that he shall have the same and all the proceeds he may get out of same over and above the amount he may need to satisfy, etc. (the debts before mentioned, scheduling them), it'being our wish and aim to gladly give him all he can get out of said lands after paying or satisfying said above accounts and claims.”
These instruments not only constitute a contract to convey lands for a certain specified consideration, but they in terms exclude the right to claim additional compensation for the conveyance. The reception of evidence of the parol contemporaneous agreement to pay more for the land than the amount expressed in these papers was error, and the judgments of the court of appeals and of the district court are reversed, with an order for a new trial. | [
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The opinion of the court was delivered by
Doster, O. J. :
This was an action brought by the defendant in error, Louisa E. Mead, as plaintiff, against James L, King and others, the plaintiffs in error, as defendants, to quiet title to a tract of eighty acres of land. The court made findings of fact, and upon them rendered judgment in favor of the plaintiff. The defendants prosecute error to this court.
A summary of the facts as found by the court is as follows: The plaintiff, Louisa E.'Mead, was the wife of George F. Mead, who died intestate in June, 1896. The heirs of George F. Mead were his widow, the plaintiff below, and one daughter, Stella Gertrude, who was the wife of the defendant below, James L. King. Stella Gertrude has since died. Her heirs were her husband and a minor son, Glen M; King, also a defendant below. At the time of the death of George F. Mead the title to the tract of land stood in his name, and he was also the owner of an undivided half interest in a certain other tract of 160 acres of land. In June, 1880, Mrs. Louisa E. Mead received from the estate of her father in Indiana the sum of $1972, which she placed in the hands of her husband for investment. He placed $1900 of this sum in the hands of a loan agent, to be loaned in his wife’s name. It was left in the hands of the agent until January, 1884, and upon it during this time the husband drew interest to the amount of $900. The plaintiff and her husband agreed to invest the money in the tract of land now in dispute, and, accordingly, on the 22d day of January, 1884, the husband bought the land and paid for it with his wife’s money, withdrawing all of the money from the hands of the agent for that purpose. The husband took the title to the land in his own name without his wife’s consent. Eliza Mead, the mother of George F. Mead, owned the other undivided half of the quarter-section before mentioned, and after the death of her son, the plaintiff’s husband, the plaintiff and her daughter Stella Gertrude, on -the one side, and Eliza Mead on the other, made an amicable and equal division in acres of the quarter-section. The eighty-acre tract taken by the plaintiff and her daughter was more valuable than the eighty taken by Eliza Mead. The difference in value was $746. In order to pay this difference and to pay some outstanding debts of the deceased, George F. Mead,— there being no administrator of his estate — the plaintiff and her daughter and the daughter’s husband, James L. King, gave their notes for $1000 and. a mortgage to secure that amount on the tract of land in dispute. The mortgage contained a covenant that the parties signing it were the owners of the mortgaged land.
In addition to the findings made by the court, the evidence quite satisfactorily establishes the fact that the deceased, George F. Mead, recognized his wife’s ownership of the equitable title to the land. At various times during the twelve years preceding his death, in which the legal title stood in his name, he admitted to different persons that the land belonged to his wife. The evidence as to the reason why James L. King and his wife Stella Gertrude signed the notes and mortgage is very meager and unsatisfactory. The following is all relating to the subject. King testified :
“She (Louisa E. Mead) told us, after she found out where she could get the money and who she could get it from, that we would have to go to town with her that afternoon and sign the papers for that mortgage on that farm, that Morse eighty, as we had as much interest in it as she had, and she couldn’t get the money unless we did.
“ Q,. Unless you did what? A. Signed the papers.
“ Q. You may state to the court if you relied and acted on that request. A. We did.”
Another witness testified as follows :
“One day — it was in the fall of the year — she (Louisa E. Mead) came in there when we were eating dinner and wanted them to get ready to go to town, she said, to sign the mortgage and get some money. She said she wanted to pay grandma some money, and said it was as much to their interest to go and get the money; they had as much interest in the land as she had.”
The plaintiff testified as follows :
“Ques. Now, in the signing of the mortgage on the Morse property, and James and his wife signing it, you may state how that happened. Ans. Because the deed was taken in my husband’s name, and'it was necessary to have their signatures. I could n’t borrow money without.”
We pass now to the legal questions arising upon the record presented by the plaintiffs in error. The conveyance of the land in dispute recites that it was made in consideration of the sum of $3150. This was more by several hundred dollars than the total amount which Louisa E. Mead had received from her father’s estate, together with the interest on it prior to the purchase of the land, and assuming that all her money, principal and interest, was invested in the land, it would appear, so counsel for plaintiffs in error claim, that the husband, George F. Mead, likewise invested some of his own money in it, and was therefore the equitable as well as the legal owner of part of it. This claim rests upon the assumption that the recital in the conveyance of the amount of the consideration or purchase-price of the land was binding upon the defendant in error, the plaintiff below. This is not the case. The- defendant in error was a stranger to the deed, and therefore was not bound by its recitals ; nor were they admissible in evidence against her. (2 Devl. Deeds, §§ 820, 821; 2 Whart. Ev., §§ 1041, 1042.)
It was also argued that the plaintiff was estopped from claiming the land on account of her having procured the defendant, James L. King, and his wife to join with her in signing the notes for $1000 and the mortgage upon the land. -An estoppel by deed and also an estoppel in pais, or in equity, are both claimed. It is clear that there was no estoppel by deed. Louisa E. Mead testified that her reason for procuring King and his wife to join in the mortgage was that the land stood in her deceased husband’s name, and the land appearing therefore to have descended to his heirs, of which King’s wife was one, she could not do otherwise than procure them to execute the mortgage jointly with herself. This was a reasonable explanation, and appears to have satisfied the court below as against the conflicting testimony. The action not being upon the instrument upon which the claimed estoppel arises, evidence explanatory of its execution was admissible. (Bigelow, Estoppels, 3d ed., 289.) A leading case on this subject is Carpenter v. Buller, 8 M. & W. 209. It was there ruled :
“A party to an instrument is not estopped, in an action by the other party, not founded on the deed, but only collateral to it, to dispute the facts he had admitted; but evidence of the circumstances under which such admission was made is receivable to show that the admission was inconsiderately made, and not entitled to weight' as proof of the fact that it is used to establish.”
Nor do the circumstances under which King and his wife signed the notes and mortgage justify the claim of an estoppel in equity. Money was needed to discharge a lien in owelty of partition which rested upon the eighty acres of land which had been set apart to Stella Gertrude King and her mother, the defendant in error. It was also needed to pay the debts of the deceased George F. Mead which constituted charges against his estate in which Stella Gertrude was interested as an heir. There was reason, therefore, for the borrowing of money by King and his wife as well as by the defendant in error, and reason for the execution of a mortgage upon land to secure the amount borrowed, if it could not be otherwise obtained, and there seemed to be a concurrence of view by the interested parties that it should be obtained by mortgage. Whether King and his wife signed the notes as surety for the. defendant in error or whether as principal makers does not appear. If they signed as sureties, it is difficult to understand how an estoppel in equity can arise in their favor. If they signed as principal makers,.it was to better their own estate, or at least the estate of Stella Gertrude, by discharging liens which rested upon it. An estoppel in equity occurs where one party has induced another, by representations or statements of fact, to alter his. situation to his disadvantage — to do something he would not otherwise have done. The evidence in this case upon which the claim of equitable estoppel is predicated, all of which has been hereinbefore quoted, is too meager and pointless to justify the claim that King and his wife signed the mortgage notes upon the strength of any belief that they were part owners of the land, created in their minds by the statements of the defendant in error. King testified :
“ She (Louisa E. Mead) told us one day we would have to go to town with her that afternoon and sign the papers for that mortgage on that farm, the Morse eighty, as we had as much interest in it as she had, and she could n’t get the money unless we did.
“Ques. State to. the court if you relied and acted upon that request. Ans. We did.”
The statement of the defendant in error thus made to the plaintiff in error was characterized by him as a “request.” What was meant by “request” we do not know. Whatever meaning the plaintiff in error attached to it, he relied and acted upon it, so he says ; but by it did he mean Louisa E. Mead’s admission of title to the land, or by it did he mean her expression of desire to have himself and wife join in the execution of the notes and mortgage, or did he mean both? Unless he relied and acted upon something to his prejudice there was no estoppel created, and, considering all the circumstances of the case and the fact that the court below heard the testimony of the witnesses, and was therefore better able than we to interpret their meaning and weigh their testimony, we cannot say that facts sufficient to create an estoppel were proved.
The statute of limitations was pleaded as a defense to the plaintiff’s action. The only statute of limitations that can apply to such kind of case is that of fifteen years. The conveyance of George P. Mead had not been of record that length of time when the action was commenced.
Many claims of error are made upon the court’s findings, and upon its refusal to find as requested by plaintiffs in error. Many of these claims are subsidiary or incidental to the questions we have thus far considered; others raise nothing but disputed questions of fact. . None of them, however, is well founded, and the judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by
Doster, C. J. :
This is a proceeding in habeas corpus. On the 25th day of May, 1899, Ed. Hendricks, the petitioner, was committed to the jail of Douglas county upon a charge of petty larceny by order of a justice of the peace of the city of Lawrence. He alleges that chapter 124, Laws of 1899, which took effect by publication in the volume of session laws on the 15th day of May of this year, deprived justices of.the peace in the city of Lawrence of jurisdiction over criminal actions, wherefore he is wrongfully restrained of his liberty under the order of commitment. Such portions of the act in question as are material to an understanding of the case read as follows :
“An Act creating a county court in Douglas county, Kansas, fixing the jurisdiction thereof, and defining the powers and duties of the officers thereof, and limiting the jurisdiction of the justices of the peace in the city of Lawrence in said county.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. That in the city of Lawrence, Douglas county, Kansas, a court is hereby dreatecl, to be called the ‘ county court of Douglas county, Kansas.’ Said court shallhave one presiding judge. . . . The court hereby created shall sit in the city of Lawrence, provided, that after this act shall take effect justices of the peace of said city of Lawrence shall have no jurisdiction of any case, civil or criminal, except in civil actions for the recovery of money only where the amount claimed, exclusive of interest and costs, does not exceed the sum of one dollar.
“Sec. 2. The governor shall, within twenty days after the enactment of this bill, appoint and commission the judge of said court, whose term of office shall commence with the date of his commission and who shall hold his office until the second Monday in January, 1901, and until his successor is qualified, as hereinafter provided.
“Sec. 8. That the board of county commissioners of Douglas county shall submit to a vote of the qualified voters of said county at the next general election, for the purpose of submitting to the qualified electors the question of whether or not the county court of Douglas county shall be established. The proposition to be submitted shall be printed on the official ballot, and shall bear the printed words and figures, thus :
“ Shall a county court be established for Douglas county, Kansas ? Yes No
“Each elector shall designate his vote by a cross in the blank after the word ! Yes’ or 'No’ as he desires to vote for or against said proposition. Said votes shall be canvassed by the board of county commissioners, and the clerk shall immediately certify the result of said election to the governor of the state of Kansas, who, if the majority of the electors voting on the proposition at such election shall favor the creation and establishment of said county court, shall immediately appoint a judge for said court, as hereinbefore provided.
“Sec. 9. All acts or parts of acts in conflict with the provisions of this act be and the same are hereby repealed.
“Sec. 10. That this act shall take effect and be in force from and after its passage and publication in the statute-book.
“Approved March 4, 1899.”
It is contended upon the part of the petitioner that all of the above partially quoted act is valid except section 8, which requires a submission to the voters of Douglas county of the question whether the court shall be established. That section is said to be a dele gation of legislative power, and therefore repugnant to the constitutional provision which vests such power in the house of representatives and the senate, and in support of such view Barto v. Himrod, 8 N. Y. 483, Santo et al. v. The State of Iowa, 2 Iowa, 165, and other like cases are cited. It is contended, however, by the petitioner that this section is separable from the remainder of the act, and may be and should be expunged, as it were, leaving the other portions to stand. The provisions thus left standing under this view would be those depriving justices of the peace of the city of Lawrence of criminal jurisdiction and vesting it in the county court of Douglas county. The contention upon the other hand is that section 8 rightly construed is not to be viewed as a delegation of legislative power, but as merely authorizing a submission to the voters of Douglas county of the question whether a county court should be established, and providing for its establishment in the event the'voters should so elect. It is said that the law is a complete and unconditioned expression of the legislative will; that such will took effect by enactment, executive approval, and publication in the statute-book, and that such will merely was that the electors might or might not, as they chose, provide themselves with a specially modified judicial system. This, it is said, may be done upon the principle on which the cases of Phœnix Ins. Co. v. Welch, Supt., 29 Kan. 672, The State v. Hunter, 38 Kan. 578, 17 Pac. 177, and other like cases were decided, without trenching upon the theory of tho non-transferability of legislative power. In addition to the two decisions of our own court, Warner v. Hoagland, 51 N. J. (Law), 62, 16 Atl. 166, The State v. Parker, 26 Vt. 357, Wales v. Belcher, 3 Pick. 508, The State, ex rel., v. Sullivan, 67 Minn. 379, 69 N. W. 1094, and others, are cited. It is further contended upon the part of the respondent that a general survey of the whole act in question shows that none of its provisions was designed to be operative until after the election upon the question of the establishment of the court, and then only in the event of a favorable vote. This view, if correct, would leave the justice of the peace who ordered the petitioner’s commitment in the full exercise of his usual jurisdiction until after the ensuing general election.
The question thus presented is an interesting and important one. A legislative act which provides for its taking effect in the contingency of a favorable popular vote is an illustration of the “referendum” principle of direct legislation by the people. This is said in a broad and untechnical sense, and without reference to the distinction which the courts have drawn between the attempted enactment of laws by popular vote and the acceptance of an enacted law by popular vote. The writer, speaking for himself alone, is firmly of the opinion that the principle of direct legislation is the wiser and more democratic principle, and would like to see it incorporated into the political system of the country. He nevertheless joins with his associates in holding that the above-quoted act is inoperative and void. Our view, however, is not affected by the consideration that the enactment may be regarded as an application of the referendum principle, or as a delegation of legislative power, but by the fact that its principal provisions are so irreconcilable and absolutely contradictory of one another as to prevent the act from having any meaning or effect whatever. A brief analysis of these provisions will show this to be the case.
Section 1 declares that “ a court is hereby created.” These are words of the present tense, conditioned, however, in law to the time of the taking effect of the act. That time of taking effect was, by section 10, “ the publication of the act in the statute-book." By the further provisions of section 1 justices of the peace of the city of Lawrence were deprived of all jurisdiction of criminal cases. So that by the publication of this enactment a court was created, its jurisdiction defined, a presiding judge and subordinate officers provided for, and the jurisdiction of other judicial tribunals taken away or limited to accommodate it. Section 2 provides that “the governor shall within twenty days after the enactment of this bill appoint and commission a judge of said court, whose term of office shall commence with the date of his commission and who shall hold his office until the second Monday in January, 1901." The term “enactment," although inapt to express the beginning of a period of time for the governor’s action, might properly be construed to mean “taking effect," so that its use in the section does not prevent an understanding of the act in that respect. The requirement upon the governor to make the appointment within the time specified emphasizes the terms of section 1, which in words of the present tense creates a court and vests it with jurisdiction. Section 9 reads, “all acts and parts of acts in conflict with the provisions of this act be and the same are hereby repealed." According to this all laws conferring jurisdiction upon justices of the peace except to the limited extent specified were repealed so far as the city of Lawrence is concerned. Thereafter the office of justice in that city was but little more than a nominal one and the jurisdiction pertaining to it limited to actions for the recovery of the small sum of one dollar. (In re Greer, 58 Kan. 268, 48 Pac. 950.) Ifc is hardly accurate to say that by this section all conflicting laws were repealed. These laws, being general in their nature, were not repealed in the proper sense of the word, but the city of Lawrence became exempt from their operation. Such is the meaning of this section rightly construed.
So far the act is reasonably plain and susceptible of comprehension. Were it not for section 8 it could take effect and be enforceable according to its terms, as thus far stated. That section, however, provides that “the board of county commissioners of Douglas county shall submit to the voters at the next general election the question whether the county court of Douglas county shall be established,” and it declares that if a majority of the electors voting upon the proposition shall favor the establishment of the court the governor “shall immediately appoint a judge of said court as hereinbefore provided.” It is impossible to reconcile this section with the other provisions of the act. Section 1 establishes the court in prxsenti. Section 8 establishes it in futuro, and conditioned upon a majority vote of the electors. Section 2 requires the appointment of a judge within twenty days after the taking effect of the act and fixes the commencement of his term of office at the date of his commission. Section 8 delays the appointment of the judge until after the next general election and conditions his appointment upon the action of the electors. In the face of these repugnant provisions how is it possible to ascertain the real legislative intent ? If we should say that the act is not to take effect until after the next general ’election and then only in the event of the acceptance of its provisions by the electors of Douglas county, we would do so in the face of the plain declaration of section 10 that “ this act shall take effect and be in force from and after its publication in the statute-book.” If we should say that the act took effect in accordance with the provisions of section 10, we would decide that, in accordance with, the provisions of section 1, the court thereby became-created and the governor thereby required to appoint-a judge in accordance with the provisions of section. 2, but this would have to be said in the face of' the-fact that by the terms of section 8 the court is not to-be established nor the judge appointed except as authorized by a vote therefor at the next general election.
If we were to say, in accordance with the theory of the respondent, that the act merely authorizes the submission to the voters of Douglas county of the question whether they desire the establishment of a county court, and that the taking effect of the act according to section 10 was merely the taking effect of .the legislative will that such question should be submitted, we should have to do so in disregard of the mandate of section 2, requiring the governor, to appoint a judge of the court “within twenty days after the enactment of the bill.” If we were to construe the words “enactment of the bill” to mean “taking effect of the' act,” as for some purposes we may, we would be no-further advanced toward a point of harmony between the conflicting sections. That would only be saying that the governor should appoint a judge of the court within twenty days after the taking effect of the legislative will to submit the question to the voters. The repugnancy between the two sections would not be removed ; it would still exist. If we were to say that “ twenty days after the enactment of the bill.” means-twenty days after the taking effect of the act, and that, “twenty days after the taking effect of the act’v means, in that instance, twenty days after the accept anee of the act by the voters, we would be guilty of a most frightful perversion of language and distortion of meaning. By no possibility can section 2 bear such .construction. The last sentence of section 8 requires that the governor, in the event of a favorable vote upon the proposition, establish the court, and "immediately appoint a judge for said court as hereinbefore provided.” It may be thought that the words "as hereinbefore provided” have reference to the appointment previously required by section 2, and that they limit the appointment in matter of time to the period after the election. So to hold, however, would be to disregard all possible meanings which the words ‘ ‘ enactment of the bill” can bear, and would be to perform, as before shown, the impossible act of extracting the meaning "acceptance of the bill by .the voters” or " majority vote on the bill” out of the words "enactment of the bill.” That cannot be done.
The only possible construction which this act will bear, and by which a-semblance of harmony between its provisions can be secured, is that the court is created as declared by section 1; that the governor shall appoint and commission the judge within twenty days after the taking effect of the act, and that the court thus established shall exist until the next general election, after which, if the voters so elect, it shall be continued and a new appointment made, and if the voters do not so elect, the court thus created shall be abrogated and the judge thus appointed shall go out of office ; in other words, that the court created is to be tentative and provisional only and to depend for its continued existence upon the will of the electors. This could not have been the legislative intent. Nothing in the words of the bill authorizes such an inference. If we were, so to hold it could be done only by forced and unusual construction — a construction, too, in opposition to some of the plain provisions of the act. For example, by section 2 the term of office of the judge thus to be provisionally appointed is made to last until 'the second Monday in January, 1901, long after the abrogation of the supposed provisional court. Again, by section 9 all conflicting acts were repealbd ; that is, as before construed, the city of Lawrence was exempted from the operation of all conflicting acts. If the theory of a temporary court conditioned for future existence upon the will of the electors be accepted, it would follow that all conflicting laws were temporarily repealed, that is, their operation suspended in the city of Lawrence during the existence of the provisional tribunal, and that immediately upon its dissolution they came again into force and effect. This could not be tolerated for a moment. Law is a rule of action, and it comes into being and goes out of being in obedience only to the legislative will, and during the time of its existence it is not the subject of experiment, of trying on and putting off. It is not a thing to be suspended, to be hung up for a day, the while something else is tried. It can be got rid of only by unconditional repeal.
As stated, however, the petitioner urges that section 8, being alone objectionable upon constitutional grounds, and being separable from the remainder of the act, may be eliminated and the other sections allowed to stand. It is true that parts of 'a statute repugnant to constitutional provisions do not nullify the whole of the act of which they are a part, if they can be so separated from the remainder as to leave a complete and intelligible whole. This, however, is not true where it is plain to be seen from the entire act that the inclusion of the invalid provision was a determining inducement to the legislative action. If it be plain that the legislature would not have passed the valid portions of the law without the invalid portion the entire act must fall. We hold it plain in this case that the legislature intended section 8 as an integral portion of the entire act; that the submission of the question of the establishment of the court to the voters inhered in the legislative intent and was one of the inducing causes to legislative action. When the legislature has declared that a court should be established in the event that the electors approved of its ■establishment, it is not to be supposed that it intended ■the court to be established irrespective of the popular vote provided for. It would be absurd to say that the legislature intended that to be unconditioned which it has expressly made conditional.
We are aware of the rule which requires courts to endeavor to harmonize conflicting portions of a statute. We have diligently endeavored to observe the rule in this case, but can arrive at no comprehension of the legislative intent in the enactment of this, measure. It must therefore be held inoperative and void because of the absolute contradiction between its principal provisions. Plowever averse the courts are to such action, they have several times heretofore been compelled to take it. In Hughes’ Case, 1 Bland Ch. 46, it was said :
1 “When an act of assembly authorizes an object to be attained and the prescribed course of attaining it is deficient, that of the forum resorted to may be pursued for the purpose of supplying such deficiency. If the deficiency cannot be so supplied, w-ith propriety and effect, then the court applied to can have no jurisdiction ; and if it cannot be supplied by any other court, then the act of assembly must be treated as a nullity, because of there being no tribunal competent to execute it.”
In Drake v. Drake, 4 Dev. 110, a portion of an act supposed to be passed for the purpose of casting descent upon illegitimate children was held to be inoperative and void because of the failure of the legislature to make manifest the persons upon whom the descent was cast. In Chaffee’s Appeal, 56 Mich. 244, 22 N. W. 871, it was ruled that “an act which authorizes a municipal body to open and widen streets according to the procedure therein prescribed, and then prescribes no procedure for cases of widening streets, is to that extent inoperative.” In Ward v. Ward, 37 Tex. 389, it was ruled:
“The act of November 1, 1871 (Pamphlet Acts, p. 17), authorized appeals from interlocutory judgments, orders or decrees thereafter rendered by the district courts, and required that such appeals be regulated by the law regulating appeals from final judgments in the district court, so far as the same may be applicable thereto. Held, that this act is nugatory and void, for the reason that the statutes regulating appeals from final judgments are entirely inapplicable to appeals from interlocutory judgments.”
In the opinion it was remarked :
“We hesitate, to consider well any judgment of ours which declares unconstitutional or void an act of the legislature, paying due deference to the learning and wisdom of that branch of the government. But when we find ourselves totally unable to administer a law by reason of its uncertainty or ambiguity, or believe it to be unconstitutional, we shall not hesitate to discharge the duty which the law devolves upon us. . . . We do not mean to say, by any means, that the act of November 1, 1871, is unconstitutional, but we do say that it is nugatory and void for want of some adequate provision in the law to carry out its execution. And, for the reasons given, the appeal in 1287 must also be dismissed.”
In State v. Partlow, 91 N. C. 550, a statute prohibit ing the sale of intoxicating liquors within three miles of a certain named church in a certain named county was considered. There were two churches of that name in the county. The act was held inoperative and void for lack of ascertainable meaning. Other cases bearing more or less directly to the same effect might be cited. These, however, are sufficient to show the existence of the rule we have invoked.
The conclusion is that the justice of the peace had jurisdiction over the person of the petitioner. He is therefore remanded to the custody of the respondent. | [
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The opinion of the court was delivered by
Johnston, J. :
In an information filed by the state against Allie Hewes, he was charged with the murder of Robert Bomar “by hitting him with a club, and by shooting him, the said Robert Bomar, with a certain pistol commonly called a revolver, then and there loaded with, powder and leaden bullets, which said pistol so as aforesaid loaded with powder, leaden bullets and caps he, the said Allie Hewes, then and there in his hands had and held, contrary to the statute in such cases made and provided.” The testimony at the trial showed beyond dispute that the defendant shot Bomar twice, that he did not assault or hit him with a club, and that the death of Bomar resulted from the shooting. The jury found the defendant guilty of manslaughter in the third degree, and, although he was less than sixteen years of age, he was sentenced to confinement at hard labor in the penitentiary for a period of one year.
The first complaint is that the information is so indefinite and uncertain that it does not notify the defendant of the precise offense charged against him. As will be observed, the charge is that the defendant assaulted Bomar with a club and also with a pistol, and it is argued that it is bad for duplicity and uncertainty because it does not particularly state whether Bomar’s death resulted from clubbing or shooting. As the offense charged may be committed by both means, and as several acts connected with and forming part of the general offense may be stated in a single count, the objection of the defendant is not good. It has already been held that “ where a murder may have been committed by different means, and it is doubtful which was employed, its commission by all may be charged in one count of the information, and proof of any one will sustain the allegation, but the means so charged in the same count of the information must not be repugnant.” (The State v. O’Neil, 51 Kan. 651, 33 Pac. 287.)
The defendant filed a plea in abatement alleging that he had not had a preliminary examination upon the offense charged in the information, and that he had not waived such examination. A jury was demanded to try this plea and error is predicated upon refusal of the demand. It appears, however, that the plea itself was fatally defective. Informations may be filed against fugitives from justice without a preliminary examination, and there was nothing in the plea in question to show that the defendant was not a fugitive from justice when the information was filed. “Such pleas must be certain to every intent, and leave nothing to be drawn by inference. They must anticipate and include all such supposable matter as would, if alleged by the opposite party, defeat the plea.” (1 Encycl. Pl. & Pr. 24.)
A great number of objections are made to rulings upon the testimony. Many of these objections are without merit, and some of the rulings, although erroneous, are not so prejudicial in character as to furnish grounds for a reversal. Objections are made, however, which are so serious in character that ■ they cannot be overlooked. The mother of the deceased was permitted to testify that one of the Hewes children had told her that Allie Hewes, the defendant, said “that the one that shot the dog he would shoot-them.” The trouble between the Bomar and Hewes families resulted from the shooting of a dog by Robert Bomar on the day that he was killed by Allie Hewes. The Hewes children went to Bomar’s to obtain a pail of water and the dog accompanied them. While there Bomar shot and killed the dog, and on the part of the state it is claimed that Allie Hewes became greatly incensed at the shooting of the dog and determined to have revenge ; that accordingly he obtained a revolver, borrowed ammunition with which he loaded it, and went to Bomar’s with the intention of shooting and killing Robert Bomar. On the part of the defendant, it is claimed that shortly after the shooting of the dog, George Hewes, the father of the defendant, started to take a lister which he had previously borrowed over to Bomar’s, and while doing so met Allie Hewes on the road and asked him to assist in pulling the lister into Bomar’s yard; that Robert Bomar met them in the yard and some talk was had about the shooting of the dog which resulted in a collision between Robert Bomar and the elder Hew'es ; that while they were scuffling Bomar tried to draw a knife upon the elder Hewes, and that to protect his father the defendant drew his revolver and shot Bomar. In view of the claims of the parties and the theory upon which the case was tried, the hearsay evidence that the defendant had stated that he would shoot the one who shot the dog was material and prejudicial error.
After a motion to strike out this testimony was overruled the same witness was allowed to give a statement of Mrs. Hewes, the mother of the defendant, that the defendant said that “if anybody shot the dog he would shoot them.” Another witness was permitted to state that before the shooting George Hewes said that “if his son Allie got into trouble with Bob Bomar he would kill him.” From the form of the questions which elicited some of the testimony, at least it is plain that it was not for purposes of impeachment, and as the statements were not made in the presence of the defendant the reception of the same was unwarranted. “Nothing can be plainer or better established in the law of evidence than that one man shall not be bound by mere declarations of another in his absence, and with which he is in no manner connected, and has in no manner assented to.” (The State v. Keefe, 54 Kan. 202, 38 Pac. 302.) There was other testimony of the same general character and which was subject to the same objection.
Complaint is made of the rulings of the court in instructing the jury, and while some of the instructions given were superfluous and some of those refused might very well have been given, we are unable to see that the jury was misled by any of them, or that the defendant was prejudiced by the rulings thereon.
One other matter deserves attention. The defendant, who was less than sixteen years of age when judgment was pronounced, was sentenced to imprisonment at hard labor in the state penitentiary for a term of one year. The statutes provide that “whenever any person under the age of sixteen years shall be convicted of any felony, he shall be sentenced to imprisonment in a county jail not exceeding one year, instead of confinement and hard labor as prescribed by the preceding provisions of this act.” (Gen. Stat. 1897, ch. 100, § 367; Gen. Stat. 1889, ¶ 2573.) This provision has been in force since the admission of the state, and in 1881 a further provision was made for cases of this character by which a boy under the age of sixteen years, convicted of an offense punishable by imprisonment, might, in the discretion of the court, be sentenced to the reform school. (Gen. Stat. 1897, ch. 100, § 368; Gen. Stat. 1889, ¶ 6516.) Under the statutes quoted, it was within the power of the court to sentence the defendant to the reform school.or to the county jail, but it was not warranted in sentencing him to the state penitentiary.
For the errors mentioned the judgment will be reversed and the cause remanded for a new trial. ■' ■ | [
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The opinion of the court was delivered by
Smith, J. :
The questions involved are : (1) Did an extraordinary occasion exist, within the meaning of the constitutional provision providing for the call of an extra session of the legislature, on December 15, 1898, when the proclamation was issued? (2) "Were the members of the house of representatives .elected at the general election in November, 1896, who assembled in obedience to the proclamation of the governor, entitled to act as members of said house and to vote upon the final passage of said appropriation bills ?
Section 3, article 1, of the constitution, is as follows : “ The supreme executive power of the state shall be vested in a governor, who shall see that the laws are faithfully executed.” Section 5, article 1, reads: “He may, on extraordinary occasions, convene the legislature by proclamation, and shall, at the commencement of every session, communicate in writing such information as he may possess in reference to the condition of the state, and recommend such measures as he may deem expedient.” The sole power is thus deposited in the governor to convene the legislature on extraordinary occasions, and it has been uniformly held that he cannot be compelled by mandamus to act should he refuse for any reason to exercise the power, nor be-restrained by injunction in an attempt to exercise it.
On the argument it was conceded by the defendant’s counsel that in the trial of the issues raised by the return the court could only consider such matters as, under the law, it can take notice of judicially. While the return makes certain allegations which it would require evidence to establish, the consideration of such matters was, under the admission of counsel above stated, eliminated from the case. These averments are as follows :
“ 2. That no material changes had been made in the charges of railroad companies doing business within the state of Kansas for the transportation of persons or property within two years prior to the issuing of said proclamation, and none was threatened or impending at the time such proclamation was issued, and no unusual or material change had taken place affecting the nature of such traffic and transportation with regard to the reasonableness or unreasonableness of the prices charged therefor by said corporations, nor were any such changes threatened at the time said proclamation was issued.”
The admission made is significant. It goes to the proposition that a trial of the question of the existence of an extraordinary occasion cannot be had on evidence commonly resorted to in ordinary cases. We are not convinced, notwithstanding the admission of counsel, that the court ought thus to be restricted in the consideration of the case if jurisdiction be retained ; and the admission that outside of its judicial knowledge the court could not properly, by the hearing of evidence, gain further information of the matters in issue, tends to fortify the position of the plaintiff that no investigation of the constitutional question involved ought to be bad in any court on evidence of any sort.
It is not contended that the proclamation of the governor need contain a statement that the occasion was extraordinary. It does state: “I, ... by virtue of the authority vested in me by the constitution of the state, do hereby convene the legislature of the state of Kansas,” etc. As the governor is wholly wanting in power to convene the legislature except on extraordinary occasions, the language above quoted made it certain by its reference to the constitution that an extraordinary occasion was meant. We are led to believe that if the governor had stopped with the proclamation there would have been no contention over the legality of the call and the subsequent acts of the legislature when assembled ; but it is said that the message sent by him to the senate and house of representatives on December 21 conclusively shows that no extraordinary occasion existed. The message reads:
‘ ‘ To the Senate and House of Representatives,: Although the present executive and a majority of each house of the present legislature were elected under a pledge to the people to enact a maximum-rate law, when the time arrived for fulfilling that pledge the menace of a judicial decision by the highest tribunal in the land, which would make legislative regulation of railroad charges practically impossible, caused many to doubt the wisdom of attempting the promised legislation; and such difference of opinion prevailed that the executive felt called upon to withhold his approval from the compromise measure finally passed. There was then pending undetermined in the supreme court of the United States a case which involved the question whether, as to railroad legislation, the legislatures of theoretically sovereign states should be reduced to the level of city councils or school-district boards, upon the reasonableness, as well as the authority, of -whose acts courts may sit in judgment.
“The decision of that case, announced soon after the adjournment of the legislature, fully justified the fears and anticipations of those who deemed it futile to pass a maximum rate bill; for it reqdered such an enactment a mere proposal of legislation — not a law — which must be submitted to the federal court for approval or rejection. That decision declared that whether the rates of transportation prescribed by a legislature are reasonable is a judicial question, and that, first, a single federal judge, and finally five federal justices, may upon that question reverse and hold null the deliberate judgment of an entire legislature, with its numerous membership,, acting under the same oath as the judges, and calmly deliberating for days in separate chambers ; that the courts may sit in judgment, not merely upon the constitutional power of the legislature to legislate concerning the particular subject-matter, but upon the reasonableness of its acts — the power to act being conceded.
“At the same time the court declined, though urged, to lay down anj?- definite rule by which, in advance of its judgment in each particular case, a legislature might be able to say whether suggested rates would be held reasonable or not; so that whether rates are reasonable can be determined only by a standard which must remain unknown to every human being but the justices-of that court, save as they may vouchsafe to reveal it anew as each successive law comes before them to be destroyed. It follows that you can only suggest maximum rates ; you cannot prescribe them. You can submit for approval a maximum-rate proposition; you cannot enact a maximum-rate law.
“However, while the people of Kansas have for years been demanding a maximum-rate law, the real essence of their demand has been the regulation of railroad charges; and, although we have been deprived of the power to redeem our pledge according to its very letter, it is still our duty to do what we can to redeem it according to its spirit; and that this may be done I have exercised the power given me by the constitution to convene you in special session.”
Being permitted to resort only to our judicial knowledge (the proclamation being conceded to be sufficient in its recitals), the evidence of a lack of power in the governor to do what he did is confined to the message. On this we are called upon to decide whether it discloses such an ordinary and commonplace occasion for the call as to compel a conclusion that no emergency existed. The question is thus narrowed down to whether the statements in the message con vict the governor of a violation of the constitutional provision mentioned.'
It must be remembered that what may seem extraordinary in the estimation of one man or official may be deemed commonplace and ordinary by another. Members of different political parties look at men and measures from different standpoints. One party “points with pride” to a line of political policy, and legislation, while another in estimating the same conduct and policy “views it with alarm.” The suggestions contained in the message, from our knowledge of the doctrines of the political party to which the governor belonged, were but the reiteration of a persistent demand by that party for legislation in respect to freight-rates. In its platforms it had before this made this question conspicuous and, when in control of both branches of the legislature, had passed a freight-rate bill, which was, however, vetoed by the governor.
Clear, palpable and unquestioned violation of the constitutional grant of power to the executive, admitting of no debate, must be apparent before the courts will be justified, if at all, in xxullifying his acts. The fact that a majority or a large proportion of the people of the state may regard proposed legislation as useless, destructive of property rights or vicious will not stamp the subject-matter of such legislation, when demanded by the executive of the lawmaking power, as ordinary or frivolous, warranting the courts in .saying that such request or demand by the governor is violative of the constitutional provision under discussion.
That claxxse of our constitution relating to extra sessions of the legislature was adopted from a very similar provision found in the constitution of the United States, which reads: “ . . . He [the president] may, on extraordinary occasions, convene both houses [of congress] or either of them.” (U. S. Const., art. 2, § 3.) While the president may convene both houses of congress, or either of them, the governor can only call together the legislature, which includes both the senate and house of representatives. Commenting on this power of the president, the late Justice Miller, in his Lectures on the Constitution, page 170, says : ‘ ‘ The principal exercise of this power has been in proclamations by which the president has called the senate together, at the close of a session of congress, for the purpose of considering appointments to office, and sometimes treaties.”
The first call for a session of the senate was on March 1, 1791 (1 Mess. & Pap. of Pres. 587), as follows :
“The President of the United States to the President of the Senate : Certain matters touching the public good requiring that the senate shall be convened on Friday, the 4th instant, I have desired their attendance, as I do yours, by these presents, at the senate chamber in Philadelphia on that day, then and there to receive and deliberate on such communications as shall be made to you on my part. Go. Washington.”
After this the senate was convened by President Washington on three occasions, March 4, 1793, June 8, 1795, and March 4, 1797. The last call (1 id. 212) reads :
“To the Vice-president and■ Senators of the United States, respectively : Sir. — It appearing to me proper that the senate of the United States should be convened on Saturday, the 4th of March instant, you are desired to attend in the chamber of the senate on that day, at ten o'clock in the forenoon, to receive any communications which the president of the United States may then lay before you touching their interests. Go. Washington.”
Under proclamations substantially like the above the United States senate was convened twice by John Adams, and once each by Jefferson, Madison, Monroe, John Quincy Adams, JWkson, Van Burén, Tyler, and Polk. The proclamations of Presidents Tyler and Polk commence : “ Objects interesting to the United States requiring that the senate should be in session,” etc. From the adoption of the constitution to the year 1851, a time when the most distinguished judges and lawyers adorned the bench and bar, there is no suggestion in any such proclamations of the existence of an emergency or extraordinary occasion. Commencing, however, with Fillmore, all the presidents have recited in their proclamations convening the senate the existence of an extraordinary occasion, and all of them have so proclaimed when calling together both houses of congress. ( Messages and Papers of the Presidents, vols. 1 to 9.)
If the proclamation of Governor Leedy was defective,’ it seems to have been much less so than those issued by the presidents for more than fifty years. As before stated, the most usual purpose for which the senate of the United States is convened is for the confirmation of the appointment of officers. The constitution provides : “He [the president] shall nominate, and by and with the advice of the senate shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law.” (U. S. Const., art. 2, § 2.) The president is devoid of power to convene the senate .of the United States except upon an extraordinary occasion. If he is empowered under the constitution to call that dignified body together for the confirmation of several appointees, it follows logically that he has no less authority to convene it for the confirmation of one. Take for example the case of a postmaster. The lowest salary attached to what is known as a presidential post-office is $1000 per year. Yet who, with the possible exception of the prospective postmaster himself, would consider that an extraordinary occasion had arisen should the president call the senate together for the sole purpose of confirming such an officer. Yet the legality of the act cannot be questioned ; and, after confirmation, who would contend that there were any flaws in the title of the incumbent to the office ? Again, the necessity for confirmation of federal officers can hardly be considered -urgent, since the statutes of the United States confer authority on the president to make appointments during a recess of the senate, such appointments to be submitted to the senate at a subsequent session. (U. S. Rev. Stat. [1878], § 1769.)
If we were scrutinizing the conduct of a president in such matters, prior to 1851 we would find repeated calls to the senate for a meeting making no mention of an extraordinary occasion, with no message from the executive to that body following it more than a list of appointees which he desired to have confirmed. Yet all persons, constitutional lawyers, judges, and legislators, have acquiesced in the constitutional right of the president thus to convene the senate for the purpose named.
There being no doubt or question of the power of the president to convene the senate of the United States in extraordinary session to consider appointments made by him, by what process of differentiation is the authority withheld from the governor of Kansas, under the constitution, to convene both branches of the legislature (for he cannot convene the senate alone) in extraordinary session in order that the presence of the senate may be had to consider and confirm his appointments? If an extraordinary occasion is presented in the desire of the president to have his appointment of a thousand-dollar-a-year postmaster confirmed by the United States senate, the occasion cannot be said to be less extraordinary .should the governor desire the appointment of a regent of the state university, or other officer of less consequence, to be confirmed by the senate of Kansas, and should call the legislature together for that purpose.
These illustrations show that the words ‘ ‘ extraordinary occasion,” employed in the two constitutions, have been construed by long-continued custom and practical usage not to be synonymous with overpowering and urgent necessity. The practice has prevailed, with few exceptions, in recent years for the retiring president, by proclamation, to convene the senate to meet on the '4th of March ensuing, for the sole purpose of acting on appointments to be made by the incoming executive. It might well be the subject of debate, when such a call was made by President Cleveland during the expiring days of his first term of office, convening the senate on March 4, 1889, whether he considered it of supreme importance that an extra ses-. sion be held in order that his political friends and adherents might be expeditiously turned out of office and his enemies installed. Yet what court would have entertained a controversy, involving an attack on his constitutional power, to try the fact of the existence of an extraordinary occasion at that time? It will be noted that in' such cases the president making the call does not further communicate with the senate by' message or otherwise, and it is not supposable, when he is succeeded by a political opponent, that he is advised in advance of the appointments to be made, which the senate is called upon to consider.
Thus we have seen that extra sessions of the senate of the United States have been and may be called and held for purposes common and ordinary, and for cause so slight and inconsequential as to be wholly at variance with the idea of extraordinary necessity, under the constitutional grant of power to which reference has been made. While the purpose of the framers of the fundamental law may have been that the executive authority now under discussion should be used only in the event of imperative necessity, yet departure from this intent was begun early in the nation’s history, and, continuing until now, custom has become fixed law, engrafting itself upon the constitution, compelling the courts to recognize and respect it. Are we not then driven to the conclusion that whether a condition exists which is uncommon and out of the ordinary course of things is to be determined by the president or governor in the exercise of discretion which has been reposed in them by the people, and from which, when once exercised, there can be no appeal to the courts? <
It would be an unseemly and unprecedented proceeding for this court, or any court, to entertain a' controversy wherein, by proof obtained from witnesses sworn in the cause, it sought to ascertain judicially whether an extraordinary occasion existed of sufficient.. gravity to authorize the governor to convene the legislature in extra session. If jurisdiction be retained, of such a cause, what is the rule as to the quantum of' evidence necessary to establish that there was no emergency. This is a civil action. In such cases the party" having the preponderance of evidence on his side must' prevail. The utter absurdity of such an inquiry, wherein a judgment either way is made to depend upon the slightest preponderance of the evidence, no doubt furnished the reason why the counsel for the defendant took the position that judicial knowledge alone could be employed, abandoning the second paragraph of the return above, set out,' the truth of its averments necessarily depending upon proof derived from the testimony of witnesses. Discretion is defined, when applied to public functionaries, to be “ a power or right, conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others.” (Judges of the Oneida O. P. v. The People, 18. Wend. 99.) It perverts and destroys the meaning of the word to hold that exercise of discretion may be reviewed or controlled by some other person or tribunal than the person on whom it is conferred. Ministerial duties resting on an executive officer have frequently been -enforced by the courts. Ministerial acts do not flow -from the exercise of discretion, but involve a simple, ■definite duty imposed by law. (Martin, Governor, v. Ingham, 38 Kan. 641, 17 Pac. 162.)
The case of The State, ex rel., v. School Fund, 4 Kan. 261, is cited as an authority that this court will review the discretionary acts of a coordinate branch of the state government, i. e., the legislature. Sections 3 and 5, article 11, of the constitution read:
“Sec. 3. The legislature shall provide, at each regular session, for raising sufficient revenue to defray the current expenses of.the state for two years.
“Sec. 5. For the purpose of defraying extraordinary expenses and making public improvements, the state may contract public debts.”
In 1868 an act was passed by the legislature entitled : “An act providing for the issuance and sale of bonds of the state for the purpose of paying the officers and members of the state legislature and current expenses of the state.” (Laws 1868, ch. 3.) Bonds were issued under this act. They were decided to be void as being issued in violation of said section 5 of the constitution above quoted. The control of discretion was not involved. Chief Justice King-man says (The State, ex rel., v. School Fund, 4 Kan. 269) : “There is no pretense in the law that the expenses were extraordinary in their character.” The question decided was as to the character of the expense. This the legislature had before decided, both in the title and body of the act, and this court merely affirmed its decision. The court said: “The legislature has not-even pretended to declare the expenses extraordinary in their character or in the circumstances attending them.”
In Martin, Governor, v. Ingham, supra, Mr. Justice Valentine, in the opinion, says :
“No court ever attempts, by either injunction or mandamus, or by any other action or proceeding, to control legislative, judicial, executive or political discretion ; and never indeed attempts to control any purely legislative, judicial or executive act of any kind, nor pure discretion of any kind, except when a superior court on appeal reviews a decision of an inferior court. . . . The only acts of public functionaries which the courts ever attempt to control by either injunction or mandamus are such acts only as are in their nature strictly ministerial; and a ministerial act is one which a public officer or agent is required to perform upon a given state, of facts in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed.”
Cases might be imagined, however, where1 the courts would be justified in declaring void the acts of a legislative body assembled at the call of a governor in extra session. For instance, if the declared object of the meeting appeared to be obviously irrelevant or utterly frivolous and trifling, showing a rampant and revolutionary purpose on the part of the executive to subvert his prescribed powders in defiance of all lawful restraint, convincing the meanest understanding that all constitutional limits of authority had been disregarded, thus bringing scandal upon the state, in such case it might well be held that judgment and discretion had fled, and that the act was done through a blind, unreasoning resort to what might be likened to physical force. Or if it should appear from the official declarations of the governor that he resented the limitations set by the constitution upon his authority, contending that no extraordinary occasion existed or emergency had arisen, or that he denied that any check whatever was imposed upon his power to act, and proclaimed that the special session was called to pass laws of a general nature, no particular legislation being mentioned, the declared object being merely to shorten the work of the regular session, and thus showing a deliberate and studied design to ignore the constitution, a legal inference would at once arise that he had not used any discretion whatever, for discretion necessarily implies the exercise of a certain degree of common sense. However, it could hardly be presumed that in either event mentioned the members of the legislature would give heed to a call so grossly violative of the constitution, which each of them is required on oath to support and defend. This being a republican form of government, the people are on guard. They have made a constitution for the guidance of their servants in the discharge of official duties. If a governor transgress, by abuse of discretion or otherwise, they have made provision for his impeachment and deposition. Should he escape this punishment, the sovereign power resides with’ the people to condemn his acts at the polls by removing him from a place of power after a brief term of office.
This court has repeatedly decided that it cannot review legislative discretion. In the early case of State of Kansas, ex rel. Johnson, v. Hitchcock, 1 Kan. 178, section 17 of article 2 of the constitution was under consideration. It provides: “In. all cases where a general law can be made -applicable, no special law shall be enacted.” It was held that the language used leaves discretion to the-legislature, recognizing the necessity of some special legislation, and that it seeks only to limit, not to prohibit, it. The legislature must determine whether its purpose can or cannot be expediently accomplished by a general law. (Knowles v. Board of Education, 33 Kan. 692, 7 Pac. 561.)
The adjudicated cases are few in which the precise question before us has been considered. However, there are authorities directly in point. In, Whiteman’s Executors v. Railroad, 2 Harrington (Del.) 514, it is said :
“Another objection to the validity of this supplement is founded upon the assumption that the general assembly which passed it was not constitutionally convened, and that consequently not only this but all its acts at that session are absolutely void. In the constitution of this state (article 3, section 12) the governor is authorized to convene the general assembly on extraordinary occasions. This is a power the exercise of which the framers of the constitution have seen fit to entrust to the chief executive officer of the state alone. As they have not defined what shall be deemed an extraordinary occasion for this purpose, nor referred the settlement of the question to any other department or branch of the government, the governor must necessarily be himself the judge, or he cannot exercise the power. He may err, but this court has no jurisdiction to review his decision or to correct his error. If he act corruptly he is liable to impeachment; but the doctrine that a mistake, or even corruption^ on the part of the governor in convening the general assembly invalidates the acts of that body would be productive of incalculable mischief.”
In Colorado the legislature is authorized to submit to the judges of the supreme court important questions involving public interests. The judges are then required to decide the same, although no case is pending before the court. In Veto Power, 9 Colo. 642, 21 Pac. 477, the supreme court was asked by the legislature to give an opinion whether the decision of the governor in convening the legislature in special session was conclusive or not. The court said : “Whether or not an occasion exists of such extraordinary character as demands a convention of the general assembly in special session, under the provisions of section 9, article 4, of the constitution, is a matter resting entirely in the judgment of the executive.” Again this question was before the supreme court of Colorado, and their opinion, reported in In re Governor’s Proclamation, 19 Colo. 333, 35 Pac. 531, contains the following language: “The governor is thus invested with extraordinary powers. He alone is to determine when there is an extraordinary occasion for convening the legislature.”
In People v. Rice, 65 Hun, 20 N. Y. Supp. 296, the supreme court of New York, in deciding this.question, on page 245, uses the following language : “The governor by Ms proclamation assumed to convene the legislature in extra session under the provisions of section 4, article 4, of the constitution. This article gave the governor power to convene the legislature in extraordinary session ; and from the very nature of this provision he must be the judge as to what constitutes the extraordinary occasion.”
In Rhode Island there exists the same provision which is found in Colorado, authorizing the house of representatives to propound questions to the supreme court for an opinion. In 1893 the house of representatives propounded to the supreme court of Rhode Island certain questions touching the duties and powers of the governor. The supreme court rendered its opinion as found in In re the Legislative Adjournment, 18 R. I. 826, 27 Atl. 327. Among other things the court said :
11 The powers vested in the executive department are to be exercised by the governor under his oath of office, and under the express constitutional injunction that he ‘ shall take care that the laws be faithfully executed ’ ; and he is responsible to the people alone for the manner in which he discharges the duties of his high office. If he violates the constitution or the la-ws which he is sworn to support he may be impeached and removed from office, and may also be indicted and punished like any other person. But for the exercise of his powers and prerogatives as governor neither the legislative nor the judicial department of the government has any power to call him to account, nor can they or either of them review his action in connection therewith. In short, it cannot be questioned that the governor is supreme and independent in the executive department, as is the legislature in the legislative and the court in the judicial department of the government. Moreover, this is a case in which the executive department of the state government has the power and duty to finally pass upon a question of constitutional construction. . . . The power of the executive which we are considering is a political power, ‘in the exercise of which/ in the language of Chief Justice Marshall, in Marbury v. Madison, 1 Cranch, 137, ‘he is to use his own discretion and is accountable only to his country in his political character' and to his own conscience, and whatever opinion may be entertained of the manner in which the executive discretion may be used, still there exists no power to control that discretion/ The subject is political.”
The supreme court of Wisconsin, in State v. Farwell, 3 Pinney, 439, in speaking of this question, says :
“But if the right is contingent, and is made to depend upon the discretion of the executive, in such case, until that discretion be exercised no right can vest; and if, in the exercise of that discretion, the governor deny the right, then all claim of right is gone. His determination is final upon the question of right, as much as is that of a court of competent jurisdiction.”
In United States v. Arredondo, 6 Pet. 729, the supreme court of the United States uses the following language :
“It is a universal principle, that where power ox-jurisdiction is delegated to any public officer or tribunal over a subject-matter, and its exercise is confined to his or their discretion, the acts so done are bindixxg and valid as to the subject-matter; and individual rights will not be distxxrbed collaterally for anything done in the exercise of that discretion within the authority and power conferred. The only questions which can arise between an individxxal claiming a right under the acts done and the public or any person denyixxg its validity are power in the officer and fraud in the party. All other questions are settled by the decision made or the act done by the tx-ibunal ox-officer, whether executive, legislative, or jxxdicial.”
The late Judge Cooley, regarded everywhere as one of the greatest of our constitutional lawyers, and the highest authority on constitutional questions, at page 41 of his Constitutional Limitations, says :
"Sometimes the case will be such that the decision when made must, from the nature of things, bg conclusive and subject to no appeal or review, however érroneous it may be in the opinion of other departments or other officers. But in other cases the same question may be required to be passed upon again before the duty is completely performed. The first of these classes is where, by the constitution, a particular question is plainly addressed to the discretion or judgment of some one department or officer, so that the interference of any other department or officer with a view to the substitution of its own discretion or judgment in the place of that to which the constitution has confided the decision would be impertinent and intrusive. Under every constitution cases of this description are to be met with; and, though it will sometimes be found difficult to classify them, there can be no doubt, when the case is properly determined to be one of this character, that the rule must prevail which makes the decision final. We will suppose, again, that the constitution empowers the executive to convene the legislature on extraordinary occasions, and does not in terms authorize the intervention of any one else in determining what is and what is not such an occasion in the constitutional sense; it is obvious that the question is addressed exclusively to the executive judgment, and neither the legislative nor the judicial department can interfere to compel.action if the executive decides against it, or to enjoin action if, in his opinion, the proper occasion has arisen.
"But there are cases in which the question of construction is equally addressed to two or more departments of the government, and it then becomes important to know whether the decision by one is binding upon the others, or whether each is to act upon its own judgment. Let us suppose once more that the governor, being empowered by the constitution to convene the legislature upon extraordinary occasions, has regarded a particular event as being such an. occasion, and has issued his proclamation calling them together with a view to the enactment of some particular legislation which the event seems to call for, and which he specifies in his proclamation. Now* the legislature are to enact the laws upon their own view of necessity and expediency; and they will refuse to pass the desired statute if they regard it as unwise or unimportant. But in so doing they indirectly review the governor’s decision, especially if, in refusing to pass the law, they do so on the ground that the specific event was not one calling for action on their part. In such case, it is clear that while the decision of the governor is final, so far as to require the legislature to meet, it is nob final in any sense that would bind the legislative department to accept and act upon it when they enter upon the performance of their duty in the making of laws.”
As stated by Judge Coolej'-, the legislature in this state, when convened, could wholly ignore the reasons given by the governor calling it together, and disregard entirely all suggestions made by him touching the necessity of proposed legislation. Not being restricted by the constitution to the consideration of matters within the limits of the governor’s proclamation, it might proceed to enact laws having no relevancy to the object for which it was convened. The fact that the railroad law creating a court of visitation does not take effect until March 15 cannot affect the question of the necessity of convening the legislature in 'December for the enacting of laws affecting freight-rates. The acts of the executive cannot be judged by the action of the legislature. If no railroad legislation had been enacted,- that fact would have been no proof that the governor’s proclamation and message were unauthorized.
We come now to the consideration of the second question in the case. Did the house of representa tives which, united with the senate on December 21, 1898, in special session of the legislature, constitute a legal organization? The contention is that chapter 171 of the Laws of 1897, apportioning the state into representative districts, which by its terms went into effect on June 1, 1898, and repealed all acts in conflict with it, terminated the existence of the house of 1897, the members of which it was supposed had been elected for a term of two years ; and there is the further claim that if any house existed when the special, session convened it was the one elected in November, 1898.
This proposition has at least the merit of novelty. It has been the generally accepted opinion that the terms of members of the legislature began on the second Tuesday of January; that the representatives held their offices for two years and senators for four years from that time, and that their terms, as fixed by the constitution, were not and could not be shortened by the passage of an apportionment act. This view of the constitution and statutes has been acquiesced in by the executive, legislative and judicial departments of the state government since its organization, and such an interpretation, adopted, as it has been, by the people for about a third of a century, is entitled to much force. In our opinion, the passing of an apportionment act does not shorten or affect the term of office of members of the legislature then serving, nor was it intended that it should have such effect.
The constitution plainly fixes the term of a representative at two years, but does not expressly provide when the legislative term shall begin. In the absence of such provision it is competent for the legislature to fix the commencement of the term. That the legislature possesses this power was .determined in an early day in State of Kansas, ex rel. Crawford, v. Robinson and others, 1 Kan. 17; and at the same time the court rejected the theory that the terms began when the members were elected or declared to be so. Since that time, and in accordance with that decision, the legislature fixed the commencement of the term by providing as follows : "The regular term of office for members of the senate and house of representatives shall commence on the second Tuesday of January next succeeding their election.” (Gen. Stat. 1889, ¶ 2721; Gen. Stat. 1897, ch. 52, § 8.)
This statute is in harmony with the constitutional px’ovisions on the same subject, which manifestly contemplate that the term shall begin at that time. In section 25, of article 2, of the constitution, it is provided that the regular sessions of. the legislature shall commence on the second Tuesday of January, and in section 6 of article 1, where provision is made for adjournment in case of a disagreement between the two houses, the governor is expressly authorized to adjourn the legislature to such a time as he may think proper, " not beyond its regular meeting.” The clear implication of this provision is that each house of representatives shall contixxue to exist until the beginning of the next regular session. Whatever force may be given to this implication, it is clear that these provisions, together with the act of 1868, fix the second Tuesday in January next after the election as the time for the beginning of legislative texuns, and each representative elected is entitled to: hold his office for two years. The law fixing the commencement of the term was passed ixx 1868, and since then the texuns of representatives and senators have been extended in length and the sessions of the legislature have been made bien nial by the amendment of 1877. This amendment does not in terms repeal the act, nor does it contain anything that would'operate as a repeal by implication. The act- is prospective in character, and is just as appropriate and applicable under the amendment as it was under the original provision of the constitution. The act was not repealed by the amendment, but is still effective in fixing the commencement of the terms of members of the legislature. (Prouty v. Stover, Lieutenant-governor, 11 Kan. 235.)
The legislature- may provide when the terms of members shall begin, but it cannot abridge or extend the terms fixed by the constitution. As the second Tuesday in January, 1897, must be held to be the commencement of the term of members of the house in question, and as the constitution fixes the duration of the term at two years, is it not a violent assumption that the legislature intended, or had authority, to abridge the terms of the members to about seventeen months, thus completely abolishing one branch of the legislature? Did it, by apportioning the state and providing for the election of the succeeding legislature, constitutionally destroy the house of representatives and practically legislate itself out of existence? Nothing in the language of the act indicates such a purpose, if, indeed, it had the power to accomplish it.
It is contended, however, that the repeal of the former apportionment act in effect destroyed the old representative districts and necessarily abolished the offices of the representatives elected therefrom. The situation is likened to the abolition of a county or township, in which case it has been held that the abolition of the municipal organization has the effect of ousting the officers of such organization.from office. This is decided on the theory that the jurisdiction of the officers is confined to the municipality for which they were elected, and that when the municipality within which the official functions of the officers are to be performed is abolished, the officers themselves go with it. AVe cannot see the analogy between the two cases. In that case the officers cannot perform their official functions because the organization- in which they are to be performed no longer exists. In the case of a member of the legislature, although he is chosen from and must reside within his district, he performs no official function therein. Instead of acting individually within his district, he becomes a member of an organization which acts only in its organic capacity, and at the capital of the state. He is in a certain sense an officer of the state ; and, with others, constitutes a department of the state government. The district from which he is elected is not a municipal or quasi-municipal corporation, and it never acts, or is dealt with, as a political entity. Districts are provided to create a system by which the members will be close to the people whom they represent, and from which members are to be elected. In creating districts for this purpose, the legislature fixes the boundary lines and designates them by numbers, but that is the extent of the organization and the only reason for their existence. The voters within the limits of a district are an electoral body who choose one of their number to represent them in the legislature, and no other action is ever taken by them as a result of such organization. The member is therefore not an officer of the district as the probate judge is an officer of the county, or a justice of the peace an officer of the township.
The matter of apportionment is only a provision for future elections, and is not designed to affect the title to office or tfie tenure of the members making the apportionment. Only brief periods intervene between apportionments, if constitutional requirements be observed, and they must not only be made, but they must go into effect, long enough before the election to give the electors opportunity to comply with the ballot and election laws. This necessarily requires considerable time, and certainly it was not contemplated that during this long period the office of representative should be abolished, or that the legislature could not, however great the emergency, be convened. The apportionment act provided means for electing the representatives whose terms began on the second Tuesday in January, 1899, and had no effect whatever except as a provision affecting future elections. The territory constituting the old districts remained, and the constitutional terms of the representatives were not shortened by the shifting of the lines and the change of the numbers ; nor was any one legislated out of office by the passage of the act. An examination of the apportionment act shows that but little change was made in the districts. In most cases a single county constituted a legislative district; and where a county was divided into two or more districts, the territory composing each district is largely the same as was included in it under the former act, but designated by a different number. The exterior limits being substantially as they were before, and some, if not all, of the territory of the old districts constituting a part of the new, leaves but little ground for the assertion that the members were left without territory or districts. Our view, however, is that the provisions made for future elections were not intended and did not affect the tenure of office of the members making them, and that the members elected in November, 1896, were entitled to hold their offices for the constitutional period of two years, and up to the second Tuesday in January, 1899.
It is significant that the representatives elected in November, 1898, did not respond to the call of the governor or assume that they .were entitled to their offices before the time for the convening of the regular session. The members elected in 1896 only claimed a place in the house of representatives at the special session. No person disputed their rights, claimed their seats, or molested them in the discharge of tlieir duties. The house so organized was recognized by the other branches of the lawmaking power, and the validity of the organization was not challenged until the present proceeding was begun.
It follows, then, that the house of representatives was a legal organization, and that the preliminary requirements of the constitution leading up to its meeting with the senate as a legislature in special session were observed.
For the reasons herein expressed, the motion of the plaintiff for a peremptory writ of mandamus, notwithstanding the answer and return, will be sustained and the writ issued. | [
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Per Curiam :
This was an action brought by J. C. Stone, jr., against the Leavenworth, Topeka & Southwestern Railway Company and others to declare a forfeiture of the railway company’s right of way over plaintiff’s land, and to quiet his title and possession to the strip embraced in such right of way. The railway company is a Kansas corporation. No summons was issued against and served upon it, but in lieu thereof an affidavit was filed in the following words :
“ J. C. Stone, jr., being first duly sworn on his oath, states that he is the plaintiff in the above-entitled cause; that the above-named defendant, or the American Loan and Trust Company, trustee, is a non-resident of the state of Kansas, and that personal service of summons cannot be had upon said American Loan and Trust Company or upon the Leavenworth, Topeka & Southwestern Railway Company within the state of Kansas ; that the plaintiff with due diligence is unable to make personal service of summons upon the defendants above named, within the state ; that the said cause is to quiet the title to real estate, as provided by section 72 of the code of civil procedure; that the plaintiff -is unable to find any of the officers of the Leavenworth, Topeka & Southwestern Railway Company.”
Upon this affidavit newspaper publication was made against the railway company. The service thus made was attacked by appropriate motions and the motions were ovei’ruled. An answer was filed, and upon trial judgment was rendered for plaintiff in accordance with the prayer of the petition. This judgment, as shown by the record in the cases of Atwood v. The State, and Chaplin v. The State (59 Kan. 728, 54 Pac. 1057), recently decided by this court, was more in the nature of a judgment in ejectment than otherwise. This, however, is probably immaterial to a correct understanding of the present case.
The railway company prosecutes error to this court, alleging, among other things, the insufficiency of the service made upon it. Its contention is correct. Section 72 of the civil code declares the cases in which service by newspaper publication may be made, and section 73 prescribes the substance of the affidavit to be filed as a foundation for publication notice. The last sentence in section 73 i'eads as follows: “This act shall apply to domestic corporations which have not been legally dissolved in cases where the officers thereof have departed from the state or cannot be found.” The affidavit in question is defective in several particulars. It states that the action is one “ to quiet title to real estate as provided by section 72 of tbe code of civil procedure.” This is a mere statement by the plaintiff of the character of his action. It is not, as required by the statute, “ a showing that the case is one of those mentioned” by section 72. (Claypoole v. Houston, 12 Kan. 326.) Again, inasmuch as an action concerning real estate is not transitory, but is local, and must be brought in the county where the land is situate, the affidavit should state the location of the land. This was not done. Under section 73 of the code it is not sufficient in suits against domestic corporations merely to state that the plaintiff “is unable to find any of the officers.” The affidavit should state in the language of the law that the offiQers “ cannot be found.”
Personal service of summons may be made upon the officers of a corporation mentioned in section 65 of the civil code (Gen. Stat. 1897, ch. 95, § 65; Gen. Stat. 1889, ¶ 4147), and among these is the secretary. It was shown upon the hearing of tlie motion to set aside the service that, while the secretary of the defendant company did not reside within the state, an officer denominated by it an “ assistant secretary” did live within the state. In such case we think a service upon him would have bound the company.
The defendant’s motion to set aside the service upon it should have been sustained. It is ordered done, and the judgment is therefore reversed. | [
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The opinion of the court was delivered by
Johnston, J. :
This case comes here from the court of appeals because one of the judges of that court was disqualified to sit and the remaining judges were divided in opinion as to the disposition of the case.
From the record, it appears that Americus V. Jewett brought an action upon a promissory note against John F. Baxter, as principal, and Malott & Co., as indorsers, and recovered a judgment against Malott & Co. for $1044.65. The defense of Malott & Co. was that the petition contained no allegation of demand for payment or notice of non-payment and protest, and no reason or excuse why payment was not demanded and protest made. They took the case to the court of appeals, and that court held their defense to be good and that the petition of Jewett did not state facts sufficient to constitute a-cause of action. (Malott v. Jewett, 1 Kan. App. 14, 41 Pac. 674.) When the case was remanded to the district court the plaintiff filed an amended petition, in which he asked judgment for $1000, and which set forth certain preliminary facts and circumstances upon which he claimed that a cause of action upon a trust arose in favor of the plaintiff and against the defendants. The defendants who constituted the partnership of Malott & Co. moved the court for an order to strike the amended petition from the files because it was not in furtherance of justice and that it substantially changed the plaintiff’s claim. The motion was sustained, and the amended petition stricken from the files. Of this ruling the plaintiff complains.
We cannot say that the ruling was erroneous. While the courts are and should be liberal in permitting parties to amend their pleadings, they are not warranted in allowing amendments which substantially change the claim or defense previously relied on. (Gen. Stat. 1897, ch. 95, § 139; Gen. Stat. 1889, ¶ 4222.) The court of appeals correctly viewed the original petition as an attempt to recover on a promissory note, and, the averments being insufficient to show a liability against the indorsers, it would have been proper to have allowed an amendment alleging a demand of payment, notice of non-payment and protest, or a reason why payment was not demanded and protest made, or to have made any other amendment germane to the original petition. Instead of that, the plaintiff undertook-to introduce a new and distinct cause of action. While some of the facts stated are common to both petitions, the amended petition was a wide departure from the first. It not only changed the form of the action, but the nature of it as well. The original petition was based on an unconditional written promise to pay money, while the amended petition was based on an implied trust alleged to have grown out of a series of transactions running through a period of years.
The court is vested with considerable discretion in the-matter of allowing amendments, and its ruling in granting or refusing leave to amend will not be disturbed unless there appears to have been a palpable abuse of discretion under all the circumstances. In view of the change in the form and character of the action by the proposed amendment and of the time and circumstances under which it was made, we think the court was justified in its ruling, and the same is hereby affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The appellant, William Henry Suppe, was charged in the information with having unlawfully, knowingly and feloniously received into his possession certain personal property which had been unlawfully and feloniously stolen, taken and carried away from the Carterville Mercantile Company, of Carterville, Mo., which he knew was stolen property at the time he received it, consisting of certain clothing, of the aggregate value of thirty-seven dollars, the property of the Carterville Mercantile Company aforesaid. A motion to quash this information upon the ground that the same did not state a public offense was overruled, and this action of the court is assigned as error.
This contention of the appellant must be sustained. The information does not disclose whether the Carter-ville Mercantile Company was a partnership, joint-stock company, or a corporation. While it bears a name appropriate to corporate existence, yet it may be -that of a voluntary association of two or more individuals. Indéed, the proof offered at' the trial of this case showed that said company was a partner ship composed of two individuals, but later, on the hearing of the motion for a new trial, a charter was produced showing that the same was a corporation organized and existing under the laws of the state of Missouri.
In the case of State v. Mead, 27 Vt. 722, the defendant was charged with obstructing, impeding and stopping the cars and engines of the Vermont Central Railroad Company. The court said :
“ The expression ‘ railroad company’ does not ex vi termini import that of necessity they must be a corporation under the laws of this state or any other state; and we cannot, unless it is so alleged, take judicial notice that such is the fact. This averment in the indictment would be sustained by proof that the railroad company was a voluntary association.”
In the case of People v. Bogart, 36 Cal. 245, which was a prosecution for larceny, the ownership of the property was laid in the Wells-Fargo Express Company without any specification of the copartnership, if it was a partnership, or any allegation that the Wells-Fargo Express Company was a corporation, and it was held that the indictment was defective. A defendant should be apprised with certainty of the exact charge against him, sufficient to enable him to prepare his defense, and the ownership of property which' he is charged with having stolen is an essential allegation.
In this state, if an offense be committed upon or in relation to any personal property belonging to several partners or owners, the indictment or information for such offense is sufficient if it allege such property to belong to any one or more of such persons or owners, without naming all of them. (Gen. Stat. 1897, ch. 102, § 74; Gen. Stat. 1889, ¶ 5189.) Thus, as regards partnerships, the common law has been abrogated, for at common law the names of all the partners or joint owners must be stated. (Commonwealth v. Trimmer, 1 Mass. 476.) Hence, if the Carterville .Mercantile Company was a partnership, it would seem, by virtue of this statute, to be necessary to allege at least that the property belonged to one of the partners, and that the mere use of the name in the information under which the partners conducted the business would be insufficient. Sometimes a single individual' deals as a sole trader, using a name indicating a firm, and it is lawful for him to do so.
In Wallace v. The People, 63 Ill. 451, the accused was charged with having stolen property of the American Merchants Union Express Company. It was held that, in the absence of an averment that such company was a corporation, ownership of the property was defectively stated, and that a motion to quash the indictment should have been sustained.
In Nassitts v. The State, 36 Tex. Crim. 5, 32 S. W. 698, the defendant was charged with swindling and defrauding the First National Bank of Goliad. The judgment of conviction was reversed because the indictment nowhere alleged that said bank was an individual, partnership, joint-stock company, or corporation. See also People v. Schwartz, 32 Cal. 160; Graves v. The State, 63 Ala. 134.
We cannot appreciate the force of the argument made by the appellant to the effect that there is no statute making it punishable to receive stolen property here, knowing the same to have been stolen in another state. The statute covering the offense charged is broad enough to embrace larcenies committed anywhere. Further, in a prosecution for bringing stolen property into this state, the law makes the retaining possession of the stolen property here equiv alent to an original act of theft, and declares that it may be punished in the same, manner as the original larceny. Every asportation of the property animo furandi is a new taking. (McFarland v. The State, 4 Kan. 68; The State v. Price, 55 id. 606, 40 Pac. 1000; The State v. Wade, 55 id. 693, 41 Pac. 951; Gen. Stat. 1897, ch. 100, § 88; Gen. Stat. 1889, ¶ 2559.) We think the appellant can be convicted for knowingly receiving stolen property, although the same may have been stolen in another state.
The court erred in refusing to sustain the motion to quash the information, and for that reason the judgment of the court below will be reversed. | [
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The opinion of the court was delivered by
Johnston, J.:
On a canvass of the votes cast at the recent election of officers in the city of Leavenworth, George W. Kierstead was declared to be elected to the office of councilman.- W. W. Carney, who was an opposing candidate for the same office, instituted a contest before the city council in pursuance of a city ordinance purporting to authorize a contest. The city council met at an appointed time to consider the contest, the mayor, Shaw F. Neeley, presiding, and after the contest court was organized motions for the adoption of rules governing the contest were made, but the mayor refused to submit such motions or to submit appeals taken from his decisions refusing to submit. He also refused to administer an oath to the city clerk, who had charge of the ballots proposed to be counted, and whom the contestor desired to have sworn as a witness in order that the ballots might be identified. This proceeding was then brought to compel the mayor, as the presiding officer of the contest court, to submit such motions, to administor oaths to witnesses, and otherwise to proceed with the contest in an orderly way and in accordance with laws and the rules established for that purpose.
Several reasons are suggested for the action of the mayor,.but the one mainly relied on by his counsel is that there is no ordinance of the city of Leavenworth providing for a contest, or any authority in the city council to determine the rights of contesting parties to city offices. The ordinance, the existence and validity of which are assailed, was passed in 1862, and, so far as it is pertinent to this controversy, provides :
" Sec. 20. If any person desire to contest the election of any person appearing by said returns to have been elected to any office, such person shall state in writing to the city council, at said meeting, the grounds of said contest, and the city council shall fix a time and place at which they will hear and determine said contest.
"Sec. 21. The person making such contest shall, within twenty-four hours after filing with the city council a notice of said contest, serve the person whose election he contests a similar nbtice of the grounds of said contest, with the time and place at which the city council will hear and determine the same.
" Sec. 22. At the time and place fixed by the city council they shall hear and determine said contest as in their judgment shall appear just and lawful, and the decision rendered by the city council shall be final and conclusive.”
When the ordinance was passed a statute was in force substantially in the same form as it exists now, authorizing the city council to provide by ordinance for the election of city officers, and for deciding contested elections. (Comp. Laws 1862, ch. 46, § 14; Gen. Stat. 1889, ¶ 555; Gen. Stat. 1897, ch. 32, § 111.) It is contended that the provisions of the ordinance quoted are not in force, but were repealed, or nullified, by the enactment of the "Australian-ballot law.” There is no claim that the ordinance was expressly repealed, but simply that subsequent statutory provisions are so inconsistent with it as to effect an implied repeal. The legislature may by statute repeal or annul a city ordinance, but repeals by implication are never favored, and “the right to pass’ordinances given to a municipal corporation by its charter will not be adjudged to be taken away by subsequent legislation unless it is wholly impossible to reconcile the state right with that conferred by the charter.” (17 A. & E. Encycl. of L. 246; In re Mollie Hall, 10 Neb. 537, 7 N. W. 287; The Trustees of the Erie Academy v. City of Erie, 31 Pa. St. 515; The State, ex rel. Warring, v. The Mayor, 24 Ala. 701.)
One contention is that the act of.1862, under which the ordinance providing for contests was passed, had been superseded, and that the repeal of that act necessarily annuls the ordinance. It is true that there have been revisions of the statutes relating to cities, but in these the provision in question has been reenacted substantially in the same language, and in this way it has been continued uninterruptedly in force. Such reenactment, although one statute was substituted for another, did not abrogate the ordinance authorized by the statute, for the reason that the statutory authority for the ordinance was never withdrawn. Such cases are likened to the adoption of a new constitution, with respect to which it has been held that the laws passed under the old constitution, and which are in harmony with the provisions of the new, remain in force the same as though no new constitution had been adopted. (Cass v. Dillon, 2 Ohio St. 607; Chamberlin v. The City of Evansville, 77 Ind. 542; Dillon, Corp., §§ 52, 53.)
It is said that some features of the ordinance are repugnant to the “Australian-ballot law ” and other provisions-of statute,'resulting in an implied repeal of the former. The subsequent legislation to which attention is called relates mainly to the qualification of voters and to certain steps preceding the election, but it is in no sense repugnant to the holding of a contest to determine the rights of parties after the election has been held. Only a clear repugnancy between such provisions would operate as an implied repeal, and we are unable to discover any such conflict as would require an overthrow of the ordinance.
The mayor is the presiding officer of the council, with authority to administer oaths pertaining to all matters wherein an oath is required. (Gen. Stat. 1897, ch. 32, §55.) The mayor assumed the right to preside over the council when sitting as a contest court, as we think he had a right to do, and it was his duty to administer oaths when witnesses were offered for that purpose.
There is a further contention that this is a contest of the right to an office, and that mandamus is inapplicable and unauthorized, but that quo warranto is the ordinary and proper remedy in such cases. This proceeding is not brought to determine the right to an office, but to compel an officer to perform the duties devolving upon him in a contest for an office in another tribunal — a contest authorized by statute. It is an appropriate, and'in fact the only effective remedy open to the plaintiff.
Some other objections of an unimportant character are made, but we find nothing substantial in them or in any of the defenses set up by the defendant. The motion to dismiss is without merit. It is the duty of the mayor as the presiding officer of the council to administer oaths to witnesses when required, to submit motions made by members of the council, and otherwise to perform the duties devolving upon him as the presiding officer of the contest court in' an orderly way, according to the requirements of the statute and the rules prescribed by the council.
The peremptory writ will issue, commanding the defendant to call a meeting of the council at some time before the 1st day of July, 1899, and, when the corn-test court is reconvened, to proceed with the performance of the duties named in the alternative writ and hereby required. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to set aside an instrument called an “Oil and Gas Conveyance” and to quiet title to real estate. Defendants’ demurrer to the plaintiffs’ second amended petition was sustained. Plaintiffs have appealed.
After the formal allegations, the second amended petition alleged that on January 24, 1933, plaintiffs owned in fee simple a described quarter section and on that date executed an instrument designated “Oil and Gas Conveyance”; that it was attached to the petition as Exhibit “A”; that the Landowners Oil Association attempted to transfer certain of the rights claimed by it under Exhibit “A” and such rights were claimed by The Sinclair Prairie Oil Company and National Cooperative Refinery Association and those two companies claimed some interest in the land.
The amended petition then alleged that the instrument was void for want of consideration because it was indefinite, unconscionable and grossly unfair to plaintiffs and they were entitled to have it set aside and their title quieted.
The amended petition then alleged the instrument purported to lease all oil and mineral rights in the land, creating a seven-eighths working interest, and in addition purported to assign a one-eighth royalty, and as a result of conveyances by Landowners and its assigns all executed without notice or consideration to plaintiffs the seven-eighths, the working interest was claimed, one-half by Sinclair Prairie and one-half by the National Cooperative and one-eighth royalty by Landowners and Sinclair Prairie, the claimed interest in the oil and gas accruing was being retained by Landowners, Sinclair Prairie and the National Cooperative without right.
The amended petition then alleged that the land described was located within a producing oil pool and a map showing pro ducing wells and dry holes was attached; that three producing wells were shown offsetting plaintiffs’ land. The date of the completion of these wells was pleaded.
The petition then alleged that after the completion of these wells Landowners delivered to the Black-Marshall Oil Company a purported oil and gas lease covering the land in question, reserving to Landowners Oil one-eighth of the oil produced, and at the time this lease was executed the Black-Marshall Oil Company owned or controlled all of the stock of the Landowners Oil and notwithstanding the fact that drilling and completion of these producing wells had caused the leasehold interests to become valuable there was no consideration or notice to the plaintiffs of such leasing and no consideration to Landowners for the granting of that lease.
The amended petition next alleged the lease granted to Black-Marshall purported to cover the entire leasehold interest in the property. If valid, it was a half interest lease because Landowners Oil had transferred an undivided one-half of the working interest it claimed under Exhibit “A” and this was owned by defendant, Sinclair Prairie; that thereafter Blaclc-Marshall and Sinclair Prairie commenced drilling on plaintiffs’ land on August SO, 1944, and the well was- completed on November 1, 1944, and thereafter Black-Marshall assigned its interest in the leasehold to the defendant, the National Cooperative; that the defendants, Sinclair Prairie and Black-Marshall, and the defendant, the National Cooperative, had without any right produced oil and gas from the premises of the plaintiffs and sold it for large sums of money, the amount of which plaintiffs did not know; that each of the defendants was aware of all of the parts set out in the petition at the time the interests were acquired. Plaintiffs then stated that if the accounting of the oil and gas operations by the defendants disclosed that defendants had not recovered from the sale of such oil and gas the reasonable cost of such operation, the plaintiffs were able and offered to pay the defendants the amount of such deficiency.
The prayer of the petition was that Exhibit “A” be canceled; that plaintiffs’ title to the land be quieted against Landowners and the Sinclair Prairie insofar as they claimed to own one-eighth royalty; that Landowners and Sinclair Prairie be required to account to plaintiffs for the oil and gas produced from the land and that plaintiffs’ title be quieted against all of the defendants and they be forever barred from any interest in the land; that the defendants claiming to own the operating one-eighth working interest be required to account to the plaintiffs for the oil and gas produced from the land and their expenses in connection therewith and if such proceeds were in excess of the reasonable cost of such development that plaintiffs have judgment against defendants for the amount of such excess.
Exhibit “A,” to which reference has been made, was attached to the amended petition. It provided that for a consideration of one dollar and of the agreements contained therein plaintiffs leased to the Landowners the land in question for a term of twenty years or as long as oil or gas should be produced. It recited as a consideration the grantee agreed to place the land in an acreage pool, known as Pool 1, to consist of at least 25,000 acres and not to exceed 500,000 acres; that the privilege of assigning the whole or any part of the estate was expressly allowed to the grantee, and that should the grantee drill or mine the premises and produce oil it should deliver to the collective credit of the members of the pool one-eighth of all oil produced or at the grantee’s option it should pay to the credit of the members of the pool one-eighth of the market value of gas produced; that all the oil or royalty should be the collective property of all the members of the acreage pool and the money should be deposited to the credit of a trustee; that the grantee in consideration of the formation and management of the pools should after the trustee expenses had been paid receive twenty-five percent of all income; that the trustee should not less than quarterly make distribution of the money held by him as trustee; that there should first be deducted and paid to the members of the pool seventy-five percent of the money held by the trustee and each member of the pool should be entitled to share in the proportion that the number of acres he had conveyed to the pool bore to the actual number of acres comprising such pool; that the trustee should next pay to the grantee twenty-five percent of the moneys available for distribution in payment of its services, from which payment the Landowners should pay all the banking and trusteeship expenses.
The grantor acknowledged in the instrument that Pool No. 1 had at the time of its execution consisted of more than 25,000 acres assembled by the grantee in accordance with its terms. Other provisions of the instrument do not concern us now.
The defendants demurred to this petition on the ground that it did not state facts sufficient to constitute a cause of action. On March 18, 1949, this demurrer was overruled.
At that time the last pronouncement of the law with reference to this particular conveyance was the opinion in Sinclair Prairie Oil Co. v. Worcester, 163 Kan. 540, 183 P. 2d 947. It was filed August 12, 1947. There we held that under the particular facts pleaded the demurrer to the petition of plaintiffs in that case, the same parties who are defendants here, should have been sustained. The subject matter of that action was a conveyance substantially similar to that pleaded here.
The cause was remanded to the district court, where the plaintiffs proceeded to file an amended petition. The plaintiffs by their amendments attempted to cure the defects and to supply the deficiencies in their original petition. We held on appeal that they had done so and that their petition stated a cause of action so that the demurrer to their petition was correctly overruled. (See Sinclair Prairie Oil Co. v. Worcester, 167 Kan. 194, 205 P. 2d 942.) This opinion was filed on May 7, 1949, about two months after the defendants’ demurrer was overruled in the case we are now considering.
The time within which to plead had been extended by agreement of the parties. On September 8, 1949, the defendants filed a motion in which they asked permission to refile their demurrer and that they be given permission to reargue it. In this motion they referred to our opinion in Sinclair Prairie Oil Co. v. Worcester, 163 Kan. 540, 183 P. 2d 947, and also to the later opinion in the same case in 167 Kan. 194, and alleged that the later opinion had reversed the holding in the earlier appeal, and the law relating to the contract in question had changed since the earlier appeal. The trial court heard this motion and sustained the motion to' permit defendants to reargue the demurrer and on the hearing sustained defendants’ demurrer. Hence this appeal.
The plaintiffs argue first, the trial court should not have sustained the demurrer because the contract in question was so unconscionable and grossly unfair to plaintiffs that the courts will not enforce it and was so indefinite and uncertain in its terms that the minds of the parties to it never met. In connection with this argument, they refer to the motion to reargue the demurrer filed by defendants and contend that by this motion defendants brought the entire record in each of these appeals into this appeal. On account of the conclusion we have reached in this appeal it will not be necessary for us to decide that question. It is certain, however, that the opinions in those two cases are proper to be considered by us on this appeal.
At the outset, plaintiffs concede that they must get rid of the effect of former opinions of this court, where conveyances with substantially like provisions were considered. These are — Moos v. Landowners Oil Ass'n, 136 Kan. 424, 15 P. 2d 1073; Eichman v. Landowners Oil Ass'n, 153 Kan. 791, 113 P. 2d 1056; Sinclair Prairie Oil Co. v. Worcester, first appeal, 163 Kan. 540, 183 P. 2d 947; and Sinclair Prairie Oil Co., v. Worcester, second appeal, 167 Kan. 194, 205 P. 2d 942.
The Moos case was the first of these. It was brought by plaintiff sometime prior to 1932 to set aside a royalty conveyance to one of the defendants. A copy of the conveyance is printed following the opinion in 136 Kan. at page 433. The petition alleged that the conveyance was procured by false and fraudulent representation; that the grantee had not secured a blue sky permit; that it was obnoxious to public policy and unfair and unconscionable. The trial court found the conveyance to be unconscionable and void per se and void for the further reason of no blue sky permit. This court made a somewhat lengthy statement of the manner in which an oil pool is carried on and declined to hold that the contract in and of itself was so fraudulent and uncertain that it should be set aside.
The contract was again before us in Westhusin v. Landowners Oil Ass’n, 143 Kan. 404, 55 P. 2d 406. That action was brought by the owner of land to set aside a conveyance which leased the land for oil and gas, reserving one-eighth royalty. The plaintiff sought to set the conveyance aside on the ground that the oil association had not obtained a blue sky permit. The trial court set aside the conveyance and on appeal we held the failure to comply with the blue sky law did not render the conveyance void, but voidable only. The plaintiff argued on appeal that the conveyance was void on account of being unconscionable. In dealing with that argument we pointed out that the question had not been raised in the trial court and said if it had been the Moos case would have been pertinent.
Through the years the Landowners operated two different pools. The conveyance in the Moos case and in the Westhusin case referred to Pool “A”— that in the other cases to Pool 1.
The next case to come before us was Eichman v. Landowners Oil Ass’n, 153 Kan. 791, 113 P. 2d 1056. The conveyance in that case conveyed all the oil, gas and other mineral rights under a half section of land. The sole consideration was that the land was to be put in Pool 1. The conveyance was executed on July 2, 1928. The action was commenced in the late 30’s and we passed on the appeal on June 7, 1940. The owners of the land sought to have the conveyance set aside because it was void on its face as being unfair and unconscoinable and because as the pool was operated the transaction was so unfair as to be void as being unconscionable. An argument was made somewhat analogous to that made here, that Landowners had paid the plaintiffs only $209.67 from the date of the conveyance until the action was filed, and had collected $1,600 during that time from delay rentals on plaintiff’s land. We remarked that plaintiff attempted to distinguish that case from the transaction in the Moos case by pointing out that the transaction being considered involved all the oil, gas and mineral rights of the plaintiff, while in the Moos case only the royalty interest was involved. We said:
“We fail to discern how a larger participation in the pool with provision for the same proportionate returns is more objectionable than a lesser one. If the investment itself is not unconscionable, and we have held that it is not, then the amount of participation cannot make it so.”
The next opinion having to do with this contract was Sinclair Prairie Oil Co. v. Worcester, 163 Kan. 540, 183 P. 2d 947. That opinion was filed on August 12, 1947. In the transaction involved in Pool 1 the Sinclair Prairie Oil Company and the Landowners Oil Association were plaintiffs. As the action was framed it was brought against the Worcesters, the Federal Land Bank of Wichita, and the Federal Farm Mortgage Corporation. The relief sought was to set aside a tax deed, declare mortgages to be invalid as against the mineral interests of plaintiffs and to quiet the title of plaintiffs to certain mineral interests. The mineral interests of plaintiffs were represented by a conveyance substantially identical with that considered in the Moos case, except that the pool in which the land was to be placed was Pool 1 rather than Pool “A.” The defendants’ demurrer to plaintiff’s petition • had been overruled and we reversed the lower court and ordered it sustained. In reaching this result, we held that under the allegations of the petition there was no consideration moving to the defendants because there was no allegation that the land was ever placed in any pool; there was no provision for issuing any certificate to the owner of the land that his land was in a pool and if Landowners ever placed the land in any pool it did so for its own benefit and it would constitute no benefit moving to the grantor. We further pointed out that the conveyance was so indefinite that should the judgment overruling the demurrer stand, litigation was almost sure to follow in order to particularize the specific rights claimed by the plaintiffs. This was the first occasion in all the litigation involving this contract where we had held this conveyance bad. The case was remanded to the district court, where an amended petition was filed. The demurrer of defendants to it was overruled and the defendants appealed. The opinion was filed on May 7, 1949. (See Sinclair Prairie Oil Co. v. Worcester, 167 Kan. 194, 205 P. 2d 942.)
In the amended petition the plaintiffs alleged that they had placed the land in a pool and had so advised the owners of the land by letter; the opinion pointed out that the petition then alleged certain activities of Landowners in endeavoring to get production on the land, and alleged the amount of money so expended; the petition then alleged payment to the owners of the land from 1935 to 1941, amounting to $427.37.
We, in our opinion, pointed out that the owners of the land argued that their demurrer should have been sustained because the minds of the parties never met and held that the amended petition alleged facts from which it could be inferred that the minds of the parties did meet. We also dealt with the argument that the conveyance was so unfair as to be unconscionable and held the argument not to be good under the allegations of the amended petition. The syllabus was as follows:
“In an action to set aside tax deeds and to quiet the title of plaintiffs to oil and gas interests, it appears this action was here once before. (See Sinclair Piairie Oil Co. v. Worcester, 163 Kan. 540, 183 P. 2d 947.) In that case a judgment overruling the demurrer to the petition was reversed. The plaintiffs filed an amended petition in the trial court and this appeal is from an order overruling defendants’ demurrer to it. Held: (a) the present petition does not depart from the theory upon which the first petition was drawn; (b) the present petition does not attempt to relitigate matters that were decided in the first opinion; (c) under the pleadings of the amended petition the minds of the parties met in the execution of Exhibits “A” and “B”; (d) under the allegations of the petition the parties carried on transactions' pursuant to Exhibit “B”; (e) the minds of the parties met in the execution of Exhibits “A” and “B”; (f) Exhibits “A” and “B” were not so advantageous to the grantee as to be unconscionable; (g) there was sufficient consideration moving from grantee to the grantor to uphold Exhibits “A” and “B”; (h) Exhibits' “A” and “B” are not gambling contracts so as to prevent their being enforced; (i) the trial court did not err in refusing to strike from the amended petition a paragraph pleading the fourteenth amendment as a defense.”
Confronted with this history of litigation involving conveyances substantially identical with the one we are considering, the plaintiffs seek to distinguish this from the Moos case, first, by pointing out that it involved the sale of royalty only, while this case involves the sale of the entire mineral rights. We dealt with that argument in the Eichman case by the statement already quoted in this opinion. In attempting further to distinguish the Moos case from this, the plaintiffs actually reargue the Moos case and ask us to reach a different conclusion as to it. We are unable to do that.
In a further effort to distinguish this case from the Moos case, plaintiffs point out that the conveyance in this case and in the Eichman case contained three paragraphs having to do with the manner in which the owner of the land was to be reimbursed. They characterize these paragraphs as vicious and argue they render the conveyances so unfair as to be unenforceable. The trouble with that argument is that the conveyance in the Worcester case contained the same provisions, the argument was considered in the second Worcester opinion and held not to be good. This argument in effect asks us to reverse our holding in that case. We do not care to do that.
The plaintiffs next point out some figures quoted in the second Worcester opinion and by a comparison of dates argue that Landowners paid plaintiffs in this action only $19.61 dividends from the time the conveyance was executed on January 24, 1933, to the time the action was filed. They point out the allegation in their petition that the land involved produced prior to December 3, 194S, nearly 100,000 barrels of oil. They argue that had the land been under an ordinary lease with an one-eighth royalty going to plaintiffs, they would have received during that time between $25,000 and $30,000. They argue that such a disparity between what plaintiffs received under this conveyance and what they should have received renders the conveyance so fraudulent that it should be set aside. This argument brings us to a consideration of another question. It has to do with the duty of plaintiffs to bring their action with reasonable promptness. While the outcome of the appeal did not turn on this point we mentioned it in Westhusin v. Landowners Oil Ass’n, supra. There we said:
“It will be recalled the Collins royalty conveyance to defendant was made in January, 1929, and plaintiffs purchased the land of Collins in April, 1929. The Collins royalty conveyance to defendant was on record, and was referred to in the deed from Collins' to plaintiffs.
“The Collins royalty conveyance to defendant recited that the pool in which his royalty was placed consisted of more than 10,000 acres of oil and other mineral royalty rights assembled by defendants, and placed in “Pool A” within six months of the first conveyance. One stipulation of fact was that about the date of the Collins royalty deed defendant entered into a number of other similar transactions in Rooks county and in a number of other counties in the state of Kansas. Collins recéived one small dividend from operation of the pool. Thereafter plaintiffs received from defendant small dividends as follows: One in June, 1929; two in September, 1929; one in December, 1929; two in March, 1930; one in June, 1930; two in September, 1930; one in December, 1930; one in March, 1931; one in June, 1931; one in December, 1931; one in September, 1932; one in December, 1932; one in December, 1933.
“Plaintiffs did not commence their action until January 22, 1934. Assuming plaintiffs were originally privileged to avoid' the royalty conveyance, they were required to act with reasonable promptness' and decisiveness. They could not affirm for a while and then disaffirm Operation of the pool affected property and financial interests of many persons, and plaintiffs could not experiment regarding the advantages to them of membership in the pool for more than four years, and tiren successfully apply to a court of equity to take them out.”
The petition shows the conveyance was executed on January 24, 1933. Certain offset wells on land adjoining plaintiffs’ land were drilled beginning in January, 1938; again in July, 1939, and again in March, 1944. A sublessee of Landowners entered plaintiffs’ land on August 20, 1944, and commenced the drilling of an oil well on plaintiffs’ land.
The action was not commenced by the plaintiffs until on June 11, 1948. That would be approximately ten years after the first offset well was drilled, which showed a likelihood of oil being produced from plaintiffs’ land and the filing of the action. It shows approximately four years elapsed from the time the first producing well was drilled on plaintiffs’ land until the action was brought.
The conclusion is inescapable that under the allegations of the petition the plaintiffs stood by for ten years after the first offset well was drilled and for four years after the first producing well was drilled and took no action while during that time the 100,000 barrels of oil, of which the petition speaks, was being taken from under their land.
This is an equity case, that is, the plaintiffs ask that the conveyance be set aside and that an accounting be had. We treated a problem similar to that in Burgess v. Hixon, 75 Kan. 201, 88 Pac. 1076. There we held:
“Whenever a man with notice or means of knowledge of the facts and of his' rights remains silent for a long period of time and abstains from impeaching a proceeding divesting him of the right to obtain the title to land, so that another man is induced to believe the proceeding has been acquiesced in as valid and acting upon such belief is induced to purchase the property and expend money in its improvement, the proceeding becomes unimpeachable in equity, whatever its original character, may have been.”
A case more nearly analogous, moreover, is that of Malone v. Young, 148 Kan. 250, 81 P. 2d 23. This was a case where a cotenant of oil and gas in place sought to enforce his rights against his cotenant. We pointed out that the plaintiffs had waited five years and nine months after they could have brought their action asking to be allowed to contribute, and to have their rights adjudicated before they brought it. We held that what constituted reasonable time within which to bring an action depended upon the facts and circumstances of each case but that even though the plaintiffs in that action had alleged that they had not known of the value of the land for oil purposes, still they had waited too long. We said:
“The doctrine that a person claiming an interest or a right may be required to assert it promptly is' especially applicable to oil and gas properties which are subject to rapid fluctuation in value. That he will not be permitted to engage in speculative delay until the value of such property has greatly appreciated, is definitely established.”
In this action plaintiffs do not allege that they did not know about the drilling of the offset wells and later of the drilling of the producing wells. The wells were being drilled in plain view and plaintiffs by the exercise of ordinary diligence would have learned of the value of their land. The idea behind pooling contracts such as this is that a landowner with unexplored land gets the benefit of the likelihood that oil will be discovered on some of the land in the pool. He thereby spreads the risk over many acres and at the same time reduces the amount of his return. The reasons pleaded by plaintiffs why this conveyance should be set aside were just as good on the day the first offsetting well was drilled as on the day this action was begun. Evidently plaintiffs deemed it wise to stand by and permit the oil company defendants to spend their money drilling. Then after the lease was proved to be of value they brought this action to set aside the conveyance and for an accounting. To permit them to do this would be inequitable. (See Commissioners of Morris Co. v. Hinchman, 31 Kan. 729, 3 Pac. 504; also Kirsch v. City of Abilene, 120 Kan. 749, 244 Pac. 1054.) (See, also, Preston v. Shields, 159 Kan. 575, 156 P. 2d 543, and cases cited therein.)
Plaintiffs seek to avoid the force of this argument by arguing that the conveyance was intrinsically fraudulent and void and conferred on defendants no rights whatever in their land. We have already demonstrated in this opinion that the conveyance was not intrinsically void.
Plaintiffs next argue that the trial court erred in sustaining defendants’ demurrer for the reason that the petition pleaded facts which brought the case squarely within our holding in Sinclair Prairie Oil Co. v. Worcester, 163 Kan. 540, 183 P. 2d 947. We have already demonstrated that argument is not good.
Plaintiffs next argue that the trial court erred in granting defendants’ motion to reargue their demurrer after the time had expired within which such defendants might have perfected an appeal from the trial court’s order overruling their demurrer. The facts as to this have already been set out in this opinion. It is conceded that time had been extended for defendants to answer. Matters of this sort are addressed to the sound discretion of the trial court. . We cannot say the court abused its discretion by permitting the demurrer to be reargued.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was a proceeding commenced by Mary E. Clay to establish a demand against the estate of Dr. Oscar Francois Marcotte, deceased. From a judgment in claimant’s favor, the administrator appeals.
The demand against the estate was originally filed in the probate court July 25, 1949, for wages as a maid in the home of deceased. Judgment was rendered in claimant’s favor in the probate court and appeal was taken by the administrator of the estate to the district court where by court order an amended demand against the estate was filed alleging in substance that claimant was a creditor of decedent’s estate for services rendered deceased and his family; that on May 30,1938, she went to work as a maid in deceased’s home and worked continuously until October 1, 1948; that she had an oral contract with the deceased whereby she was to receive for her services cash sufficient for her clothing and a small amount for spending money and that when she was no longer able to work, the deceased would pay her in full for her services; that she fulfilled her part of the contract for which she received no compensation except by way of medical attention in the sum of $120 and cash in the amount of $295, and asks judgment for $5,265 after allowing credits as mentioned. The administrator of decedent’s estate in his answer generally denied all claimant’s allegations and alleged that the demand is barred by the three and five year statutes of limitation; that claimant has been fully compensated for services rendered; that the contract for services violates the statute of frauds and is unenforcible; and that claimant is indebted to the estate for medical services in the sum of $200.
The case proceeded to trial by the court on the issues formed by the parties. For purposes of clarity we will refer to claimant Mary E. Clay as appellee and to the administrator of the estate of Oscar Francois Marcotte, deceased, as appellant.
The evidence may be related as follows: Appellee testified that she went to work for deceased on Decoration Day, 1938; that she did general housework, the cooking and washing of dishes, cleaning the house of seventeen rooms, and doing the laundry; that tire last of July in the following year, Mrs. Marcotte paid her $12 and told her she would pay the balance later. There was never a fixed amount that she was to receive for her services. Up to the summer of 1939, she was paid a little now and then, maybe $4 one time and $7 another time. That prior to going to work for deceased, she became ill and was under the care of a physician; that after she went to work for deceased he treated her for her illness for about four years until she recovered. Appellee made her arrangements to go to work with Mrs. Marcotte, deceased’s wife; deceased had a stroke September 23, 1938, after which he was hospitalized for about five weeks and from which he recovered sufficiently to reengage in the practice of medicine; appellee assisted the deceased in getting into his car in the morning and helping him to the house on his return in the evening.
Three disinterested witnesses testified as to the services performed by appellee in the Marcotte home; that appellee shovelled snow from the sidewalks, mowed the lawn, trimmed the shrubbery and trees, worked in the flower beds, assisted Dr. Marcotte, who was quite feeble, to the garage in the morning and met him in the evening; she opened and closed the doors and assisted him out of the automobile and into the house. A witness who operated a grocery store testified that appellee bought and carried home groceries for the Marcotte family; that she was very cautious in her purchases; that the groceries were charged to the Marcotte account.
Anna Clay, sister of appellee, testified that she had lived in West Palm Beach, Fla., for about twenty years; that she sent her sister money and clothes; and that she wrote a letter in longhand without making a copy in August, 1946, to Dr. Marcotte; that about ten days thereafter she received a letter in reply from Dr. Marcotte which she retained -until 1947 when due to a hurricane occurring in Florida in September, the letter became water-soaked and destroyed with all her other correspondence. The letter was typewritten on the stationery of Dr. O. F. Marcotte, National Reserve Building, Kansas Avenue, Topeka, Kan.; it was signed by Dr. Marcotte; she had never met Dr. Marcotte prior to April, 1948, and did not know his signature; that Dr. Marcotte in his reply letter said that he owed Mary a lot of money and that he had given her a little money now and then on her salary but it was his intention to keep this money for her and pay her later so she would have a trust fund or security in her old age; he stated that Mary was a faithful, conscientious worker and he would like very much to have her remain on in his employ. He did not mention any specific amount of money; he said he received her letter and told her not to worry about Mary’s salary. Following receipt of the letter she continued to send Mary clothes and money and had no further communication with the doctor in regard to it.
John S. Dean, Jr., guardian of Dr. Marcotte in his lifetime, testified that the only evidence he found in Dr. Marcotte’s records during the period he was guardian concerning payments to Mary was a $15 check dated in December, 1947.
Mrs. Marcotte, widow of Dr. Marcotte, testified on behalf of appellant that she had a conversation with appellee about coming to work as a maid in the Marcotte home about Decoration Day, 1938; that she employed appellee to work as maid for $3 a week; appellee was ill at the time and said she would work for nothing the first month, but Mrs. Marcotte stated to her that nobody worked for the Marcottes for nothing; that she did pay her $3 a week; that the rate of pay never changed and that all the wages were paid; at the end of every week Dr. Marcotte would put the money on the tea wagon and when dinner was over, she would take the money to the kitchen and pay appellee and continued to do so over a period of years, until one day the doctor put too much money on the tea wagon and the appellee saw it; after that she said she wanted the doctor to pay her. Mrs. Marcotte paid her that evening; then appellee wanted the doctor to pay her and the doctor did pay Mary each year after that just before he went south to the Rio Grande Valley to look after his fruit orchards. She saw the doctor pay her in the kitchen. She didn’t count the money he paid her, but he paid her the amount he owed her; that was the way she wanted it. He paid her each year before he went south, because she had an insurance policy; she had two insurance policies down at the Fidelity Bank; she wanted to pay those. This method of payment continued up until the last year that Dr. Marcotte went south which was in 1947; Dr. Marcotte paid appellee before he went south after Thanksgiving Day in 1947, but she did not know how much he paid her. Appellee testified in rebuttal that she received a $15 check from the doctor in December, 1947, and that she had received in all the sum of $295.
On the evidence, the court made extended findings of fact and conclusions of law and rendered judgment for appellee for her services under the contract of employment.
Appellant first complains that the court erred in overruling his demurrer to appellee’s evidence. An examination of the record discloses there was sufficient evidence, considering that evidence most favorable to appellee, for the court to have overruled the demurrer.
As stated in appellant’s brief, the principal dispute of fact in this case is that there is no competent evidence to support the trial court’s finding of an express contract between appellee and decedent. This contention is based on the theory that the only evidence in the record which could be said to support the existence of the contract is that contained in the testimony of Anna M. Clay, sister of appellee, and portions of appellee’s testimony, all of which was admitted over appellant’s objections. First, we shall consider the testimony of Anna M. Clay, sister of claimant living in Florida, who testified that she wrote a letter in longhand and made no copy and mailed it to the decedent at his address in Topeka, Kan.; that about ten days later she received a letter in reply signed by decedent, Dr. Marcotte, wherein he stated as hereinbefore related that he owed appellee a lot of money; that he would give her a little money now and then on her salary but it was his intention tó keep this money for her and pay her later so she would have a trust fund or security for her old age. Appellee laid a proper foundation for this secondary evidence by showing that the original letter was destroyed. It is a well settled rule that a letter received in due course of mail in response to a letter sent by the receiver is presumed in the absence of any showing to the contrary to be the letter of the person whose name is signed thereto. This is especially time where the letter is written on his business stationery. (22 C. J. 94; 20 Am. Jur. 196; First Nat. Bank v. Ford, 30 Wyo. 110, 216 Pac. 691, 31 A. L. R. 1441.)
It is a further established rule that upon a proper showing that an original writing containing facts relevant to issues in the case has been lost or destroyed, secondary evidence of its contents becomes admissible. In case of destruction of the original writing, the introduction of secondary evidence of its contents does not depend upon the manner in which the original was destroyed so long as the fact of its destruction is sufficiently established. (20 Am. Jur. 388-9; Gulliford v. McQuillen, 75 Kan. 454, 89 Pac. 927.) In the Gulliford case, this court held:
“Where the contents of a letter written by a party to the action to a third party and of a letter of the third party to him are each entirely irrelevant to any issue in the case on trial, except that they tend to prove that the party to the suit was negotiating a trade which was afterwards consummated, the letters are both competent evidence for that purpose, and may be introduced in evidence by reading the same; or if one be lost it is no abuse of discretion if the court allows a witness to testify to the receipt of the letter and to its purport or contents.”
In view of what has been said, we think proper foundation was laid for the admission of secondary evidence and that the testimony as related by the witness Anna M. Clay was properly admitted.
Second, appellant contends that the court erred in permitting appellee Mary Clay, over the objections of appellant, to testify in her own behalf that she was intending to quit work but after a conversation with deceased, she continued to work for him. Assuming that appellant is correct in his contention, these facts were otherwise competently shown by other witnesses and as there was no jury to be misled by the admission of the evidence, no prejudice resulted thereby. (Heery v. Reed, 80 Kan. 380, 102 Pac. 846; Giacomini v. Giacomini, 128 Kan. 699, 280 Pac. 916.) Where a trial court is sitting without a jury, the introduction of incompetent testimony is nonprejudicial if the court’s findings of fact and the judgment thereon are well supported by other evidence which is competent. (Starbuck v. Kingore, 112 Kan. 102, 106, 210 Pac. 930.)
Where a claim is made for services rendered a decedent under an express contract, it is not essential that a formal offer and acceptance be proved. In the absence of more direct evidence, the fact may be established by the surrounding circumstances, and if from such circumstances it appears that the services were performed, with the understanding on the part of claimant that she was to be paid and oq the part of the decedent that he was to pay, it is sufficient. (Logston v. Needham, 138 Kan. 439, 26 P. 2d 443; Johnson v. Lander, 140 Kan. 329, 36 P. 2d 1006; In re Estate of Nicholson, 167 Kan. 14, 204 P. 2d 602.)
Rendition of the services by appellee is not denied; that appellee was to be paid for such work is admitted; that there was an express contract between appellee and deceased is a fair deduction from the evidence and circumstances appearing in the case. The evidence to support appellee’s claim was sufficient and moreover the circumstances themselves were potent corroborative evidence of the contract. We have little difficulty in concluding that the judgment of the lower court is sustained by substantial competent evidence.
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. 1949, 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.
The first chapter of this case was here on appeal by the same tenant, Safeway Stores, Incorporated. (State Highway Commission v. Weiss, 167 Kan. 427, 207 P. 2d 480.) Only a portion of that opinion need be noticed for present purposes. The tenant made two contentions in that original appeal. It complained, first, the trial court erred in denying it the right to draw down the award of damages made by the appraisers in its favor, after the commission had perfected its appeal from that award to the district court. The basis of the contention was the commission could not deposit the amount of the award with the clerk of the district court, take possession of the condemned land pursuant to the statute, G. S. 1949, 26-101, and thereafter appeal from the award. We held in the first case the tenants appeal from that separate ruling, not having been taken within two months as provided by G. S. 1947 Supp. 60-3309, was too late.
The tenant also appealed in the first case from an order of the district court which permitted the commission to withdraw from the office of the court clerk the amount of the award to the tenant. We reversed that particular ruling, ordered the commission to return the money to the court clerk and directed that the appeal be tried on its merits.
The action was accordingly tried on its merits but the tenant again raised the same question of the commission’s right to appeal. On the trial of the case the commission prevailed and the tenant appealed from the final judgment and again contended in this court the commission had lost its right of appeal by reason of the facts previously stated. On that particular point we followed our ruling in the first appeal stating that if the question was raised too late on the first appeal it was raised too late on the second appeal. (State Highway Commission v. Safeway Stores, 170 Kan. 413, 226 P. 2d 850.)
The tenant filed a motion for rehearing, which we granted. The tenant, among other things, now asserts that after final judgment it was entitled to have a review of the trial court’s ruling which permitted the commission to appeal to the district court. It relies on G. S. 1949, 60-3314a, which reads:
“When a party appeals, after a final judgment against him the fact that some ruling of which he complains was made more than two months before he perfected his appeal shall not prevent a review of the ruling.”
It is contended that statute should be held to apply to the trial court’s ruling touching the commission’s right of appeal although the tenant was previously too late to obtain a ruling thereon prior to final judgment and notwithstanding the fact this court ordered the district court to try the appeal from the appraisement on its merits. Although we have no previous decision precisely in point factually we think the tenant’s contention is sound in principle. (See the various cases listed under the statute.)
If, after a deposit of the amount of the appraisement and the taking of possession of the land pursuant to the statute, a condemnor actually has no right of appeal then the district court, of course, acquires no jurisdiction and the verdict of the jury and a judgment returned pursuant thereto are nullities.
In order for the condemnor to take possession it was necessary under the statute that the amount of the appraisement be deposited with the clerk of the district court and that the court costs and the fees of the appraisers be paid. In Lowrey v. State Highway Comm., 170 Kan. 548, 228 P. 2d 210, involving six appeals we have this day held: .
“Under G. S. 1949, Ch. 26, Art. 1, a petitioner in a condemnation proceeding who deposits with the clerk of the district court the total amount of the appraisement and pays tire court costs and the fees of the appraisers, may not perfect and maintain an appeal from the appraisement.”
It follows the final judgment of the district court and of this court in the instant case must be set aside. It is so ordered and the district court is directed to order paid over to the tenant, Safeway Stores, the amount of the appraisement in the sum of $1,750 together with interest thereon at the rate of six per cent per annum from and after July 24,1947, the date of the tenant’s demand therefor, and to render judgment against the commission for the costs of the appeal. | [
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The opinion of the court was delivered by
Price, J.:
These two consolidated appeals arise out of actions brought by appellant (plaintiff below) to recover the purchase price of certain livestock sold by plaintiff to defendant LaForge, and involve the question of the statute of limitations. The over-all question in each case is the same.
In case No. 38,169, the livestock in question was purchased on February 19, 1946, and the action was commenced February 12, 1949. As one of the primary questions' before us concerns the sufficiency of the petition to state a cause of action, it will be set out in full rather than summarized, and is as follows:
“Petition
“Comes now the plaintiff and for his cause of action against the defendants alleges and states:
“1. That plaintiff is a resident of and his post office address is Parsons, Labette County, State of Kansas, and he does business as a dealer and market agency at the Parsons Stockyards, Inc. at Parsons, Kansas; that the defendant, Gussie LaForge, was on February 19, 1946, duly registered as a market agency or dealer, clearing all his purchases through the defendant Harvey Maxwell; and drat he can be served with summons in the city of Parsons, Labette County, State of Kansas; that the defendant Harvey Maxwell is a resident of and his post office address is Fredonia, Kansas; that on the said February 19, 1946, the said Harvey Maxwell doing business as Midwest Livestock Commission Company, was a duly registered market agency and dealer and did business at the stockyards of the Parsons Stockyards, Inc.; that on said date the defendant, Harvey Maxwell, doing business as Midwest Livestock Commission Company, was under bond as required by The Packers and Stockyards Act, 1921, as amended, and that the defendant New York Casualty Company was surety on said bond; that the New York Casualty Company is a corporation organized and doing business under and by virtue of the laws of the State of New York and is now and was on said date licensed to do business within the state of Kansas and as such can be sued and served with summons within the state of Kansas; that on June 16, 1942, the said Harvey Maxwell, as Midwest Livestock Commission Company, made and executed a bond to Floyd E. Stafford as trustee to secure the performance of all of the obligations incurred by him as such market agency or dealer at the stockyards of the Parsons Stockyards, Inc., Parsons, Kansas; that thereafter and from time to time the amount of said bond was increased from $3,000.00, the orginal amount thereof, to $8,000.00 as of August 8, 1944, and that said bond in the amount of $8,000.00 was in full force and effect on February 19, 1946; that under and by virtue of the terms and conditions of said bond the said defendant Harvey Maxwell and New York Casualty Company bound themselves by said bond to secure the performance of the obligations incurred by the said Gussie LaForge and Harvey Maxwell doing business as Midwest Livestock Commission Company as required by The Packers and Stockyards Act, 1921, as amended, and the regulations promulgated thereunder by the United States Department of Agriculture by reason whereof the said defendant Harvey Maxwell and New York Casualty Company became liable for and bound to pay all of the obligations incurred by the said Gussie LaForge in the purchase of livestock at said stockyards.
“2. Plaintiff further states to the court that on February 19, 1946, he sold to Gussie LaForge at the stockyards of Parsons Stockyards, Inc., four cattle and three calves for $404.46 and seven cattle for $560.56 and that under the rules and regulations of the Secretary of Agriculture, the said Parsons Stockyards, Inc., and the contract of sale of said cattle and calves, the said Gussie LaForge was required to pay for said cattle and calves before the same were removed from the yards of said Parsons Stockyards, Inc., but that in truth and in fact the said Gussie LaForge removed said cattle and calves from said yards without paying therefor and that he has failed, neglected, and refused and still fails, neglects, and refuses to pay for said livestock; that demand has been made upon the said defendants, Gussie LaForge, Harvey Maxwell, and New York Casualty Company for the said sums of $404.46 and $560.56, but that said defendants, and each of them, have failed, neglected and refused, and still fail, neglect and refuse to pay the same.
“That by reason of the failure, neglect, and refusal of said defendants to pay said sums and die filing of this action to force the payment thereof, plaintiff is entitled to recover of and from the said defendants, a reasonable fee for tire services of his attorneys herein and that a reasonable fee for said attorneys in the handling of this action and presenting the same is $500.00.
“WHEREFOR, plaintiff prays judgment against said defendants and each of them for the sum of $965.02 together with six per cent interest per annum thereon from February 19, 1946, until paid, and for the sum of $500.00 as and for his attorneys’ fees herein, and for costs, and for such other, further, and different relief as to the court may seem proper.”
Each of the three defendants filed a motion to strike that portion of the petition alleging liability on the part of defendants Maxwell and New York Casualty Company to pay obligations incurred by defendant LaForge, and also that portion alleging liability for attorney fees. From the record it appears these motions to strike were overruled.
Each of the defendants then filed a motion to make the petition more definite and certain by requiring plaintiff to attach to and make as a part of his petition a copy of the bond and all rules promulgated by the United States Department of Agriculture relied upon.
On April 25, 1949, the court sustained the motion of defendant LaForge to make more definite and certain and the journal entry on this ruling required plaintiff to attach a copy of the bond to his petition and to cite any and all rules and regulations promulgated by the United States Department of Agriculture applicable to his cause of action. Plaintiff was granted twenty days in which to amend, and on May 14,1949, was granted an additional thirty days.
On May 28,' 1949, plaintiff filed his amended 'petition. It was substantially identical to his original petition except that to it he attached a copy of the bond and four “riders,” and he also cited by section number the regulations of the Department of Agriculture upon which he relied, all in compliance with the order of April 25, 1949.
On June 10, 1949, defendant LaForge demurred to the amended petition on the ground that several causes of action were improperly joined and that it did not state facts sufficient to constitute a cause of action in favor of plaintiff and against him, LaForge.
On June 21, 1949, defendants Maxwell and New York Casualty Company also filed demurrers to the amended petition.
On October 20, 1949, each of the three demurrers was sustained, and on November 1,1949, plaintiff, by leave of court, filed his second amended petition.
The second amended petition contained allegations substantially identical to those of the two previous petitions, and in addition alleged liability on the part of defendants for obligations incurred by defendant LaForge by virtue of the “rider” dated June 16, 1942. This “rider” had been attached as an exhibit to the first amended petition. In addition, the second amended petition alleged notice in writting to the trustee named in the bond, under date of February 10, 1949, and attached to this pleading was a copy of such written notice and a copy of the written demand madé on New York Casualty Company under date of January 27, 1949.
Each of the three defendants demurred to the second amended petition on the grounds of (1) misjoinder of causes of action; (2) that the petition did not state facts sufficient to constitute a cause of action in favor of plaintiff and against such demurring defendant; and (3) that the pretended cause of action was barred by the three year statute of limitations.
Each of these demurrers was sustained as to the second and third grounds thereof, and it is from that ruling this appeal was taken.
Summarized very briefly, the contentions of plaintiff are that the action is governed by the five year statute of limitation (G. S. 1949, 60-306 [First]), and that the second amended petition, having been filed within five years from the accrual of his cause of action, was good as against the demurrer. He further argues that even though the three year statute of limitation (G. S. 1949, 60-306 [Second] ) should apply his action was still commenced within the three year period for the reason that the additional allegations contained in his second amended petition did not state a new or different cause of action but merely amplified those allegations contained in his original petition and therefore relate back to it.
In support of the lower court’s ruling defendants contend the action is based upon a liability created by statute, is therefore governed by the three year- statute, supra, and that a cause of action having been stated for the first time when the second amended petition was filed on November 1, 1949, the action is barred. It is further contended that since defendant LaForge did not sign the bond or any rider attached thereto he could not be liable thereunder and therefore no liability would attach as to Maxwell, the principal, or to the surety.
From the record before us it appears the basis for the lower court’s ruling was that the three year statute of limitation applied and the action was barred. However, in our view of the case we find it unnecessary to determine whether the action is governed by the three year or five year statute, because in our opinion plaintiff clearly brought himself within the three year statute.
It will be remembered that the livestock was purchased February 19, 1946, and the action was commenced February 12, 1949. In his original petition plaintiff alleged the facts concerning such purchase; that LaForge was clearing his purchases through Maxwell; that Maxwell was under bond, with a trustee named therein, as required by law; that the bond was in full force and effect on the date of purchase; that by its provisions Maxwell and the surety bound themselves to secure the performance of obligations incurred by LaForge and Maxwell; and that demand had been made upon all defendants, but that each of them had failed, neglected and refused to pay such obligations incurred by LaForge.
Pursuant to a ruling by the court on motions to make more definite and certain plaintiff then, with leave of court, filed an amended petition in which he cited by section number certain rules of the Department of Agriculture, and attached as an exhibit a copy of the bond and riders thereto. Still later, after demurrers to this amended petition were sustained, plaintiff, with leave of court, filed his second amended petition, the allegations of which, together with the exhibits, having already been referred to.
We fail to see how it can be contended seriously that plaintiff’s original petition did not state a cause of action against defendant LaForge for livestock purchased by him from plaintiff and for which it is alleged he had not paid. And with reference to the liability of Maxwell and the surety, a rider to this bond, dated June 16, 1942,.specifically provided for their liability and responsibility for the obligations of LaForge. The bond and its general conditions were pleaded in the original petition. It is true it provided that any one damaged by the breach of any of its conditions might maintain an action thereon after first giving written notice to the trustee named therein, and that not until plaintiff filed his second amended petition did he specifically allege notice to the trustee and attach as an exhibit a copy of such notice.
While it would have been proper to attach a copy of the bond and the written notice to the trustee to the original petition, yet plaintiff’s failure to do so cannot be held to mean that such petition, which alleged the bond and its conditions in general terms, did not state a cause of action. Nowhere, either in the bond itself or in the Federal regulations, which we have examined, is it required that a copy of the notice to the trustee be set out and attached to a pleading seeking to enforce the obligations and conditions of the bond.
The rule with reference to the statute of limitations as affected by the amendment of pleadings is well stated in Smith v. Veeder Supply Co., 137 Kan. 124, 19 P. 2d 699, where it was said:
“If the first petition alleges in general a cause of action, but does so imperfectly and with insufficient detail, and the amended petition is only an enlargement of the averments of the original by setting out more definitely that which was pleaded in general and does not set up a new cause of action, the fact that the statute had run when the amended petition was filed is not a bar to a recovery, as in such a case the amended petition relates back to the filing of the original one.” (p. 126.)
Again in Springer v. Roberts, 151 Kan. 971, 101 P. 2d 908, the authorities were reviewed and it was held:
“Amendments to a petition which amplify a cause of action imperfectly pleaded, or which substitute a correct for an erroneous statement of facts relied on for recovery, ordinarily relate back to the commencement of the proceeding, but where the amendment sets forth a new cause of action the statute of limitations continues to run until the amendment is filed.” (Syl.)
(See, also, Waddell, v. Woods, 160 Kan. 481, 163 P. 2d 348, and Dalton v. Hill, 169 Kan. 388, 393, 394, 219 P. 2d 710.)
Applying the rule to this case, the real question before us is whether plaintiff’s original petition stated a cause of action and whether the second amended petition is merely an amplification and enlargement of the allegations of that petition or whether it sets up an entirely new cause of action which cannot be said to relate back to the original. A careful reading of the original petition convinces us that it stated a cause of action, even though in somewhat general terms, against each of the three defendants named, and in our opinion the additional allegations in the second amended petition, together with the exhibits attached thereto, merely amplified and stated in more specific terms the cause of action already alleged in the original petition, and therefore are deemed to relate back to the original petition which was filed before the bar of the three year statute had fallen. We have given careful attention to each and every argument and contention advanced by defendants, but in our opinion the conclusion just announced is the only reasonable one to be drawn from the pleadings in question.
It therefore follows that in case No. 38-169 the judgment of the lower court is reversed with directions to overrule the demurrers to the second amended petition.
With the exception of a difference in parties defendant, and there being no question concerning the fact of defendant LaForge not having signed the bond, the facts in case No. 38,170 are substantially identical to those in case No. 38,169. The basic questions are the same and therefore require no discussion. The judgment of the lower court in case No. 38,170 is reversed with directions to overrule the demurrers to the second amended petition. | [
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The opinion of the court was delivered by
Parker, J:
This action originated in the district court of Lyon county when plaintiff filed a petition seeking to rescind a contract in which he had agreed to purchase certain real estate on the ground title tendered by the defendants was unmerchantable. The defendants Bower and Bower, husband and wife, answered contesting plaintiff’s right to rescind and by cross-petition asked specific performance of the contract. The defendant Newcomer answered, stating he was an escrow agent under terms of the agreement, that he had no interest in the action except in that capacity and that he would abide and be governed by whatever decision was rendered by the court. The case was tried upon the pleadings and stipulated facts by the trial court which rendered judgment for the defendants generally and decreed specific performance of the contract. The plaintiff appeals from that judgment.
The pleadings are of little consequence and can be summarized by brief reference to salient features thereof.
Plaintiff’s petition alleges execution of the contract whereby he agreed to purchase Lot 37 in Berkley Hills Addition in the city of Emporia and makes such contract a part of that pleading. It avers that after execution of the agreement it came to his attention that the house on the real estate therein described had been placed there in violation of Section 5-224 of the Ordinances of the city of Emporia in that the house was located within approximately 18 inches of the north line of such lot in violation of the ordinance providing that no frame building should be erected within 3 feet of a side or rear lot line. It further avers that after execution of the agreement it came to plaintiff’s knowledge the dedication of the Berkeley Hills Addition requires that only a two story house should be erected on the lot described in the contract whereas the house located thereon is a one story house. It then states the violations of the city ordi-. nance and the dedication restrictions were unknown to the plaintiff when he entered into the contract and that he would not have entered into such agreement if he had known thereof. It next alleges that after becoming aware of such violations plaintiff notified the defendants in writing thereof, demanded that he be released from his contract and that defendants refused such demand. Finally it charges that such violations made the title unmerchantable and asks that the agreement be canceled and set aside and that all moneys paid by plaintiff under its terms be refunded.
The answer of defendants Bower and Bower admits execution of the contract and denies generally all allegations of the petition. It specifically denies the house on Lot 37 violates Ordinance 5-224 or the restrictions contained in the dedication of the Berkley Hills Addition and alleges the restrictions in such dedication are of no force and effect because they were extinguished by sale of the property for taxes and that such ordinance is of no force and effect because it was repealed by one ordinance of such city, describing it, and conflicts with the provisions of another ordinance which is also described. Their cross-petition alleges performance of the contract, that plaintiff is in the possession of the property but has refused to pay the balance due on the purchase price, and that they are entitled to judgment for specific performance of the contract with directions to defendant Newcomer to pay them all sums paid him by plaintiff as escrow agent under its terms.
The contents of defendant Newcomer’s answer have been heretofore referred to and require no further attention.
Further pleadings disclosed by the record are in the form of general denials and consist of a reply to the answer, an answer to the cross-petition, and a reply to plaintiff’s answer to the cross-petition.
Pertinent provisions of the contract, entered into between the parties, essential to disposition of the issues raised by the pleadings, read:
“Witnesseth, That in consideration of the stipulations herein contained, and the payments to be made by the second party as hereinafter specified, the first party hereby agrees to sell unto the second party the following described real estate, situated in the County of Lyon, State of Kansas, to-wit:
Lot numbered Thirty-seven (37) on Berkley Road in Berkley Hills Addition to the City of Emporia, according to the recorded plat thereof.
and to convey the above described real estate to the second party by Warranty Deed with an abstract of title, certified to date showing good merchantable title or an Owners Policy of Title Insurance in the amount of the sale price, guaranteeing said title to party of the second part, free and clear of all encumbrances except special taxes subject, however, to all restrictions and easements of record applying to this property, it being understood that the first party shall have sufficient time to bring said abstract to date or obtain Report for Title Insurance and to correct any imperfections in the title if there be such imperfections.
“That the deed and/or other papers of transfer are to be executed at once by the first party and placed in escrow with Newcomer Agency, to be held by said Newcomer Agency together with the earnest money until the transaction is completed according to this agreement, and that all further payments are to he made through Newcomer Agency.
“That if the first party cannot deliver title as agreed, the earnest money paid by the second party shall be returned to said second party and this contract cancelled.”
Heretofore we have indicated that by agreement the cause was submitted to the trial court upon the pleadings and a stipulation of facts. Having summarized the pleadings it now becomes necessary to direct attention to the stipulation. That instrument is lengthy and we hesitate to quote it in toto. However, since, where the facts are agreed upon and in writing, this court is in the same position to weigh them as the court below (See City of Wichita v. Boles, 156 Kan. 619, 135 P. 2d 542), we have decided that should be done. It reads:
“In ibis stipulation whenever the term defendants is used, it applies only to defendants Carl A. Bower, and Anne S. Bower.
“It is hereby stipulated between the parties hereto that defendants acquired title to the real property in controversy from Alonzo Walls and Lucy Walls, his wife, by warranty deed dated August 19, 1946; that said Alonzo Walls took title to said property by Sheriff’s Deed, dated October 1, 1942, which deed was issued pursuant to the tax foreclosure laws of Kansas, Chapter 375, 1941 Session Laws, Kansas.
“That the real property in controversy is Lot No. 37 on Berkley Road in Berkley Hills Addition, which lot is 50 feet in width and fronts west on the east side of Berkley Road; that defendants procured a permit from the Fire Chief of the City of Emporia, on August 21, 1946, to move a house which had been built elsewhere on to said lot, and pursuant to said permit, did move the house on said lot during August of 1946; that during said year defendants made improvements on said house, which did not include structural alterations.
“The above mentioned house is a frame house and is located on the lot, 41 feet back from the sidewalk. The south wall of the house is 9 feet from the South line of the lot. The north wall of the house is 18 inches from the north line of the lot. The walls of the house are 10 feet 11 inches in height, from the ground to eaves, and the ridge of the roof is 21 feet, 2 inches, from the ground. The chimney extends 2 feet and 6 inches above the ridge of the roof. Two dormer windows face the front. The sills of these windows are more than 10 feet 11 inches above the ground. The portion of the house above the first or ground floor is immediately under the roof; is unfinished and the only means of access thereto is through a square hole cut through the ceiling of a storeroom closet off the hallway.
“It is further stipulated that defendants had their abstract of title recertified and delivered to said escrow holder, Ted Newcomer, for delivery to plaintiff, which he did, and the following correspondence ensued.
“Emporia, Kansas
June 13, 1949.
Dr. L. K. Lohmeyer,
Emporia, Kansas.
Dear Dr. Lohmeyer:
You have handed me abstract of title to Lot No. 37, Berkley Hills Addition to the City of Emporia, for examination. ,
Before examining this abstract I wish to call your attention to one matter. It is my information that the dwelling house located on the above described property extends to within 17 or 18 inches of the North line of the lot. There is nothing in the abstract bearing on this question, and I suggest that before further considering this abstract, you ascertain the location of the dwelling house with reference to the property line, in view of the fact that Section 5-224 of the Ordinances of the City of Emporia, provides as follows:
“In no case shall a frame building be erected within three feet of the side or rear lot line, nor within six feet of another building, unless the space between the studs on such side shall be filled solidly with not less than 2K inches of brick work or other equivalent incombustible material.”
In view of the foregoing Ordinance, you would be subject to having to remove that portion of your building extending beyond the three foot restricted space, in the event the owner of the adjoining property or any subsequent owner, or the City should take exception to the encroachment. The passing of time, commonly referred to as the Statute of Limitations, does not cure such a defect. If your investigation discloses that the building on the above lot complies with the foregoing Ordinance, then I will proceed with the examination of the title.
Very truly yours,
(Signed) Roscoe W. Graves.”
RWG/hs
“Emporia, Kansas
June 16, 1949
Ted Newcomer,
Newcomer Agency,
Emporia State Bank Bldg.,
Emporia, Kansas.
Dear Sir:
A copy of the letter written to me by Roscoe Graves, Lawyer, dated June 13, 1949, and delivered to you the same date is called to your attention.
The opinion drawn by this letter makes the title to the property, Lot number thirty-seven (37) on Berkley Road, non-merchantable, as per agreement date May 19, 1949.
E'or this reason I am asking the return of my payments totaling thirty-eight hundred dollars ($3800.00).
Sincerely yours,
(Signed) K. L. Lohmeyer, M. D.”
“No further legal opinion, other than above, nor information with reference to title requirements have been delivered to defendants or their attorneys.
"That plaintiff is now living in said house and has been in possession thereof since June 1, 1949.
“That defendants offered to purchase and convey to plaintiff two feet along the entire north side of the lot in controversy without charge and plaintiff refused such offer.
“It is further stipulated and agreed that the following paragraphs are the portion of the Declaration of Restrictions affecting Berkley Hills Addition to the City of Emporia and that the property in controversy herein is a part of said Addition.
“Declaration of Restrictions Affecting Berkley Hills Addition to Emporia, Kansas
Calvin H. Lambert and wife to the Public:
Filed July 6, 1926,
Register of Deeds
Lyon County, Kansas.
“Persons Bound By These Restrictions.
“All persons who now own or who shall hereafter acquire any interest in any of the lots in Berkley Hills, shall be taken and held to agree and covenant with the owner of the lots shown on said plat, and with his successors and assigns, to conform to and observe the following covenants, restrictions and stipulations as to the use therof, and the construction of residences and improvements thereon, for a period of 25 years from May 15, 1926, provided however, that each of said restrictions shall be renewable in the manner hereinafter set forth.
“Sec. II Required Cost and Height of Residence.
“Any residence erected wholly or partially on any of the following lots or part or parts therof as indicated in this section shall cost not less than the sum herein below set forth, and shall be of the height designated as follows:
“On lots 30, 31, 32, 33, 34, 35, 36, 37, 39, 40, 56, 57, 58, 59, 60, 61, 62 and 63, two-story residences, $7000.
' “Section 9. Duration of Restrictions:
“Each of the restrictions above set forth shall be binding upon Calvin H. Lambert and his successors and assigns for a period of 25 years from May 15. 1926, and shall automatically be continued thereafter for successive periods of 25 years each.
“Section 10. Right to Enforce:
“The restrictions herein set forth shall run with the land and bind the present owner, his successor and assigns and all parties claiming by, through and under him. The section further provides that the owner or owners of any of the above land shall have the right to sue for and obtain an injunction, prohibitory or mandatory, to prevent the breach of or enforce the provisions of the restrictions above set forth, in addition to the ordinary legal action for damages, and the failure of Calvin H. Lambert or the owner or owners of any other lot or lots in this addition, to enforce any of the restrictions herein set forth at the time of its violation shall in no event be deemed to be a waiver of the right to do so thereafter.
“Tender of Possession.
“The plaintiff does hereby tender the possession of the involved property to the defendants at such time as the payments he has made under the contract of sale have been repaid to him by the escrow party.
“Ordinances of City of Emporia.
“Sec. 5-224. Frame Buildings.
“In no case shall a frame building be erected within three feet of the side or rear lot line, nor within six feet of another building, unless the space between the studs on such side be filled solidly with not less than 2K inches of brickwork or other equivalent incombustable material.
“1946 Revised Ordinances of City of Emporia.
“Article XXVI. Conflicting Ordinances Repealed.
“Sec. 1. Any ordinances or parts of ordinances and particularly any parts of Ordinance 1314 as Amended, in conflict herewith are hereby repealed.
“Revised Zoning Ordinance,
No. 1674, January, 1949.
“Article V. ‘A’ Single Family District Regulations.
“Sec. 4. (2) a. Except as hereinafter provided in the following paragraph and in Article XVI, there shall be a side yard on each side of a buliding, having a width of not less than five (5) feet.
“b. Whenever a lot of record existing.
“2. Side Yard.
“(a) Except as hereinafter provided in the following paragraph and in Article XVI, there shall be a side yard on each side of a building, having a width of not less than five (5) feet.
“(b) Whenever a lot of record existing at the time of the passage of this ordinance has a width of less than fifty (50) feet, the side yard on each side of a building may be reduced to a width of not less than ten (10) per cent of the width of the lot, but in no instance shall it be less than three (3) feet.
“Revised Zoning Ordinance,
No. 1674, January, 1949.”
From what has been heretofore related, since resort to the contract makes it clear appellees agreed to convey the involved property with an abstract of title showing good merchantable title, free and clear of all encumbrances, it becomes apparent the all decisive issue presented by the pleadings and the stipulation is whether such property is subject to encumbrances or other burdens making the title unmerchantable and if so whether they are such as are excepted by the provision of the contract which reads “subject however, to all restrictions and easements of record applying to this property.”
Decision of the foregoing issue can be simplified by directing attention early to the appellant’s position. Conceding he purchased the property subject to all restrictions of record he makes no complaint of the restrictions contained in the declaration forming a part of the dedication of Berkley Hills Addition nor of the ordinance restricting the building location on the lot but bases his right to rescission of the contract solely upon presently existing violations thereof. This, we may add, limited to restrictions imposed by terms of the ordinance relating to the use of land or the location and character of buildings that may be located thereon, even in the absence of provisions in the contract excepting them, must necessarily be his position for we are convinced, although it must be conceded there are some decisions to the contrary, the rule supported by the better reasoned decisions, indeed if not by the great weight of authority, is that municipal restrictions of such character, existing at the time of the execution of a contract for the sale of real estate, are not such encumbrances or burdens on title as may be availed of by a vendee to avoid his agreement to purchase on the ground they render his title unmerchantable. For authorities upholding this conclusion see Hall v. Risley & Heikkila, 188 Or. 69, 213 P. 2d 818; Miller v. Milwaukee Odd Fellows Temple, 206 Wis., 547, 240 NW 193; Wheeler v. Sullivan, 90 Fla. 711, 106 So. 876; Lincoln Trust Co. v. Williams Bldg. Corp., 229 NY 313, 128 NE 209; Maupin on Marketable Title to Real Estate, (3rd Ed.) 384 § 143; 175 A. L. R. anno. 1056 § 2; 57 A. L. R. anno. 1424 § 11 (c); 55 Am. Jur. 705 § 250; 66 C. J. 860, 911 § § 531, 591.
On the other hand there can be no question the rule respecting restrictions upon the use of land or the location and type of buildings that may be erected thereon fixed by covenants or other private restrictive agreements, including those contained in the declaration forming a part of the dedication of Berkley Hills Addition, is directly contrary to the one to which we have just referred. Such restrictions, under all the authorities, constitute encumbrances rendering the title to land unmerchantable. See the authorities above cited, also decisions to be found in American Digest System, Vendor and Purchaser, § 134 (4); 66 C. J. 588 § 909; 55 Am. Jur. 702 § 246 and Maupin on Marketable Title to Real Estate (3rd Ed.) 323 § 106; 57 A. L. R. Anno 1414 §11 (a).
In the instant case assuming the mere existence of the restrictions imposed by the provisions of section 5-224 of the ordinances of the city of Emporia do not constitute an encumbrance or burden and that the dedication restrictions fall within the exception clause of the contract providing Lot 37 was to be conveyed subject to all restrictions and easements of record applying thereto there still remains the question whether, under the stipulated facts, the restrictions imposed by such ordinance and/or the dedication declaration have been violated and if so whether those violations make the title to such property unmerchantable.
As we turn to the stipulation of facts upon which our decision as to whether the record discloses violations of the dedication declaration or the ordinance must depend we shall first dispose of contentions advanced by appellees regarding the construction to be given that instrument.
The first of these contentions is to the effect the phrase, “any residence erected wholly or partially on any of the following lots . . . ”, to be found in section 2 of the declaration is to be construed as limited to residences actually constructed thereon and that hence the moving of the house now located on Lot 37, long after it had been constructed, even though it was not of the height required by its terms did not result in a violation. We do not agree. The word “erected” as used in section of the declaration in question, in our opinion, is so comprehensive that it must be construed as including houses moved upon the restricted area. Next it is argued that even though such house was a one story dwelling the stipulated facts show that between its foundation and the top of the chimney there was sufficient room to make it into a two story dwelling and therefore it did not violate the restrictive covenant of section 2 providing it should be of the height of a two story residence. Here again we believe appellees have placed too narrow a construction upon this section which contemplates that houses constructed within the restricted area must be two story residences. Finally it is urged the dedication restrictions insofar as they apply to Lot 37 have no force and effect because they were extinguished by the tax foreclosure proceeding referred to in the second paragraph of the stipulation. We know of no Kansas decision sustaining appellees’ position on this point. It is true, as they suggest, a sheriff’s deed to this property was executed in 1942 and that the statute then in force and effect (G. S. 1941 Supp. 79-2803) contained no provision requiring the district court to render judgment subject to valid covenants running with the land and to valid easements of record or in use. They insist the fact the section just mentioned was amended in 1943 (see L. 1943 Ch. 302 [2]) and still later in 1945 (L. 1945 Ch. 362[3]) so that it now contains an express provision that tax foreclosure judgments are to be rendered subject to such covenants and easements indicates that legislative intent under the 1941 statute was to extinguish all such covenants and easements by judgment. Our view is the subsequent amendments are indicative of an intention directly to the contrary. However, we need not pass upon that question. The right to enforce the dedication restrictions, which are conceded to have been of record, was vested in all persons owning property in the area covered by the declaration and the common grantor. Before we could say their rights to enforce such restrictions were extinguished by the judgment affecting Lot 37 it must be established they were parties defendant to the action in which such judgment was rendered. That does not appear from the stipulation of facts, indeed no one contends they were.
Other contentions advanced by appellees relate to the force and effect to be given portions of the stipulation relative to violation of section 5-224 of the ordinance. They first insist the word “erected”, as used in such section, does not include the building moved upon the lot in question. Heretofore we have indicated the same word as used in the dedication declaration includes buildings moved upon such lots. We believe it is entitled to the same construction in the ordinance. Next it is claimed section 5-224 is of no force and effect because it had been repealed by other ordinances of the city of Emporia. If so we fail to find anything in the stipulation warranting that conclusion. Lastly it is argued that because the stipulation discloses appellees procured a permit from the Fire Chief of the city of Emporia to move the involved house on Lot 37 the provisions of such ordinance had no application and hence were not violated. We find nothing in the stipulation to indicate, let alone warrant a conclusion, that this permit authorized the appellees to move the house within 18 inches of the rear lot line in violation of the terms of such ordinance. Moreover, it should perhaps be added, that even if it had, in the absence of anything in the stipulation to show its existence, we would not be justified in concluding the Fire Chief or any other official of the city had authority to take action resulting in the nullification of its express terms.
With contentions advanced by appellees with respect to the force and effect to be given certain portions of the stipulation disposed of it can now be stated we are convinced a fair construction of its terms compels the conclusion that on the date of the execution of the contract the house on the real estate in controversy was a one story frame dwelling which had been moved there in violation of section 2 of the dedication restrictions providing that any residence erected on Lot 37 should be of the height of a two story residence and that it had been placed within 18 inches of the side or rear lot line of such lot in violation of section 5-224, supra, prohibiting the erection of such building within three feet of such line.
There can be no doubt regarding what constitutes a marketable or merchantable title in this jurisdiction. This court has been called on to pass upon that question on numerous occasions. See our recent decision in Peatling v. Baird, 168 Kan. 528, 213 P. 2d 1015, and cases there cited, wherein we held:
“A marketable title to real estate is one which is free from reasonable doubt, and a title is doubtful and unmarketable if it exposes the party holding it to the hazard of litigation.
“To render the title to real estate unmarketable, the defect of which the purchaser complains must be of a substantial character and one from which he may suffer injury. Mere immaterial defects which do not diminish in quantity, quality or value the property contracted for, constitute no ground upon which the purchaser may reject the title. Facts must be known at the time which fairly raise a reasonable doubt as to the title; a mere possibility or conjecture that such a state of facts may be developed at some future time is not sufficient." (Syl. 1T1F1, 2)
Under the rule just stated, and in the face of facts such as are here involved, we have little difficulty in concluding that the violation of section 5-224 of the ordinances of the city of Emporia as well as the violation of the restrictions imposed by the dedication declaration so encumber the title to Lot 37 as to expose the party holding it to the hazard of litigation and make such title doubtful and unmarketable. It follows, since, as we have indicated, the appellees had contracted to convey such real estate to appellant by warranty deed with an abstract of title showing good merchantable title, free and clear of all encumbrances, that they cannot convey the title contracted for and that the trial court should have rendered judgment rescinding the contract. This, we may add is so, notwithstanding the contract provides the conveyance was to be made subject to all restrictions and easements of record for, as we have seen, it is the violation of the restrictions imposed by both the ordinance and the dedication declaration, not the existence of those restrictions, that renders the title unmarketable. The decision just an nounced is not without precedent or unsupported by sound authority.
In Moyer v. DeVincentis Con. Co., 107 Pa. Super. 588, 164 A. 111, involving facts, circumstances, and issues almost identical to those here involved, so far as violation of the ordinance is concerned, the plaintiff (vendee) sued to recover money advanced on the purchase price pursuant to the agreement on the ground that violation of a zoning ordinance had made title to the property involved under its terms unmarketable. The court upheld the plaintiff’s position and in the opinion said:
“We are of the opinion that a proper construction of the agreement of sale supports the position of appellant, the vendee in the agreement. The vendor agreed to furnish a good and marketable title free from liens and incumbrances, excepting existing restrictions and easements, if any. As applied to the facts of the case in hand, vendee agreed to purchase the premises subject to the zoning ordinance, but not to purchase the premises, when the house was built in violation of the terms of that ordinance.
“The facts lend weight to the force of this construction. It appears from the pleadings that the premises to be conveyed embraced not only the bare land, but an entire parcel of real estate which included a semidetached dwelling. The description is not by metes and bounds but by house number. The vendee could not take possession without immediately becoming a violator of the law and subject to suit, with a penalty of $25 for every day the building remained in position overlapping the protected area.
“The title was not marketable, not because of an existing zoning ordinance, but because a building had been constructed upon the lot in violation of that ordinance . . .” (p. 592).
To the same effect is 66 C. J. 912 § 592, where the following statement appears:
“Existing violations of building restrictions imposed by law warrant rejection of title by a purchaser contracting for a conveyance free of encumbrances. The fact that the premises to be conveyed violate! tenement house regulations is ground for rejection of title where the contract of sale expressly provided against the existence of such violations, . . .”
See, also Moran v. Borrello, 4 N. J. Misc., 344, 132 A. 510.
With respect to covenants and restrictions similar to those involved in the dedication declaration, notwithstanding the agreement —as here — excepted restrictions of record, see Chesebro v. Moers, 233 N. Y. 75, 134 N. E. 842, 21 A. L. R. 1270, holding that the violation by a property owner of covenants restricting the distance from front and rear lines within which buildings may be placed renders the title to such property unmarketable.
See, also, Hebb v. Severson, 32 Wash. (2) 159, 201 P. 2d 156, which holds, that where a contract provided that building and use restrictions general to the district should not be deemed restrictions, the purchaser’s knowledge of such restriction did not estop him from rescinding the contract of purchase on subsequent discovery that the position of the house on the lot involved violated such restrictions. At page 172 of the opinion in that case it is said:
“Finally, the fact that the contract contains a provision that protective restrictions shall not be deemed encumbrances cannot aid the respondents. It is not the existence of protective restrictions, as shown by the record, that constitutes the encumbrances alleged by the appellants; but, rather, it is the presently existing violation of one of these restrictions that constitutes such encumbrances, in and of itself. The authorities so hold, on the rationale, to which we subscribe, that to force a vendee to accept property which in its present state violates a building restriction without a showing that the restriction is unenforcible, would in effect compel the vendee to buy a lawsuit. 66 C. J. 911, Vendor and Purchaser, § 590; Dichter v. Isaacson, 132 A. 481, 138 A. 920, 4. N. J. Misc., 297; Chesebro v. Moers, 233 N. Y. 75, 134 N. E. 842, 21 A. L. R. 1270.” (p. 172.)
Finally appellees point to the contract which, it must be conceded, provides they shall have time to correct imperfections in the title and contend that even if it be held the restrictions and the ordinance have been violated they are entitled to time in which to correct those imperfections. Assuming, without deciding, they might remedy the violation of the ordinance by buying additional ground the short and simple answer to their contention with respect to the violation of the restrictions imposed by the dedication declaration is that any changes in the house would compel the purchaser to take something that he did not contract to buy.
Conclusions heretofore announced require reversal of the judgment with directions to the trial court to cancel and set aside the contract and render such judgment as may be equitable and proper under the issues raised .by the pleadings.
It is so ordered. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal from a judgment in favor of the plaintiff for personal injuries suffered by her while an invitee at defendants’ bowling alley in which defendants, a copartnership, also had accommodations for refreshments.
The accident was alleged to have occurred as plaintff arose from a table at which she had been seated and when her foot caught on one of the horizontal runners forming a part of the table legs. The negligence alleged was:
“a. In furnishing for the seating of customers and inviting customers to be seated thereon, arrangements of tables and chairs involving steel runners projecting approximately one or one and one-half inches above the floor, and extending across the space over which customers must pass to enter or leave the seats, and in which arrangements the seats and tables were so close together as to cause the table top to obstruct the line of vision to the floor for persons leaving the seats, all of which constituted a hazard over which people leaving the seats would be likely to catch their feet and would cause a likelihood of tripping, so that there was an unreasonable hazard of tripping, losing balance, and falling.
“b. In failing to fasten down the tables and chairs so that they would not slip when used for support in leaving them, and in having such unfastened seats and tables so close together that it was likely and probable that people leaving the seats would have to use the seats and tables for support.
“c. In having the aforesaid arrangements on a highly polished floor so that the likelihood of seats and chairs slipping was enhanced.”
In addition to the general verdict the jury answered special questions as follows:
“Q. No. 1. Did the plaintiff know or by the use of ordinary care should the plaintiff have known that the seats and tables in the defendants’ place of business were not fastened to the floor? A. No. 1. No.
“Q. No. 2. Did the plaintiff take the precautions an ordinarily prudent and careful person would have taken in getting up from the table where she had been seated? A. No. 2. Yes.
“Q. No. 3. Did the plaintiff know or by the exercise of reasonable care should she have known that the legs of the table at the time she was attempting to leave the seat had runners that ran down the side from the center of the ends of the table and then extended out along the floor under the ends of the table? A. No. 3. No.
“Q. No. 4. If you find that the defendants were guilty of negligence then state in what respect the defendants were negligent. A. No. 4. An obstruction on entering or leaving booth.
“Q. No. 5. Were the defendants guilty of any negligence which was the proximate cause of plaintiff’s fall and injury? A. No. 5. Yes.
“Q. No. 6. If you find for the plaintiff, then state:
“(a) How much do you allow for doctor bills? A. $179.00.
“(b) Mow much for hospital and medical bills? A. $180.00.
“(c) How much for pain and suffering? A. $1750.00.
“(d) How much for permanent injury? A. $500.00.
“Q. No. 7. Were the seats and tables in defendants’ place of business substantially the same as those in general use for some period of time in similar places for similar use? A. No. 7. Yes.
“Q. No. 8. Did defendants use the usual and customary methods in polishing the floor in their place of business? A. No. 8. Yes.
“Q. No. 9. Did defendants have reason to believe that an invitee would receive any injury from the manner in which the booths and tables were installed or from the way the floor was maintained? A. No. 9. No.
“Q. No. 10. What do you find was the cause of plaintiff’s fall? A. No. 10. The extension on the table leg.”
The sole contention of appellants is the trial court erred in overruling their motion for judgment on the special findings. Did these answers compel the court to set aside the general verdict and to further render a judgment in favor of appellants? Are these answers consistently contrary to the general verdict?
It will be observed findings 1, 2 and 3 absolve appellee of negligence. That fact is not in dispúte. What about the findings with respect to appellants’ negligence?
Appellants contend answers 7, 8 and 9 absolve them from liability under the instructions to the jury. There is no motion for a new trial and we cannot examine the-correctness or sufficiency of the instructions given. We are required to consider the findings just as they are and nothing more. It would appear findings 7, 8 and 9 do absolve or tend to absolve appellants of negligence and that they are inconsistent with a general verdict against them. On the other hand findings 4, 5 and 10 disclose the'jury believed the proximate cause of appellee’s injury was the specific negligence charged and found. The result is we do not have consistent special findings which are contrary to the general verdict. Considered as a whole, as they must be, the special findings are inconsistent with each other and do not compel a verdict for appellants. What then is the status of the case?
While the civil code authorizes the rendition of a judgment on special findings where they are inconsistent with the general verdict (G. S. 1935, 60-2918) the rule implies such special findings must be consistent with each other. (Packer v. Fairmont Creamery Co., 158 Kan. 191, 146 P. 2d 401.) See, also, numerous other cases to the same effect collected under the above cited statute.
Consistent special findings control the general verdict when contrary thereto but when they are inconsistent with one another— some showing a right to a verdict and others showing the contrary— the case is left in the condition of really being undecided. (Willis v. Skinner, 89 Kan. 145, 130 Pac. 673; Packer v. Fairmont Creamery Co., supra, p. 195.)
Manifestly a court cannot ignore specific separate findings of negligence which justify recovery and consider only the findings absolving a defendant of negligence and render a judgment on the latter. To do so would be tantamount to the court substituting its judgment for that of the jury and thereby denying the right of trial by jury. (Underhill v. Motes, 160 Kan. 679, 682, 165 P. 2d 218.)
Obviously the result in the instant case is not a satisfactory one. These findings being inconsistent with one another they leave the case in a condition of being really undecided. Under such circumstances a new trial should have been granted. (Willis v. Skinner, supra.) The trial court, however, did not grant a new trial on its own motion. Appellants for reasons they deem valid and concerning which we, of course, express no views, did not request a new trial. Appellants concede the sole issue they bring here is whether the trial court erred in overruling their motion for judgment non obstante veredicto. We think it did not.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to enjoin the city of Topeka from certifying to the county clerk of Shawnee county for collection, a certain assessment made in connection with the curbing, guttering and paving of a street. The city appeals from an adverse judgment.
There is no dispute of fact. From the pleadings and a plat attached to the city’s answer, we glean the following: The city initiated proceedings to pave the six hundred block on Warren avenue. While there are some differences in measurement between the length of lots and lands at the north and south boundaries, they are not material to the issues presented and will not be noticed. The figures hereafter used are a close approximation and show the point in con troversy. All of the lots hereafter mentioned are in Emery’s Subdivision, and the unplatted land lies immediately west of the subdivision. Sixth street runs east and west and the north sides of the lots and tracts involved abut Sixth street. Warren avenue runs north and south. In the six hundred block the first north and south street east of Warren avenue is Vesper avenue, the distance between the inner street lines being 200 feet, and the block consisting of two rows of platted lots each 100 feet deep. The first north and south street west of Warren avenue is Oakley avenue and the distance between the inner street lines is about 263 feet. Immediately to the west of Warren avenue are platted lots the depth of which is approximately 97 feet and immediately to the west of these lots and directly abutting thereon are tracts of land which have not been platted into lots, the east and west measurement being approximately 166 feet. The plaintiff owned the northernmost of- these tracts. In fixing the lands on which the assessment was made to cover the cost of the improvement, the city included the row of lots immediately east of Warren avenue, and which extend one-half of the distance to Vesper avenue, as well as the lots immediately west of Warren avenue, being about 97 feet deep and a strip about 34 feet wide immediately to the west, this strip being along the east side of the unplatted lands, it being the intention to include the east half of all lots and lands lying between Warren avenue and Oakley avenue.
In his petition plaintiff pleaded at length that he owned a described tract of land which had never been platted, bounded on the west by Oakley avenue, on the north by Sixth street, and on the east by Emery’s subdivision, describing the geographical situation as to his land and the lots abutting Warren avenue and alleging that his land did not abut Warren avenue and that he did not have access thereto from his lands. He alleged that the city had passed an ordinance to pay for the improvements, making a special assessment of $250.89 upon the east 34 feet of his land, and that the ordinance unlawfully sought to join his unplatted land lying west and beyond the platted lots abutting Warren avenue with said platted lots and unlawfully subject his land to the special assessment, and that the special assessment was unlawful as against his land. He prayed that the city be enjoined from certifying to the county clerk the assessment against his land or from attempting to collect the assessment or any part thereof as against him or his land, and for costs.
The city’s answer admitted the plaintiff’s ownership of lands, pleaded the situation as to lots, tracts and streets, admitted that the special assessment was made against plaintiff’s lands, alleged the land assessed was “to the middle of the block” as provided by G. S. 1935, 17-601, and that the assessment was valid. It further alleged that the area bounded by Sixth street, Oakley avenue and Warren avenue constituted a block within the meaning of the above statute. It prayed that the plaintiff take nothing.
With the issues thus joined the plaintiff filed his motion for judgment on the pleadings, and upon consideration the trial court sustained the motion and permanently enjoined the city from taking any action to collect the assessment. In due time the city perfected its appeal to this court.
Before taking up for consideration the contentions of the appellant and the response of the appellee, we take note of the fact that over the years the statutes providing for the paving of streets in different classes of cities have made varying provisions as to the real estate subject to special assessment to pay the cost thereof, and that many of our decisions with respect thereto have dealt with lands adjacent to railroad rights of way, irregular tracts, tracts not surrounded by streets and other situations not necessary to detail. Owing to diversity in geographical situations and of statutes applicable a review of these statutes and decisions would unduly extend this opinion, and when made, would hardly be decisive of the questions now involved. We note further that in 1923 these various statutes were considered and revised, the revision appearing as R. S. 1923, ch. 12, art. 6. Such amendments as have since been made to the above article do not affect the question here presented.
The portion of the above chapter presently involved is G. S. 1935, 12-601, which reads:
“Whenever any street or avenue in any city shall be graded, regraded, paved, repaved, curbed, recurbed, guttered, reguttered, macadamized, remacadamized, or otherwise improved, the cost of such improvement shall be paid by and assessed to the property on each side of said street or avenue to the middle of the block.”
We are not advised as to what arguments appellee presented in the trial court to obtain judgment in his favor, but in this court he relies solely upon Atchison, T. & S. F. Rly. Co. v. City of Hutchinson, 130 Kan. 625, 287 Pac. 587. Reference to that opinion will disclose that, as platted, certain rectangular tracts bearing no block numbers were, as a whole, surrounded by streets, but were crossed obliquely by the railroad right of way, and that entirely in one tract and partially in another, south of the right of way were platted numbered lots, while to the north of the right of way were other platted numbered lots. In that case the railway company contended that the lots in the tracts abutting upon the improved streets and between north and south streets and the right of way constituted blocks and should bear the cost of paving in that block. That contention, if sustained, would relieve the company from the assessment made on its land on the theory all land between the improved street and the street to the north constituted a block and that the land subject to assessment went to the middle of the block. This court accepted the company’s contention and sustained the trial court’s judgment in its favor.
We need not discuss whether the above cited case was soundly decided insofar as it was held that the lots south of the railway right of way constituted a block. The case would be controlling as an authority here only if we were to hold that the platted lots west of Warren avenue constituted a block. As has been indicated above, a review of our decisions will show that the definition of a block was largely dependent upon the facts of the case as measured by the statute being applied. In Bowlus v. Iola, 82 Kan. 774, 776, 109 Pac. 405, it was said:
“The question is, What constitutes a ‘block’ within the meaning of the statute?
“The appellants argue that since the ordinary method of platting is into lots and blocks the legislature must have had in mind a block made by platting, and hence that the designation given by the donor of the plat controls. The premise is sound enough, but the conclusion does not follow. According to all the dictionaries and the popular understanding everywhere a block is a portion of a city surrounded by streets. In common practice city plats are made to conform to this understanding, and the legislature had in mind blocks so constituted, and not tracts- arbitrarily designated as blocks by the donor of a plat. This interpretation accounts for the difference between the method of assessing the cost of street improvements and the method of assessing the cost of alley improvements. An alley is a narrow way designed for the special accommodation of the property it reaches. Consequently the cost of improving an alley is laid upon the abutting lots or ground. Streets and avenues are designed for general public travel, and consequently the cost of improving them is extended to the center of the tracts bounded by such thoroughfares. These views find support in the opinions delivered in the following cases: City of Ottawa v. Barney, 10 Kan. 270; Olsson v. City of Topeka, 42 Kan. 709; McGrew v. Kansas City, 64 Kan. 61.”
And see, also, Larson v. City of Ottawa, 101 Kan. 422, 166 Pac. 565; Railway Co. v. City of Topeka, 103 Kan. 897, 176 Pac. 642; Cravens v. City of Salina, 101 Kan. 161, 165 Pac. 801; Watts v. City of Winfield, 101 Kan. 470, 168 Pac. 319; and Atchison T. & S. F. Rly. Co. v. City of Ellinwood, 119 Kan. 218, 238 Pac. 341. From all of the above it may be said that ordinarily a block is a portion of a city surrounded by streets.
The statute quoted above is the only one applicable to the situation presented by the. record before us. Under it the cost of the improvement shall be “paid by and assessed to the property on each side of said street or avenue to the middle of the block” (emphasis supplied). In that statute nothing is said about the component parts of the block, that is whether the lands contained therein are platted or unplatted or both. Although our attention is directed to G. S. 1935, 12-606, an examination shows it applies to unplatted lands “abutting” on the improvement or to an improvement which runs partially through platted ground and partially through unplatted ground, a situation not presented by the record before us.
Under the facts disclosed by the record we have a rectangular tract bounded on the west by Oakley avenue, on the north by Sixth street and on the east by Warren avenue, the lands enclosed constituting a single area of real estate not divided by any street or alley, even though the ownership of the components was in part by platted lots and in part by unplatted land described by metes and bounds. Under the ordinary and commonly accepted definition (see Webster’s New International Dictionary, second edition, “block . . . 15”) such a tract constituted a block, and we hold that such enclosed tract was a block within the purview of the statute.
It follows from what has been said that the action of the city in making the assessment was legal and proper and that the trial court erred in rendering judgment in favor of the plaintiff enjoining the city from collecting the assessment against his land. That judgment is reversed and the cause is remanded to the trial court with instructions to set aside and hold for naught the judgment appealed from and to render judgment in favor of the city. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action in which the plaintiffs sought to enjoin the cancellation of their stock in the defendant corporation or to obtain alternative relief. From a judgment in their favor the defendants appeal.
The record discloses that under date of April 3, 1915, The Partridge Cooperative Equity Exchange was chartered as a corporation organized for profit, with a capital stock of $10,000 divided into 400 shares of $25 each. Under date of May 3, 1920, the charter was amended 'by increasing the capital stock to $20,000 divided into 800 shares of $25 each.
On February 16, 1946, the instant action was commenced. In their petition the plaintiffs alleged that the defendant corporation was a corporation under the laws of Kansas and that the other defendants were its officers and directors and that plaintiffs were at all times involved owners and holders of stock in the corporation; that the corporation had an authorized capital of $20,000, represented by 800 shares of common stock of $25 each issued to approximately 115 shareholders and which had paid five percent dividends for the past several years; that the members’ equity over liabilities was in excess of $50,000, and that the value of each share of common stock was more than $62.50; that in response to a notice to vote on five certain proposals (later mentioned in detail) a meeting of the shareholders was held and the proposals with the exception of No. 4 were purportedly adopted; that such adoption was obtained by the use of false statements and other misrepresentations not necessary to detail; that plaintiffs were present at that meeting and objected to the proposals, especially No. 2, and after the meeting objected to their being carried out as provided therein; that since the purported adoption of the proposals and especially No. 2, the defendants have proceeded with plans for carrying out proposal No. 2 and threaten to call in and cancel the present stock of the plaintiffs and do all things necessary to effect the terms of that proposal; that plaintiffs will thus be deprived of their property and rights as represented by their shares, including the right to dividends, against their will and without compensation other than as provided by proposal No. 2, which compensation is inadequate, all of which is to plaintiffs’ loss and detriment and in violation of their rights. After pleading they had no adequate remedy at law, plaintiffs prayed that the defendants be enjoined from calling in or cancelling their stock, and if it be determined they had such right that they be enjoined from doing so unless the value of plaintiffs’ stock be determined at a proper valuation and such value paid them, and for other relief.
The proposals above referred to were as follows: No. 1 was that the association accept the benefits and be bound by the provisions of G. S. 1935, ch. 17, art. 16, known as the cooperative marketing act, and that accordingly the second and sixth articles of the corporate charter be amended, the proposed amendments being set forth. The second article provided that the corporation was organized as a nonprofit farmers’ cooperative association and set forth the character of business in which it proposed to engage. The sixth article stated the capital stock to be $20,000 divided into 800 shares of common stock of the par value of $25 each, provided who could be owners, for purchase of stock of noneligibles, and that each eligible holder of common stock should be entitled to only one vote in any meeting of the stockholders regardless of the number of shares held by him. Proposal No. 2 read as follows:
“2. To authorize and empower the board .of directors to take up all the present outstanding stock of the association at 115 cents on the dollar of the par value thereof by issuing therefor new common stock and certificates of indebtedness payable as hereinafter provided and bearing interest at the rate of four percent per annum, on the following bases, to-wit:
“(1) A $25 share of new common stock and $3.75 in certificates of indebtedness for one share of the present common stock (having a par value of $25) held by each member who is a bona fide producer of agricultural products handled by the association and $28.75 in certificates of indebtedness for each additional share of the present outstanding common stock held by each member; and (2) $28.75 in certificates of indebtedness for each share of present outstanding common stock held by every member who is not a bona fide producer of agricultural products handled by the association.
“Said certificates of indebtedness shall be payable upon dissolution or liquidation of the association or earlier at the discretion of its board of directors, provided, that any member who is-ineligible to own stock or who withdraws from the association may have same paid 120 days after demand, and further provided that the board shall not have authority to exercise its discretionary power to retire same as to members for 10 years from the date of issue.”
Proposal No. 3 provided for a complete revision of the bylaws, copies of which had been sent to each member. Proposal No. 4 authorized the pledging of assets to and the doing of business with the Wichita Bank for Cooperatives, and Proposal No. 5 authorized the construction of a new elevator.
Intervening pleadings and motions are not set forth. The amended joint and several answers of the defendants, after alleging the petition did not state facts sufficient to constitute a cause of action, alleged in substance that under procedings which are set forth in detail the proposals as noted were adopted and the charter amended; that the proceedings were certified to the secretary of state and the charter and amendments were duly recorded in the office of the register of deeds of Reno county on March 1, 1946, and the corporation became a cooperative within the meaning of G. S. 1935, ch. 17, art. 16, as of that time; that on February 22, 1946, and prior to the change the directors declared a five percent dividend and ordered a 100 percent proration of the net savings for the year ending February 28, 1946, all in accordance with the charter and the bylaws of the association as existing prior to March 1, 1946, and all actions in accepting the provisions of the above statute, amending the charter, adopting bylaws, empowering the board to issue certificates of indebtedness had been done in accordance with law. At length defendants pleaded that no action had been taken to call in plaintiffs’ stock; that plaintiffs had been advised that only those who desired voluntarily to exchange their stock for new stock and certificates of indebtedness should do so, and that the action filed was premature; that the capital stock remained the same; that in proceeding thus voluntarily the defendants were not depriving the plaintiffs of any of their rights in the book value or accumulated surplus; that such surplus or book value was not available to any stockholder until liquidation in view of the fact the bylaws prohibited dividends of more than five percent and each plaintiff stockholder would have the same right to his proportionate share upon liquidation that he would have had in any event. Defendants further pleaded that the proposed plan was fair and equitable and gave each member surrendering his stock for certificates of indebtedness a better value or property right than he had had; following which are extended argumentative allegations to demonstrate that the plan adopted was fair and equitable to all parties. In their prayer defendants asked that plaintiffs be denied relief and that their action in amending the charter and all other things set forth be approved.
Thereafter the plaintiffs filed a supplemental petition to set forth the newly adopted bylaws, alleging that unless restrained the defendants would put into operation the plan set forth, issue revolving fund certificates, set up a system of patronage capital which would do violence to the capital structure as previously existing and deprive plaintiffs of their property without adequate compensation and without due process and impair the obligations of the contracts of plaintiffs as stockholders. The newly adopted bylaws consisted of six articles containing numerous sections and are designed to cover the operations of the cooperative under the amended charter. For present purposes we note only that provision is made for the issuance of revolving fund certificates for the purpose of raising capital funds, and for their retirement, for patronage capital and its accumulation and distribution to members and nonmembers and for revolving capital and its retirement. Although the bylaws state that certain persons may become a member of the “association” by acquiring a share of common stock, and that common stock shall not be transferred to one not eligible, the bylaws contain no provision for the issuance of common stock or for regulations with respect thereto. In making this statement we do not overlook the sixth article of the amended charter to which reference has been made. Nor do these bylaws contain any provisions that appear to recognize, approve or otherwise take notice of proposal No. 2 heretofore quoted. Defendants’ answer to the supplemental petition is in effect a denial that the defendant corporation has obligated itself to the payment of refunds to nonmembers. Plaintiffs filed a reply to the amended answer which in effect is a general denial.
On the,issues thus joined a trial was had at which a considerable amount of oral testimony was taken and during which many written documents were offered. The history of the corporation was developed to a considerable degree, showing amendments to the charter, a part of the bylaws from time to time; that early bylaws fixed a dividend of not over three percent on stock; that the bylaws of 1934 fixed the rate at six percent; and that the bylaws of April 12, 1944, in effect when the events complained of occurred, provided that a participating membership could be obtained by the purchase of one share of stock, but that no profits other than the interest dividend should be paid until a total of eight shares had been paid for “which is the limit that may be owned by any member.” Under article 4 of those bylaws, providing for distribution of earnings, it was provided that from the net earnings or savings the board of directors should pay interest at a rate not in excess of four percent, at the discretion of the board, on the outstanding stock. It is here observed that it is not clear under what authority the corporation paid dividends at five percent as it is alleged it did in its answer heretofore set forth. Although there was some dispute in the evidence concerning the values placed on assets, the balance sheets and operating statements of the corporation for the year ending Feb ruary 28,1946, showed a net worth of $43,857.43 and for the following year the showing was $24,817.29. The facts concerning preliminaries leading up to the submission of the proposals and their adoption were also shown. It was also developed that the values for the certificates of indebtedness in proposal No. 2 were not based on any claimed values but were arbitrarily fixed.
The trial court rendered an opinion covering all phases of the controversy but inasmuch as some phases are not involved in this appeal they are only briefly noticed. It held that if there were any misrepresentations in the proceedings leading up to the adoption of the proposals they were not material and would not render the election void; that two-thirds of the members voted in favor thereof (see G. S. 1935, 17-1621) and the election was valid; that the corporation had the legal right to amend its charter and that the amendments and the procedure in accordance therewith was legal and valid and permitted by statute. It then considered whether a court of equity should examine the proposition of reissuing of certificates of indebtedness for the arbitrary value fixed in proposal No. 2 for the purpose of determining whether the proposition was just and equitable to those members who did not wish to make such an exchange of their presently held stock, concluding that if it had such a right and duty then it must determine whether the actual proposition embodied in proposal No. 2 was equitable, and if not what remedy the plaintiffs should have. After finding that the rights of minority stockholders should be protected and that a court of equity might inquire into the actions of the majority and the facts and circumstances and make a determination, the trial court stated it had done so and from the evidence had determined that the action of the majority of the stockholders in fixing the amount to be paid for the stock of the plaintiffs was unjust, inequitable and arbitrary and unjustly deprived plaintiffs of a part of the property in which they had an equitable share. Answering defendants’ argument that all stockholders were treated alike and impartially, the court stated the inequity appears only to those who did not wish to continue as shareholders, and that although there had been restrictions on their stock, they had certain rights in the assets of the corporation which the action taken by the majority disregarded; that even though as claimed by the defendants the court could not force a majority to buy out a minority at any equitable valuation fixed by the court, nor appoint a receiver for the corporation because the majority action was inequitable, the court did have power to enjoin the corporation from carrying out a prop osition that was unjust and. inequitable to the minority, and that although it could not force the majority to purchase from the minority, it would be justified in fixing a monetary value upon plaintiffs’ stock and to examine any method for payment of it before permitting the corporation to take measures that would amount to a confiscation of a large part of the equity of the plaintiff stockholders. The court concluded that it should enjoin the corporation and its board of directors from putting into effect the plan contained in proposal No. 2. After considering the subject matter further it determined the value of each share to be $63.80. It further concluded that the method of issuing one new share for one old share and the issuing of a certificate of indebtedness at four percent interest was not in and of itself an inequitable method of converting the corporation under G. S. 1935, ch. 17, art. 15, into a purely cooperative nonprofit one under G. S. 1935, ch. 17, art. 16, that although the provision for calling in such certificates of indebtedness was indefinite, it was sufficient to protect the equity of the plaintiffs, and that the court would hold the adoption of the proposal would be just and equitable so far as the minority stockholders and their rights were concerned if the valuation placed upon the stock were equitable and just under all the circumstances. It finally concluded that the defendants should be enjoined from reissuing the stock of its shareholders upon the basis proposed unless the corporation agreed to fix the value thereof at the amount above stated.
Defendants’ motion for a new trial was denied and they perfected their appeal to this court, where they specify as error that the court erred in enjoining the plan; that the court erred in enjoining the plan except upon conditions; that the court was without jurisdiction to grant an injunction upon its findings; and that the judgment was arbitrary and capricious and at variance with its findings.
In their brief the appellants do not discuss separately the errors specified by them, but state that the question presented by their appeal is whether the trial court could or should enjoin them from completing their program of acceptance of the provisions of G. S. 1935, ch. 17, art. 16. Appellants make no contention that if what occurred be treated as a reorganization of the original corporation, the minority shareholders may not maintain an action for injunction on the ground the reorganization is as to them oppressive and unfair (19 C. J. S., p. 1341, et seq.) or that if it be treated as a merger or consolidation of corporations, a similar action may not be main tained (19 C. J. S., p. 1375, 13 Am. Jur., p. 1117) and therefore we do not pursue that matter further.
Before discussing various contentions made, we note the following: At the time of its original incorporation in 1915, the defendant corporation was organized as one for “profit” with authority to pay a fixed dividend upon its stock (G. S. 1935, 17-1501) and that a shareholder had but one vote, and could not own to exceed five percent of the capital stock (17-1502). These various powers and restrictions were to an extent recognized in the bylaws as they existed from time to time. In 1921 the cooperative marketing act was passed. Under its terms, corporations “shall be deemed nonprofit, inasmuch as they are not organized to make profit for themselves, as such, or for their members as such, but only for their members as producers” (G. S. 1935, 17-1602). While they are authorized to guarantee the payment of dividends or interest on the capital stock (17-1605d) the latest adopted bylaws made no provision therefor, but generally speaking provided for distribution of gain to the patrons of the corporation “members and nonmembers alike,” a power recognized in part by 17-1604. Under 17-1621, upon sufficient vote other corporations could be brought under the provisions of the act, and it was the effort to bring the original corporation under the latter act that gave rise to the present controversy. No purpose is to be served in pointing out other differences in powers and methods of operation between corporations organized under the two acts, but what has been said clearly develops that as applied to the facts before us, an effort has been made to change the basic financial structure of the original corporation and the interests of the shareholders, stockholders or members as they are variously called.
In stating their contentions, appellants first direct attention to the rule that a general finding made by the trial court determines every controverted question of fact in support of which evidence has been introduced (Sledd v. Munsell, 149 Kan. 110, 113, 86 P. 2d 567) and on that basis argue that because the trial court found they had a right to amend their charter and to adopt the proposals referred to, all facts are resolved in their favor. The rule is correctly stated, but its application here must then mean that the court found facts favorable to its conclusion that the proposals adopted were inequitable as applied to the appellees.
In their argument, appellants treat lightly the fact they are attempting to convert a corporation organized for profit and for the benefit of its shareholders, into one which is not for profit, but the distribution of whose gains, under the bylaws, shall be to the patrons. Citing Evans and Stokdyk on the Law of Cooperative Marketing, pages 21, 29 and 58, they direct attention to the difference between commercial and cooperative corporations in their methods of operation, their powers and duties and the fact that in the latter type there is no “profit” available for distribution on the basis of capital invested, and to authorities, which need not be set forth that ordinarily, in the absence of a declaration of dividend or other constructive distribution of surplus or earnings, a stockholder may not compel a distribution, and that may be conceded. But their argument that the plaintiffs are seeking to do that here cannot be sustained. There is no doubt that under the statutes to which reference has been made that upon a favorable two-thirds vote of its stockholders the original corporation had power to come under the cooperative marketing act, but that cannot'be construed as a grant of power to the majority to do as they pleased with the property and property rights of the minority. Appellants’ argument that by reason of proposal No. 2 each former stockholder received a share for a share, a certificate of indebtedness for $3.75 to equalize its value, and a certificate of indebtedness for $28.75 for each additional share held, and that he is not compelled to withdraw, and therefore his rights have not been affected does not stand analysis, especially when it conclusively appears that the values fixed are purely arbitrary, and that such stocks and certificates represent less than one-half of the property owned by the corporation immediately preceding the adoption of the proposals. To say that the appellee stockholders would be no worse off after the adoption of the proposals than they were before is contrary to the record.
The conditions of proposal No. 2 either force out minority stockholders on the terms provided, or if they remain it is at a sacrifice of their rights. Before the proposal was adopted the plaintiff stockholders were the owners of fully paid stock in a corporation organized for profit and operating under bylaws providing for a fixed dividend. Under the general rule that stock was not subject to assessment (13 Am. Jur., p. 394, 18 C. J. S., p. 1159, and see also G. S. 1947 Supp., 17-3206). The adoption of all the proposals and the bylaws included therein, caused the first corporation to be converted into a nonprofit one, authorized by G. S. 1935, 17~1609h to adopt bylaws providing for what in effect is an assessment, and one which did, by its adopted bylaws provide that the gains should be divided among its patrons and not its stockholders. We shall not debate whether that may be done under the statutes regulating the two classes of corporations, but shall content ourselves with the observation that conceding that it may be done, the method followed and conditions imposed must be such that minority stockholders who do not care to remain in the new corporation are treated fairly and equitably. In this connection we note also that under G. S. 1935, 17-1621, which authorizes the changeover of a cooperative society to a cooperative marketing corporation, no express provisions are made pertaining to dissenting stockholders, but that under 17-1628, it is provided that the provisions of the general corporation laws shall apply except where such provisions are in conflict with or .inconsistent with the provisions of the cooperative marketing act. Not because it is controlling, but merely for the analogy, to be drawn, we direct attention to the provisions of the general corporation laws dealing with consolidation and merger of corporations (G. S. 1947 Supp., ch. 17, art. 37) and especially to 17-3707 making provision for determining the value of the shares of a dissenting stockholder who refuses to convert his stock, and for judgment for the amount fixed, as provided in that section. To say the least, it is a legislative declaration that the majority stockholders of a corporation may not with impunity do as they will with the rights of the minority and that the minority is without remedy.
There is also a thread of argument that the appellees are not compelled to surrender their stock, but nowhere does it appear how the corporation can continue to function as one organized under G. S. 1935, ch. 17, art. 15, and as one under G. S. 1935, ch. 17, art. 16. Assuming there were no other reasons which prevented, in view of the provisions of the above statutes and the bylaws of the corporation, the carrying on of activities of each corporation and the distribution of earnings in any form would be an impossibility. The effect of proposal No. 2 is to take from the appellees their rights in the original corporation and its assets, and to substitute therefor the stock and certificates of indebtedness provided in that proposal.
The appellees have' filed a brief which treats at length of the contract rights of stockholders in a corporation, the essential differences between cooperative societies and cooperative marketing associa tions, and that minority stockholders are not to be compelled to agree with the majority as to the philosophy of cooperatives, but in disposing of appellants’ contentions, we do not find it necessary to review the authorities cited by them.
It has not been made to appear that the judgment of the trial court was erroneous and it is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This is an original action in the nature of quo warranto brought by the state of Kansas on the relation of the county attorney of Harvey county against Drainage District No. 3 of McPherson county for the purpose of challenging the legal existence of the drainage district as a public corporation and excluding it from the exercise of all corporate rights, powers and privileges.
Various phases of this case have been here before and should be briefly referred to in chronological order to insure a proper understanding of the issues now involved.
Shortly after the action was instituted defendant demurred to the plaintiff’s petition upon the ground it failed to state a cause of action. It next moved for and obtained permission to file in the office of the clerk of this court a certified copy of the order of the district court of McPherson county declaring the district to be a public corporation. The cause was then set for hearing on the demurrer. When it was argued defendant admitted its motion pertaining to the court order referred to was filed in lieu of a motion to make the petition more definite and certain and conceded such order was necessary for a determination of the issue raised by the demurrer. In State, ex rel., v. Drainage Dist. No. 3, 166 Kan. 225, 200 P. 2d 278, we overruled the demurrer, pointing out in the opinion that however laudable its purpose the defendant could not by-pass well-established rules of pleading and practice and, without the consent of the plaintiff, add or detract from the petition by the filing of certified copies of portions of the record in a collateral proceeding.
After rendition of the foregoing decision defendant filed its answer. Thereafter plaintiff moved to strike certain portions of that pleading and filed a motion for judgment on the pleadings. In State v. Drainage Dist. No. 3, 167 Kan. 213, 205 P. 2d 997, we overruled the motion to strike on all particulars except one which is not here involved and denied the motion for judgment on the pleadings. At the hearing on that phase of the case all we had before us, after ruling on the motion to strike, was the plaintiff’s motion for judgment on the pleadings and the decision was limited to that issue.
Following the last-mentioned decision the only affirmative action taken by the defendant came in the form of a motion to dismiss the action for the reason the cause had not been prosecuted with diligence by the plaintiff. This motion was heard and overruled without the formality of a written opinion.
Plaintiff next filed a motion for an order appointing a special master. Thereupon we appointed Hon. John H. Lehman of Abilene, a capable and experienced attorney, as our commissioner to do any and all things necessary or proper in order to insure a full and complete hearing of all essential matters involved in a determination of the issues raised by the pleadings. Defendant did not contest plaintiff’s motion for the appointment of a commissioner and made no objection to our action in appointing him. Following his appointment the commissioner heard the evidence adduced by the parties, which was taken and transcribed by a certified shorthand reporter, and thereafter returned such evidence together with his findings of fact and conclusions of law to this court. No further mention need be made of the findings except to say that defendant has moved to confirm and plaintiff has moved to reject them and that their approval requires a denial of the writ sought by the plaintiff.
Thus we are called upon for the first time to determine whether under the issues raised by the pleadings and the evidence adduced in support thereof, the plaintiff has established that the proceedings resulting in the creation of the district as a public corporation are void and entitle the state to a writ ousting defendant from the exercise of all corporate rights.
We realize, of course, that to fully comprehend every issue raised by the pleadings, and to completely understand every question heretofore and now involved in this case, it will be necessary for readers of this opinion to have all factual details set forth in the pleadings of the respective parties. The petition is set out in full in the opinion of 166 Kan. 225, supra, while the answer appears verbatim in the opinion of 167 Kan. 213, supra. It will not be necessary to encumber our records by requoting either pleading since by reference they can be found in the opinions of the two cases just mentioned if required for elucidatory purposes.
Briefly summarized, and limited to issues which we deem decisive of the instant appeal, the petition alleges that defendant drainage district purports and claims to be a public corporation pursuant to article 6 of chapter 24, G. S. 1935, under and by virtue of the order of the district court of McPherson county made on July 7, 1947; that the order was and is void in that such tribunal was without jurisdiction to declare the district a public corporation because at the time it was made there were not 160 acres of contiguous swamp or overflowed lands within the limits of the district; that the order purporting to create the district is void upon its face because the findings of fact made by the district court in and of themselves conclusively establish that the bodies of water within the district, and which it proposes to drain, are lakes and not swamp or overflowed lands. Assuming the correctness of the allegations heretofore stated such pleading contains numerous other averments relating to the rights of individuals or corporations to drain lakes in Kansas and asserting the defendant proposes and is about to drain lakes located within the boundaries of the district in violation of law. Its prayer is that the drainage district be adjudged invalid and nonexistent; that the judgment and order of the district court of McPherson county purporting to create and establish the district be adjudged to be invalid, null, void and of no effect and that the district be excluded from the exercise of all corporate rights.
Summarized just as briefly, and also limited to issues here deemed decisive, the answer alleges that the drainage district was organized under G. S. 1935, ch. 24, art. 6 [Ch. 168, L. 1911], which appears as G. S. 1935, 24-601, et seq.; that there were and are 400 acres or more of wet overflowed and submerged lands in the district embracing a contiguous body of swamp or overflowed lands of more than 160 acres, all of which are too wet for cultivation and do not include any lakes whatsoever; that it proposes to and will exercise corporate powers and will drain the area embraced in its boundaries; that it has complied with all the laws of the state of Kansas as contained in G. S. 1935, 24-601, et seq.) that the district .court of McPherson county upon disputed evidence has found facts authorizing and requiring the creation of the corporation, has ordered its incorporation and that defendant is in truth and fact a legally existing corporation. The answer also sets forth the findings of fact and conclusions of law made by the district court at the time it declared the drainage district a public corporation and prays that the relief sought by the plaintiff be denied.
At the outset it should be stated that article 6 of chapter 24, G. S. 1935, provides for the formation of a drainage district by a majority in interest of the owners in any contiguous body of swampy or overflowed lands in the state situated in one or more counties [the land here being so situated], which district shall in no event embrace an area of less than 160 acres. It further provides that the fact said district shall contain 160 acres or more of wet overflowed or submerged lands shall be sufficient cause for the district court of the county in which the greater portion of the land of the proposed district shall be situated [here McPherson county] to declare said organization a public corporation of this state and requires that fact finding body to make such a declaration if and when, upon the hearing therein provided for, it finds objections to the formation of the district are unwarranted and should be overruled. It should likewise be added that the act has been held to be constitutional and construed as authorizing the formation of a drainage district of the type here involved and its subsequent recognition as a public corporation upon findings of fact made by the court having jurisdiction in conformity with its terms. (See State, ex rel., v. Drainage District, 123 Kan. 191, 254 Pac. 372.)
On oral argument one of the principal contentions advanced by counsel for plaintiff, who, we pause to note, stated they had filed no briefs supporting their position and were relying upon the, authorities cited in briefs filed by them on former hearings of the case, was that the order purporting to create the district is void upon its face because the findings made by the district court conclusively establish that the bodies of water within the district are lakes and not swamp or overflowed lands. We need not labor this contention. It was decided adversely to plaintiff in 167 Kan. 213, swpra, where we held the findings of the district court included all the conditions and facts enumerated in article 6 of chapter 24 and essential for the organization of the district.
Plaintiff also argues the district court was without jurisdiction to declare the drainage district a public corporation. In support of this position it is urged that irrespective and notwithstanding the findings the lands included within the boundaries of the district were not swamp or overflowed lands and hence the district court’s order was void. In making this claim plaintiff fails to properly distinguish between jurisdiction and exercise of jurisdiction. Under the provisions of article 6, chapter 24, G. S. 1935, jurisdiction of the district court attached when proceedings were there instituted, as authorized by its terms, seeking to have the drainage district declared a public cor poration. Thereafter, in determining whether the district contained a contiguous body of swamp or overflowed lands of more than 160 acres, the court was exercising jurisdiction conferred upon it by legislative fiat and in so doing by express terms of the act itself (see G. S. 1935, 24-603) was passing upon and deciding a question of fact.
Aside from the matters heretofore discussed the gist of plaintiff’s argument seems to be that the state was not made a party to the drainage proceeding in the district court and that therefore it has the right to challenge the findings of fact made by the district court and retry in this proceeding all factual issues determined by it. It is true, as we held in 167 Kan. 213, supra, that under such conditions the state is not precluded from bringing a proceeding in the nature of quo warranto challenging the corporate existence of the defendant. However, the fact the plaintiff has the right to maintain the action does not mean, as it insists, that it is entitled to a complete review and redetermination of all matters leading up to and resulting in the creation of the corporation.
The rule in this jurisdiction, now well established by repeated decisions, is that where the determination of the existence of prerequisite facts to authorize official action is vested in a local tribunal such as a board of county commissioners, or the governing body of a city or — as is this case — a district court, its determination of those facts is conclusive and is not subject to judicial review unless it is shown its act is without jurisdiction or that its decision was actuated by fraud or similar misconduct substantially equivalent thereto.
Long ago in State, ex rel., v. Holcomb, 95 Kan. 660, 149 Pac. 684, we held:
“The act providing for the incorporation of cities of the third class (Gen. Stat. 1909, § 1511) confers authority on the board of county commissioners to determine whether or not a petition for incorporation presented to it is signed by a majority of the electors of the unincorporated town. The authority thus conferred is jurisdiction, which attaches when a petition fair on its face and duly published is filed. Proceedings following resulting in an order effecting incorporation are the exercise of jurisdiction. The legislature having authorized no appeal or other method of review, the action of the board of county commissioners is final and conclusive although irregular and erroneous, and can not be attacked by the state in an action of quo warranto prosecuted against the corporation except for fraud, collusion or other misconduct the substantial equivalent of fraud.” (Syl. ¶ 1.)
And at page 668 in the opinion said:
“The statute requires that the board of county commissioners shall be sat isfied that the number of inhabitants of the unincorporated town exceeds two hundred and does not exceed two thousand and shall so state in its order. The determination of this fact was, therefore, expressly placed within the jurisdiction of the board of county commissioners.
“In the brief for the plaintiff the question is asked, What remedy is open to the state of Kansas to test the validity of the incorporation of the city of Zenda? The answer is, None. The reason is, the state of Kansas itself incorporated the city of Zenda through a special agency of its own choosing, which it trusted. Not having specially appointed another agent to review the work of the first there is no review, and the judiciary can not interfere except on the familiar grounds bringing the case within the scope of their jurisdiction.”
For other decisions of like import wherein the rule as we have heretofore stated it is announced, approved and adhered to, see State, ex rel., v. Dowling et al., 117 Kan. 493, 232 Pac. 615; State, ex rel., v. Electric Power Co., 116 Kan. 70, 226 Pac. 254; State, ex rel., v. North Topeka Drainage District, 133 Kan. 274, 299 Pac. 637; State, ex rel., v. Jacobs, 135 Kan. 513, 517, 11 P. 2d 739; State v. City of Hutchinson, 137 Kan. 231, 19 P. 2d 714; State, ex rel., v. City of Walnut, 166 Kan. 296, 201 P. 2d 635.
See, also, Williams v. City of Topeka, 85 Kan. 857, 118 Pac. 864; Stevenson v. Shawnee County, 98 Kan. 671, 159 Pac. 5.
The conclusions heretofore announced make it crystal clear that under the situation as it exists in the case at bar the action of the district court of McPherson county in declaring the defendant to be a public corporation is unassailable unless the plaintiff has established that its decision with respect thereto was actuated by fraud or other misconduct of similar import. Our examination of the transcript of the testimony filed by the commissioner fails to reveal a scintilla of evidence to that effect. It necessarily follows the state has wholly failed to establish any infirmity in the corporate status of the defendant which will warrant this court in excluding the drainage district from exercising the rights, powers and privileges it acquired under and by virtue of the district court’s action.
The defendant is entitled to judgment and it is so ordered. | [
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The opinion of the court was delivered by
Wedell, J.:
This action involves the interpretation of a will. The facts were stipulated by the parties. The testator, Robert M. Works, had five living children, three boys and two girls, to each of whom he devised real estate in separate paragraphs of his will. The title to only one tract of real estate devised to his son, Charles W. Works, is here involved. After devising specific tracts of land to his five children the testator included the following paragraph in the will:
“Seventh: — The above bequests and gifts of my real estate are made to my children heretofore named upon condition that they and each of them shall hold the same during their lifetime, and at the death of any one of them the real estate herein bequeathed and devised shall descend to their legitimate children. And in case any one or more of the children above named, should die without legitimate issue, then the share above given and devised to such childless devisee shall descend to and become the property of their brothers and sisters, children of mine who shall survive, share and share alike.”
The controversy involves paragraph seven. The testator died in April, 1911. All of his children were then living. At the time of the testator’s death his son, Charles, had two legitimate living children. They were Warren W. Works and Clark 0. Works. The testator’s son, Charles, died in October, 1946. Clark, however, had predeceased his father, Charles, in 1943. Clark’s only heirs at law were Leota M. Works, his widow, two sons, Charles and Paul, and a daughter, Mary Ella. Upon the death of the testator, Charles W. Works went into possession of the land devised to him for life. In 1948 Leota M. Works, the widow of Clark Works, conveyed her interest, if any, to the land in question to her children, Charles, Paul and Mary Ella.
The controversy here is whether Warren W. Works, the one living son of Charles, received the entire remainder interest in the land or whether Warren took only one-half of the remainder and the three children of Clark took the other half.
The trial court held the entire remainder passed to Warren, on the death of his father, Charles. From that judgment the three children and the widow of Clark appeal.
The merit of the appeal depends on the proper interpretation of paragraph seven of the will and in particular on the first sentence thereof. The parties refer to various rules of judicial construction. They endeavor to apply the rules they cite in a manner designed to support the desired result. If the intention of the testator is clear there is, of course, no occasion for employing rules of judicial construction. (In re Estate of Ellertson, 157 Kan. 492, 142 P. 2d 724; Shannep v. Strong, 160 Kan. 206, 213, 160 P. 2d 683.) The rule to which all others must yield is the rule that the intention of the testator must prevail if it reasonably appears (Selzer v. Selzer, 146 Kan. 273, 69 P. 2d 708) unless it is contrary to settled rules of positive law or in violation of public policy. (Calkin v. Wallace, 160 Kan. 760, 165 P. 2d 224.)
We, therefore, first inquire what was the testator’s intention? As an aid to such inquiry we apply the often repeated general guides that a will speaks from and takes effect on the testator’s death and is to be construed as operating according to conditions then existing unless it plainly shows a contrary intention. (In re Estate of Ellertson, supra.) Also, in order to ascertain the testator’s intention courts place themselves as nearly as possible in the position of the testator at the time he executed the will. (In re Estate of Chevalier, 167 Kan. 67, 204 P. 2d 748.)
Applying these elementary but fundamental guides for ascertaining the testator’s intention we find that at the time of executing the will in 1906 the testator had five children. He devised separate tracts of land to each of them for life and provided that on the death of any of them the land devised to such person should “descend to their legitimate children.” At the testator’s death in 1911 his son, Charles, had two living children, Warren and Clark. Charles had no other children thereafter.
It is conceded that at the testator’s death a life estate vested in the land devised to Charles. The question is, did a remainder interest vest in each of the twh children of Charles at the time of the testator’s death? Appellants contend it did. Appellee claims it did not. If appellee is right Warren took the entire remainder interest in the land devised to his father, Charles, for life. If appellants are right the three of them share equally in the remainder with their Uncle Warren.
Appellee asserts a remainder interest did not vest in Clark on the testator’s death but was contingent upon Clark’s survival until the members of the class — children of Charles — were determined at the end of Charles’s life estate. Appellants insist in order to adopt appellee’s contention that a contingent remainder was created the will must be rewritten by adding at the end of the first sentence of paragraph seven a condition not contained therein, to wit: . . provided they survive the-life tenant.” They contend a contingent remainder cannot be so created but must appear from language the testator himself expressly employed or from which an intention to create a contingent remainder is clearly implied.
There long has been a prevalent disposition by all courts, and this court is committed to the rule, of favoring vested rather than contingent remainders. Consequently where there arises a grave doubt from the terms of a conveyance whether the remainder vested at the death of the testator, or should remain expectant and contingent until the happening of a future event, the doubt is resolved in favor of a vested remainder. (Bunting v. Speek, 41 Kan. 424, 21 Pac. 288; Purl v. Purl, 108 Kan. 673, 197 Pac. 185; Votapka v. Votapka, 136 Kan. 224, 14 P. 2d 732; Buxton v. Noble, 146 Kan. 671, 73 P. 2d 43; Cramer v. Browne, 159 Kan. 423, 155 P. 2d 468; Epperson v. Bennett, 161 Kan. 298, 167 P. 2d 606, Anno. 166 A. L. R. 816.)
So in the Bunting case, supra, it was held:
“In a devise to a wife for life, with remainder to the legal heirs of the testator, to create a contingent remainder the intent so to do must be expressed in words so plain that there is no room for construction.
“No remainder will be construed to be contingent which may, consistently with the words used and the intention expressed, be deemed vested.” (Syl. IT 1, 2.)
And in the Purl case, supra, it was said:
“A will speaks from the time of the testator’s death. A remainder will be regarded as vested rather than contingent, unless such an interpretation would contravene the testator’s expressed intention." (p. 675.) (Our italics.)
Likewise in the Votapka case, supra, the rule was stated thus:
“The law of this state favors the vesting of estates, and instruments transferring an interest in real estate, whether will or deed, will be construed as creating a vested estate, unless a different intent is expressed or clearly implied from the terms of the instrument itself." (p. 226.) (Our italics.)
Two remaindermen, Warren and Clark, were living and definitely ascertainable on the death of the testator. No question exists concerning their identity. There can be no doubt Warren and Clark would, have received the remainder had Charles, their father, died immediately after the téstator. The will contains no expressed intention that the vesting of the remainder in Warren and Clark should depend upon whether they survived their father. If doubt exists concerning his intention to create such a condition the remainder must be held to have vested at the testator’s death. We need, therefore, not conclude it clearly appears a vested remainder was created although we think that was the testator’s intention.
In Buxton v. Noble, supra, not cited by the parties, appellants, as here, contended the remainder interest did not vest until the termination of the life estate and, therefore, that the one remainderman living at that time, instead of four living at the testator’s death, took the entire remainder. Applying formerly stated principles of vesting we denied the contention and held:
“A will which established a trust for the support, comfort and enjoyment of a life tenant and devised and bequeathed the remainder and the accretions thereto, if any, to four persons who were definitely ascertainable and who would take at once on the death of the life tenant, created a vested remainder.
“The fact the interest of a remainderman may be of indefinite value or may ultimately have no material value, does not prevent the creation of a vested remainder.” (Syl. If 1, 3.)
Where provisions in a will, other than those particularly pertinent, throw light on the testator’s intention courts will consider them. (Dyal v. Brunt, 155 Kan. 141, 123 P. 2d 307.) The second sentence of paragraph seven likewise tends to disclose the testator’s intent the children, if any, of the life tenants should receive the remainder. It was only in the event a life tenant died childless that the remainder interest in land devised to him should be distributed among the testator’s own children. It will also be noted that here again, in the second sentence of paragraph seven, there is no indication a remainderman should not take in the event he predeceased the life tenant.
Under circumstances similar to those obtaining here it has been held the word “child” includes grandchildren. (Bennett v. Humphreys, 159 Kan. 416, 155 P. 2d 431.) Appellants are the grandchildren of Charles, the life tenant. In a carefully considered opinion by the late Mr. Justice Hoch in the Bennett case it was held:
“Although the word ‘children’ is not ordinarily construed to include grandchildren, it is properly construed to include grandchildren when the context, or the surrounding facts and circumstances, in case of ambiguity, make it clear that the grantor so intended.
“If there appears to be a doubt or uncertainty as to the grantor’s intention in using the word ‘children’ there is a reasonable presumption against disinheritance of a grandchild whose parent is dead.” (Syl. H 6, 7.)
The rule, in that respect, applies to wills and deeds alike. (Bennett v. Humphreys, supra.)
It is unnecessary to discuss the various factual situations in cases from this and other jurisdictions cited by industrious counsel for the respective parties. That there is some difficulty in harmonizing all of our own decisions touching the subject of vesting has been frankly conceded in the recent case of Epperson v. Bennett, supra.
The judgment is reversed with directions to the district court to enter a decree awarding Warren W. Works, appellee, a one-half interest in the remainder of the land devised to Charles W. Works for life and the other one-half interest to Charles, Paul and Mary Ella Works, appellants, share and share alike. | [
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The opinion of the court was delivered by
Parker, J.:
This was a civil action for the recovery oí money in which the plaintiff was entitled to invoke the provisional remedy of garnishment. Since, under the statute (G. S. 1935, 60-951) and our decisions construing its terms (Bumgardner v. Halverstadt, 115 Kan. 124, 126, 222 Pac. 762; Cole v. Thacker, 158 Kan. 242, 250, 146 P. 2d 665), the garnishment proceeding is to be regarded as an action by the plaintiff against the garnishee and defendant as parties defendant we are not concerned with the facts on which liability of the defendant in the main action is virtually conceded. For that reason this opinion, in which for convenience the parties 'will be referred to in the manner recognized by the statute, is limited to matters apropos to the garnishment proceeding.
Following institution of the principal action plaintiff filed an affidavit for garnishment, not here in question, and caused a garnishee summons to issue, in form as set forth in the code of civil procedure (G. S. 1935, 60-943), and be served on June 24, 1948, 'upon four banking institutions of the city of Wichita, three of 'which made answer disclaiming liability and are no longer involved because plaintiff failed to join issue on their answers. The fourth of such institutions, Fourth National Bank in Wichita, answered that at the time of service of the garnishment summons it was indebted to the defendant in a sum stated, the amount of which is not material to a disposition of the controversial issues here involved.
The return on the garnishee summons fails to show service upon the defendant. Plaintiff does not challenge the correctness of that return. In fact it makes no claim the defendant or his attorney of record have ever been served with summons in the garnishment proceeding as required by the provisions of 60-943.
More than four months after the garnishee was served with summons defendant filed a simple motion to dismiss and dissolve the purported garishment. We are told by the parties, and therefore assume the fact to be, that this motion was presented by defendant’s counsel precisely as if it were a motion to quash service of the garnishment summons on the sole ground the record failed to disclose such a summons had been served upon defendant and that counsel for plaintiff contended the motion constituted a general appearance by defendant in the garnishment proceeding and hence resulted in a waiver of any jurisdictional defect arising by reason of any lack of process therein. In any event, on February 2, 1949, the trial court sustained the motion, dissolved and dismissed the garnishment, and discharged the garnishee. Thereafter plaintiff attempted to have such order and judgment set aside. Failing in this, it notified both defendant and garnishee on April 2, 1949, of its intention to appeal from all matters covered by the trial court’s order and decision of February 2, 1949.
Shortly after the instant case reached this court defendant, John Bryant, hereinafter referred to as the appellee because the garnishee makes no appearance on appellate review, moved to dismiss the appeal on the ground it was not filed in time. That motion was summarily denied with leave to renew it when the cause came on for hearing on the merits. Appellee has renewed his motion and insists that it be passed upon. Therefore it must be given consideration.
The jurisdictional challenge thus raised depends entirely upon the import to be given certain provisions of G. S. 1935, 60-3331, which read:
“When an order discharging or modifying an attachment or temporary injunction shall be made in any case, and the party who obtained such attachment or injunction shall appeal from such order to the supreme court, the court or judge granting such order shall, upon application of the appellant, fix the time, not exceeding ten days from the discharge or modification of such attachment or injunction, within which the appeal shall be perfected, and during such time the execution of said order shall be suspended and until the decision of the case upon appeal, if the appeal be taken; and the undertaking given upon the allowance of the attachment shall be and remain in full force until the discharge shall take effect. If the appeal be not taken within the time limited, the. order of discharge shall become operative and be carried into effect.” (Emphasis supplied.)
Appellee’s position is based squarely upon the proposition garnishment is nothing more or less than a form of attachment and that therefore orders dissolving and dismissing garnishments come within the purview of the terms of the section of the statute just quoted. Conceding, as appellant points out, this particular question is here for the first time since 1889, when by the enactment of Laws of 1889, ch. 151 (now G. S. 1935, ch. 60 art. 9, a portion of our code of civil procedure), garnishment became a separate and distinct provisional remedy, and that there are some authorities in foreign jurisdictions to the contrary, we are inclined to the view that appellee’s position must be upheld.
Long after the garnishment statute referred to came into force and effect in Bank v. Davis, 109 Kan. 758, 202 Pac. 97, while disposing of a claim that garnishment differed from attachment, we held:
“Garnishment is merely another form of attachment — a species of seizure, by notice, of property and funds in the hands of a third person, (citing cases).” (Syl. f 2.)
That this court did not believe the essential characteristics of garnishment proceedings were changed by the 1889 enactment is fully demonstrated by the fact that in the case just cited, both in the opinion and in the syllabus, it referred to and relied on Beamer v. Winter, 41 Kan. 596, 21 Pac. 1078, dealing with the law then in force and effect, which holds:
“Garnishment is attachment in the hands of a third person, and thereby is a species of seizure by notice.” (Syl. if 1.)
Appellant insists the rule in the Beamer case is no longer applicable for two reasons. First, it contends that an attaching plaintiff acquires a lien upon specific property while in garnishment he acquires nothing more than a judicial admonition to the garnishee to hold property subject to orders of the court. A similar claim was made and rejected in Bank v. Davis, supra. We add that we regard its rejection as proper if for no other reason than the result to the defendant is the same. In either proceeding he ultimately loses his property or is deprived of its use and benefits until the litigation in which the ancillary remedy is invoked is fully terminated. Secondly, appellant suggests that under the present statute (G. S. 1935, 60-943) garnishment reaches unmatured debts and contingent liabilities. That fact makes the rule no less applicable. The statute then in force and effect (G. S. 1868, ch. 80, § 200) was equally potent.
Adherence to the cases to which we have heretofore referred requires a decision that garnishment is attachment within the meaning of the latter term as used in G. S. 1935, 60-3331. In addition, we believe legislative approval of that construction of the terms of such section is to be found in the present law. To say the least it is significant that since 1868 the statute authorizing garnishment in aid of execution has contained the provision “All subsequent proceedings against the garnishee shall be the same as in cases of attachment, as far as applicable.” See G. S. 1868, ch. 80, § 504, now G. S. 1935, 60-34,109. Of a certainty this court has adopted that view. In the recent case of State Bank of Dodge City v. McKibben, 146 Kan. 341, 70 P. 2d 1, we said:
“What section 546 (G. S. 1935, 60-34,109) means to say is that after sections 544 and 545 have been properly invoked, all subsequent proceedings shall conform to what the code has already prescribed, as in cases of attachment, as far as applicable. Article 9 of the civil code outlines the general procedure in attachment and garnishment; and it is to that article that the plaintiff seeking to perfect his proceedings in garnishment must look for guidance. . . .” (p. 345.)
Having decided appeals from orders resulting in the discharge of garnishees must be taken within the time prescribed by section 60-3331 we have little difficulty in determining the status of the instant proceeding. Appellant failed to take an appeal from the order dissolving the garnishment within ten days. Under our decisions ap peals from all orders coming within the purview of such section, including the one here involved, must be perfected within ten days in order to be entitled to appellate review. (See Garvey v. Long, 154 Kan. 85, 114 P. 2d 821; Epperson v. Department of Inspections & Registrations, 147 Kan. 762, 765, 78 P. 2d 850; Woodson v. School District, 127 Kan. 651, 274 Pac. 728.)
In an attempt to forestall the result which must necessarily follow the conclusion just announced, and obtain a review on the merits, appellant directs our attention to the fact it sought to obtain a rehearing of the trial court’s order discharging the garnishment and that its notice of appeal was served and filed the day after that tribunal refused to modify its original order. There are two reasons why that situation is of no avail. One is that it appears from the record such order was never set aside and had become final. The other is that the notice of appeal itself, as we have heretofore pointed out, expressly states the order appealed from is- the one entered by the trial court on the 2d day of February, 1949.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Parker, J.:
This is an injunction action in which a private individual seeks to question the validity of the annexation by ordinance of certain property to the City of Emporia, Kansas. The appeal is from a decree sustaining the defendant city’s motion for judgment on the pleadings and taxing the costs of the proceeding against the plaintiff.
To clarify uncontroverted factual matters essential to a decision of the appellate issue involved it should first be stated (1) that on the 18th day of January, 1949, the governing body of the City of Emporia adopted, and thereafter duly published, ordinance No. 1681, whereby it attempted to extend the corporate limits of that city to include the property herein involved and therein described as Lots 85, 87, 91, 93 and 95 on Woodlawn Avenue in Woodlawn Park Addition to the City of Emporia, Lyon county, Kansas and (2) that such ordinance was enacted and such annexation attempted • pursuant to and under the provisions of G. S. 1935, 12-502, which authorized and empowered the city to annex adjacent territory by ordinance when such territory had already been subdivided into lots and blocks.
Within thirty days after publication of the ordinance heretofore mentioned the plaintiff instituted this action by the filing of a petition in district court where he alleged in substance, among other things not here important, that his property was neither adjacent to the city nor subdivided into lots and blocks and that therefore the action of the city in attempting to annex it was ultra vires and the ordinance itself was void.
Other pleadings, including an answer by the defendants and a reply by the plaintiff, appear in the record but we are not concerned with them since the rule (see Northington v. Northington, 158 Kan. 641, 149 P. 2d 622; Schlemeyer v. Mellencamp, 159 Kan. 544, 156 P. 2d 879) is that a motion for judgment on the pleadings is tantamount to a demurrer, admits all facts well pleaded by the opposing party, and is only sustained when, notwithstanding such facts, it clearly appears the party making the motion is entitled to judgment.
The city’s motion for judgment on the pleadings was sustained upon the single ground the plaintiff as a private citizen and the owner of the five lots in controversy within the territory sought to be annexed had no legal capacity to maintain the action.
Thus, since well pleaded allegations of the petition are to the effect the status of plaintiff’s property is such that it does not come within the purview of the statute authorizing the city to annex territory by ordinance, it appears we have for decision the question whether, when the city has taken that action notwithstanding, the plaintiff as a private individual has legal capacity to maintain an action challenging the validity of the proceedings under which the city claims his property has been included within its corporate limits.
At the beginning of his argument in support of his position the trial court erred in sustaining the motion for judgment appellant recognizes the well established doctrine and admits that a private individual cannot collaterally attack the corporate existence of a municipal corporation. Our decisions on this subject are numerous but do not require specific citation since their force and effect is conceded. However, he insists that an entirely different rule prevails with respect to direct attacks upon the existence of such corporations and that in this jurisdiction they may be maintained by private individuals. Assuming, as he asserts, that his is a direct attack upon the validity of the involved annexation proceeding we believe he fails to grasp the full import of our decisions dealing with this particular subject.
Long ago, although the action sought to enjoin the collection of taxes and to that extent involved a collateral attack, this court took occasion to pass upon the rights of private individuals to challenge the corporate existence of municipalities. In A. T. & S. F. Rld. Co. v. Wilson, Treas., 33 Kan. 223, 6 Pac. 281, pointing out that even though the action was of the character just noted it nevertheless involved the power of the school district to levy taxes for school purposes because of illegality in its organization, we held:
“Where a school district has been organized under a valid law, and is in the exercise of corporate powers, the validity of its organization cannot be questioned at the suit of a private party, nor in a collateral action, . . .” (Sfyh)
And in the opinion said:
“. . . The legality of the organization cannot be questioned in a collateral proceeding, nor at the suit of a private party. The organization cannot, be attacked, nor any action taken affecting the existence of the corporation, except in a direct proceeding prosecuted at the instance of the state by the proper public officer . . .
“. . . Whether these reasons, or any of them, moved the county super intendent to organize the district with so great an area, we cannot know; and whether they would be legally sufficient, we cannot determine in this proceeding.
“What we do decide is, that there exists a valid law under which the organization can be made; that a corporation has been created thereunder, and is in existence; and that if there were any irregularities or illegal action in its organization, either by reason of the boundaries established or otherwise, that it must be determined by a quo warranto proceeding brought by the state.” (pp. 228, 229.)
Another decisive case, peculiarly applicable because of the similarity of the attack made by the plaintiff is Railway Co. v. School District, 114 Kan. 67, 217 Pac. 296. There the superintendent of public instruction had made an order undertaking to change the boundary of the school district so that it should include a portion of a large bridge owned by the defendant. The railway company filed suit in the nature of quo warranto asking — as here — that the attempted extension be declared a nullity and the school district be ousted from exercise of jurisdiction over the territory undertaken to be added. At page 68 of the opinion in that case we said:
“. . . Moreover, whatever procedure is adopted the validity of the existence of a governmental corporation or quasi-corporation cannot be challenged in the courts by any one but the state, and this restriction applies where the matter in issue is the effectiveness of an attempted enlargement of its territory . . .”
To the same effect is Elting v. Clouston, 114 Kan. 85, 217 Pac. 295, where we held:
“Rule followed that private persons have no standing to question the legality of proceedings to organize a rural high-school district, nor to enjoin public officials from canvassing the votes cast at an election held pursuant thereto.” (Syl.)
Still another case is Euler v. Rossville Drainage District, 118 Kan. 368, 235 Pac. 95. The plaintiff in that action sought to enjoin the drainage district from entering upon his land for the purpose of making or constructing ditches or drains and as ground for relief charged that the original incorporation of the district was void. We held:
“The rule that only the state may challenge the existence of a governmental corporation or quasi-public corporation is applied in an action brought by an individual to enjoin the construction of ditches or drains over his property.” (Syl. IT 1.)
And at page 364 of the opinion said:
“. . . It has been so repeatedly held that private individuals may not maintain an action, the direct purpose of which is to question the validity of corporate or quasi-corporate organizations, that to discuss or enlarge upon the subject is useless. These are matters ordinarily within the province of the state acting through the attorney general or the county attorney. . . .”
Our decisions are not limited to public corporations of the kind involved in the preceding cases. Several of them deal directly with attacks on the corporate integrity of cities.
A leading case is Chaves v. Atchison, 77 Kan. 176, 93 Pac. 624. Chaves owned and resided upon a tract of land. The city attempted to annex the tract by passing an ordinance in due form which treated the tract as platted property. After enactment of the ordinance he brought an action for himself and others similarly situated in which he atempted to question the validity of the annexation of the territory to the city, claiming it was unplatted, and asked that the city and its officers be restrained from improving or controlling the streets of the addition, from exercising authority over it as a part of the city and from imposing city taxes on the land in question. The city demurred to his petition and the trial court sustained the demurrer upon the ground the corporate organization of the city, including the extension of its limits, could not be questioned in a collateral proceedings, nor at the suit of private parties. We upheld the trial court’s action. In the opinion written by the former Chief Justice Johnston we said:
“. . . It is alleged, it is true, that the tract was not legally annexed, but there is undoubted jurisdiction in the mayor and council to make a legal annexation by the passage of an ordinance. An ordinance has been passed in fair form purporting to enlarge the boundaries of the city and making the addition in question a part of the city, and since that time the city has been exercising municipal authority over the addition and the people residing there.
“The validity of the corporate existence of the city, as originally organized or as reorganized by the extension of its boundaries, cannot be questioned by private parties. It has been held that the extension of corporate limits to include new territory, under statutory authority, is, in effect, a reorganization of the city; that the act of annexation involves the corporate integrity of the city and is not open to collateral attack and that its validity cannot be questioned by any party other than the state any more than can the validity of the original organization of the city. (Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 471) . . . We are therefore not warranted in considering whether the steps taken to bring the tract of land into the city were legal or not. The objections which the plaintiff makes can only be considered in a direct proceeding prosecuted at the instance of the state by the attorney-general or county attorney.” (pp. 177, 178.)
And in the syllabus held:
“The validity of proceedings taken by city officers under statutory authority extending the corporate boundaries of a city so as to annex a tract of land can only be questioned in a direct proceeding prosecuted at the instance of the state by proper public officers. The case of Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 417, followed.” (Syl.)
Our decision in Price v. City of McPherson, 92 Kan. 82, 139 Pac. 1162, involves an action brought by a private individual to have it decided, first, that the city of McPherson was without authority to annex certain territory to the city as a part thereof; second, that the action of the mayor and council in the premises was null and void; third, that the city be enjoined from making certain contemplated improvements. Price contended that when the territory was annexed the city had no authority to annex it for the reasons he had not assented to the annexation and his land was not circumscribed by platted territory. In disposing of this contention the court followed the rule heretofore announced in Chaves v. Atchison, supra, and stated that whether Price’s contention be true or not he had no right as a private individual to attack the proceedings incorporating the tract.
It is to be noted that in each of the last two cases from which we have quoted the rule announced in Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 471, is followed and approved. Appellant points out that case deals with a collateral proceeding wherein the plaintiff sought to question the validity of annexation proceedings extending the corporate limits of the city of Topeka. Quite true. He then asserts that on such account the case does not support the trial court’s judgment in the instant action. We do not agree. A close analysis of the opinion in such case reveals definite approval of the rule subsequently announced in Chaves v. Atchison, supra.
See, also, Mason v. Kansas City, 103 Kan. 275, 173 Pac. 535, where we held:
“The validity of proceedings taken by city officers under statutoi-y authority, which proceedings extend the corporate limits of a city so as to annex a tract of land, can be questioned only in a direct proceeding prosecuted at the instance of the state by proper public officers.” (Syl. ¶ 2.)
For other decisions applicable because they adhere to the same general rule in situations where private individuals have endeavored to challenge the legality of organization of school districts, see Schur v. School District, 112 Kan. 421, 210 Pac. 1105; School Dist. No. 38 v. Rural High School District, 116 Kan. 40, 225 Pac. 732; Scamahorn v. Perry, 132 Kan. 679, 296 Pac. 347; Fortune v. Hooven, 133 Kan. 638, 2 P. 2d 142; School District v. Shawnee County Comm’rs, 153 Kan. 281, 110 P. 2d 744.
Appellant advances numerous arguments, many of them plausible, as to why the courts should permit private individuals to attack the corporate integrity of a city. Most, if not all, of them have been considered and rejected in the decisions to. which we have referred and for that reason require no specific discussion here. It suffices to say we find nothing in any of them which would justify us in repudiating the rule, founded on public policy and which has been the settled law of this state for far more than half a century, that they cannot do so. If the consequences resulting from its application are as dire as he would have us believe it is indeed strange that the legislature of this state, which has unquestioned power to authorize individuals to maintain actions of such character, has not seen fit at repeated sessions to grant them that privilege.
Another contention strenuously urged is that because the city exceeded the power conferred by the statute in annexing land which must be regarded as neither adjacent to the city nor subdivided in lots and blocks it lacked jurisdiction over his property and hence there was no valid annexation. All we hold is the appellant had no right to maintain the action. Once such a conclusion is reached we are no longer concerned with that question or others of a similar nature.
Appellant insists that Stewart v. Adams, 50 Kan. 560, 32 Pac. 122, and Brown v. Junction City, 122 Kan. 190, 251 Pac. 726, require a decision contrary to the one we have heretofore announced. Without laboring what was said or held in those cases it will be noted that the question of the plaintiff’s lack of capacity to maintain the action was neither raised nor passed on. For that reason' they are not decisive here. The same is true of Eskridge v. Emporia, 63 Kan. 368, 65 Pac. 694, not relied on by appellant but cited in 2 McQuillin “Municipal Corporations” 383, 3d Ed. § 7.43, as authority for the proposition that a void annexation proceeding may be challenged in an injunction proceeding instituted by a private individual.
In conclusion it should be stated we have not overlooked the many decisions from other jurisdictions cited by the astute and industrious counsel for appellant. Many of them are based on express statutory authority granting private individuals the right here invoked. Others are from jurisdictions which adhere to a rule contrary to our own and which we refuse to follow.
Under our decisions the appellant has no legal capacity to maintain the action and the trial court did not err in sustaining the motion for judgment on the pleadings.
It follows the judgment should be and is affirmed. | [
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The opinion of the court was delivered by
Arn, J.:
A claim was filed in the probate court of Ness county by a son who sought to recover from his mother’s estate the value of certain cattle claimed by him to have been his property. The claim by Joseph Nonnast, appellant here, was transferred to the district court without having been heard in the probate court. The administrator did not object to the claim, but upon his failure to do so written objections thereto were filed by a brother and three sisters of claimant. The hearing was had in the district court and at the conclusion thereof the court made one finding of fact and one conclusion of law as follows:
“The Court further finds that the evidence produced at the hearing of the claim of Joseph A. Nonnast failed to establish that he was the owner of the cattle sold by Anna Nonnast during her lifetime, and also that he was the owner of the cattle sold by the administrator after the death of Anna Nonnast as alleged in hid claim filed herein.
“The Court further finds as a Conclusion of Law that the claim of Joseph A. Nonnast against the above entitled estate be and the same is hereby disallowed and that the costs of this proceeding in this court be taxed against the said Joseph A. Nonnast.”
Claimant’s motion to set aside both the finding and conclusion, and his motion for judgment for $3,810.57 were overruled, from which rulings he appeals.
Appellant specifies as error the overruling of the two post-trial motions, but the two propositions may well be resolved into the single question as to whether the uncontroverted evidence was sufficient to establish his claim as a matter of law. This requires a review of all the evidence germane to the question involved, and it is summarized as follows:
The claimant and appellant was one of seven children of Anna Nonnast, who died in 1947. The appellees are a son and three daughters of deceased. This appellant-claimant testified that he returned from a tour of duty in the army in 1934 and continued to stay part of the time on the farm with his mother. In 1935 his mother sold all of her cattle and claimant’s brother Julius bought three cows of his own. Then in 1936 this claimant bought four head and put them on the farm. The proceeds from the milk and cream from all the cattle were used to buy groceries, make repairs, etc. Some of the cattle were sold in 1941, 1943 and 1944 and he received the proceeds from the sales. Claimant furnished feed for the cattle at various times — -10 or 15 tons a year — and some ground feed. His mother did not purchase any cattle after she sold hers in 1935. There were no cattle on the place from 1935 until his mother’s death except those purchased by’ claimant and his brother Julius, and the increase therefrom. His mother sold cattle at the Ness City livestock pavilion and claimant’s exhibits 1, 2, 3 and 4 were identified as sales tickets made in his mother’s name. These tickets show sales made July 5, 1945, December 5, 1945, September 26, 1946, and October 1, 1947, for a total of $2,124.97. After the death of Anna Nonnast late in 1947, the administrator took possession of the cattle left on the place, some of which belonged to claimant’s brother Julius. Julius’ cattle were not sold by the administrator.
The testimony of Julius was that he lived on the farm with his mother from 1924 until March 18, 1941. In 1935, the mother sold all of her cattle and Julius bought three head of milk cows. Then in 1936 Julius went to a C. C. C. camp, and when he returned there were four other cows on the farm making a total of seven. The increases from his three cows were sold at various times and an accounting was made to him of the proceeds.
Another brother, John, testified he was at the farm home in 1936 and overheard a conversation between Joseph and his mother relative to Joseph getting some cattle on the place, if mother would furnish feed, pay taxes, and help, and she said she would. Only three head of Julius’ cattle were on the place at the time. John went to the place in the spring of 1941 and deceased had no cattle of her own then. There were cattle there which Joe and Julius bought. John could then point out the ones which were Joe’s. He used to keep track of the increases by writing them on the calendar. During that time he sold three red steers belonging to Joe. Joe was paid for them by the mother, Anna Nonnast. That was in 1941. After that time the mother sold some of the increase or some of the cows from Joe’s part of the herd. In the spring of 1944 the mother told John to sell some of the cattle and George Roth hauled them to town. John was present when they were sold. Claimant’s exhibits 1, 2, 3, and 4 were identified as sales tickets of Joe’s cattle sold in his mother’s name in 1945, 1946 and 1947. John received the checks and deposited them in his mother’s name. At the time of the mother’s death there were no cattle on the place except those belonging to Joe and Julius. Julius got his cattle after her death and sold them. Julius’ cattle were not appraised by the appraisers for the estate.
The administrator Lea Maranville then testified that he, as administrator of the Anna Nonnast estate, took possession of 14 head of cattle when he was appointed. He sold them at an administrator’s sale as shown on the sales sheet, claimant’s exhibit 5. This sales sheet shows nine cows, one heifer and four calves having been sold on January 2, 1948, for $1,720. While at the Nonnast home with the appraisers in November, 1947, at the time of the appraisement, the cattle were exhibited to the appraisers by John Nonnast. Joe, appellant here, was present at the time of the appraisement, in November, 1947, and no claim was made by him as to ownership of the cattle. The record shows Joseph Nonnast’s petition setting forth his claim was filed in April, 1948.
Another witness, Walter Rothe, testifying for the respondents, said John Nonnast, brother of appellant, pointed out the cattle to the administrator. Joe Nonnast was present at the time. Witness Rothe further testified.
“Q. Did John point out part of the cattle as belonging to Julius and part to Joe?
“A. No, part for Julius and part for the estate.
“Q. What words did he use?
“A. He said these are Julius’ —
“Q. As to any of the others, did he give you a direct statement who they belonged to — outside of these belonging to Julius?
“A. No.
Testifying for respondents, one of the appellees, Kathryn Musbach, testified she visited her mother often while John lived there. She saw cattle on the place. She knew about the time appellant bought the cattle and took them out- to the place.
Another of the appellees, Louise Musbach, testified she visited her mother every Sunday and saw cattle on the place. She remembered the time that appellant bought the cattle and put them on the mother’s place. They were Jerseys.
It should also be mentioned that exhibit 5, the sales sheet of the administrator’s sale on January 2, 1948, shows appellant listed as the purchaser of 13 small items such as barbed wire, posts, farm machinery, etc. It was at this sale that 14 head of cattle now claimed by appellant to be his, were sold.
The foregoing testimony and the five sales sheet exhibits constitute all the evidence, and appellant contends this was sufficient to establish his claim against his mother’s estate.
There is no conflict in the testimony that Joesph purchased the four head of cattle in 1936, and that in 1941, 1943 and 1944, several head of cattle were sold and his mother accounted t'o him for all the proceeds. With claimant having purchased the original four cows and placed them on his mother’s farm as his own cattle, and having himself furnished some feed for them, and he having received from his mother the proceeds for the several head sold prior to 1945, there may be some inference that the cattle and the increase therefrom were regarded by the appellant’s mother, the deceased, as belonging to this appellant-claimant. It seems to be appellant’s con tention that such an inference follows from the uncontradicted evidence and that such inference conclusively establishes his claim against the estate.
But on the other hand, there were other matters which the trial court may have considered — for example, (1) the proceeds from the cattle sold in 1945, 1946 and 1947 were placed in the mother’s bank account, and for some reason she did not see fit to account to claimant for them prior to her death; and (2) although the four head of cattle originally purchased by claimant belonged to him, that number or more was sold during 1941, 1943 and 1944, and claimant received the money for them — and the proof as to the ownership of the other cattle was not too convincing; and (3) claimant stood by at the time the appraisers were appraising the cattle for the estate in November, 1947, and made no claim that they were his, although he surely knew the purpose of appraisement was to have them sold as assets of the estate; and (4) claimant attended the administrator’s sale on January 2, 1948 (some months before filing his claim), and purchased 13 items in his own name, but made no claim or complaint at that time that his cattle were being sold by the administrator for the benefit of the estate.
It was the function and duty of the trial court to consider all these matters in determining whether claimant had proved his claim by clear and convincing evidence. We discussed the consideration which a trial court should give to the testimony received in a case of this kind in In re Estate of Johnson, 155 Kan. 437, 125 P. 2d 352, where it was held:
“As the trier of the facts, it was the province and duty of the court to determine what weight and credence it would give to the testimony of the witnesses on both sides of the case. Of course, a jury or court cannot arbitrarily or capriciously refuse to consider the testimony of any witness but, on the other hand, it is not obliged to accept and give effect to evidence which, in its honest opinion, is unreliable, even though such evidence is uncontradicted. (State, ex rel. v. Woods, 102 Kan. 499, 170 Pac. 986; Potts v. McDonald, 146 Kan. 366, 69 P. 2d 685; State v. Jones, 147 Kan. 8, 11, 75 P. 2d 230; Briney v. Toews, 150 Kan. 489, 494, 95 P. 2d 355, Johnson v. Soden, 152 Kan. 284, 103, P. 2d 812.)
“Plaintiff contends this court has frequently reversed a trial court on findings of fact where there was no evidence to support the findings made. That is true where there were affirmative findings of fact unsupported by the record. Here, however, we have a negative finding of fact — a very different thing. (Potts v. McDonald, supra, p. 369.) Here the court, after hearing all of the evidence, was convinced the claim should not be allowed, and so found. The court quite apparently either did not believe the testimony offered in sup port of plaintiff’s claim or the evidence was not sufiicently clear and convincing to persuade the court concerning the validity of the claim.
“Appellate courts cannot nullify a trial court’s disbelief of evidence (Kallail v. Solomon, 146 Kan. 599, 602, 72 P. 2d 966), nor can they determine the persuasiveness of testimony which a trial court may have believed. The appearance and demeanor of a witness, which appellate courts never have the opportunity of observing and which cannot be transmitted to the cold records of this court, may be, and sometimes are, far more persuasive than positive testimony.” (pp. 439-440.)
The finding of the district court that appellant’s claim of ownership of the cattle had not been established by clear and convincing evidence is a finding which is justified from the evidence appearing in the record before us. Had an opposite affirmative finding been made, perhaps it could be said that it was supported by substantial evidence. There is a vast difference between the setting aside of a negative finding and an affirmative finding. The finding of which appellant here complains was'a negative one. The trial court was not required to consider everything in claimant’s favor as it must upon a ruling on a demurrer. In determining the justice of the claim, the trial court necessarily had to conclude what weight and credence should be given to all the evidence. The supreme court will not disturb such a negative finding where it does not appear to have been made arbitrarily and capriciously.
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The opinion of the court was delivered by
PIojrtoN, C. J.:
After the district court of Cloud county ordered the venue of the information to be corrected, and directed that all the papers and proceedings be certified to the district court of Mitchell county, the clerk of the district court of Cloud county should have made out a full transcript of the record and proceedings in the cause, including the order of removal and the recognizance of appellant, and of all witnesses, and should have transmitted the same, duly certified under the seal of his court, to the district clerk of Mitchell county. There is no certified transcript in the record, and it does not appear that such transcript was either lost or destroyed. After the transcript of the record and proceedings of the case in the district court of Cloud county had been filed with the clerk of the district court of Mitchell county, then the latter court could have proceeded with the case in the same manner, as if it had been commenced there. Although the district court transferred the case under the provisions of § 231 of the criminal code, yet the transcript and proceedings thereafter should have conformed as nearly as possible with the provisions of §§188,189 and 190 of the criminal code.
The information was drawn, we suppose, under § 35 of the act relating to crimes and punishments, which reads:
“Every person who shall take away any female under the age of eighteen years from her father, mother, guardian or other person having legal charge of her person, without their consent, either for the purpose of prostitution or concubinage, shall upon conviction thereof, be punished by confinement and hard labor for the term of not exceeding five years.”
The information charges that the female, Nannie Lawson, was taken away Ur prostitution and concubinage. In the information the',e is a joinder of two distinct felonies in one count. .If , <.he appellant took away the female for the purpose of prostitution, under the circumstances alleged in the information, he would be guilty of one offense; .but if he took he-, away for the purpose of concubinage, but not for prostitu-ción, he would be guilty of another offense. If the appellant took the female away for the purpose of .prostitution, he did so for the purpose of devoting her to infamous purposes, that is, of offering her body to indiscriminate intercourse with men. If he took her away for concubinage only, then his purpose was to cohabit with her in sexual commerce, without the authority of law or a legal marriage. Now two.or more of fenses may, under proper circumstances, be joined in one information, but it must be in separate counts. Each count, as a general thing, should embrace one complete statement of a cause of action, and one count should not include distinct offenses — at least, distinct felonies. There are many prominent exceptions to this rule, but as this case is not within the exceptions, they need not be noted. (Wharton’s Crim. PI. and Pr., §§244-254; 1 Bishop on Cr. Pro., §§433-440.)
Again, if the appellant took away the female for the purpose of - prostitution, the jurisdiction of the case was in Mitchell county, where the offense was committed, and also in Cloud county, where the female was brought, (Cr. Code, §25;) but if the female was taken away for the purpose of concubinage only, then the jurisdiction of the case was in Mitchell county, where the offense was committed, and not in Cloud county. The information was attacked by a motion to quash, and also by a motion to compel an election. Both were overruled. This was error, and also error prejudicial to the rights of the appellant. The evidence offered upon the trial tended to prove that the appellant took away the female for the purpose of concubinage only, yet the jury found a verdict that the appellant was guilty as charged in the information; therefore we cannot tell from the verdict whether the jury found the appellant guilty of taking away the female for the purpose of prostitution, or for the purpose of concubinage, or for both. (Wharton’s Crim. PI. and Pr., §255; 1 Bishop on Cr. Pro., §444.)
The rule herein announced does not apply in cases merely of misdemeanors. (The State v. Schwitzer, 27 Kas. 499; 1 Chitty on Crim. Law, p. 54.) In offenses inferior to felony, the practice of quashing the indictment, or calling upon the prosecutor to elect upon which charge he shall proceed, does not prevail.
The judgment of the district court will be reversed, and the cause remanded.
VALENTINE, J., concurring.
Johnston, J., not sitting in the case. | [
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The opinion of the court was delivered by
Wedell, J.:
This action was commenced by the guardian of the person and estate of an insane person to set aside a deed she had executed and for incidental relief.
The grantees were alleged to have promptly encumbered the property with a mortgage. The grantees, mortgagee and tenant on the property were made parties defendant. The action has not been tried. All defendants, except the tenant, have appealed from a¡n intermediate order. Numerous procedural steps and rulings thereon made prior' to the particular order complained of are not before us for review.
Mary E. Schumacher, the ward who executed the deed, died intestate April 23, 1948. Her only heir at law was an insane daughter, Louise. William Mauersberger had been appointed guardian for the daughter in 1946 and was likewise appointed administrator for the estate of her deceased mother. William Mauersberger in the capacity of administrator and as guardian of the decedent’s sole heir at law petitioned the district court to revive the action in the name of the administrator and such guardian.
Appellants appeared specially by motion to quash the service of notice for the hearing on the motion for revivor. The motion was predicated upon the grounds the motion for revivor, the notice and the summons did not comply with statutory requirements and particularly those contained in G. S. 1935, 60-3210.
On April 22,1949, the court held a hearing on these motions, overruled appellants’ motion and gave them time to answer the motion for revivor. Later on the same day and after a second hearing the court revived the action as of that date subject to an agreement of appellees which agreement is not determinative of the right of appeal in the instant case. The appeal is from the order of April 22, 1949, overruling appellants’ motion to quash the service of the notice of hearing on the motion for revivor and from the order of revivor.
The parties discuss the merits of the appeal without regard to the question of our jurisdiction to entertain it. Where it clearly appears we do not have jurisdiction of an appeal we cannot entertain it although the parties neglect or see fit not to raise the question. (In re Estate of West, 167 Kan. 94, 204 P. 2d 729, and cases therein cited.)
No final judgment has been rendered. Until final judgment is rendered an appeal does not lie to reverse an order refusing to set aside service of summons. (Oil Co. v. Beutner, 101 Kan. 505, 167 Pac. 1061; In re Estate of West, supra, p. 96.)
In the recent case of Singleton v. State Highway Comm., 166 Kan. 406, 201 P. 2d 650, we restated the frequently announced rule thus:
“A final order is one affecting a substantial right in an action when it in effect determines the action and prevents a judgment.
“An order sustaining any motion which results in dismissing an action has both effects mentioned in paragraph 1 and is appealable. An order overruling such a motion has neither of such effects and is not appealable.” (Syl. f 1, 2.)
In the case of In re Estate of West, supra, numerous decisions to the same effect were collected and carefully reviewed. In Run nels v. Montgomery Ward & Co., 165 Kan. 571, 195 P. 2d 571, in which a special appearance was made to dismiss an action we held:
“The sole purpose of a special appearance by motion to dismiss an action is to challenge the jurisdiction of the court without the movant submitting himself to its jurisdiction.
“An order overruling a motion to dismiss an action does not constitute a final order within the meaning of G. S. 1935, 60-3302, 60-3303 and, prior to final judgment, is not appealable.” (Syl. fí 1, 2.)
The order overruling appellants' motion in the instant case was neither a final order nor an intermediate appealable order under sections of our civil code. It follows the appeal must be dismissed. It is so ordered. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of quo warranto, brought in the district court of Harper county by A. "W. Carpenter against Asa Titus, jr., for the purpose of having the question determined whether the plaintiff or the defendant was entitled to the office of treasurer of School District No. 8, in said county. Under the pleadings, both parties claim to be the regular and legal school-district treasurer for said district. The case was tried before the court, without a jury, and upon the trial the plaintiff proved that he had been duly elected to the office, but that he had not qualified within twenty days thereafter. The plaintiff then offered to prove that he had been acting as school-district treasurer for said district ever since his election; that he had been generally recognized by all persons as such school-district treasurer; that he had properly qualified for the office, but not within twenty days after his election; and that he had a sufficient cause for not qualifying within that time. But the defendant objected to all this proof, upon the ground that it was immaterial and irrelevant, and did not show or tend to show the plaintiff’s right to the office; and the court sustained the objection, and refused to permit the plaintiff to introduce any such proof. The plaintiff then rested his case, and the defendant demurred to his evidence, upon the ground that it did not prove any cause of action against the defendant; and the court sustained the demurrer and rendered judgment in favor of the defendant and against the plaintiff for costs. The plaintiff, as plaintiff in error, now brings the case to this court, and asks for a reversal of such judgment.
The only question presented to this court is, whether the court below erred in refusing to permit the plaintiff to make the proof which he offered to make, upon the trial of the case. The decision of the court below excluding such proof, was made upon the theory, as we understand, that the plaintiff had forfeited his office by virtue of the provisions of § 3, article 4, chapter 92, of the Comp. Laws of 1879, relating to schools, and according to the decision of this court made in the case of The State v. Matheny, 7 Kas. 327. Said section reads as follows :
“ Sec. 3. Every person duly elected to the office of director, clerk or treasurer of any school district, who shall refuse or neglect, without sufficient cause, to qualify within twenty days after his election or appointment, or who, having entered upon the duties of his office, shall neglect or refuse to perform any duty required of him by the provisions of this act, shall thereby forfeit his right to the office to which he was elected or appointed, and the county superintendent shall thereupon appoint a suitable person in his stead.”
We think the decision of .the court below is erroneous. The defendant had a right to show that he had “sufficient cause” for not qualifying within twenty days after his election, and that he had qualified for such office after that time; otherwise, the words “without sufficient cause,” contained in the foregoing section, would be superfluous. The case of The State v. Matheny, 7 Kas. 327, has no application to this case. The statute under which that case was decided contains no such words as “without sufficient cause.” That statute provides, among other things, that the “ office shall become vacant,” absolutely, on the happening of the event of the officer’s neglect or refusal to qualify, or to deposit his official oath and bond within the time prescribed by law, which is within twenty days after his receiving official notice of his election or appointment; or within twenty days after the commencement of the term of office for which he was elected. (The State v. Matheny, 7 Kas. 330; Gen. Stat. 1868, ch. 25, §§ 173, 179; Comp. Laws of 1879, p. 311, ch. 25, §§ 173, 179.)
And further, we might say, that at the time this proof was excluded there had been no admission, by the pleadings or otherwise, and no evidence introduced, tending tp show that the , defendant had any right, title or interest in,|5r to the office, further than he merely claimed to be entpfied to the office, and was attempting to intrude himself into the same; and therefore unquestionably, upon the evidence introduced and offered, the plaintiff — as between the plaintiff and the defendant — was entitled to the office. In this respect, this case also differs from the case of The State v. Matheny, for in that case the action was commenced by the State of Kansas, on the relation of the attorney general ; and the State of Kansas had a right to oust the defendant in that case, even if no other person had any right to the office. In that case the defendant was ousted upon the theory that the office was “vacant;” while the most that can be claimed in this ease is, that the plaintiff has “forfeited his right to the office.” But the state is not seeking to enforce the forfeiture. This case is purely a contest between two claimants to the office; and, as no other person is claiming the office, the question is merely a question as to which of these two claimants has the better right to the office. Of course, if the plaintiff had no right whatever to the office, he could not recover; but he has shown that he has some right thereto. He was elected to the office, took possession thereof, afterward qualified, though not within twenty days, but he offered to prove, that he had “sufficient cause” for not qualifying within that time, and the state has not yet seen fit to commence any proceedings against him to oust him from the office, or to have it determined that he is not entitled to the office; and a mere intruder, or attempted intruder, as the defendant now .seems to be, has no right to question his right to the office.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
HortoN, C. J., concurring.
JOHNSTON, J., not sitting. | [
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The opinion of the court was delivered by
Parker, J.:
For reasons deemed to be sufficient a rehearing was granted in this case. The pertinent facts and issues involved are set forth at length in our original opinion (168 Kan. 74, 211 P. 2d 49) and need not be restated.
The case was not rebriefed but it was reargued by counsel for the respective parties whose oral presentation of the cause was confined to matters discussed in the briefs and failed to raise any questions of law not already given consideration in the original opinion.
After having examined the briefs and carefully considered all questions argued on the rehearing the court fails to find anything warranting a change in the former opinion. Therefore it adheres to. its original decision affirming the judgment of the district court of Sedgwick county in sustaining a demurrer to the appellants’ evidence. | [
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The opinion of the court was delivered by
Joi-INSTON, J.:
B. A. Feineman & Co. brought this action against Frank Sachs, to recover the price of a quantity of intoxicating liquors sold by them to the defendant, who was a saloon keeper at Topeka, Kansas. The plaintiffs are wholesale liquor dealers at Kansas City, Missouri, and they allege that on the 17th day of August, 1881, they sold on credit and shipped a bill of liquors priced at $223.33, to one C. G. Funk, at Topeka; that a short time after this sale, Funk sold out his business to the defendant Sachs, when he assumed the payment of Funk’s indebtedness to the plaintiffs; that afterward the defendant purchased liquors directly from plaintiffs of the amount of $75.75, making a total indebtedness alleged to be due from defendant to plaintiffs of $299.08; that the defendant had made several payments on account to the amount of $150, leaving a balance due to the plaintiffs of $149.08, for which they asked judgment.
The defendant denied the assumption of Funk’s indebtedness to plaintiffs, and claimed that when he bought Funk out a number of outstanding accounts were left by Funk with him for collection, with the agreement that the amount collected upon them should be paid to Feineman & Co. upon the bill that Funk owed them. He claimed that on these accounts he collected about $75, all of which was paid over to the plaintiffs, and that the balance of $150, which he had remitted to the plaintiffs, was in full payment of the liquors purchased by himself from them. He made the further defense, that the liquors were sold by the plaintiffs at Topeka, Kansas, contrary to the laws of this state, and with full knowledge that they were to be resold by the defendant and in violation of our law, and therefore no recovery could be had for their price.
On the trial, a general verdict was returned by the jury in favor of the defendant.
One of the errors assigned by the plaintiffs is upon the instructions that were given to the jury. The court directed the jury that if the plaintiffs’ agent took an order from the defendant for intoxicating liquors to be transmitted to the plaintiffs at Kansas City, Missouri, and there filled at their option, and to be delivered at that place to the defendant, the the plaintiffs would be entitled to recover the amount unpaid thereon; but that if the sale and delivery of the liquors was-made at Topeka, Kansas, no recovery could be had unless the plaintiffs had a permit authorizing such sale. The court then gave the following instruction:
“I further instruct you, that if you find as a fact that the plaintiffs’ agent took from the defendant an order for intoxicating liquors in the city of Topeka, with the understanding- and agreement that said order should be transmitted to plaintiffs in Kansas City, Missouri, to be there filled subject to their-choice and option, and that said liquors were delivered to the defendant on the cars at Kansas City, Missouri, to be brought into this state; and if you further find that at the time of such transaction it was the understanding and agreement between the defendant and plaintiffs’ agent that such liquors were to be brought into the state of Kansas, and here resold in violation of the laws of this state; and if you further find that the-agreement of transmission and filling of the order at the plaintiffs’ option, and the delivery of the liquors to the defendant on the cars at Kansas City, Missouri, was so made as a scheme or device for evading the laws of Kansas respecting the sale of intoxicating liquors in this state, and that such liquors were-so furnished defendant in pursuance of such scheme or device to be resold in Kansas in violation of the laws of this state,. . then you must find for the defendant.”
Exception is taken to this instruction, upon two grounds: First, that it is not a correct statement of the law; and second, that there was no evidence in the case upon which to base such an instruction.
As an abstract proposition of law, we think the instruction is not erroneous. The plaintiffs claim that the validity of a .sale and delivery of goods made in Missouri is to be determined by the laws of that state, and that as the contract in question conformed to the laws of Missouri, it cannot be affected by our laws, and must be enforced in our courts. It is true, the general rule is that the validity of a contract is to be determined by the law of the place where it is made, and if it is .valid by the laws of that state it will be enforced in another as an act of comity, even though it may not entirely •consist with the laws of the state in which enforcement is sought. To this rule there are important exceptions, one of which is, that no state is bound to enforce a contract that is in •contravention of its laws and which has been entered into in fraud or evasion of such laws.
It has been said that—
“The exception applies to cases in which the contract is immoral or unjust, or in which the enforcing it in a state would be injurious to the rights, the interest, or the convenience of such state or its citizens. This exception results from the consideration that the authority of the acts and contract •done in other states, as well as the laws by which they are regulated, are not, proprio vigore, of any efficacy beyond the territories of that state, and whatever effect is attributed to them elsewhere, is from comity, and not of strict right. And every independent community will, and ought to, judge for itself how far that comity ought to extend. Contracts, therefore, which are in evasion or fraud of the laws of a country, or of the rights or duties of its subjects, contracts against good morals, or against religion, or against public rights, and contracts opposed to the national policy or national institutions, are .deemed nullities in every country affected by such considerations ; although they may be valid by the laws of the place where they are made.” (Story on Conflict of Laws, •§244.)
And citizens of another state who enter into an arrangement to furnish liquor with the intention and for the purpose of enabling a citizen of Kansas to violate our laws, are not entitled to any greater privilege than any one of our own citizens guilty of the same wrong. If, then, the transmitting of the order for intoxicating liquors to Kansas City, Missouri, and the delivering of them upon the cars at that place, was, as stated by the court, a mere scheme or device of the parties to evade the laws of Kansas prohibiting the sale of intoxicating liquors, and the plaintiffs encouraged and assisted the defendant in the illegal transaction, the courts of the state will not aid the plaintiffs in recovering the fruits of such wrongful act.
But the other exception to the instruction is, in our view, well taken. No facts are found in the evidence brought here, upon which to base the instruction, and it was therefore misleading and erroneous. The most that can be claimed, as shown in the testimony, is that the plaintiffs’ agent knew that the defendant had sold liquors in violation of law, and that the intention of the defendant was to dispose of those purchased from plaintiffs in the same way. There is no pretense that any act was done by the plaintiffs to promote the illegal transaction, or that they shared in its fruits beyond the taking of the order and sale of the goods for their value in the state of Missouri. It does not appear that anything was said or done by the plaintiffs or their agent, indicating an arrangement or conspiracy with the defendant to evade the laws of the state, or with a view of facilitating and assisting the defendant in the illegal sale of the liquor, or in furtherance of his unlawful design; and while the defendant at the time of the purchase may have intended to do an unlawful business in Kansas, and that purpose may have been communicated to and known by the plaintiffs, yet the defendant might afterward change his purpose and make a proper and legal disposition of the liquors. But mere knowledge of the illegal purpose of the buyer is not sufficient to invalidate a sale made in Missouri, and which is in conformity with the laws of that state.' In order to render'the sale void and defeat a recovery of the price of the liquors, there must be some participation or interest of the seller in the act itself. (Hill v. Speer, 50 N. H. 253; Holman v. Johnson, Cowper, 348; Gaylord v. Soregan, 32 Vt. 110; Aiken v. Blaisdell, 41 id. 656; McIntire v. Parks, 3 Met. 207; Smith v. Godfrey, 8 Foster, 379; Orcutt v. Nelson, 67 Mass. 536; President &c. of the Merchants Bank v. Spalding, 12 Barb. 302; Tracy v. Talmadge, 14 N. Y. 162.)
If, however, there has been any participation on the part of the plaintiffs, as for instance, if the liquors were packed by the plaintiffs in such a manner as to conceal the contents of the package, and thus enable the defendant to accomplish his unlawful purpose, no recovery can be had; and if the illegal disposition of the goods by the purchaser in any way entered into the contract, and a greater price was agreed to be paid for them; or if the plaintiffs were to derive any advantage or share in the fruits of the defendant’s wrong, the contract should be held void, and not enforceable in our courts.
But as there was no testimony in the case that the plaintiffs participated, or were interested in the illegal sale of the goods, the instruction cannot be sustained. It follows that the judgment of the district court must be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to enjoin enforcement of the provisions of Chapter 316, Laws of 1965, commonly known as “The Private Club Act.” This Act defines four places in which alcoholic liquor may be lawfully consumed, and one of those places is a “club” as therein defined. The Act, in turn, divides clubs into two classes designated as “class A” and “class B” clubs, and provides for their licensing and regulation. As Chapter 316, hereafter referred to as the Act, was interpreted by the plaintiffs, they were entitled to judgment decreeing the Act unconstitutional and to a permanent injunction against its enforcement for the reasons alleged in the petition; as interpreted by the defendants, such a judgment was unauthorized. The district court agreed with the defendants’ construction of the Act, and the plaintiffs have appealed.
At the hearing on the merits for a temporary and permanent injunction, the parties stipulated to the facts, and those pertinent are summarized. The plaintiffs either operate private clubs “for profit” or are members of “for profit” private clubs where the members thereof may resort for the purpose of consuming alcoholic liquor. They have substantial investments in their private clubs or those in which they have memberships, and their use and enjoyment of their clubs’ facilities, the right to operate them for profit, and their freedom to conduct their business and memberships therein will be affected and regulated by the Act if it is unconstitutional. The defendants are charged with the enforcement of the Act and will enforce its provisions against the plaintiffs unless permanently enjoined. Plaintiffs’ Exhibits 1 through 4-A, consisting of rules, regulations, and bylaws of their various private clubs, indicate the means by which, and the extent to which, the members thereof determine which individuals, and which and how new members may be allowed to use their club premises. The defendants’ Exhibit A consists of rules and regulations adopted by the Alcoholic Beverage Control Board pursuant to the Act, and pertains to the licensing and regulation of both class A and class B clubs, which were duly filed with the Revisor of Statutes as provided in K. S. A. 77-405 et seq. It should here be stated that the district court’s findings of fact and conclusions of law disclosed no reference to either the plaintiffs’ or the defendants’ exhibits. The sole question before the district court was the constitutionality of the Act and the court’s findings of fact and conclusions of law relate only to its validity.
The stipulation further disclosed that there are private clubs in the Wichita area and elsewhere, such as Country Clubs and other organizations, which could be licensed and receive the advantages of “class A” clubs. However, the plaintiffs, being operators and members of private clubs “for profit,” are deprived of the benefits afforded “class A” clubs and their members under the Act. While the plaintiffs are capable of qualifying under the Act as class B clubs by reason of the “for profit” nature of their private clubs, the Act precludes them from being licensed and receive the benefits of Class A clubs.
The plaintiffs alleged in their petition that the Act was unconstitutional and void for the reasons that (1) it violated the Fourteenth Amendment to the Constitution of the United States in that it denies to them the equal protection of the law; (2) it deprives them of their property, property rights and personal privileges without due process of law and the equal protection of the law in violation of Sections 1 and 2 of the Bill of Rights of the Constitution of Kansas; (3) it is an unreasonable and arbitrary exercise of the police power of the state and the classification provided therein has no connection with, and no relation to, the public health, morals, safety and welfare, in violation of Sections 1 and 2 of the Bill of Rights of the Constitution of Kansas; (4) it creates penalties for acts done by one class of citizens, and by reason of its unjust, unreasonable, arbitrary and unlawful classification, it violates Article 2, Section 17 of the Constitution of Kansas, and (5) its provisions are vague, uncertain and ambiguous in defining rights granted and acts prohibited to either class of clubs, and by reason of such ambiguity, persons affected by the Act cannot comply with its terms, and it lacks the first essential of due process as required by the Fourteenth Amendment to the Constitution of the United States and by Section 10 of the Bill of Rights of the Constitution of Kansas.
At the outset, and before we quote or discuss the provisions of the Act, the plaintiffs’ claim that it violates the due process and the equal protection clauses of the Fourteenth Amendment to the Constitution of the United States, should be put to rest. In State v. Payne, 183 Kan. 396, 327 P. 2d 1071, it was said:
"It has been repeatedly held that under the 21st Amendment a state may absolutely prohibit the manufacture, transportation, importation, sale or possession of alcoholic liquors irrespective of when or where produced or obtained, or the use to which they are to be put, and may adopt measures reasonably appropriate to effectuate those inhibitions an exercise full police authority in respect to them, unfettered by the due process clause, the equal protection clause or the commerce clause. (State Board v. Young’s Market Co., 299 U. S. 59, 81 L. ed. 38, 57 S. Ct. 77; Mahoney v. Triner Corp., 304 U. S. 401, 82 L. ed. 1424, 58 S. Ct. 952; Brewing Co. v. Liquor Comm’n, 305 U. S. 391, 83 L. ed. 243; 59 S. Ct. 254; Finch & Co. v. McKittrick, 305 U. S. 395, 83 L. ed. 246, 59 S. Ct. 256; Ziffrin, Inc. v. Reeves, 308 U. S. 132, 84 L. ed. 128, 60 S. Ct. 163; Crane v. Campbell, 245 U. S. 304, 62 L. ed. 304, 38 S. Ct. 98; United States v. Renken, 55 F. Supp. 1.) This greater power to prohibit includes the lesser power to permit under definitely prescribed conditions. (Seaboard Air Line Ry. v. North Carolina, 245 U. S. 298, 62 L. ed. 299, 38 S. Ct. 96; State Board v. Young’s Market Co., supra; Ziffrin, Inc. v. Reeves, supra.)” (1. c. 403.)
In view of the foregoing, any possible federal question is removed from the case and our discussion of questions presented is limited solely to whether the Act, as urged by the plaintiffs, is in conflict with the Constitution of Kansas.
Preliminary to reaching the merits of this appeal, we think it proper to examine the background of liquor regulation in Kansas and to detail some of the reasons why the legislature enacted the so-called “Private Club Act.” For 68 years the Constitution of Kansas prohibited the manufacture or sale of intoxicating liquor. During that time, numerous cases came before this court wherein various schemes, shifts, devices and subterfuges to evade provisions of regulatory statutes were argued as legal sanctions and authority for doing what was essentially unlawful acts. In all such cases, this court stripped those shifts, devices and subterfuges of their external and sometimes ingenious wrappings and found them to be nothing less than subtle or artful attempts to circumvent the law. In 1948 the people of Kansas changed or modified the constitutional prohibition of intoxicating liquor by the adoption of Article 15, Section 10, which authorized the legislature to regulate, license and tax the manufacture, sale, possession and transportation of such liquor, and expressly provided that “The open saloon shall be and is hereby forever prohibited.” Following the mandate of the people at the general election in November, 1948, the legislature enacted the Kansas Liquor Control Act. (K. S. A. Ch. 41.) The Act was a comprehensive plan to regulate, license and tax alcoholic liquor and to control and regulate the liquor from the time of its manufacture or importation into the state until it was ultimately sold by licensed retailers for use and consumption. The Act defined “open saloon” as follows:
. . the words ‘open saloon’ mean any place, public or private, where alcoholic liquor is sold or offered for sale or kept for sale by the drink or in any quantity of less than one-half pint, or sold, offered for sale, or kept for sale for consumption on the premises where sold. . . .” (K. S. A. 41-803.)
As with most attempts to write a comprehensive statute, the Kansas Liquor Control Act could not provide for all contingencies, nor could the legislature foresee the problems that would arise from making it unlawful only “to drink or consume alcoholic liquor” in “places to which the general public has access.” (K. S. A. 41-719.) It is common knowledge that in the years that followed the enactment of the Kansas Liquor Control Act, so-called “private” clubs sprang up and schemes and devices were conceived to dispense alcoholic liquor to members of those clubs, which amounted to a subterfuge if not an actual sale, for consumption on the premises. A case amply demonstrating this problem is State v. Larkin, 173 Kan. 112, 244 P. 2d 686.
On December 14, 1964, the attorney general wrote the governor-elect that there were areas affecting law enforcement that his experience indicated the necessity of legislative action. We quote a portion of that letter:
“1. The ‘Private Club’.
“The commercially operated drinking club is one of law enforcements greatest problems. These so-called ‘private clubs’ or “key clubs’ are operated for the profit of the management. They are not ‘clubs’ in the ordinary sense of an organization managed and conducted by and for the membership, as are country clubs, veteran organizations and fraternal clubs.
“Existing statutes give no guide lines as to what kind of an establishment is legally private. The law only makes it unlawful ‘to drink or consume alcoholic liquor’ in ‘places to which the general public has access.’ G. S. 1949, 41-719. There are no statutory rules as to the age of the patrons, the hours of operation, or the character of the management and personnel. The peace officer has no greater authority to go into a private club than he has to enter a private residence.”
“The existing law does prohibit the sale of alcoholic liquor by the drink in ‘any place, public or private.’ G. S., 1949, 41-803. This creates two substantial problems for peace officers and prosecutors. The first is: what under this statute constitutes a sale by the drink?’ The second is the difficulty of enforcement in private clubs because .of the difficulty of access by law enforcement officials to determine whether alcoholic beverages are being sold to the members and guests by the drink.”
As tending to support the attorney general’s recommendation, see State, ex rel., v. Grace, 194 Kan. 116, 397 P. 2d 331 and State, ex rel., v. Kansas Super Motels, Inc., 194 Kan. 169, 398 P. 2d 331.
In January, 1965, the governor transmitted the attorney general’s request for clarification of the status of “private clubs” to the 1965 Kansas legislature. In his annual message, the governor stated that he believed “the public interest would benefit from study and con sideration of these matters hy the legislature.” (Journal of the Senate, Fourth Day, p. 18.) Each member of the House and the Senate received a copy of the attorney general’s letter.
Following the governor’s recommendation, Senate Bill No. 280 was introduced to license and regulate private clubs. We deem it unnecessary to review and detail the legislative history of this enactment but suffice it to say after thorough discussion, the legislature enacted what is now Chapter 316 which became enforceable on July 31, 1965.
From the foregoing it is obvious that the executive department of the state government deemed it essential and in “the public interest” that the consumption of alcoholic liquor in private clubs and other places be defined and clarified; further that the legislature considered the nature of the subject matter affected the general welfare of the people of the state and it exercised the police power to define the places where alcoholic liquor might be lawfully consumed and fixed measures in advance by which this result could be accomplished. It is well settled in this state that the subject of alcoholic liquor in all its forms may be regulated by the legislature through the exercise of the police power of the state in determining its policy that the general welfare, health and safety of persons and property should be protected. (Johnson v. Reno County Comm’rs, 147 Kan. 211, 75 P. 2d 849; Manning v. Davis, 166 Kan. 278, 201 P. 2d 113; State v. Payne, supra; Murphy v. Curtis, 184 Kan. 291, 336 P. 2d 411.) The power of the legislature to regulate alcoholic liquor is broader than the power to regulate ordinary business due to its possible source of danger to the public which is not inherent to other businesses and alcoholic liquor “occupies a different status before the courts and the legislatures from other kinds of property.” (State v. Durein, 70 Kan. 13, 80 Pac. 987, affirmed 208 U. S. 613, 52 L. Ed. 645, 28 S. Ct. 567.)
The plaintiffs first contend that Sections 1 (d), 16 and 18, defining a liquor pool and authorizing its establishment in a class A club, are nothing less than a scheme, subterfuge and device for the unlawful sale of alcoholic liquor and violate Article 15, Section 10 of our Constitution prohibiting an “open saloon” as defined in K. S. A. 41-803. Those sections read:
“Section 1. . . . (d) ‘Liquor poo! is any arrangement whereby a club or any designated agent thereof shall purchase a quantity of alcoholic liquor for the use or consumption of any member of the club for which the purchaser is reimbursed before the purchase: Provided. The purchaser shall receive for making the purchase no service charge or reimbursement which is in excess of the amount paid for said quantity of alcoholic liquor: Provided further, If a club shall accept funds for its liquor pool and credit members accounts therewith but not maintain the full quantity of alcoholic liquor on the premises, said club shall maintain a trust account separate from all other club funds into which the unexpended liquor pool moneys shall be deposited.”
• ••••••.♦* f * r • i*’ i • ■> i*-
“Sec. 16. No club licensed hereunder shall sell alcoholic liquor either by the bottle, case, barrel, keg, cask or drink. The maintenance of a liquor pool’ by a class A club shall not constitute the sale of alcoholic liquor by the drink.”
• • • • . . . . . • i. t.i
“Sec. 18. For the purposes of this act, alcoholic liquor of like brand and age shall be treated as fungible goods, and pooling of such alcoholic liquor by the members of a licensed class A club shall be permitted; likewise, members of a class A club may appoint in writing an agent or agents to purchase alcoholic liquor for them or for their account to be maintained for the use of the member of the club. Any club maintaining a liquor pool shall keep at all times on the licensed premises a book of account showing the amount of alcoholic liquor credited to each member stated in brand, age, volume and dollar amount. No club maintaining a liquor pool shall have on the licensed premises at any time alcoholic liquor which may not be attributed to the collective accounts of the members except alcoholic liquor in an original package owned by a club-member and whose name is on the original package. Said books and accounts shall be available at all times to the agents of the director and all other peace officers. No alcoholic liquor from the liquor pool shall be knowingly served by the agents or employees of a club maintaining a liquor pool to a member or his guests unless that member shall have, at the time of such service, a credit balance in his liquor pool account.”
The plaintiffs argue that despite the legislative declaration in Section 16 that the maintenance of a 'liquor pool” by a class A club shall not constitute a sale of alcoholic liquor by the drink, the legislature cannot amend the Constitution and that in fact and in law Sections 16 and 18 do attempt to legalize an “open saloon” in violation of Article 15, Section 10 of the Constitution of Kansas and K. S. A. 41-803. They rely upon State v. Larkin, supra, which held that the arrangement provided in the bylaws of the “Merchants Club” for dispensing alcoholic liquor to its members for consumption on the premises constituted a subterfuge if not an actual sale, either one of which was prohibited by the Kansas Liquor Control Act. The case is not helpful to the plaintiffs. When that decision was rendered in 1952, the legislature had not defined what did not constitute a sale of alcoholic liquor. As here involved, the legislature prohibited the sale of alcoholic liquor either by the bottle, case, barrel, keg, cask or drink, in clubs licensed under the Act but de fined the maintenance o£ a liquor pool in a class A club as not constituting the sale of alcoholic liquor by the drink. Being authorized by Article 15, Section 10, to regulate the sale of alcoholic liquor, the legislature has the power to define what is not a sale so long as what is defined does not constitute an “open saloon.”
The Larkin case, supra, is clearly distinguishable from the operation of a liquor pool as authorized by the Act and the rules and regulations of the Alcoholic Beverage Control Board. In that case the defendant club manager, who owned the premises leased to the club, sold coupon books to club members representing the value of $5.00 and $2.00 upon payment by them of $5.00 and $2.00 depending on which of the two coupon books was desired. Each coupon book contained units printed or marked thereon in amounts or denominations of five, ten or twenty-five units, respectively. When served a bottle or can of strong beer by the bartender or employee of the club, a member would surrender to the bartender or employee twenty-five units, the value of twenty-five cents, from his coupon book. When served a one-ounce glass of bourbon or scotch whiskey or a comparable amount of gin or wine liquor, a member would surrender 50 units, the value of fifty cents, from his coupon book. Glasses and ice were kept on the premises for use in serving club members alcoholic liquor or strong beer by the drink. Money derived from the sale of coupon books was used by the club manager to purchase alcoholic liquor or strong beer from licensed retail stores, which was stored and kept by him on the club premises to be dispensed to club members. The average cost of whiskey to the manager was $5.50 to $6.00 per fifth, and he obtained twenty-four or twenty-five one-ounce servings from each bottle, or a difference of $6.00 per fifth between the cost of the whiskey and the amount received from club members when served. The average cost of a case of tweny-four cans or bottles of strong beer was $4.40, or a difference of 6% cents per can or bottle between the cost of the beer and the amount received from club members when served. Obviously, the Merchants Club arrangement for the sale of coupon books to members and the surrender of units of the value of the drinks when served was in fact the sale of alcoholic liquor on the premises. The coupons or units represented the value in money of the drinks served and when surrendered, were nothing less than a cash payment for the drinks, all of which netted a profit to the club manager. This court correctly concluded that such arrangement was a subterfuge if not an actual sale, either one of which was prohibited by Sections 41-102 (15), 41-104, 41-722 and 41-803 of the Kansas Liquor Control Act.
We agree with the plaintiffs’ contention that the legislature cannot amend Article 15, Section 10, by its fiat in defining an arrangement for the dispensing of alcoholic liquor by the drink as being not an “open saloon.” For instance, the legislature would be powerless to attempt to authorize a plan similar to the one condemned in the Larkin case. However, as we understand the Act and the rules and regulations of the Alcoholic Beverage Control Board, the legislature did not authorize an “open saloon.” Under those provisions there is no sale of alcoholic liquor by the drink in class A clubs. The general rule is that where a liquor pool is maintained as provided in the Act, the agent designated by the class A club is the agent for the member in procuring the alcoholic liquor from the licensed retail dealer. In such a situation, the agent has no personal interest in the transaction and never becomes the owner of the alcoholic liquor, and is, therefore, incapable of selling it; the sale of alcoholic liquor is to the club member who is the principal. The agent acts as an intermediary for the member and not the seller. (30 Am. Jur., Intoxicating Liquor, § 215, p. 658; 48 C. J. S., Intoxicating Liquors, § 245, pp. 374, 375.) This view was adopted by this court in State v. Turner, 83 Kan. 185, 109 Pac. 983, and State v. Cairns, 64 Kan. 782, 788, 68 Pac. 621, 58 L. R. A. 55. And for a similar case see Reed v. State, 3 Okla. Cr. 16, 103 Pac. 1070, 24 L. R. A. (n. s.) 268. Moreover, all orders made by members of class A clubs for the club’s liquor pool shall be on order blanks approved by the director of Alcoholic Beverage Control. No class A club shall receive a service charge for the purchase of alcoholic liquor for any member’s account, and the price to the member shall reflect the price actually paid to the retailer. The club shall keep a book of account showing the amount of alcoholic liquor credited to each member’s account, stated in brand, age, volume and amount, and no alcoholic liquor shall be knowingly served by employees of the club to a member or his guests unless he shall have a credit in his liquor pool account. Under these circumstances, when alcoholic liquor is purchased by the agent of a class A club at a member’s written direction and in his name and who has reimbursed the agent in advance as provided in the Act and the regulations and is procured and kept on the premises of the club subject to his order, the class A club is a mere bailee or depository even though the alcoholic liquor becomes mingled with that ordered by or for other members so that it loses its identity. Being a bailment for the benefit of the member, there is no sale of alcoholic liquor when served from the club’s liquor pool at his order and direction. (30 Am. Jur., Intoxicating Liquor, § 230, p. 669.) We are of the opinion the provisions of the Act are not unconstitutional as being in violation of Article 15, Section 10 of the Constitution of Kansas upon any of the grounds urged by the plaintiffs.
The constitutionality of the Act is assailed by the plaintiffs on the ground that it invidiously discriminates between private clubs in that it denys to class'B clubs the benefits and advantages afforded to class A clubs with respect to (a) costs of membership; (b) the right to include spouses, family and guests; (c) proof of character; (d) waiting periods on applications for memberships, and (e) the right to maintain a liquor pool. The Act defines “club” as an organization licensed thereunder to which the club members shall be permitted to resort for the purpose of consuming alcoholic liquor. Section 1 (b) (2) and (3) define class A and class B clubs, and read:
“(2) A class A club shall be a premises owned or leased and operated by a corporation, partnership, business trust, or association for the exclusive use of the corporate stockholders, partners, trust beneficiaries or associates (hereinafter referred to as members), their families and invited and accompanied guests, and which is not operated for a profit other than such as would accrue to the entire membership. A corporation, partnership, business, trust, or association not operated for a profit, for the purposes of the definition of a class A club shall only include such a corporation, partnership, business trust, or association which has been exempted from the payment of federal income taxes as provided by section 501 (c), (7) and (8), internal revenue code of 1954.
“(3) A class B club shall consist of a premises operated for profit by a corporation, partnership or individual, known as the management, to which premises the management allows persons, known as members, to resort for the consumption of food and/or alcoholic beverages and for entertainment. As a prerequisite for attaining membership the management must screen the applicants for good moral character. No membership may be granted within thirty (30) days of the application therefor. Each membership must be renewable annually upon payment of the annual dues of at least ten dollars ($10): Provided, however, Any class B club located on the premises of a hotel as defined in K. S. A. 36-101 may establish rules whereby guests registered at said hotel, who are not residents of the county in which said club is located, may file application for temporary membership in said club, together with an application fee of not less than two dollars fifty cents ($2.50) for each registration, which membership, if granted, shall only be valid for the period of time that they are a bona fide registered guest at said hotel. Said temporary membership shall not be subject to the waiting period or dues requirement contained in this section. Said temporary member shall be served alcoholic liquor only from an original package purchased by him from a Kansas licensed retailer which original package is clearly marked with the name of the temporary member.”
The plaintiffs argue that the Act regulates and classifies club ownership and the rights of members of such clubs on the basis that class B clubs are operated “for profit” while class A clubs are not operated “for profit”; that such classification based solely on “profit” or “nonprofit” operation has no real relation to the public welfare in regulating places where alcoholic liquor may be lawfully consumed, and that it is an unreasonable and arbitrary classification which violates the Constitution. They cite and rely upon City of Derby v. Hiegert, 183 Kan. 68, 325 P. 2d 35; State, ex rel., v. Consumers Warehouse Market, 185 Kan. 363, 343 P. 2d 234, and Boyer v. Ferguson, et al., 192 Kan. 607, 389 P. 2d 775. In support of their argument, they concede that a uniform private club law could be enacted by the legislature, but contend that a law is not uniform which provides for an arbitrary classification of citizens whereby one class of citizens can operate in a certain manner, all of which when done by another class of citizens would subject the latter class to fines, penalties and the confiscation of their property. They further argue that the classification made by the Act on the basis of “profit” or “nonprofit” is no wise similar to the classification between “all clubs” on the one hand, and “private homes” on the other, which was sustained in State v. Topeka Club, 82 Kan. 756, 109 Pac. 183, and that the public welfare is not served by a legislative act designed to accomplish that purpose and, in the same Act, exempt a group of so-called “class A” citizens from its requirement while demanding that all other citizens abide.
The provisions of our Constitution which are violated by the Act, if it is beyond the police power of the state as the plaintiffs contend, are Sections 1 and 2 of our Bill of Rights, which declare that “[a]ll men are possessed of equal and inalienable natural rights, among which are life, liberty and the pursuit of happiness,” and that “all free governments . . . are instituted” for the “equal protection and benefit” of the people. While those two provisions of our Bill of Rights declare a political truth, they are given much the same effect as the clauses of the Fourteenth Amendment relating to due process and equal protection of the law. (Winters v. Myers, 92 Kan. 414, 421, 140 Pac. 1033; State v. Wilson, 101 Kan. 789, 796, 168 Pac. 679; Chamberlain v. Railway Co., 107 Kan. 341, 344, 191 Pac. 261; Railroad and Light Co. v. Court of Industrial Relations, 113 Kan. 217, 229, 214 Pac. 797; Central Kansas Power Co. v. State Corporation Commission, 181 Kan. 817, 828, 316 P. 2d 277.)
This court is by the Constitution not made the critic of the legislature, but rather, the guardian of the Constitution; and every legislative act comes before this court surrounded with the presumption of constitutionality. That presumption continues until the Act under review clearly appears to contravene some provision of the Constitution. All doubts of invalidity must be resolved in favor of the law. It is not in our province to weigh the desirability of social or economic policy underlying the statute or to question its wisdom; those are purely legislative matters. (Topeka Laundry Co. v. Court of Industrial Relations, 119 Kan. 12, 16, 237 Pac. 1041; State v. Hill, 189 Kan. 403, 408, 369 P. 2d 365, 91 A. L. R. 2d 750; State, ex rel., v. Fadely, 180 Kan. 652, 308 P. 2d 537; Gilbert v. Mathews, 186 Kan. 672, 352 P. 2d 58; Grigsby v. Mitchum, 191 Kan. 293, 302, 303, 380 P. 2d 363; Little v. Smith, 124 Kan. 237, 240, 257 Pac. 959, and Martin v. Davis, 187 Kan. 473, 357 P. 2d 782, appeal dismissed 368 U. S. 25, 7 L. Ed. 5, 82 S. Ct. 1.) While the legislature is vested with a wide discretion to determine for itself what is inimical to the public welfare which is fairly designed to protect the public against the evils which might otherwise occur, it cannot, under the guise of the police power, enact unequal, unreasonable or oppressive legislation or that which violates the Constitution. If the classification provided is arbitrary, as the plaintiffs contend, and has no reasonable relation to objects sought to be attained, the legislature transcended the limits of its power in interfering with the rights of persons affected by the Act. (Little v. Smith, supra; Gilbert v. Mathews, supra.)
In determining whether a classification in a statute enacted under the police power is reasonable, the following guidelines appear evident from the decisions of this court: (1) A classification having some reasonable basis does not offend against Sections 1 and 2 of our Rill of Rights merely because it is not made with mathematical nicety or because in practice it results in some inequality; (2) there is no precise application of the rule of reasonableness of classification, and the rule of equality permits many practical inequalities— in a classification for governmental purposes there need not be an exact exclusion or inclusion of persons and things; (3) if any state of facts reasonably can be conceived that would sustain the Act, their existence at the time the law was enacted must be presumed; (4) within the zone of doubt and fair debate, the legislative determination is conclusive upon the court and must be upheld, and (5) one who assails the classification must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. A few of our many cases are State, ex rel., v. Sage Stores Co., 157 Kan. 404, 141 P. 2d 655; Gilbert v. Mathews, supra; Martin v. Davis, supra, and Grigsby v. Mitchum, supra.
The express purpose of the Act is to define and regulate places where alcoholic liquor might be lawfully consumed in the state. The subject matter being one attendant with danger to the state, the legislature could authorize or prohibit its consumption under such conditions as it deemed essential to impose so as to limit its evil propensities to the utmost degree. (State v. Nossaman, 107 Kan. 715, 193 Pac. 347.) It is elementary law that the people may exercise all governmental powers not surrendered by them to the federal government and which they have not restrained themselves by the provisions of their own state Constitution. While Article 15, Section 10 of the Kansas Constitution is authorizing in nature, it restrains the legislature in its power to tolerate only, not in its power to suppress. It clearly does not abridge or limit the power of the legislature to determine the extent or places or conditions to which, or upon which, alcoholic liquor may be consumed in the state. No right to determine the extent to which alcoholic liquor may be consumed was reserved to the plaintiffs, and they must abide by the regulations adopted by the legislature. What the legislature may entirely withhold, it may grant upon such terms as it may see fit. Any conditions which in its wisdom it may deem necessary to impose, must be met and endured. In other words, the legislature was empowered to prohibit the consumption of alcoholic liquor in licensed class A and class B clubs; it had the power to permit the consumption of alcoholic liquor in both types of clubs upon such conditions as it saw fit to impose, or to permit its consumption in one type club and entirely prohibit its consumption in the other. Whether as a matter of policy the legislature ought to have enacted the Act it did, this court has no right to say. That it had the power, under the law, to do so, this court cannot, under the law, do otherwise than declare. (State v. Durein, supra.)
The foregoing would seem to dispose of the case. However, we feel compelled to answer tibe plaintiffs’ argument that the legislature, having defined “club” and having enacted a law permitting the consumption of alcoholic liquor therein, is powerless to provide a classification which distinguishes between the types of clubs authorized to be licensed, based solely upon their being operated for profit or not for profit.
Are the clubs defined truly in the same position and truly of but one classification? As previously indicated, it was common knowledge that in the years that followed the enactment of the Kansas Liquor Control Act, commercially operated drinking clubs, or so-called “private” or “key” clubs, became one of law enforcements greatest problems. Such clubs were operated for the profit of the management and were not clubs in the ordinary sense of an organization owned and controlled exclusively by and for the members for the promotion of the same common object. In the so-called “private” or “key” clubs, schemes and devices were conceived to dispense alcoholic liquor to members to evade the provisions of the Kansas Liquor Control Act which amounted to a subterfuge if not an actual sale. There were no laws governing the age of patrons of those clubs, the hours of opening and closing, or the character of the management and personnel, and no guidelines were provided for the admission of members to insure that the club premises were not places to which the public had access but were legally private. Note, for instance, this court held in the Grace case that one who presented himself at a so-called private club stating he wished to join the club and by paying a $10.00 membership fee he was admitted to the premises, was a sufficient allegation that the club was open to the general public. Many other facts could be marshalled leading to the conclusion that the so-called “private” or “key” clubs not merely required, but deserved, on account of matters touching their operation and management, treatment different from organized clubs owned and operated exclusively for the benefit of the members, both in kind and degree; but the general considerations outlined above are sufficient. The Act represents a serious effort on the part of the legislature to deal justly with a subject of great public concern. The legislature’s conclusion that the types of clubs authorized to be licensed were not of one classification but were essentially different in organization and operation, was based upon reasoning apparently sound, supported by experience which was verified, and amply justified its use of the profit- nonprofit classification affording different treatment of the two classes of clubs throughout the Act. Moreover, the use of profit-nonprofit classification is now new in the legislative history of the state. The legislature has used this distinction for many years in classifying corporations organized under our law. Nonprofit organizations operated for the promotion of pleasure, recreation and other nonprofit purposes, where no part of the net earnings inure to the benefit of any private member, are exempted from state income tax. (K. S. A. 79-3204 [2] and [8].) Private corporations organized for profit are required to go through more complicated procedures to incorporate than nonprofit corporations and are not exempt from income tax. See, generally, K. S. A. 17-2801, et seq. and 17-2901, et seq.
Does the legislature’s classification of profit-nonprofit operation of the type of clubs authorized to be licensed bear a real, logical and substantial relation to the public welfare? The legislature has a wide range of discretion in distinguishing, selecting and classifying, and it is sufficient to satisfy the demands of Sections 1 and 2 of the Bill of Rights if a classification is practical and not palpably arbitrary. (Martin v. Davis, supra.) In defining places where alcoholic liquor might be lawfully consumed and to obtain compliance with the Kansas Liquor Control Act, the legislature sought to provide standards to insure that premises of a club operated for profit was not a place to which the public had access but was legally a private place. The legislature was not required to rely upon the bylaws or rules and regulations of such clubs to determine the prerequisites for attaining membership. Private club regulations previously before this court were found inadequate to insure that the club premises were not “open to the public.” (State, ex rel., v. Grace, supra; State, ex rel., v. Kansas Super Motels, Inc., supra.) Hence, the regulations requiring an annual membership fee of at least $10.00; a waiting period on applications for membership of at least 30 days (except for temporary membership of guests registered at a hotel as defined in K. S. A. 36-101), and proof of character requirements were within the legislative competence and bear a fair and reasonable relation to the public welfare in determining private places where alcoholic liquor may be lawfully consumed. Likewise, the fact that class A clubs are authorized to maintain a liquor pool and class B clubs are not so privileged does not condemn the Act. Neither does the Act condemn the profit system. The legislature recognized that clubs operated for profit required greater regulation than nonprofit clubs and doubtless believed that if clubs operated for profit were authorized to maintain a liquor pool, the management might easily convert the pool into a medium for a subterfuge if not an actual sale of alcoholic liquor, and to prevent such an occurrence, withheld that privilege. In doing so, the legislature was justified in believing that a club operated for profit, in the very nature of things, would do everything possible to enlarge its income by increasing the number of its patrons through greater efforts to provide more services for its patrons. Thus, the profit-nonprofit character of a club’s operation serves to amplify the real distinction between the two types of clubs authorized to be licensed, and justified the legislature’s conclusion that clubs operated for profit should not be granted all the privileges of clubs not operated for profit. Clearly, this was in the province of the legislature and bears a real, logical and substantial relation to the public-welfare in regulating the consumption of alcoholic liquor in the state.
The plaintiffs’ objection that the Act discriminates between class A and class B clubs with respect to the admission of a member’s spouse, family and guests, is inconsequential. Under the regulations of the director of Alcoholic Beverage Control the word “member” as used in the Act includes the spouse of any person actually on the membership rolls of a club. (Regulation 14-18-2, filed with the Revisor of Statutes June 16, 1965.)
The plaintiffs claim that the Act violates Article 2, Section 17 of the Constitution of Kansas by reason of its unjust, unreasonable, arbitrary and unlawful classification. The point is not well taken. The Act is a law of a general nature and has uniform operation throughout the state. Wherever located in the state, either type of club authorized to be licensed may apply for and, if otherwise eligible with respect to organization and operation as provided in the Act and the regulations, may be licensed by the director of Alcoholic Beverage Control as the type of club sought to be licensed. The plaintiffs’ objection to the classification is that it denied equal protection of the law with respect to the structure and operation of a club and not that the Act does not operate uniformly throughout the state. The Act affords the plaintiffs the right to organize and operate their clubs on a nonprofit basis and license them as class A clubs and exercise all the privileges granted by the Act, but if they operate their clubs for profit they are required to conform to the requirements of the Act relating to class B clubs.
The plaintiffs argue tihat the Act is vague, uncertain and ambiguous in defining the rights granted to clubs authorized to be licensed. We deem it unnecessary to state and discuss the various grounds urged in support of the contention. The test of determining whether a statute is vague and ambiguous is whether the language conveys a sufficient definite warning as to the prescribed conduct when measured by common understanding and practice. (State v. Hill, supra.) We have thoroughly examined the Act and the provisions claimed to be vague, uncertain and ambiguous and we conclude that the Act is sufficiently explicit in its description of the acts, conduct, and conditions required or forbidden to prescribe the rights of persons thereunder with reasonable certainty so that men of common intelligence are not required to guess at its meaning.
We have considered, not overlooked, the cases cited and relied upon by the plaintiffs, and they are not in point. Likewise, we have considered other contentions urged by the parties and find them to be without merit.
It was within the competence of the legislature to determine the places where alcoholic liquor may be lawfully consumed in the state and to prescribe conditions with respect to the exercise of that right. The Act is not unconstitutional upon any of the grounds urged by the plaintiffs.
The judgment is affirmed.
Fontron, J., concurs in the result. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action by the plaintiffs against the City of Wichita and The Urban Renewal Agency of Wichita, based upon their action in connection with the Urban Renewal Civic Center Project R-19 of the City of Wichita. In their petition the plaintiffs pray for temporary and permanent injunctions against the defendants, an order setting aside the resolution declaring the urban renewal project area (which includes the plaintiffs’ property) to be slum, blighted, deteriorated or deteriorating, and for judgment against the defendants in the amount of $125,000.
[The proposed Urban Renewal Civic Center Project R-19 in Wichita consists of an area, with a few exceptions for buildings, bounded by the Big Arkansas River on the west, Main Street on the east, Waterman on the south, and Douglas Avenue on the north. It also includes a smaller area lying to the north between Douglas Avenue and First Street adjoining the other area.]
The defendants filed an answer to the petition and a motion for summary judgment, which the trial court sustained. The plaintiffs have duly perfected an appeal.
The question to be determined is whether the trial court properly sustained the motion for summary judgment.
Our decision reversing the judgment of the lower court on the ground that it erred in sustaining the appellees’ motion for summary judgment was announced on the 19th day of May, 1965, and may be found in Brick v. City of Wichita, 195 Kan. 1, 403 P. 2d 189.
The appellants’ claim for damages against the City of Wichita was dismissed in the trial court and no appeal has been taken from such order.
It was conceded by counsel for the appellees in arguing the case that the appellants’ petition states a cause of action. The petition charges in substance that the Board of City Commissioners of Wichita, Kansas, on the 6th day of March, 1962, adopted a resolution declaring property occupied and operated by the appellants as slum, blighted, deteriorated and deteriorating. This finding with respect to the area in the project was a prerequisite for obtaining federal funds for use in the urban renewal project under the terms and conditions of federal statutes on urban renewal. The petition charged such finding was arbitrary and capricious and without foundation in truth and in fact. The latter allegations were denied by the answer of the appellees.
Attached to the motion for summary judgment filed by the appellees were affidavits setting forth the chronological order of steps taken by the Urban Renewal Agency of Wichita in regard to the project, and the chronological order of steps taken by the City Commission of the City of Wichita in adopting the resolution. These documents disclosed a portion of the minutes of the City Commission meeting at which the civic center project area was determined to be slum, blighted, deteriorated or deteriorating. Background information available to the commission and used as a basis for its action in making such determination was set forth in various exhibits.
Among the exhibits was the report of E. J. Waits, the city building inspector who conducted the survey which the City Commission used in making its determination.
The appellants in resisting the motion for summary judgment filed an affidavit made by E. J. Waits, which in material part reads:
“That he was on the 29th day of January, 1962, a building inspector employed by the City of Wichita, and had been so employed for some eight (8) years; that he conducted a survey of the Urban Renewal Civic Center Project Area at the request of the Urban Renewal Agency and his superiors in the Building Inspection Office, of the City of Wichita and that Affiant issued the Letter Report dated January 29, 1962, directed to Robert Des Marteau, Urban Renewal Agency, which appears as part of the Minutes of the City Commission Meeting of March 6, 1962, in which Meeting the City Commission passed the resolution designating the Urban Renewal Civic Project Area and the land contained therein as ‘slum, blighted, deteriorated or deteriorating.’
“Affiant further states that prior to the time said Letter Report was issued, Affiant received instructions to conduct the inspection of the buildings located within the Urban Renewal Project Area, and was instructed by Glen Lytle and Robert Des Marteau to find the designated area and the buildings within said Area to be substandard and not conforming to the Code, without regard as to whether said buildings were sound from an engineering standpoint. These instructions came on two different occasions prior to the inspection which resulted in the Report referred to herein.
“Affiant further states that said Report is not correct insofar as ratings of structural soundness and economic rehabilitation of existing structures are concerned; that Affiant found on his inspection, from an engineering standpoint, all but five of these buildings [106 properties, mostly commercial, in the project] were sound structurally, and were structurally safe for all intents and purposes, considering the occupancy and use to which they might be put or were being put at the time of the inspection.
“Affiant further states that the rating classifications given to him by his superiors in connection with his inspection required the sub-standard ratings because according to instructions, if the buildings were nonconforming as to recent provisions of the Building Code, each building was considered to be in poor condition, and any rehabilitations or corrections necessary in said structure were based upon the new Code and not in consideration of sound engineering practice.
“Affiant further states that the inspection he was ordered to make was ex post facto and a sham inspection, to be made for the purpose of designating the particular area being inspected as being ‘slum, blighted, deteriorated and deteriorating’ for qualification under Urban Renewal standards, and not made for the purpose of determining if the area was in fact substandard, slum or blighted. Affiant further states that the area is not blighted, slum or deteriorated as these terms are customarily used in relation to other zones in downtown Wichita.
“Affiant further states that Building Code requirements are not a valid basis for determining structural stability, deterioration, slum or blight.
“Affiant further states that even recently constructed buildings where building code exceptions have been agreed to by the City which keep said structure from strict compliance with the Building Code, would have to be rated as ‘poor’ under the standards given to him to rate the area designated for said Urban Renewal Project.”
The appellants also filed an affidavit of Robert H. Nelson, an attorney, who stated that his client, Walker Brothers, Inc., was informed by the urban renewal agency that property owned by it on Water Street, within the designated area, could be excluded from or included in the project area; that it would be up to Walker Brothers.
Subsequent to the filing of the motion for summary judgment and supporting affidavits, the appellants filed a motion for production of documents and things, and a notice to take the deposition of E. J. Waits, but the trial court refused to continue the hearing on the motion. (See, K. S. A. 60-256 [†].)
The motion for summary judgment recited that there was no genuine issue as to any material fact. The trial court upon presentation of the motion considered the only question to be “whether or not the commissioners acted arbitrarily, capriciously, fraudulently, illegally or unlawfully.”
The trial court in sustaining the motion for summary judgment held there was no genuine issue as to any material fact. In so determining the trial court gave its opinion which consisted of approximately eight pages in the record. The opinion discloses that he made findings of fact and in so doing considered his personal knowledge, indicating tihat he would have been a better witness for the appellees than an impartial judge in the case.
This court has recognized in urban renewal projects that where a private citizen is likely to be injured in some special manner, or whose situation is peculiarly affected by the exercise of usurped authority, he may maintain an action for injunctive relief. (Offen v. City of Topeka, 186 Kan. 389, 350 P. 2d 33.)
The issue presented in the Offen case was whether the action taken by the Commission in passing the two resolutions taking the plaintiffs property was arbitrary, capricious and unlawful. There the petition, as challenged by demurrer, was said to state a good cause of action.
In the court’s opinion it was said:
“Assuming that the approval of the urban renewal project by the Commission constituted a legislative finding that the area was slum or blighted, the action of the Commission was within the recognized limitations subject to judicial review. (Housing Authority v. Denton, 198 Va. 171, 93 S. E. 2d 288.)” (p. 391.)
A motion for summary judgment is relatively new to Kansas law. It was enacted as a part of the Kansas Code of Civil Procedure which became effective January 1, 1964. K. S. A. 60-256 is identical to the federal provision contained in Rule 56 (28 U. S. C. A.) of the Federal Rules of Civil Procedure.
K. S. A. 60-256 (c) provides in part:
“. . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and ad missions 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.
Federal cases are helpful in applying the summary judgment section of the statute. In Schreffler v. Bowles, 153 F. 2d 1 (10th Cir. 1946), the court said:
“The salutary purpose of Rule 56 is to permit speedy and expeditious disposal of cases where the pleadings do not as a matter of fact pfesent any substantial question for determination. Flimsy or transparent charges or allegations are insufficient to sustain a justiciable controversy requiring the submission thereof. The purpose of the rule is to permit the trier to pierce formal allegations of facts in pleadings and grant relief by summary judgment when it appears from uncontroverted facts set forth in affidavits, depositions or admissions on file that there are as a matter of fact no genuine issues for trial.” (p. 3.)
In Whelan v. New Mexico Western Oil and Gas Company, 226 F. 2d 156 (10th Cir. 1955), the court said:
“. . . The purpose of the rule is to make possible the expeditious disposition of cases in which there are no genuine issues of material fact upon which the outcome of the litigation depends. But the procedure is to be invoked with due caution to the end that litigants may be afforded a trial where there exists between them a bona fide dispute of material fact or facts. Where it appears however that there is no genuine issue as to any material fact upon which the outcome of the litigation turns, the case is appropriate for disposition by summary judgment and it becomes the duty of the court to enter such judgment. And in determining whether a motion for summary judgment is well founded, the court may pierce formal allegations of fact in pleadings and determine from the entire case whether there are genuine issues of fact for resolution on a formal trial. . . (p. 159.)
A summary judgment proceeding is not a trial by affidavits, and the parties must always be afforded a trial when there is a good faith dispute over the facts. (United States v. Kansas Gas and Electric Company, 287 F. 2d 601 [10th Cir. 1961].) A motion for summary judgment cannot be made a substitute for a trial either before a court or jury, and a plaintiff who states a cause of action which entitles him to a trial by jury is entitled to have his case tried in that way and cannot be compelled to submit his evidence in the form of affidavits in resistance to a motion for summary judgment and have the issues determined by such motion. (United States v. Broderick, 59 F. Supp. 189 [D. C. Kan. 1945].)
A court should be cautious in granting a motion for summary judgment where a state of mind is involved, or where the facts are peculiarly in the knowledge of the moving party, and the court should be sure that the party opposing the motion has a fair opportunity to use the discovery process to probe his opponent’s mental state and to examine the facts his opponent has at hand. (3 Barron and Holtzoff, Federal Practice and Procedure, § 1232.2, p. Ill; Somers Construction Co. v. Board of Education, 198 F. Supp. 732 [D. N. J. 1961]; and Cochran v. United States, 123 F. Supp. 362 [D. Conn. 1954].)
Ordinarily a motion for summary judgment should not be granted so long as pretrial discovery remains unfinished. (Smith-Corona Marchant, Inc. v. American Photocopy Equip. Co., 217 F. Supp. 39 [S. D. N. Y. 1963].)
A mere surmise or belief, no matter how reasonably entertained, that a party cannot prevail upon a trial, will not justify refusing him his day in court with respect to material issues which are not clearly shown to be sham, frivolous, or so unsubstantial that it would obviously be futile to try them. It must be shown conclusively that there is no genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law. (Ford v. Luria Steel & Trading Corp., 192 F. 2d 880 [8th Cir. 1951].)
A summary judgment upon motion of the defendant should therefore never be entered except where the defendant is entitled to its allowance beyond all doubt, and only where the conceded facts show the defendant’s rights with such clarity as to leave no room for controversy, with all reasonable doubts touching existence of a genuine issue as to a material fact resolved against the movant, and giving the benefit of all reasonable inferences that may reasonably be drawn from the evidence to the party moved against. (Realty Investment Co. v. Armco Steel Corp., 255 F. 2d 323 [8th Cir. 1958].)
It has been held on a defendant’s motion for summary judgment that an affidavit supporting the motion should not be considered in the absence of an opportunity for plaintiffs to prepare by discovery procedure to meet the issues raised thereby. (Hathaway Motors v. General Motors Corporation, 19 F. R. D. 359 [D. Conn. 1955].)
Turning now to the facts in the instant case they disclose that a definite issue was framed by the pleadings—whether the action of the City Commission of Wichita in finding the appellant’s property to be slum, blighted, deteriorated or deteriorating, upon which their resolution approving the urban renewal project was based, was in fact arbitrary, capricious and unlawful. The supporting affidavits filed by the appellees and the counter affidavits filed by the appellants, under the foregoing rules in determining a motion for summary judgment, did not convert the action into a trial by affidavits. The affidavit of E. J. Waits filed by the appellants in an effort to resist the motion for summary judgment was sufficient to keep the issue alive. Furthermore, the appellants had not had an opportunity to exhaust pretrial discovery which they sought. ■
Under these circumstances, it was clearly erroneous to sustain a motion for summary judgment.
The appellees in their brief seek to have numerous other questions determined on this appeal, all of which on the present state of the record would be purely academic. The material questions to be determined in cases of this type should be resolved upon the basis of live facts and circumstances which have been sufficiently developed to enable the court to be reasonably certain it is making a correct decision.
We therefore decline to resolve the remaining questions in the absence of a full disclosure of all the pertinent facts.
The judgment of the lower court is reversed. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an appeal from an order changing custody of Robert Lynn Lyerla, often called Bobby herein, from his mother to his father. A chronicle of the dreary events leading up to the present proceedings is essental to an understanding of this case, which, it may be said, mirrors the tragedy which has befallen a ten-year-old boy from the disruption of his home.
On December 7, 1959, the appellant, Peggy Sue Lyerla, secured a divorce from Robert E. Lyerla, the appellee. For convenience, they will generally be referred to hereafter as Peggy and Robert. Custody and control of Bobby, then four years old, and his sister, Linda Sue, aged six, was awarded to their mother, while their father was given custody two months each summer and was also accorded certain weekend visitation privileges. Within six months from the divorce, Peggy had married Bob Ramsay, and on June 6, 1960, Robert married Bob’s wife, Mollie. This dubious reshuffling of the Lyerla and Ramsay families has visited unhappy consequences on the youngsters affected.
Warfare broke out over the Lyerla children long before the divorce was a year old. In September 1960, Peggy was adjudged guilty of contempt of court for refusing Robert his visitation privileges. The following December, Robert was granted visitation rights during the Christmas holidays. Not long thereafter, Peggy sought the court’s permission to remove the children to Las Vegas, Nevada. After a hearing, in which Robert countered with a motion to change custody, the trial court, on February 17, 1961, granted Peggy’s request and ordered her to give bond to guarantee compliance with its orders. On December 19,1961, the original custody order was modified to permit Robert to visit his children in Las Vegas four days each quarter, upon giving notice.
The scene then shifts to Nevada where the embattled litigants continued their conflict in the Eighth Judicial District Court of that state.
On June 18, 1962, Robert brought habeas corpus proceedings in Las Vegas to obtain the children for that summer. An order was entered as of June 20 affirming the custodial rights previously established by the Kansas court and requiring both parties to post compliance bonds. In late October 1962, Robert filed contempt proceedings in order to visit his children for a weekend and for the additional purpose of compelling Peggy to furnish the compliance bond ordered by the court.
On June 27, 1963, the Nevada court entered an order, apparently based on a motion previously filed by Peggy, which confirmed existing custody rights but changed slightly the dates for the 1963 summer visit and, in addition, raised support payments.
A few months after the above order was made, Robert learned that Bobby had been sent to the Elsinore Naval and Military School at Elsinore, California, for the 1963-64 school year. Alarmed at this development, Robert resorted once again to the Nevada court and, in December 1963, filed a motion to change Bobby’s custody. This motion, together with another motion filed by Peggy for an increase of child support, was presented on January 3, 1964, and resulted in an order dated January 8, 1964, continuing the hearing of both motions to “an appropriate date” after Bobby finished his school year at Elsinore.
Thus matters stood until July 2, 1964, when Robert, who over Peggy’s protest had already brought his son to Kansas for the two summer months of that year, filed the present motion in the Crawford County District Court seeking a change of Bobby’s custody. On July 28, 1964, after an extended hearing, the trial court entered its order changing Bobby’s custody to his father, subject to Peggy’s right to visit the boy at his father’s home at reasonable times, and confirming the mother’s custody of Linda Sue. From this order, and from an earlier order of the court refusing to dismiss Robert’s motion, Peggy has taken this appeal.
In the meantime, and on July 6, 1964, the Nevada court, apparently ruling on a motion filed by Peggy to cancel Bobby’s visit with his father for that summer so that the boy might attend a summer camp, made an order that Bobby remain with his father for the summer vacation and be returned to his mother by August 15, 1964. Further reference to this action will be made later in this opinion.
Ten separate grounds of error are specified by the appellant in her statement of points, but we believe her contentions may be grouped generally in four main categories, which we will proceed to discuss in their order.
First, it is argued that the Crawford County District Court lacked jurisdiction to entertain Robert’s motion for change of custody, and several Kansas cases are cited as authority for this position. We must concede that appellant correctly interprets our former decisions as holding, in effect, that where the custody of a child has been awarded to a parent who thereafter leaves the state and establishes a domicile elsewhere, the domicile of the child is that of the parent and the court which made the original custody order no longer retains jurisdiction to modify or to change the same. (Leach v. Leach, 184 Kan. 335, 336 P. 2d 425; Hannon v. Hannon, 186 Kan. 231, 350 P. 2d 26; Niccum v. Lawrence, 186 Kan. 223, 350 P. 2d 133.) However, since those cases were decided, the Kansas legislature has adopted the Kansas Code of Civil Procedure. K. S. A. 60-1610 now provides, in pertinent part, as follows:
“(a) Care of minor children. The court shall make provisions for the custody, support and education of the minor children, and may modify or change any order in connection therewith at any time, and shall always have jurisdiction to make any such order to advance the welfare of a minor child if (i) the child is physically present in the county, or (ii) domicile of the child is in the state, or (Hi) the court has previously exercised jurisdiction to determine the custody or care of a child who was at such time domiciled in the state. . .
We believe it is obvious that by enacting 60-1610, the legislature intended to change the rule enunciated in the foregoing cases. In his work, Kansas Code of Civil Procedure, annotated, Judge Gard, in discussing the meaning and effect of this statute, on page 730, has this to say:
“(3) Heretofore the jurisdiction over children involved in a marital controversy has depended on the domicile of the children at the time the order is made. See Niccum v. Lawrence, 186 K. 223, 350 P. 2d 133; Hannon v. Hannon, 186 K. 231, 350 P. 2d 26; Leach v. Leach, 184 K. 335, 336 P. 2d 425. The rule of those cases is changed by this subsection. Now the physical presence of the child is all that is necessary. Domicile continues to be a jurisdictional fact but only one alternative of several. If the Kansas court has previously exercised jurisdiction to determine the custody of a child who at the time was domiciled in Kansas, the court does not now lose its jurisdiction by the subsequent change of the child’s domicile, and physical presence at the time of the later hearing is not essential. If the original jurisdiction over the child attached simply because of the presence of the child in the county, and not because of domicile, tire court does not have continuing jurisdiction.
“The former rule of the Kansas case law that it was the domicile which determined the court’s jurisdiction has now been supplanted by statute law which recognizes all three bases for jurisdiction as variously found in the several states, some having one and some another. The theory is that any justification for jurisdiction is sound which will provide a local forum when the welfare of children is at stake. No effort is made to solve the problems of conflicting jurisdiction which may arise.”
In the case now before us, not only was Bobby physically present in Crawford County when his father’s motion was filed and heard, but the district court had previously exercised jurisdiction over his custody when the divorce was granted, at which time Bobby’s domicile was in Kansas. Consequently, under the express terms of the statute, the trial court had jurisdiction on two grounds, either one of which would suffice.
The appellant next maintains that Robert’s motion for change of custody should have been dismissed because similar proceedings were then pending in Nevada. This claim is made because no'final action had been taken on the motion for a change of custody which Robert filed in that court in December 1963.
We believe that the appellant misconceives the reach of the doctrine of “another action pending.” For many years, this court has held that an action in this state is not subject to abatement because of the pendency, in another state, of an action for the same relief. In Omer v. Omer, 108 Kan. 95, 193 Pac. 1064, it was held:
“The pendency of an action for a divorce in another state is not a bar, nor a cause for stay of proceedings, in a similar action between the same parties in this state where a court of this state has obtained jurisdiction of the defendant by service of summons.” (Syl. f 1.)
The Omer case was cited with approval in Kirby v. Kirby, 143 Kan. 430, 55 P. 2d 356, where proceedings to terminate a marriage had been filed both in the District of Columbia and in Kansas. On page 438 of the opinion, the court stated:
“Neither is it of consequence that before the action in the supreme court of the District of Columbia was finally determined, an action in Kansas was filed for the same relief, in which personal service was obtained. The pendency of the first action was not a bar nor a cause for stay of the proceedings in this state, and had its judgment been rendered before judgment was rendered in the D. C. court, it would have been good. . . .”
In Birmingham v. M. & W. Mining Co., 163 Kan. 66, 180 P. 2d 615, this court again held that the pendency of proceedings in a foreign state does not bar an action in this state based on the same cause of action.
The fact that Robert, himself, had filed both motions, the one in Nevada and the other in Kansas, would effect no change in the principle involved. In Birmingham, both lawsuits (for recovery of damages) had been filed by the same plaintiff, and a like situation obtained in Kirby, a divorce case. We believe appellant’s second contention must be rejected.
It is next contended that an order entered by the Nevada court on July 6,1964, has determined the same issues raised by the present motion, and is res judicata as to the question of custody. The Nevada court’s order, the appellant continues, being entitled to full faith and credit under Article 4, Section 1 of the Federal Constitution, precludes Robert from pursuing further the matter of custody. To determine the validity of such a contention, we must first examine the order itself, together with the circumstances under which it was issued.
Again, reference must be made to the sequence of events. After Robert filed his motion of December 1963, the Nevada court continued hearing thereon until after the end of the school year, and this continuance was still in effect on July 2, 1964, when the present action was commenced in Crawford County, Kansas.
Meanwhile, however, and after Robert left Las Vegas with Bobby in June 1964, Peggy had filed a motion in Nevada to cancel Bobby’s visit to Kansas that year so that he might enroll in Elsinore’s summer camp program. This motion was accompanied by affidavits of school officials attesting to Bobby’s school record and the advisability of his attending camp. On July 6, 1964, four days after Robert’s motion was filed in Crawford County, the Nevada District Court, without notice to Robert, entered the order which Peggy claims is res judicata.
The phrasing of this order, viewed in the context of all attendant circumstances, permits little, if any, doubt that it was made in response to Peggy’s motion to terminate the summer visit. The limitations of space preclude us from reproducing the order in full but, in brief summary, it may be said that its pertinent provisions relate to summer visitation rights, to the parents’ dispute over their son attending summer camp, and to affidavits and reports from Elsinore officials.
We believe the Nevada court made no pretense of ruling on Robert’s motion for change of custody, since its order contains no reference whatever thereto. Nor are we entitled to infer from any language used that the court intended to deal with the problem of permanent custody. Indeed, the presumption is quite the contrary, for Robert had not been advised that his motion was to be heard, although, as an interested party, he would be entitled to notice. The presumption is that public officers will perform their duties in a rightful manner and will not act improperly. (Gordon v. Bodwell, 55 Kan. 131, 39 Pac. 1044; Lewis v. City of South Hutchinson, 162 Kan. 104, 174 P. 2d 51.) We may not assume that the district court in Nevada would take the liberty of conducting a hearing on Robert’s motion without giving him an opportunity to appear and be heard.
Despite appellant’s contentions to the contrary, we, believe the Nevada court’s order did not determine the matter here being Iiti gated and cannot be said to be res judicata on the question of permanent custody. This being so, no question is raised under the full faith and credit clause of the United States Constitution and we need not enter that thorny thicket.
Finally, it is urged that no change in circumstances has been shown which would warrant a change of custody.
We have consistently held over a period of many years that courts have continuing jurisdiction of matters relating to child custody and that they possess authority to change or modify their custody awards where circumstances have changed to a child’s detriment. An order awarding custody is res judicata of matters determined only as of the time the order was made. In White v. White, 160 Kan. 32, 159 P. 2d 461, it was held:
“A decree awarding custody of a minor is not res judicata in the sense generally applicable to judgments. In a proper proceeding the issue of custody may be subsequently inquired into upon the facts and circumstances then existing.
“Such a decree becomes res judicata concerning matters then determined as of the time the decree was rendered.” (Syl. ¶¶ 1, 2.)
This principle is applicable even where the judgment has been rendered by a foreign court. In Moloney v. Moloney, 167 Kan. 444, 206 P. 2d 1076, we said:
“. . . a custody order or judgment of a foreign court in (sic) res adjudicata only as to matters determined by the foreign decree in that case,, and as of the time it was rendered. . . .” (p. 449.)
The rule exemplified by the foregoing cases is too firmly embedded in our jurisprudence to demand additional citation of authority. We shall, therefore, proceed to consider whether the trial court’s findings of changed conditions are sustained by the record.
We believe the conclusion inescapable that during the years: which have elapsed since the the elder Lyerlas and Ramsays rearranged their family groups, Bobby has become a confused and emotionally upset boy. We learn from the record that he is socially maladjusted; has developed aggressive traits; is prone to exaggeration to the point of falsehood; is subject to tantrums; and that his school work has suffered.
These undesirable traits of character have developed while-Bobby has been in his mother’s custody. The environment in whicbt he has been reared while his condition has deteriorated has been largely that of Peggy’s home, although complete candor compels the observation that his father may not be entirely blameless. It is likely that Bobby has been made the pawn of his parents’ antagonisms and that his welfare has been subordinated to their antipathies.
Bobby’s conduct is shown to have retrogressed to a point where Peggy, apparently despairing of her ability to exercise effective control, dispatched the boy, at the tender age of nine, to a military school. It may be true, as the record suggests, that Bobby did evidence improvement in attitude and purpose after a year at Elsinore, even though he may not have wanted to return the next year, but tihe fact that his mother found it necessary to resort to such a drastic measure reveals her failure in the raising of her son.
It lies neither within the power nor the wisdom of this court to direct in detail what course Bobby’s parents ultimately should pursue in his best interest. We can only say that conditions are shown to have changed, so far as the boy is concerned, since the time his home was destroyed by divorce, and that a different disposition of his person seems advisable.
This court, in the past, has always sought to serve the welfare of those unfortunate youngsters who are the end product of their parents’ failure to maintain a united home, and they continue to be the objects of our earnest solicitude. The paramount problem posed in a case of this character is what would be to the best interest of the child, or children, involved. (Merriweather v. Merriweather, 190 Kan. 598, 376 P. 2d 921, and cases cited therein.) There is no issue over the fitness of the parents in this case. Neither one has been found unfit, and neither now attempts to brand the other with such a stigma. Under like conditions in Kimbell v. Kimbell, 190 Kan. 488, 376 P. 2d 881, we held:
“The paramount issue in a motion to change custody of minor children as between the father and mother is the welfare and best interests of the children involved." (Syl. ¶ 3.)
• We believe there is substantial competent evidence to sustain the trial court’s findings that a change in conditions has occurred and that Bobby’s best interests would be served and his welfare advanced by a change of custody to his father. Although the change of residence from his mother’s to his father’s home will have, the unfortunate result of separating Bobby from his sister, and from a small half-sister as well, we do not'view this as constituting, an abuse of discretion on the part of the trial court. Having concluded, on sufficient evidence, that a change was imperative, the court was justified in ordering the move despite its interference with personal relationships.
In our opinion, no error is shown to inhere in the judgment of the court below, and it is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This was an action to enjoin the defendants from continuing their ambulatory picketing at plaintiffs customers’ locations while plaintiffs trucks were delivering ready-mixed concrete.
The defendants, Truck Drivers & Helpers Union Local No. 696, commenced following plaintiffs ready-mixed trucks to customer locations in July of 1962, and while patrolling back and forth in front of these locations displayed to the public and to plaintiff’s customers a sign publicizing that plaintiff refused to negotiate or bargain with the union.
An individual stationed himself in an automobile outside plaintiff’s ready-mix plant in Lawrence, Kansas at about 7:30 or 8:00 A. M. each morning and as plaintiff’s ready-mix trucks left the plant the individual followed them to various job sites. As soon as the trucks arrived at the job site the individual got out of his automible with a banner and proceeded to walk in front of the project. After December 24, 1963, the legend on the banner was changed to read:
“Read-Mix Concrete Company of Lawrence, Kansas, Inc., commonly known as Penny Ready-Mix, is not paying the prevailing wage scale of Truck Drivers & Helpers Local 696, 903 Western, Topeka, Kansas.”
As a result of the picketing plaintiff’s contracts were terminated by many of its regular customers and its bids were refused.
The trial court concluded:
“From the facts the basic question is whether or not this Court has jurisdiction and the answer must be that it does not for the following reasons:
“(1) As recently as March 5, T964, plaintiff submitted this labor dispute to the Board, alleging that the matter was an unfair labor practice affecting commerce within the meaning of the Act. The Board assumed jurisdiction and after investigation declined to issue a complaint. In the face of this it is difficult to see how plaintiff can now contend that it is not engaged in commerce within the meaning of the Act.
“(2) The decision of the Board in refusing to issue a complaint on the three petitions filed by plaintiff on the ground that investigation did not disclose facts sufficient to warrant a finding that the conduct complained about was prohibited by Sec. 8 of the Act does not amount to a finding that such conduct was not arguably protected by Sec. 7 of the Act. As a matter of fact, plaintiff’s filing of the charges tends to support the premise that the conduct complained about is either arguably protected or prohibited by the Act and that therefore the state court is preempted. (Hyde Park Dairies v. Local Union No. 795, 182 K. 440.)
“(3) Even though plaintiff’s submission to the Board’s jurisdiction (as was done by fifing the petitions mentioned herein) may not be determinative of the question of the Board’s assuming jurisdiction of the subject of this action, still in cases involving secondary activity by a union where the primary employer’s operations do not meet the Board’s standards, ‘the Board will take into consideration, for jurisdictional purposes not only the operations of the primary employer, but also the operations of the secondary employers at the location effected by the alleged conduct involved.’ (Jemcon Broadcasting Co., 135 NLRB No. 48; 49 LRRM 1492) And if the activities are of such a nature that the Board will assume jurisdiction, then the state court is preempted. (Liner v. Jefco, Inc., (1964) 375 U. S. 301, 55 LRRM 2048; and Siemons Mailing Service (1958) 122 NLRB 13).
“From the foregoing it is clear that this Court is without jurisdiction and that judgment should be entered for the defendant for costs.
“The Clerk is hereby directed to enter such judgment.
“Signed and dated at Lawrence, Kansas on July 29, 1964.”
The plaintiff has appealed from the judgment denying the injunction.
The first question for determination is whether Congress has pre-empted jurisdiction over the activity involved by placing exclusive jurisdiction in the National Labor Relations Board.
The appellant contends that its business does not fall within the Board’s self-imposed interstate commerce jurisdictional requirements for non-retail establishments. The appellant suggests that during the twelve months preceding the trial of the case its out of state purchases were only $32,274.53 while the Board has fixed $50,000.00 as its proposed non-retail jurisdictional standard.
We do not believe it necessary to become involved in a discussion of dollar volume or whether the Board will consider all commerce involved for jurisdictional purposes where the labor dispute affects secondary employers. (Jemcon Broadcasting Co., 135 N. L. R. B. No. 48.) It is not disputed that the Board had assumed jurisdiction over appellant’s labor disputes in the past. We do not believe the Board will surrender jurisdiction because during one annual period the employer’s out of state business fell below $50,-000.00, particularly where the evidence is to the effect that the employer’s business during such period was materially reduced because of a dispute with labor.
The record also discloses that during the year 1962, and again in 1963, the appellant submitted this labor dispute to the National Labor Relations Board alleging:
"The above named organization [appellee] or its agents has engaged in and is engaging in unfair labor practices within the meaning ... of the National Labor Relations Act, and these unfair labor practices are unfair labor practices affecting commerce within the meaning of the act.”
The appellant having requested the Board to take jurisdiction is not now in position to deny the Board’s jurisdiction. In Stieben v. Local Union No. 685, 181 Kan. 832, 317 P. 2d 436, we stated beginning on page 837:
“Under all of the facts and circumstances presented by the record in the instant case, plaintiffs’ evidence, disclosing application of the National Labor Relations Board charging unfair labor practices prohibited by the Labor Management Relations Act, 1947, in connection with the picketing out of which this action arose, must be construed as an admission that Jarvis’ construction projects at the Smoky Hill Air Force Base affected interstate commerce.”
What has been said applies with equal force to appellants contention that the practice complained of is not arguably protected by section 7 of the Act nor arguably prohibited by section 8, and is therefore open to state regulation.
The United States Supreme Court set forth the following mandate in San Diego Unions v. Garmon, 359 U. S. 236, 245, 79 S. Ct. 773, 3 L. Ed. 2d 775, on the question of pre-emption and exclusive jurisdiction of the N. L. R. B.:
“. . . 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.
“To require the States to yield to the primary jurisdiction of the National Board does not ensure board adjudication of the status of the disputed activity. If the Board decides, subject to appropriate federal judicial review, that conduct is protected by § 7, or prohibited by § 8, then the matter is at an end and the states are ousted of all jurisdiction. Or, the Board may decide that an activity is neither protected nor prohibited and thereby raise the question whether such activity may be regulated by the states. . . .”
The appellant recognizes the mandate as expressed by the supreme court but contends:
“To comply with this mandate the employer herein filed three unfair labor practice charges with the N. L. R. B. complaining that the conduct i. e. ‘stranger blackmail ambulatory picketing’ engaged in by the Union, that is the subject of this action, constituted a violation of the secondary boycott or organizational and recognitional prohibitions of Section 8 of the Act. Each of these charges were investigated and it was determined by the N. L. R. B. in conformity with its present interpretation of the Act the conduct complained of was not conduct that come within the Act’s prohibitions.
“The N. L. R. B.’s policy as set forth in the Regional Director’s dismissal of the secondary boycott unfair labor practice charge and the General Counsel’s letter sustaining the dismissal is enunciated in the decision cited in those letters.”
The appellants have misconstrued the ruling of the Board. The Board did not dismiss the complaints for lack of jurisdiction, rather it took jurisdiction and refused to grant relief because of insufficient evidence of any violation. The regional director in denying relief stated:
“The investigation discloses that in the course of ambulatory picketing of trucks belonging to Ready Mix Concrete Company of Lawrence, Kansas, the Union picketed at construction sites where secondary employers’ employees were engaged in work. This common situs picketing, however, was reasonably limited to times when Ready Mix’s trucks were at the construction sites and no evidence of illegal inducement of secondary employers’ employees was found. The only evidence of threats, coercion or restraint of secondary employers was found in the announcement made by a Union representative that the Union was ‘going to picket’ Ready Mix.
“On the basis of the investigation, including the facts set forth above, it appears that there is insufficient evidence of a violation and that further proceedings are not warranted at this time. I am, therefore, refusing to issue a Complaint in this matter.”
On appeal the Board stated:
“This office sustains the ruling of the Regional Director. It was concluded that as the picketing at the secondary situs was limited to times when the employees of Ready Mix were on the premises, the picket signs clearly disclosed that the dispute was with Ready Mix, picketing was conducted reasonably close to the location of the situs, the burden of establishing that the Union’s conduct was in violation of Section 8 (b) (4) (B) could not be sustained. Accordingly, further proceedings were deemed unwarranted. See Moore Drydock, 92 NLRB 547; Wyckoff Plumbing, 135 NLRB No. 49; Houston Armored Car Co., 136 NLRB No. 9.”
If the appellant seriously believed that the Board would decline jurisdiction it could have asked the Board for an advisory opinion rather than requesting it to exercise jurisdiction and grant relief. (National Labor Relations Board Rules and Regulations, Series 8, 102.98.)
Section 2 (9) of the Act, 29 U. S. C. A. § 152 (9) defines “labor dispute” as follows:
“The term labor dispute’ includes 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.”
■ The appellee suggests that the dispute has been going on since 1962, and that the union’s activity, consisting of picketing to advise the public that appellant is paying substandard wages, is justified under the above definition of a “labor dispute” because:
“. . . though the defendant has no particular interest in improving the wages paid to the plaintiff’s employees, it would like for the plaintiff to pay the established rate, for only in that way can the defendant hope to get increases for the employees which it does represent.”
“. . . the employees of competitors have a legitimate interest in seeing that the plaintiff’s wages are increased. One way to achieve this end is to picket, advising the public that such is the situation. Clearly, then, the picketing here is concerted activity for the purpose of the defendants’ members’ mutual aid and protection.”
Whether or not the activity involved does constitute a “labor dispute” and whether the activity is protected under the act may be subject to argument and debate. The very fact that the question is arguable places jurisdiction in the Board rather than the courts.
The appellant suggests that because there is no employee-em ployer relationship section 7 does not apply. Under section 2 (3) of the Act: “The term ‘employee’ shall include any employee, and shall not be limited to the employees of a particular employer. . . .”
That the protection of the Act is not limited to employees of a particular employer cannot be seriously disputed. The necessity to protect employee activity which transcends the employer-employee relationship was settled in A. F. of L. v. Swing, 312 U. S. 321, 326, 61 S. Ct. 568, 85 L. Ed. 855. In that case the plaintiffs sought to enjoin picketing on grounds that there was no dispute between the employer picketed and his own employees. The issue was whether or not the state could enjoin peaceful picketing where there was no employer-employee relationship. The court said:
“. . . A state cannot exclude workingmen from peacefully exercising the right of free communication by drawing the circle of economic competition between employers and workers so small as to contain only an employer and those directly employed by him. The interdependence of economic interest of all engaged in the same industry has become a commonplace. . . .”
In Asphalt Paving v. Local Union, 181 Kan. 775, 317 P. 2d 349, at page 781, this court listed many of the practices which state courts may enjoin as follows:
“On the other hand, the following cases are authority that state power has not been exclusively absorbed by Taft-Hartley with respect to conduct affecting interstate commerce, and that state courts may enjoin mass picketing, threatening employees, obstructing streets and highways, picketing homes, blocking tire entrance to or egress from a factory, coercing employees who wish to refrain from striking, interfering with other approaching an area where a strike is in progress, recurrent unannounced work stoppages, enforcement of a maintenance-of-membership clause in union security agreements, and they may award damages for a common law tort based on violent conduct and enforce criminal statutes against conduct violative of them (Allen-Bradley Local v. Board, 315 U. S. 740, 86 L. Ed. 1154, 62 S. Ct. 820; Auto Workers v. Wis. Board, 336 U. S. 245, 93 L. Ed. 651, 69 S. Ct. 516; United Workers v. Laburnum Corp., 347 U. S. 656, 98 L. Ed. 1025, 74 S. Ct. 833; Auto Workers v. Wisconsin Board, 351 U. S. 266, 100 L. Ed. 1162, 76 S. Ct. 794; Algoma Plywood Co. v. Wis. Board, 336 U. S. 301, 93 L. Ed. 691, 68 S. Ct. 584). The record here does not disclose conduct of the character to permit application of the rule announced by these authorities.”
These activities do not partake of the nature of the activity now being considered.
Appellants call our attention to Binder v. Local Union No. 685, 181 Kan. 799, 317 P. 2d 371. The case is of no assistance in the determination of the specific question before us. It was specifically found in the Binder case that there was no evidence that interstate commerce was affected.
Appellant relies on Teamsters Union v. Vogt, Inc., 354 U. S. 284, 77 S. Ct. 1166, 1 L. Ed. 2d 1347; Binder v. Local Union No. 685, 181 Kan. 799, 317 P. 2d 371 and Continental Slip Form Builders v. Labor Local, 193 Kan. 459, 393 P. 2d 1004 and argues that the picketing should be enjoined. The appellant’s facts do not bring the present case within those decisions.
In the Vogt case the Supreme Court of the United States held that picketing which was for organizational purposes was not protected by the First and Fourteenth Amendments of the Constitution, hence the state might find such to be against public policy and grant relief accordingly. Following the Vogt case, this court in the Binder case held that organizational picketing contravenes this state’s public policy and may be enjoined. This was followed in the Continental Slip form case which is presently before this court on rehearing. In both the Binder and Continental Slip Form cases there were factual findings that the picketing was for the object of organizing the employer’s employees. Here there was no evidence which even inferentially supports the contention that the defendant has an organizational aim. On the other hand, the defendant’s business agent testified without contradiction that the purpose of the picketing was to equalize wage rates so that the defendant can obtain better benefits for those employees whom it does represent.
We are forced to conclude that the state courts are without jurisdiction over the controversy.
The appellant last contends that the trial court erred in sustaining objections to certain testimony as hearsay; in sustaining motions to quash the subpoenas duces tecum for the production of documents, and in allowing testimony of the contents of collective bargaining agreements contrary to the best evidence rule.
The matters to which the objections are addressed might be of material importance if jurisdiction were established and the question of granting an injunction was before the court. However, they were not necessary nor material to the determination of the question of jurisdiction. The ruling could not therefore be prejudicial.
This court will not consider questions not material to the determination of the controlling issue. (Watkins v. City of El Dorado, 183 Kan. 363, 327 P. 2d 877; Rodriguez v. Cascade Laundry Co., 185 Kan. 766, 347 P. 2d 455.)
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The following opinion was prepared by
Mr. Justice Robb
and approved by the court during his lifetime:
This is an appeal from a final decree in a divorce action wherein a divorce was granted to both parties.
Plaintiff, George W. Lindeman, commenced the action by filing a petition against his wife, Louella B. Lindeman, praying for a divorce on the grounds of extreme cruelty and gross neglect of duty.
Thereafter, the defendant filed an answer denying the alleged grounds for divorce. She also filed a cross-petition in which she alleged the plaintiff was guilty of extreme cruelty and gross neglect of duty and prayed that she be granted a decree of separate maintenance.
The record discloses that a trial was held on December 3, 1963, at which time evidence was presented by both parties, but only a narrative statement of this evidence is contained in the record. Although no specific findings of fact were made, the trial court on December 16, 1963, entered a decree granting the plaintiff a divorce from the defendant and the defendant a divorce from the plaintiff. In addition, provision was made for attorneys’ fees and for a division of certain property owned by the parties. Defendant timely filed a motion for a new trial which was considered by the trial court and overruled. This appeal was subsequently perfected.
Defendant contends the trial court erred in granting the plaintiff a divorce on the ground that no evidence was presented to corroborate his testimony.
In respect to this contention, the controlling statute, G. S. 1949, 60-1509, [K. S. A. 60-1609 (d)] provides:
“In all actions for divorce . . ., hereafter to be tried, the parties thereto, or either of them, shall be competent to testify upon all material matters involved in the controversy to the same extent as other witnesses might do: Provided, however, That nothing in this act shall be construed as authorizing the granting of a decree of divorce upon the uncorroborated testimony of either husband or wife, or both of them."
It has long been settled in this jurisdiction, in accordance with the above statute, that there must be corroborated evidence of the testimony given by the complaining spouse as to the delinquencies of the defendant spouse alleged as grounds for divorce. The principal object of corroboration is to prevent two people who are dissatisfied with the burdens of their marriage relation from obtaining relief through the courts by agreement or connivance and without legal reason. The statute contains no exceptions and courts are not permitted to nullify its intendment by reading exceptions into it. (Frye v. Frye, 134 Kan. 3, 4 P. 2d 415; Walton v. Walton, 166 Kan. 391, 202 P. 2d 197; Thornbrugh v. Thornbrugh, 175 Kan. 56, 259 P. 2d 219; Smeltzer v. Smeltzer, 175 Kan. 293, 262 P. 2d, 826; Rosander v. Rosander, 177 Kan. 45, 276 P. 2d 338.)
Even though it may be exceedingly difficult to obtain corroborating testimony concerning the conduct between spouses, such difficulty does not eliminate the requirement for corroboration. (Tuley v. Tuley, 168 Kan. 106, 211 P. 2d 95.) Of course, where an essential fact is difficult of proof the corroboration of that fact may in some cases be sufficient though weak. (Walton v. Walton, supra.)
In examining the record we find that no evidence was presented which satisfactorily corroborated the plaintiffs testimony. The plaintiff’s son by a former marriage and daughter-in-law appeared in his behalf and testified in substance they did not feel welcome in the senior Lindeman’s home. This testimony does not satisfy the corroboration requirement contained in G. S. 1949, 60-1509, for the reason that it does not pertain to the alleged grounds for divorce. In other words, there was no corroboration of the alleged acts of extreme cruelty and gross neglect of duty, the real basis for the divorce.
This court in Walton v. Walton, supra, at page 394 stated:
“Without indulging in an extensive review of the authorities and disclaiming an attempt to bring all decisions into perfect harmony we think it is a correct conclusion to say that in states with a corroborating statute such as ours the corroborating evidence must pertain to the grounds upon which a divorce is sought and may be obtained. . . .”
Syllabus No. 1 in Tuley v. Tuley, supra, provides:
“Corroborating testimony must pertain to the statutory grounds upon which a divorce may be obtained and mere corroboration of indignities and abuses which do not justify a divorce is insufficient to support a decree.”
In view of the lack of corroborating evidence, we hold the trial court erred in granting the plaintiff a divorce from the defendant.
Defendant further contends the trial court erred in granting her a divorce from the plaintiff where she only asked for a decree of separate maintenance.
In this state, a wife may maintain an action for separate maintenance, independently of, and without asking for a divorce. Before an award of separate maintenance may be made, however, the trial court must find that a cause exists for which a divorce could be granted. In other words, in order for a wife to obtain an award of separate maintenance it is necessary for her to allege and prove grounds which would be sufficient for a divorce, should she ask for it. (G. S. 1949, 60-1516 [repealed by L. 1963, ch. 303, Sec. 60-2609. See K. S. A. 60-1601.]; Perkins v. Perkins, 154 Kan. 73, 114 P. 2d 804; Paul v. Paul, 183 Kan. 201, 326 P. 2d 283.)
Defendant by asserting in her cross-petition that the plaintiff was guilty of extreme cruelty and gross neglect of duty did in fact allege sufficient grounds for a divorce; however, she specifically prayed for a decree of separate maintenance only. Despite defendant’s prayer, the trial court granted her a divorce. This action of the trial court cannot be upheld.
We need not inquire into the defendant’s motives in not asking for a divorce. While the particular circumstances before the court might have entitled the defendant to a divorce, since she specifically requested a decree of separate maintenance only, we hold that a divorce should not be forced upon her so as to compel her to assume the status of a divorcee against her will. Furthermore, we cannot approve a decree which, in effect, would have made inoperative the governing statute, G. S. 1949, 60-1516, to all intents and purposes.
In 3 Nelson, Divorce and Annulment, 2nd Ed., Sec. 32.39, pp. 409,410, it is stated:
“Contrary to the rule governing divorce actions in some jurisdictions, that absolute divorce may be decreed though the plaintiff ask only for a divorce from bed and board, if a wife, not desiring a divorce, proceeds for separate maintenance the court may not decree a divorce, but is bound to decree separate maintenance only. . . .”
Our holding is consistent with the overwhelming weight of authority. See, for example, Davis v. Davis, 209 Ia. 1186, 229 N. W. 855; Cawley v. Cawley, 59 Utah 80, 202 Pac. 10; Reed v. Reed, 130 Mont. 409, 304 P. 2d 390 and Daniel v. Daniel, (Fla.) 171 So. 2d 180.
In Thompson v. Thompson, 168 Kan. 450, 213 P. 2d 641, this court approved the granting of a divorce to the wife even though the prayer in her cross-petition was for separate maintenance. A review of Thompson v. Thompson, supra, discloses it is distinguishable from the present appeal in that the wife stated on the witness stand she wanted a divorce, thereby consenting to a decree granting her an absolute divorce.
For the reasons stated, the decree of the trial court is reversed and remanded for a complete rehearing of all issues presented by the petition and cross-petition and for entry of a new decree upon the whole record according to the rights of the parties then appearing.
The judgment is reversed with directions. | [
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The opinion of the court was delivered by
Schroeder, J.:
The record in this case fails to disclose and incorporate an adequate notice of appeal, and the attempted appeal must therefore be dismissed.
Rule No. 6 (g) promulgated by this court and which became effective January 1, 1964, (191 Kan. xv) in pertinent part provides:
“(.§) Record to Be Prepared by Appellant—Necessary Parts. 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, unless a different order is made in a particular case by the Supreme Court. When said copies are filed, the Clerk of the Supreme Court shall docket the appeal. The reproduced record shall contain all the matters designated by the parties but shall always include, whether or not designated, copies of the following: . . . the notice of appeal with date of filing; . . . and the certification of the appellant or his counsel that it is a true and correct record in accordance with the requirements of this Rule. . . .” (Emphasis added.)
The facts concerning which the attempted appeal to this court has been taken grow out of the admission of the will of Albert W. Lang, deceased, to probate on the 28th day of April, 1961, in the probate court of Reno County, Kansas.
After the admission of the will of Albert W. Lang, deceased, to probate, Amelia Blaine, a sister of the decedent, filed a petition on the 20th day of March, 1962, in which she attempted (1) to set aside the decedent’s will, which was admitted to probate, upon the usual grounds of undue influence, unsoundness of mind, etc.; and (2) to set aside the entire probate proceedings as void and invalid. Various allegations of fact were made with respect to each of these grounds.
Thereafter and on the 19th day of June, 1963, a similar petition (identical in all material respects to that of Amelia Blaine’s) was filed by Edward S. Lang, a brother of the decedent.
On the 20th day of June, 1963, the probate court of Reno County denied Amelia Blaine’s petition and dismissed it.
On the 10th day of September, 1963, the probate court of Reno County by order denied the petition of Edward S. Lang. He thereupon appealed to the district court of Reno County, and in his notice of appeal, dated September 17,1963, specified the order from which he was appealing to be the one rendered by the probate court on June 20,1963, denying the petition of Amelia Blaine. The notice of appeal did not specify the order of the probate court dated September 10, 1963, denying his petition.
The district court held the appeal of Edward S. Lang failed to comply with the mandatory provisions of K. S. A. 59-2405. The district court further held that it had no power to permit such notice of appeal to be amended to specify the order of September 10th on the ground that an appeal of Edward S. Lang had not been properly perfected therefrom, and the notice of appeal could not be amended after the time for appeal from the September 10th order had passed.
The district court in its memorandum opinion further said:
“Assuming for the moment claimant Edward Lang is a proper party to appeal from the probate court’s June 20, 1963, decision on Amelia Blaine’s petition, then the record discloses Edward Lang’s appeal was not filed within the 30 day time limit specified in 59-2404.”
The record discloses that the administrator of Amelia Blaine’s estate, Leon Bradford (substituted for Amelia Blaine after her de cease), appealed to the district court from the order of the probate court dated June 20, 1963, denying the petition of Amelia Blaine.
The record further discloses a stipulation entered into between counsel for the respective parties in the district court that the appeals of Edward S. Lang and Leon Bradford, administrator of the estate of Amelia Blaine, may be consolidated. They further stipulated that the decision in the case of Leon Bradford, administrator, would determine the decision in the appeal of Edward S. Lang.
This stipulation, binding on the parties in the district court, was made on the theory that if the administrator of Amelia Blaine was successful in his attempt to set aside the will of Albert W. Lang, deceased, or to have the probate proceedings which admitted the will to probate declared void and invalid, Edward S. Lang would benefit by such decision to the same extent as if he had been successful in establishing the allegations of his petition in the probate court. The district court so recognized in its memorandum decision dismissing the appeal of Edward S. Lang.
The only notice of appeal set forth in the record on appeal to this court, when the case was submitted, is the notice of Edward S. Lang, dated the 23rd day of January, 1964, appealing from the order overruling his motion for a new trial. This order was entered by the district court of Reno County on the 20th day of January, 1964, and denied his motion for a new trial.
The motion for new trial filed by Edward S. Lang, set forth in the record, was directed to the decision of the district court entered on the 18th day of December, 1963, which dismissed the appeal of Edward S. Lang from the order of the probate court denying his petition.
A purported supplemental record without certification, voluntarily filed by the appellants after argument and submission of the case to this court, is unavailing and will not correct the deficiency in the record on appeal as required by Rule No. 6 (g).
If it be assumed that the appeal of Edward S. Lang to the Supreme Court is sufficient, the only point it presents is whether the district court erred in denying the application of Edward S. Lang to amend his notice of appeal from the probate court to the district court. But Edward S. Lang not having perfected a valid appeal from the probate court in the first instance, the notice of appeal having failed to specify the order from which appeal was being taken, could not succeed in having it amended after the time for appeal had expired.
Appeals from the probate court to the district court are authorized by the provisions of K. S. A. 59-2405, which provide:
“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 specifying the order, judgment, decree, or decision appealed from, and file such notice of appeal in the probate court with proof of service thereof verified by his affidavit.
“(2) The appellant, other than the state or municipality or a fiduciary appealing on behalf of the estate, shall file in the probate court a bond in such sum and with such sureties as may be fixed and approved by the probate court, conditioned that he will without unnecessary delay prosecute the appeal and pay all sums, damages, and costs that may be adjudged against him.
“(3) Whenever a party in good faith gives due notice of appeal and omits through mistake to do any other act necessary to perfect the appeal, the district court may permit an amendment on such terms as may be just.”
Under the foregoing statute it has been held in order for an appeal from the probate court to the district court to be effective, thus vesting the district court with jurisdiction of the appeal, it is necessary that the party appealing comply with the requirements of subdivisions (1) and (2) of the above statute. The phrase “any other act,” appearing in subdivision (3) of the above statute, has been held to mean an act “in addition” or “distinct from” those acts already mentioned in subdivisions (1) and (2) of the statute which are mandatory. (In re Estate of Freshour, 177 Kan. 492, 280 P. 2d 642; and In re Estate of Allgire, 183 Kan. 527, 331 P. 2d 296.)
The probate code provides where appeals are taken from judgments and orders of the district court made pursuant to the provisions of the probate code, appeals may be perfected to the Supreme Court in accordance with the provisions of K. S. A. 59-2402c, which provide:
“Appeal to the supreme court from judgments and orders of the district court made pursuant to this act may be taken as appeals in other cases.”
This simply means that the code of civil procedure shall be followed in perfecting an appeal from the district court to the Supreme Court. (See, K. S. A. 60-2103.)
Accordingly, on the point raised by the appeal of Edward S. Lang, the decision of the district court would have to be affirmed. But the appeal of Edward S. Lang is insufficient to present the primary issues which the appellants seek to have this court determine. To present these issues the appellants presumably rely upon an appeal by Leon Bradford, the administrator of the estate of Amelia Blaine. But the record presented to this court upon submission of the case fails to disclose such notice of appeal. Having failed to set forth a valid notice of appeal presenting the issues which the appellants seek to have determined, as required by Rule No. 6 (g), the attempted appeal to this court must be dismissed.
Appeal dismissed. | [
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The opinion of the court was delivered by
Harman, C.:
Plaintiff brought this negligence action against defendant to recover damages for injuries sustained by him when he drove into the rear of defendant’s cattle truck parked partially on the highway at dusk.
In his petition plaintiff charged the defendant with negligence in parking the truck in the main-traveled portion of the highway, in failing to properly illuminate the taillights on the truck or to display other warning signals, and in failing to maintain a proper lookout for plaintiff’s automobile.
In his answer defendant denied these charges of negligence and, for our purposes pertinent here, charged that plaintiff was guilty of negligence contributing to cause the collision in driving at a speed that would not permit him to stop or turn aside within his. range of vision, in failing to keep a proper lookout and in failing to pass defendant’s truck on the left and thus avoid the collision.
On issues thus joined, trial was had to a jury which returned a general verdict for plaintiff and against defendant along with answers to special questions finding defendant guilty of negligence that was a proximate cause of plaintiff’s damages and absolving plaintiff of any contributory negligence and itemizing plaintiff’s. damage as follows:
“(a) Past pain and suffering............................... $6,250.00
“(b) Future pain and suffering............................. 6,250.00’
“(c) Past loss of wages.................................... 4,200.00'
“(d) Future loss of wages................................. 19,750.00'
“(e) Injuries ............................................ 10,000.00
“(f) Damages to his automobile............................ 1,252.50
“(g) Past medical bills.................................... 3,208.15”"
At the trial at the close of plaintiff’s evidence defendant moved for dismissal on the grounds that upon the facts and the law the-plaintiff had shown no right to relief and he also moved for a directed verdict on the ground that plaintiff’s evidence showed him guilty of contributory negligence as a matter of law. These motions were overruled. At the close of all the evidence defendant renewed his motion for directed verdict upon which the trial court reserved its ruling. After the jury verdict against him defendant moved to set it aside and to enter judgment in accordance with his motion for a directed verdict, or in the alternative for a new trial. The trial court overruled all of these motions and entered judgment on the jury verdict, from all of which defendant has perfected his. appeal to this court. With one exception the points relied upon for reversal concern the correctness of the trial court’s rulings during the trial and presented again at the hearing of defendant’s post-trial motion.
The locale of the collision was Kansas State Highway 116 between the small towns of Larkinburg and Arrington. The impact occurred one-half mile east of the east city limits of Larkinburg and about 500 feet west of the Elk Creek bridge. The eastern city limits of Larkinburg are at the bottom of a small hill or rise on which the town buildings are situated. The roadway running east and west between the city limits and the Elk Creek bridge was blacktop, twenty-four feet wide, straight, flat and dry with no feature affecting the vision of an eastbound driver headed east from Larkinburg toward and beyond the Elk Creek bridge. East of the bridge the road curves to the south, then to the east to the town of Arrington, approximately one-half mile from the Elk Creek bridge.
There were three eyewitnesses to the collision and events immediately preceding it—plaintiff, defendant and one Winston Wheeler. Although not an eyewitness one Robert A. Ireland arrived at the scene of the collision almost immediately thereafter, driving westward from the town of Arrington, and his presence on the highway figures somewhat in the testimony.
While there was some dispute in the evidence, particularly with reference to certain inferences to be drawn therefrom, the evidence viewed in the light most favorable to the plaintiff as the prevailing party, as it must be, showed substantially the following concerning the collision:
On the afternoon of the collision, March 26, 1963, defendant, a cattle buyer, had purchased some cattle in Holton for Winston Wheeler, who lived in Larkinburg. Defendant loaded the cattle, weighing 9,180 pounds, into his truck, a 1960 Ford two-ton truck, with rear dual wheels, an eight foot high stock rack, and a bed approximately eight feet wide, and left Holton at about 6:10 or 6:15 p. m. and drove to the Wheeler residence at Larkinburg. Not finding Wheeler, defendant started east out of Larkinburg on highway 116 toward Arrington, at which time he testified he could see as far as the Elk Creek bridge. Proceeding eastward he recognized Wheeler’s truck approaching toward him and signaled him to stop for the purpose of telling him about the cows he had bought for him. Wheeler, whose truck was empty, pulled completely off the road onto the shoulder, headed west with his headlights burning. Defendant pulled to his right until his right rear dual wheels were on the grassy shoulder, which was soft, with the left rear dual wheels on the highway. The truck was tipping to the right. Wheeler described the light condition as dusk. Wheeler and defendant each stated that defendant did not have his headlights on. On direct examination each testified that defendant had his red clearance lights on. When asked about an allegedly inconsistent statement he made to a highway patrolman soon after the collision, Wheeler testified:
“A. I don’t remember tbe night of the accident, I don’t remember a whole lot about the statement that I gave the highway patrol. The questions he asked, I don’t remember the definite questions. It was difficult to remember about the accident, was about a year.”
On cross-examination defendant also gave inconsistent testimony as to whether his clearance lights were on, testifying he could not state for sure whether his lights were on or off and that the patrolman stated the truth. The two trucks were parked about 125 to 130 feet apart. Defendant walked to the Wheeler truck and conversed with Wheeler. Wheeler wrote out a check and checked it in his headlight beam. Wheeler and defendant noticed a pair of eastbound headlights (plaintiff’s car) west of Larkinburg and then later a pair of westbound headlights (Ireland’s car) coming toward them out of Arrington. Defendant testified plaintiff slowed down through Larkinburg. He further testified he was listening to both cars and he thought he had plenty of time to get to his truck to move it down the road. Then defendant, being worried “there will be three cars here at one time,” turned and ran as fast as he could with the intention of getting in his truck parked in the eastbound lane. Wheeler testified he climbed in his truck and flashed his headlights on and off at plaintiff’s vehicle which continued eastward until it collided with the rear of defendant’s truck. Defendant ran eastward until he reached a point six or eight feet west of his truck when he jumped into the ditch on the right side, just before the impact.
Plaintiff, a salesman for a bowling equipment company, had left ..Holton at approximately 6:45 p. m. He had fastened on his safety seat belt before leaving. Between Holton and Larkinburg he turned on his headlights. He drove between thirty-five to forty miles per hour through Larkinburg, proceeding eastward down the hill out of Larkinburg to a speed of about sixty to sixty-five miles per hour. He described the visibility as “darkness” and “dirty dusk.” He was looking ahead. He did not remember whether he had his high headlights on or his low beam lights. He saw a man between his car and the rear of the truck dive for the ditch. He further testified:
“A. Saw a man in a truck in the middle of the highway and a man and I saw a man diving for the ditch and I evidently was in a skid at this time because I run into the truck.
“Q. Do you remember whether you saw the man first or the truck first or what is the thing that you saw at this particular time?
“A. Seemed to happen at the same time. Saw the man and the truck together.
“Q. Do you know how far you were from this man and truck at the time that you saw it—them?
“A. I have no idea.
“Q. Do you remember what you did at the time that you first saw them?
“A. Evidently applied my brakes.
“Q. Do you have any independent recollection of applying your brakes?
"A. No, sir. I think it was an automatic thing. I don’t remember actually applying the brakes.
“Q. Do you remember whether this truck was in your lane of travel or not?
“A. It was dead center, yes, sir.
“Q. Do you remember seeing any other truck on the highway between the time that you left Larkinburg until you hit this truck?
“A. No, sir.
“Q. Do you remember seeing any lights blinking or anything like that?
“A. No, sir.
“Q. Do you have a real clear recollection of everything that happened at that particular time?
“A. Not completely, no, sir.
“Q. Do you remember seeing any flares out on the highway?
“A. No, sir. There were none.
“Q. Do you remember seeing any flags of any kind?
“A. No, sir.
“Q. Do you remember seeing any lights on this truck prior to the time that you hit the truck?
“A. No, sir, I do not.
“Q. Do you remember seeing a man dive for the ditch?
“A. Yes, sir.
“Q. Do you know how far he was from the truck at the time that he dived for the ditch?
“A. I have no idea. Looked like I was right on top of them.
“Q. Do you know approximately what time this occurred?
“A. I think it was around 7:10.”
(Sunset was stipulated as being at 6:40 p. m.)
Plaintiff didn’t actually remember the impact. He also testified:
“Q. You have no recollection of seeing the truck at all?
“A. Never until it loomed before me.
“Q. How—you say it did loom before you just prior to the impact?
“A. Yes, sir.
“Q.- I want to ask you some questions about that moment of time. At that time, was the truck at the outer extremity of your headlight beam?
“A. That, I cannot tell you, sir. I don’t know.
“Q. You don’t know?
“A. I don’t know.
“Q. You had not noticed it before?
“A. Not prior to it, no, sir.
“Q. The truck was in this position, was it?
“A. Not—I didn’t see it, I don’t know.
“Q. You didn’t see it? You didn’t have a chance to see it long enough to determine whether or not it was in motion, did you?
“A. If I did see it, I couldn’t determine whether it was in motion or not.
“Q. Could you determine whether there were any lights on it?
“A. I don’t remember any myself.
“Q. I see. Did you have a chance to see it long enough to really determine whether or not any lights were burning on it?
“A. Possibly not, I don’t know.
“Q. Very short period of time, didn’t you, Mr. Deemer?
“A. Yes, sir.
“Q. Just a very short—now was it just kind of a flash?
“A. Well, little longer than that, but it was pretty fast.
“Q. Didn’t have time to guide your car to the left, did you, at the time you saw it?
“A. No, sir.
“Q. At the time that you saw this, you said that you saw a man?
“A. Yes, sir.
“Q. Is this the first time you had seen a man?
“A. Yes, sir.”
The man was in motion.
“Q. Do you have any estimate or judgment of how far you were away from the man when you first saw him?
“A. No, sir, I do not. '
“Q. You just didn’t see him long enough period of time to form any judgment about it at all?
“A. Not at that time.
“Q. This was just a flash?
“A. Similar to it, yes.
“Q. When you did see the truck, Mr. Deemer, was it right in the center of your headlight beam?
“A. Seems to me that it was, yes.
“Q. Now could you tell me where the truck was in relation to the locality or what part of the road it was in?
“A. It was in the right-hand driving lane.
“Q. Did you have an opportunity to guide the car around it?
“A. Evidently not or I would have done it.
“Q. Did you hit your brakes as soon as you saw this—
“A. Evidently. I was in a skid.
“Q. Do you have any conscious recollection of applying your brakes?
“A. No, sir, I don’t remember that either.
“Q. Do you recall the impact at all?
“A. Just momentarily remembrance. I just remember seeing the truck and Mr. Reichart jump for the ditch and I don’t remember much of the actual impact. I remember immediately after the impact.
“Q. Prior to the time then you really hadn’t seen anything that would indicate any danger to you at all, had you?
“A. Not in the road ahead, no, sir.
“Q. Nothing to indicate any situation that would require reduced speed until you saw the truck and the man loom before you.
“A. Yes, sir.”
Plaintiff lost consciousness soon after the impact and did not regain it until he was in the hospital.
Mr. Ireland left Arrington with his headlights on, headed for Larkinburg. As he approached the Elk Creek bridge from the east he saw no lights. As he left the west side of the bridge he could see some lights on stationary vehicles, headlights on plaintiff’s car and front parking lights on defendant’s truck; he did not know about defendant’s rear lights.
A highway patrolman arrived on the scene soon after the collision. Skidmarks made by plaintiff’s vehicle measured seventy-six feet to the point of impact. The skidmarks of the left rear dual wheels of defendant’s truck indicated these wheels were seventeen feet eight inches south of the north edge of the twenty-four foot highway. The truck was moved twenty-four to twenty-five feet by the force of the impact. The patrolman talked to the defendant at the scene. Defendant said he had stopped his truck to talk to his friend Wheeler and that he started back to his truck when he heard a car coming but had to jump into the ditch before he got there. He stated to the patrolman he could not remember whether his lights were on or off and Wheeler “said the same thing.” Photographs at the scene showing the skidmarks and vehicles were received in evidence. Defendant’s truck was described as a brown, dirty, drab truck. The right front half of plaintiff’s automobile crashed into the left rear part of the truck. The patrolman could not recall the condition of the truck lights as to being dirty but from the pictures the rear lights looked as though they were dirty. Defendant lived on a dirt road one and one-half miles off the highway. He had driven the truck over dirt roads considerably and there could have been film over the lights.
A traffic safety officer qualified as an accident reconstruction analysis expert and testified, without objection, in response to hypothetical questions based on certain physical facts in evidence, that in his opinion plaintiff would have been driving at the time the skid marks began at a minimum speed of forty-nine miles per hour and a maximum of fifty-nine miles per hour. He further testified concerning reaction time and total braking time and distances traveled at various speeds; that average reaction time under clinical field tests is shorter when people may be expecting something to happen than it is when something unexpected happens under unusual situations because of problems of eye focusing, recognition interval, judgmental determination and development of bodily response; some people may “freeze” under the latter situation; total braking distance at a given speed is therefore more in an unusual situation than in a normal situation, and a driver could be able to stop within his range of vision in normal situations where he would not in unusual situations; he further testified respecting stopping distances applicable to both high headlight and low beam driving on automobiles comparable to plaintiffs in both normal and in unexpected situations; that once plaintiff locked the brakes and went into a skid as shown by the marks, because of the mass of the car, the driver could not turn the car from the direction in which it was started at the beginning of the skid.
Defendant, as appellant, raises no issue in his statement of points on appeal to this court as to the existence of negligence on his part. Hence it must be taken as an established fact that defendant was negligent in parking his truck on the highway as he did. Defendant does raise the issue that the trial court erred in submitting to the jury the question of whether any negligence of defendant was a proximate cause of plaintiff’s damage. His basis for so contending is in effect his argument that plaintiff’s negligence was the sole proximate cause of the collision. The question of contributory negligence on the part of the plaintiff will be dealt with in time.
To sustain defendant on the issue under discussion would require our holding that his act in parking an unlighted, or at best, a dimly lighted truck well out on the traveled portion of a blacktop highway at dusk under the particular circumstances could not as a matter of law under any theory be regarded as a contributing factor to the collision, and for all practical purposes to nullify the effect of at least two statutes enacted for traffic safety (K. S. A. 8-586, providing for exhibition of lights on parked vehicles at cei tain times, and K. S. A. 8-570, restricting parking upon the main traveled portion of a highway), upon which the jury was instructed in this case. We cannot thus absolve defendant. Perhaps the best refutal of this argument may be seen in defendant’s own appraisal of the situation as shown by his actions at the scene when, after seeing the approaching headlights and listening to the sound, he “ran as fast as he could” to avert the consequences of the dangerous situation he had created. He did this because he realized the danger and harm that were likely to result. Unfortunately for plaintiff these fears were not groundless. The question of whether a negligent act is the proximate cause of an injury is ordinarily a question of fact for the jury. (Greenwood v. Gardner, 189 Kan. 68, 366 P. 2d 780), and under the evidence the trial court here did not err in applying that general rule.
Defendant next urges that the trial court erred in holding that plaintiff was not barred from recovery by his own contributory negligence, stating this involves the range of vision rule. As was recently said in Grisamore, Administratrix v. Atchison, T. & S. F. Rly. Co., 195 Kan. 16, 403 P. 2d 93, wherein this rule was invoked, voked,
“. . . each individual case must be determined on its particular conditions and circumstances.” (p. 19.)
The rule may be broadly stated in various terms. The trial court in its instructions to the jury, unobjected to, and its corollary on lookout, stated it thus:
“No. 15
“You are instructed that it is the duty of the driver of a motor vehicle to keep his vehicle under such control as will enable him to articulate his speed with his ability to stop or turn aside within the range of his vision, and that the failure to keep his vehicle under such control constitutes negligence.
“No. 16
“You are instructed that it is the duty of a driver of a vehicle to look and see vehicles and objects in the line of his vision and in case of an accident, he will be conclusively presumed to have seen what he could have seen and should have seen in the proper performance of his duty. If he failed to see what he should have seen, then in that event, he would be guilty of negligence.
“No. 17
“You are instructed that it is the duty of every driver of a motor vehicle to keep a proper lookout at all times, the extent of such observation being dependent upon the conditions and circumstances then existing, such as weather, traffic, condition of the highway, special hazards, and the like, and not to drive at a speed greater than is reasonable and proper under such conditions, and at all times to use due care.”
Before attempting to apply the rule, it may be stated very generally the question of contributory negligence is ordinarily one of fact to be determined by the jury, it being for the jury to determine, considering the special circumstances of each particular case, whether the conduct of the party was such as would be expected by a reasonably careful person. In determining whether as a matter of law a plaintiff is guilty of contributory negligence precluding his recovery, all of the testimony favorable to the plaintiff together with all reasonable inferences and deductions to be drawn therefrom must be accepted as true, and if the facts are such that reasonable minds might 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 Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721.)
Contributory negligence is never presumed; it must be established by proof, and when the plaintiff’s evidence does not disclose his contributory negligence as a matter of law, the jury has an absolute right to disbelieve and disregard all evidence tending to establish its existence. (Drake v. Moore, 184 Kan. 309, 314, 336 P. 2d 807.)
With these rules in mind let us consider the facts. Plaintiff while driving down a blacktop highway at a lawful speed at a time described as “darkness” and “dirty dusk” when other drivers in the area had their headlights on, collided with the rear end of a brown, dirty, drab truck with no lights (or very dimly visible lights), which truck was parked in plaintiff’s lane of traffic, extending thereon more than six feet four inches. The truck was a high bed vehicle with dark undercarriage. Plaintiff had his headlights on and was looking ahead.
His recollection of events immediately before the collision, in which he sustained severe injuries, was not clear. He remembered seeing a man running, then a truck loomed up. He did apply his brakes in sufficient time to lay down seventy-six feet of skid marks. The jury had before it testimony concerning total braking distance at various speeds including factors causing a longer than usual reaction time prior to application of brakes, and it would have had a right to accept maximum reaction time in measuring plaintiff’s performance as a reasonably careful person. It may or may not have accepted the testimony offered by defendant’s witness as to the blinking of the lights. Defendant and his witness were seriously impeached on their testimony as to lights on defendant’s truck, and in any event the .jury was not obliged to accept at face value the defense testimony on any point at issue. The jury may or may not have considered the blinking of the lights or tibe presence of another truck on the north side of the highway an excusable diverting factor from attention ahead. Drivers do not normally expect to have lights blinked at them from a truck on the side of a road or see trucks parked on both sides of a twenty-four foot highway only 125 to 130 feet apart, or a man running down the highway ahead of them. The jury could have concluded the truck was unlighted or at best very dimly lighted. The witness Ireland approaching the scene soon after the collision did not see any lights in defendant’s truck until he was west of the Elk Creek bridge, or less than five hundred feet from the truck. The jury had before it the appearance of defendant’s truck which was of such nature to make it hard to distinguish at dusk. It could have inferred the truck was virtually indiscernible until collision was imminent and unavoidable. Plaintiff saw defendant close to his truck. The record on appeal is silent as to what kind of clothing defendant may have been wearing but we can infer nothing in his favor on this score. It is a well-known fact that at dusk objects of a dark nature on a blacktop road may blend into the background so as to be virtually imperceptible until at close range.
It is not our purpose to argue the evidence. Conceding there was evidence which if accepted by the jury might have convicted plaintiff of contributory negligence under all the circumstances favorable to the plaintiff, it seems clear that reasonable minds could differ on that question and it was therefore one of fact for the jury. It must be kept in mind that the standard for judging plaintiff is the performance of a reasonably careful driver under all the circumstances.
We have examined the arguments of the defendant and cases cited by him and are of the opinion that as applied to the facts here, they are not controlling. Our case is completely different factually from Mies v. Twietmeyer, 193 Kan. 97, 392 P. 2d 118, cited in support of the argument that the failure to see what could have been seen had a proper lookout been kept constituted contributory negligence as a matter of law. The Mies case involved an “open” intersection during daylight hours—a plain case of ineffectual looking having no more legal significance than if the person had not looked at all.
In Wright v. Nat'l Mutual Cos. Co., 155 Kan. 728, 129 P. 2d 271, a nightime car-truck collision, by its answers to special questions the jury absolved the defendant truck driver of all negligence except one act which could not have been the proximate cause of the collision under the facts there stated.
The case of Eldredge v. Sargent, 150 Kan. 824, 96 P. 2d 870, in which an automobile collided with the rear of a slowly moving unlighted truck, likewise was decided upon the basis of very specific findings of fact which the cotut construed adversely to the plaintiff. Here the jury made general findings of fact adverse to defendant.
This is not a case where it can be said as a matter of law that plaintiff was driving in such a manner that he could not, under ordinary circumstances, have controlled his vehicle within the range of vision of his lights. Nor is it a situation where plaintiff drove blindly ahead after he knew or should have known he had no vision.
The conclusion we have reached finds support in our decisions. In Drennan v. Penn. Casualty Co., 162 Kan. 286, 176 P. 2d 522, it was stated:
“Furthermore, we have recognized qualifications or exceptions to the general rule that a driver must be able to stop his car within the clear distance ahead. For instance, if he is confronted with a sudden emergency not of his making— such as the sudden entrance of another car from a side road—it would be wholly unreasonable to say, and we have not said, that negligence is shown, as a matter of law, if he is unable to slop his car in time to avoid a collision. It is perhaps inaccurate to say that such situations constitute exceptions to the rule. It might be more accurate to say that the rule was never intended to apply except to situations which an ordinarily prudent man would or should anticipate.” (p. 289.) (Our emphasis.)
In Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721, in holding the plaintiff not guilty of contributory negligence, it was said:
“Was the plaintiff guilty of contributory negligence? The argument is based on the proposition that he was not driving at a rate of speed that would enable him to stop within the distance he could see objects ahead of him. The evidence showed that the plaintiff’s car was equipped with standard lights, which were in operation, and that the beam or ray of light showed forward focusing on the ground about thirty feet ahead of the car, and that the lights were about thirty-six inches above the ground; that the truck was unpainted and a dark, drab color; that it had no lights, either tail or other lights at the rear, nor were there any flares or other lights to warn of its location, and that the lower portion of the back end of the truck was about forty-seven or forty-eight inches above the ground.’’ (p. 719.) (Our emphasis.)
In Drake v. Moore, 184 Kan. 309, 336 P. 2d 807, we find the following:
“Decedent, while driving down the highway on a dark, rainy night, collided with the rear end of a semitrailer and truck that stood squarely in the middle of the trafile lane in which he was driving. There were no lights burning on the truck or trailer to warn oncoming motorists of such obstruction, as is required by law. The rear end of the trailer was a dull, drab and dirty color, making it difficult to be seen at night. The truck and trailer were stalled on an incline and the trailer was so high above the pavement level that it was above the range of decedent’s headlights; as a result, the obstruction could not be seen until he was too close to avoid the collision.
“Under these facts and circumstances and in view of the presumption that decedent exercised due care for his own safety, it is clear that reasonable minds could differ on the question of whether decedent was guilty of contributory negligence. It was therefor a question of fact for the jury. Moreover, decedent, proceeding along the highway, had a right to assume there were no hidden, undisclosed defects, such as an unlighted truck, standing in the path of travel. The purpose of highways is for passage, travel, traffic, transportation and they are not maintained for the purpose of providing storage of automobiles. It is essential under our statute that an automobile or truck display a red light at the rear thereof which is visible at night, and its purpose is to provide a danger signal to overtaking traffic. A warning by proper lights is more necessary when the automobile is at rest than when it is in motion. (McCoy v. Pittsburg Boiler and Machine Co., 124 Kan. 414, 261 Pac. 30; Sponable v. Thomas, 139 Kan. 710, 720, 33 P. 2d 721; Towell v. Staley, 161 Kan. 127, 134, 135, 166 P. 2d 699; Drennan v. Penn. Casualty Co., 162 Kan. 286, 176 P. 2d 522.)
“In Towell v. Staley, 161 Kan. 127, 135, 166 P. 2d 699, which was somewhat analogous to the instant case, this court stated, in quoting from Meneley v. Montgomery, 145 Kan. 109, 112, 64 P. 2d 550:
“Whether the driver of the coupe, in this case, was able to observe the cattle truck in her lane of traffic in time to prevent the collision, with the proper exercise of care under all the circumstances, could not be answered as a matter of law, but was a proper question for the jury. To adopt the contention advocated by appellants as conclusive in every situation where an obstruction unexpectedly appears without warning would result in the erection of a legal monstrosity, the effects of which would be too terrible to contemplate. Carried to its logical conclusion, that doctrine would mean that a vehicle approaching from an opposite direction could suddenly and without warning turn squarely in front of a car traveling at a reasonable and proper rate of speed, in its own proper lane, and thereby make the latter guilty of negligence. The contention is untenable.’”
“We stated further at pages 135 and 139:
“‘As a matter of practical comparison, it makes little difference whether the object suddenly appears in front of a car because it turned squarely in front of it, or whether the obstruction suddenly appears because of its unlighted condition and the effect of bright lights—over neither of which elements the driver of an approaching automobile has any degree of control.’
“ ‘Surely this court would not be justified in holding that cars or trucks can be left upon the highway in defiance of the statute and the owners or drivers thereof be relieved in all cases from responding in damages by reason of a rule which holds that anyone who runs into the parked vehicles is guilty of contributory negligence as a matter of law.’
“To the same effect, see Winfough v. Tri-State Insurance Co., 179 Kan. 525, 297 P. 2d 159, and Drennan v. Penn. Casualty Co., supra.” (pp. 314, 315, 316.)
See, also, Kline v. Ash, 188 Kan. 745, 366 P. 2d 276.
Defendant contends the trial court erred in giving an instruction on emergency. His objection to the trial court, which conceded that the instruction as given set out the emergency doctrine correctly, was made solely upon the ground that it was not applicable to the case. Defendant, in his answer filed in the case, also at the trial, and in his brief to this court contended that the plaintiff should have been able to guide his automobile to the left of the truck and thus avoid the collision. Instead of attempting this the plaintiff applied his brakes and wás thereafter unable to change the direction of the automobile. The instruction given left it to the jury to determine the question of negligence, and in view of the afore-mentioned issue raised by the defendant, we cannot say that the instruction was inapplicable.
Defendant contends there was not sufficient evidence to support the award given by the jury for past and future pain and suffering and for past and future loss of earnings. He states he makes no complaint about the award for permanent injury. Plaintiff sustained a dislocation and comminuted fracture of the hip, torn ligaments in the hip area, a hairline fracture of the cheekbone and a severe facial laceration. When a closed reduction left the femoral head unstable, an open reduction was made on the bank side of the hip and fragments of the socket brought into position and fixed with two metal screws. Plaintiff also developed a phlebitis and had dermatitis caused by the phlebitis. He was in the hospital fifty-three days, fifty-one days in traction. After leaving the hospital plaintiff used crutches for about a month, then used a cane and returned to work parttime. There is a dull ache in connection with the phlebitis. Plaintiff has been instructed to elevate his leg every fifteen minutes and to elevate it while sleeping. The only medical witness, an orthopedic surgeon, testified that plaintiff’s participation in sports such as tennis, bowling, golf and anything that required much walking would be limited, that he expected plaintiff to suffer from a certain amount of arthritis in the future, and that disability was likely from the phlebitis. Plaintiff, forty-two years of age, had a fife expectancy of twenty-six years. Resides being a salesman for a bowling equipment company, in which capacity he demonstrated the equipment by bowling himself, plaintiff also worked parttime at his filling station in Wichita. After the collision he changed jobs as a salesman because he could not bowl as well and he is not able to work as many hours in the filling station. He cannot be on his feet more than five hours without limping. He has pain on bending down on his haunches. He testified at length concerning his earnings prior to and since the collision and his anticipated earnings, indicating a substantial decrease at the filling station since his injuries. We have not at-temped to detail all of the evidence the jury had before it on pain and suffering and loss of earning capacity but have shown enough to indicate that there was substantial evidence to support the award made and we cannot consider it excessive.
Plaintiff’s automobile damage was partially paid by his own insurance carrier, which defendant sought to have joined as an additional party plaintiff. Defendant claims error in the trial court’s refusal to order the joinder. The rule has long been established in this jurisdiction, and most recently under our present procedural act in the case of Ellsaesser v. Mid-Continent Casualty Co., 195 Kan. 117, 403 P. 2d 185, that an insured property owner, who has been but partially reimbursed for his loss, is the proper party to bring suit against a third party wrongdoer for the entire loss. In case of recovery, the insured is said to hold in trust for his insurer such part of the proceeds as has been paid him on his loss.
Other contentions made by defendant have been considered but they afford no grounds for reversal of the trial court’s judgment and orders and they are affirmed.
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The opinion of the court was delivered by
Hatcher, C.:
This appeal, involving a dispute over jurisdiction of the person of the defendant and the subject matter of the action, grew out of a judgment in contempt for violation of a child custody order in an action for separate maintenance and other relief.
The facts which pertain to the jurisdictional questions are to be gleaned from the pleadings, the affidavits and oral testimony of the plaintiff. The nature of the controversy requires a somewhat lengthy presentation.
The plaintiff and defendant were married December 14, 1958, at Tonda, Manila, Philippines. Prior to the marriage, plaintiff had lived in Wyandotte County, Kansas. Just before her marriage to defendant she was living in a separate apartment in her mother’s house where she had her own furniture and personal things. She paid her mother rent for this apartment while she was living there. When she left to get married, she left her furniture in the apartment because she could not take it with her.
At the time of their marriage defendant was residing in Manila where he was employed by TWA as their district transportation manager. Plaintiff and defendant lived and made their home in Manila for the next nine months. At that time TWA discontinued its office in Manila and defendant was transferred to Bombay, India.
In the meantime plaintiff became pregnant. When defendant was transferred to Bombay plaintiff returned to the United States so that her child would be born in this country. The child in question, Marie Elizabeth Small, was born November 2, 1959, at a hospital in Kansas City, Missouri from which the child and plaintiff left to live in the apartment maintained by plaintiff’s mother in her home. On December 23, 1959, approximately seven weeks after the baby’s birth, plaintiff and the child left Kansas City, Kansas, where she had been staying, and rejoined the defendant to live in Bombay, India. Plaintiff, defendant and the child resided in Bombay for approximately one and one-half years until October 1961. At that time defendant was transferred to Cairo, Egypt where he is now employed for TWA as their district transportation manager.
Since defendant’s transfer to Cairo defendant and the child have resided in Cairo and are living and making their home there at the present time. Plaintiff resided with her husband and child in Cairo until April 23, 1963, approximately one and one-half years. She then came to the United States for the purpose of securing treatment for a back injury. At that time the child remained at the home in Cairo.
The plaintiff testified:.
“. . . The child was left in Cairo with a servant, a private nanny who lived in her room, slept with her, spoke seven languages, so she felt that the child was in perfectly good hands. The nanny had cared for the baby ever since they were in Cairo, about a year and a half. ‘Nanny’ is British, like a maid, it’s an English term and refers to a child’s nurse. She felt that the child was in good hands and that the nanny was competent to take care of the child. ,. .
It was plaintiffs intention to return to her husband and child in Cairo after receiving treatment. However, sometime later, probably three or four months after she had arrived, she decided not to go back. She has continued to live in Kansas City, Kansas since April 23,1963, to the present.
Subsequent to the marriage, because of the employment of the defendant, James Owen Joseph Small, with Trans World Airlines, the plaintiff and defendant were required to live wherever defendant was employed, which at all times subsequent to the marriage was outside of the territorial limits of the United States.
Neither the plaintiff, the defendant nor the child were in the United States after the birth of the child except for short visits and when the plaintiff came to Kansas City for treatments in April of 1963.
The procedural facts will next be stated in their chronological order.
On November 29, 1963, the plaintiff filed her petition for separate maintenance in which, among other things, she stated the child was in the possession and custody of the defendant in Cairo, Egypt, that the defendant had funds on deposit with the TWA Club Credit Union and was drawing a salary from TWA. The prayer of the petition was for separate maintenance, custody of the child, alimony and that the defendant be enjoined from receiving and the proper officers be enjoined from paying to defendant the funds deposited or the salary due defendant.
On the day the petition was filed the trial court issued a restraining order as prayed for in the petition.
No attempt has ever been made to obtain service of summons upon the defendant.
The defendant appeared specially on January 31, 1964, and filed a motion to dismiss the action on the grounds the court was without jurisdiction of the person of the defendant; the defendant had not been properly served with process, and the petition failed to state a claim against the defendant upon which relief could be granted. This motion was overruled February 13, 1964.
On March 30, 1964, plaintiff filed a motion for an order changing custody of the minor child during the pendency of the action. On March 31, 1964, defendant filed a motion to dismiss the action insofar as it pertained to child custody for the reason it appeared upon the face of the petition and plaintiff’s motions and affidavits that the court did not have jurisdiction of the subject matter because the child was not physically present in the county and it was not domiciled in the state of Kansas.
The court, on April 28, 1964, entered an order granting custody of the child to plaintiff during the pendency of the action and directing the defendant to deliver the child to plaintiff in Kansas City, Kansas. Defendant’s motion to dismiss was overruled.
Plaintiff filed a motion on October 20, 1964, for an order fixing a time for the delivery of the child. On October 27, 1964, the court directed defendant to deliver the child to plaintiff on or before November 25, 1964.
On December 3, 1964, plaintiff filed a motion requesting that defendant be cited for contempt. On the same day the court issued an order commanding defendant to appear and show cause, if any, why he should not be accused, placed on trial and punished for contempt. On December 30, 1964, the court directed plaintiff to refile her written accusation, directed defendant to answer and set the matter for hearing on February 19, 1965. The defendant answered stating again that the court did not have jurisdiction over the subject matter or the person of defendant, he had not been properly served with summons and the court was without jurisdiction in the contempt proceedings.
The trial court, on February 26, 1965, entered an order finding the defendant guilty of indirect contempt and enjoined TWA from paying him any wages or salary until he purged himself of the contempt. The defendant has appealed from the contempt order. The appellant contends:
“1. The orders of April 17, 1964, and October 23, 1964, were null and void because the court was without jurisdiction of the subject matter, the child of the parties, and
“2. The orders of April 17, 1964, and October 23, 1964, were null and void because the court was without jurisdiction over the person of the defendant and could not make a valid order personally ordering and directing him to bring and deliver the child to plaintiff, and
“3. The court was without jurisdiction over the person of the defendant and could not validly try and adjudge him in contempt.”
The statement of a few general principles of law may tend to limit the issues to be considered.
Although the disobedience of an erroneous order made by a court within its jurisdiction is contempt, the contra rule is disobedience of an order made by a court without jurisdiction of the subject matter or the person of the defendant is not contempt. (Bridgeport Machine Co. v. Arthur A. Beard, Inc., 135 Kan. 711, 11 P. 2d 990; State, ex rel., v. Wilson, 162 Kan. 507, 178 P. 2d 277; 17 C. J. S., Contempt, § 14, p. 38.)
In a proceeding for child custody the subject matter or res is the child.
It is a well established rule of this court that jurisdiction of a court to consider and give custody of a child to one parent or the other depends in principle upon the domicile of the child. (Tompkins v. Garlock, 189 Kan. 425, 370 P. 2d 131; Hannon v. Hannon, 186 Kan. 231, 350 P. 2d 26; Moloney v. Moloney, 163 Kan. 597, 185 P. 2d 167; Kruse v. Kruse, 150 Kan. 946, 96 P. 2d 849; Wear v. Wear, 130 Kan. 205, 285 Pac. 606.)
The new code provides the only conditions under which the district court shall have jurisdiction to make provisions for the custody of a child as follows:
“. . . if (i) the child is physically present in the county, or (ii) domicile of the child is in the state, or (in) the court has previously exercised jurisdiction to determine the custody or care of the child who was at such time domiciled in the state. . . .” (K. S. A. 60-1610 [a].)
It is clear that conditions (i) and (Hi) are not applicable to the situation before us and need not be considered further. The court could not have had jurisdiction of the subject matter unless the domicile of the child was in the state of Kansas.
Under the facts as presented we have no difficulty in concluding that domicile of the child was not in this state.
A child acquires a domicile as soon as it is born, and if the father is living, it takes the domicile of its father. During minority the domicile of the child continues to follow the domicile of the father without regard to the acutal place of residence. The law also assigns to a woman upon her marriage the domicile of her husband at the time of the marriage and whenever during the marriage his domicile changes, hers follows and changes with it. Thus, as long as the parents are living together, the domicile of the wife and child is that of the husband and father. If the parents separate due to a breach of the marriage relationship and the wife lives apart from her husband, it is generally held that she can acquire a domicile separate from that of her husband. However, a temporary separation due to the health of the wife would not change the wife’s domicile from that of her husband’s. In the event the parents do acquire separate domiciles, then the child of the parties takes the
domicile of the parent with whom it lives in fact. (Robben v. Robben, 188 Kan. 217, 362 P. 2d 29; Wear v. Wear, supra.)
Appellee’s testimony is narrated in part as follows:
“. . . Plaintiff testified that when she married the Defendant, her home was in the Philippines; that when they were transferred to Bombay, that was home, ‘Where my husband was was home.’ When they were transferred to Cairo, that was home. After her back injury about a year and a half ago, her purpose in returning to the United States was, ‘To see if my back could be corrected and to see how my mother was, . . .’ After receiving medical treatment, ‘it was my every intention to return to Cairo, to my husband and my child.”’ (Emphasis supplied.)
There is no indication that the appellant, the father, ever lived in this state.
We are forced to conclude that the trial court had no jurisdiction of the subject matter of the child custody proceeding.
The failure of appellant to raise a specific objection to the court’s jurisdiction over the child until after his answer was filed did not affect the jurisdiction. (K. S. A. 60-212 [h] [2].) A question of the jurisdiction of the subject matter may be raised at any stage of the proceedings (In re Estate of Dix, 161 Kan. 364, 168 P. 2d 537; In re Estate of Weaver, 175 Kan. 284, 262 P. 2d 818) and it cannot be waived by failure to make timely objection (In re Richards, 106 Kan. 105, 186 Pac. 1025). In fact, it is the continuing duty of a court to determine on its own initiative whether it has jurisdiction of the subject matter. (Shively v. Burr, 157 Kan. 336, 139 P. 2d 401; Kelly v. Grimshaw, 161 Kan. 253, 167 P. 2d 627; Jeffers v. Jeffers, 181 Kan. 515, 313 P. 2d 233; Leach v. Leach, 184 Kan. 335, 336 P. 2d 425; Bammes v. Viking Manufacturing Co., 192 Kan. 616, 389 P. 2d 828.)
The appellant next contends the court lacked jurisdiction over the person of the appellant and therefore it was without authority to direct any order to him.
No process has ever been served, or attempted to be served, upon appellant in the original suit and none was served upon him in connection with the contempt proceeding. The only attempt at service was by registered mail addressed to appellant in Cairo, Egypt, enclosing an attested copy of the citation to show cause and the order for the citation to issue which was returned “Refused.”
The appellee suggests the appellant voluntarily entered his appearance and subjected himself to the jurisdiction of the court.
The petition was filed on November 29, 1963. On January 81, 1964, after the new Code of Civil Procedure became effective, appellant appeared specially and moved the court as follows:
“1. To dismiss the action on the ground that this court is without jurisdiction of the person of the defendant.
“2. To dismiss the action on the ground the defendant has not been properly served with process in this action.
“3. To dismiss the action because the petition fails to state a claim against defendant upon which relief can be granted.”
The appellee contends that under the provisions of K. S. A. Chapter 60 there is no such thing as a special appearance and when appellant included as one of the grounds for dismissal the failure of the petition to state a claim against defendant upon which relief could be granted he entered his general appearance.
We cannot agree with appellee’s contention. It is true that the new Code of Civil Procedure makes no provision for special appearances. This does not mean that the relief has been abolished. K. S. A. 60-212 (b) provides the manner of raising questions of jurisdiction. We quote in part as follows:
“Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at die option of the pleader be made by motion: (1) Lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a claim upon which relief can be granted; (7) failure to join an indispensable party. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. . . .” (Emphasis supplied.)
All of the defenses listed above which may be made by motion must be made at the same time or they are waived. K. S. A. 60-212 (h) provides:
“A party waives all defenses and objections which he does not present either by motion as hereinbefore provided or, if he has made no motion, in his answer or reply, except (1) that the defense of failure to state a claim upon which relief can be granted, the defense of failure to join an indispensable party, and the objection of failure to state a legal defense to a claim may also be made by a later pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on the merits, and except (2) that, whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. . . .”
The defense of lack of jurisdiction may be asserted by motion with other defenses without waiving the objection. (Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F. 2d 871, cert. den. 322 U. S. 740, 64 S. Ct. 1057, 88 L. ed. 1573.)
The old distinction between a general and special appearance loses its significance under K. S. A. 60-212 (h) as a party may plead to the merits and at the same time contest jurisdiction over his person. The purpose of the provisions is to permit the combining of an objection to the jurisdiction with pleadings on the merits without the old ritual of first entering a special appearance. (United States, v. Balanovski, 236 F. 2d 298, cert. den. 352 U. S. 968, 1 L ed. 2d 322, 77 S. Ct. 357, reh. den. 352 U. S. 1019, 1 L ed. 2d 561, 77 S. Ct. 555.) This court has not heretofore had occasion to pass upon the particular question but as K. S. A. 60-212 (b) was taken from Federal Rule 12 the construction placed upon the language of the subsection by the federal courts is entitled to great weight.
We must conclude that under the facts stated the appellant did not enter a general appearance nor waive the objection to the jurisdiction of the person. The child custody order, having been made without jurisdiction over the child or the person of the defendant, was void and could form no valid basis for a judgment and order of indirect contempt.
The judgment and order of indirect contempt is reversed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order and judgment of the district court of Doniphan County denying appellant’s motion under K. S. A. 60-1507 to vacate and set aside a prior judgment and sentence of that court in a criminal action.
The facts required to dispose of ibis appeal will be related as briefly as the state of the record permits.
On July 3, 1959, the appellant, who had previously been charged by a complaint containing three counts of burglary in the third degree, was taken before a proper magistrate in Doniphan County for a preliminary examination where, without counsel, he announced in open court that he desired to and did waive such preliminary examination. Thereupon appellant was bound over to the district court for trial.
Following the action just related an information was filed in the district court charging appellant with having committed the crimes in question. At appellants arraignment in the district court on July 13, 1959, the court interrogated him as to his financial status and, having satisfied itself that he was an indigent, appointed Robert Guier, a capable and well-qualified attorney of Troy, to represent him in the case. Later, and on the same day, his court-appointed counsel being present, the court inquired of appellant if he had had an opportunity to confer with his attorney and if he was ready to be arraigned. Having received an affirmative answer to both questions the court then caused the information to be read in open court and asked how the appellant desired to plead. Appellant then entered a plea of guilty to each of the three counts contained in the information. Thereupon, the court inquired of the appellant and his counsel if there was any legal reason why sentence should not now be pronounced and, when each gave a negative answer, properly sentenced the appellant to the Kansas State Penitentiary for the period of time prescribed by statute for commission of the crimes to which he had entered his pleas of guilty.
On August 11, 1964, more than five years after he had been sentenced to the state penitentiary on his pleas of guilty to the crimes, to which we have heretofore referred, appellant filed a letter in the district court of Doniphan County which, so far as here pertinent, reads:
“The recent decisions of the United States Supreme Court in Escobedo v. Illinois, 375 U. S. 902, and Gideon v. Wainwright, 372 U. S. 335, state that a person is entitled to consult with counsel as soon as an investigation makes him a prime suspect. I had no attorney at arraignment and I was allowed to waive preliminary without an attorney. I would therefor ask that you vacate the sentence and judgment of this court, and grant me a hearing as soon as possible.”
The record discloses that, after receiving the foregoing letter, the district court made the following order:
“. . . The court examines said letter and finds that it should be treated as a motion attacking sentence under the provisions of K. S. A. 60-1507. Thereupon, the court finds that the defendant, Charles Martin Portis, is an indigent person and should be permitted to proceed in forma pauperis. Thereupon, the court appoints Robert Guier, an attorney of the bar of Doniphan County, Kansas, to represent the defendant, Charles Martin Portis, in connection with said motion. Thereupon, the court continues further hearing upon said motion to the 5th day of October, 1964, in order to give defendant’s counsel time to prepare himself for further hearing.”
On the date last above indicated the district court conducted a full and complete hearing on appellant’s 60-1507, supra, proceeding and, after finding that it possessed no merit, overruled and denied such motion.
Thereafter, and on November 4, 1964, appellant filed his handwritten notice of appeal in the district court of his intention to appeal to this court, along with an application asking that the district court grant him leave to proceed in forma pauperis, furnish him with a free record, and appoint an attorney to represent him in such appeal. This application was granted by the district court and Robert Guier, who has twice before represented appellant in proceedings, heretofore noted, as court-appointed counsel, now brings the instant appeal to this court under a statement that the “Questions Presented” are:
“Did the District Court err in denying appellant’s motion for discharge under K. S. A. 60-1507 on the grounds that he was not represented by counsel at all stages and most particularly that he was not represented by counsel at his preliminary hearing?”
In order that there may be no misunderstanding on the part of readers of this opinion as to what is actually involved in this appeal it becomes necessary at the outset to make reference to certain matters in the record which might otherwise be confusing and misleading.
It will be noted that appellant in his letter to the district court, which was subsequently treated by that tribunal as a motion attacking his original sentence under 60-1507, supra, makes the statement he had no attorney at arraignment and, in his statement of “questions presented” on appellate review, leaves the direct inference that he was not represented by counsel at all stages of the proceedings following his preliminary examination.
Having carefully reviewed the entire record, touching the points urged in the preceding paragraph of this opinion, it may now be stated that the indisputable facts are that appellant was not only represented by counsel at his arraignment but was also represented by court-appointed counsel throughout the course of all other subsequent proceedings herein involved.
From what has been stated up to this point it becomes crystal clear the sole and all-decisive question presented for appellate review in the case at bar is whether, in the face of a record devoid of any showing that his rights were in any way prejudiced by the fact he was not represented by counsel at his preliminary examination, the appellant, as an indigent defendant, had a constitutional right to have counsel appointed by the court to represent him at his preliminary hearing.
This court, in a long and unbroken line of decisions, has fully demonstrated that in view of the existing law of this state an accused has no constitutional right to be furnished court-appointed counsel at his preliminary hearing. Nothing would be gained and it would only encumber our reports to here set forth at length what is said and held in our numerous decisions adhering to the view just stated, under facts, conditions and cicumstances similar to those here involved. For a few of our more recent decisions, the opinions of which are incorporated herein by reference and made a part of this opinion, see State v. Crowe, 190 Kan. 658, 378 P. 2d 89; State v. Robertson, 190 Kan. 771, 378 P. 2d 37; In re Mortimer, 192 Kan. 164, 386 P. 2d 261; State v. Naillieux, 192 Kan. 809, 391 P. 2d 140, certiorari denied, 379 U. S. 864, 13 L. Ed. 2d 67, 85 S. Ct. 131; 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. Cox, 193 Kan. 571, 396 P. 2d 326, certiorari denied, 380 U. S. 982, 14 L. Ed. 2d 276, 85 S. Ct. 1350; State v. Jordan, 193 Kan. 664; 666, 396 P. 2d 342, certiorari denied, 380 U. S. 920, 13 L. Ed. 2d 805, 85 S. Ct. 917; White v. Crouse, 193 Kan. 674, 679, 396 P. 2d 333, certiorari denied, 381 U. S. 954, 14 L. Ed. 2d 727, 85 S. Ct. 1814; State v. Young, 194 Kan. 242, 398 P. 2d 584; State v. Richardson, 194 Kan. 471, 399 P. 2d 799; State v. Baier, 194 Kan. 517, 399 P. 2d 559; State v. Blacksmith, 194 Kan. 643, 400 P. 2d 743; Bergin v. State, 194 Kan. 656, 400 P. 2d 978; State v. Wharton, 194 Kan. 694, 401 P. 2d 906; Tarr v. State, 194 Kan. 798, 402 P. 2d 309; Powers v. State, 194 Kan. 820, 402 P. 2d 328.
In the face of the indisputable facts, conditions and circumstances set forth at length in this opinion, and based on what is said and held in the decisions heretofore cited, we have no difficulty in concluding that the sole and all-decisive question raised by appellant in this case lacks merit and cannot be upheld. It follows the district court did not err (1) in holding that no constitutional right of the appellant was violated by failure of the examining magistrate to appoint counsel for him at his preliminary hear ing or (2) in refusing to vacate and set aside its original judgment and sentence in the criminal action.
Salient reasons requiring the conclusion just announced are well-stated in State v. Daegele, supra, where it is said:
“In the first place, under the laws of Kansas a preliminary examination is not a ‘trial’ in the ordinary sense of the word. (State v. Badders, 141 Kan. 683, 42 P. 2d 943.) The purpose of a preliminary examination for one charged with a felony is to determine whether an offense has been committed and whether there is probable cause for charging a defendant with the commission thereof. The proceeding is not a trial in the sense that one may be found ‘guilty.’ A defendant is bound over for trial only where the state establishes that an offense has been committed and that there is probable cause for charging him with its commission—otherwise he is to be discharged. (G. S. 1949, 62-618 [now K. S. A. 62-618].) Under the provisions of G. S. 1949, 62-615 [now K. S. A. 62-615], a defendant has the right to be assisted by counsel at a preliminary examination, but there is no statute requiring the appointment of counsel in such a proceeding, and it has been held many times that failure to appoint counsel at a preliminary examination is not error. (Citing cases.) . . .” (p. 316.)
Finally it should be stated that a further ground for affirmance of the trial court’s judgment is to be found in our decisions. The well-established rule of this jurisdiction is that any claimed irregularities pertaining to a preliminary examination and/or preliminary hearing are deemed to have been waived where—as here—it appears the defendant in a criminal action, while represented, by capable counsel, has entered a voluntary plea of guilty in the district court. See, e. g., Foster v. Hudspeth, 170 Kan. 338 (Syl. ¶3), 224 P. 2d 987 (petition for writ of certiorari dismissed on motion of petitioner), 340 U. S. 940, 95 L. Ed. 678, 71 S. Ct. 503, State v. Daegele, supra; State v. Jordan, supra; White v. Crouse, supra; Bergin v. State, supra, and State v. Blacksmith, supra. It is interesting to note that the same rule applies where a defendant, while represented by counsel waives arraignment, enters a plea of not guilty and goes to trial on the information. See State v. Wallgren, 144 Kan. 10, 11, 58 P. 2d 74; State v. Oshurn, 171 Kan. 330, 335, 232 P. 2d 451, and State v. Young, 245, supra.
The order and judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Habman, C.:
This action was initiated to test the propriety of certain practices of defendants in selling cemetery lots and burial equipment on a pre-need basis at various cities in Kansas, and to compel compliance with certain statutes.
Norman Anderson, a Texas resident, owns all the stock in Sacred Gardens, Incorporated, a Texas corporation, and substantially all the stock in nine Kansas corporations, all being defendants herein, and appellees and cross-appellants. He or the Texas corporation purchases land near a city and then sells a part of it to the particular Kansas corporation and a cemetery is laid out. Then pursuant to contract with the local corporation, trained sales personnel of the Texas corporation canvass the community selling cemetery lots on a pre-need basis. Approximately ninety percent of these sales are on an installment plan basis with payments extending for as much as seventy-two months and approximately ninety percent also include the sale of a burial vault and memorial marker. More detailed mention of the practices used will be made in discussing the points involved in this appeal, which for clarity will be classified under the separate headings of A. Lots; B. Burial vaults and markers; and C. Insurance. The parties will be referred to simply as plaintiff and defendants.
A. Lots. Three separate but closely related points are involved here upon appeal and cross-appeal.
1. The installment contracts provided that the defendant cemeteries would deposit into an endowment trust fund a sum equal to twenty percent of the contract price for lots for permanent maintenance of the cemeteries. The defendants established such a fund but their practice was to pay in the twenty percent only after the full amount of the contract price had been paid. The initial action was designed to compel defendants to pay in the full twenty percent upon execution of the contract. The trial court held that defendants’ obligation as to the required percentage to be paid into a permanent maintenance fund insofar as state regulation required it is fulfilled by their compliance with our statute pertinent to cemetery corporations (K. S. A. 17-1311) which provides:
“That such corporation shall fix and set aside, within the state of Kansas, a percentage of the purchase price of each burial lot sold by it, not less than ten percent (10%) thereof, for the permanent maintenance of the said cemetery, which sum so as aforesaid set aside shall be by said corporation invested in first mortgages upon Kansas real estate, or in bonds issued by any municipality of the state of Kansas, or in obligations of the United States government, except railroad-aid bonds, and the proceeds of the said permanent maintenance fund shall be used exclusively for the maintenance of said cemetery: Provided, however, No part of the principal of said fund shall ever be used for any purpose except for such investment. . . .”
Plaintiff’s challenge to this ruling is based upon the theory that a charitable trust is involved which the state has an interest in upholding. It is true that as to certain charities of a character so public as to interest the whole community the attorney general of the state has duties to uphold and enforce (see Troutman v. DeBoissiere, 66 Kan. 1, 71 Pac. 286). So also the public is interested in tihe maintenance of cemeteries including those operated for profit as are defendants. We believe, insofar as applicable to the point at issue, the extent of that interest is that expressed by the legislature in the statute, K. S. A. 17-1311. When the legislature has clearly spoken defining the policy of the state in a given area there is no place for judicial definition. In Reser v. Southern Kansas Mutual Ins. Co., 150 Kan. 58, 91 P. 2d 25, this court quoted from United States v. Freight Association, 166 U. S. 290, 340, 41 L. ed. 1007, 17 S. Ct. 540, as follows:
. . when the lawmaking power speaks upon a particular subject, over which it has constitutional power to legislate, public policy in such a case is what the statute enacts.’” (p. 64.)
We hold the trial court correctly ruled that ten percent was the proper percentage figure to be enforced in this action. It must be emphasized the result reached is in no wise to be construed as affecting private contractual rights and obligations of the parties to the particular contracts or that they would not be enforced in an appropriate proceeding.
2. The trial court ruled that defendants were required to pay ten percent of each installment payment into the statutory permanent maintenance fund at the time each of said installments was received. By way of cross-appeal defendants challenge this ruling, claiming that K. S. A. 17-1311 does not require any payments to be made into the permanent maintenance fund until the full purchase price of the lots is paid and the sale completed. They point to the contract provisions that a deed to the lots is not to be delivered until after full payment, ergo, there is no sale until full payment is made, and no maintenance payment is required until the lots are sold. The statute, originally enacted in 1901 (Laws 1901, ch. 102, §5), expressed the public concern in maintaining in a seemly manner places set apart as burial grounds and in preventing the maintenance of privately developed public cemeteries from becoming public charges. Being of a remedial nature it is to be liberally construed to effectuate the purpose for which it was enacted (Van Doren v. Etchen, 112 Kan. 380, 383, 211 Pac. 144). We think the narrow construction of the statute urged by defendants would tend to defeat that purpose. It must be remembered defendants operate as a business venture, for profit, and there are many possibilities whereby money received from the sale of lots might be diverted'without adequate provision for maintenance and care of the cemeteries, which is exactly what the statute seeks to prevent.
We are unwilling to place such meticulous or technical definition on the words “purchase price” and “sold” as used in the statute as would defeat its manifest intention. For the practical purposes of the statute a lot is “sold” and part of the “purchase price” is required to be set aside when the terms of purchase are agreed upon and purchase money is received pursuant thereto.
We construe the statute to mean, as did the trial court, that when money is received in installments by defendants pursuant to installment contract for the sale of lots—whether a deed is delivered or not and whether the sale is to be deemed technically completed or not—at least ten percent of such installment payment shall be set aside for the permanent maintenance fund.
3. Plaintiff contends the court erred in holding that the percentage required to be deposited by the defendants in the perpetual maintenance fund should be figured on only one purchase price, even though a lot might be sold more than once in case the original purchaser defaulted on his installment payments. We are cited to no authority for this contention and we are aware of no compelling reason why the statute in question should be so extended in order to effectuate its purpose. We think the statute contemplates no more than a single purchase price, as the trial court ruled.
B. Burial vaults and markers.
1. Plaintiff asserts that defendants failed to comply with applicable statutes governing funeral agreements, contracts and plans, being K. S. A. 16-301, 16-302, 16-303, and 16-304, which provide:
“16-301. Any agreement, contract or plan requiring the payment of money in a lump sum or installments which is made or entered into with any person, association, partnership, firm or corporation for the final disposition of a dead human body, or for funeral or burial services, or for the furnishing of personal property or funeral or burial merchandise, wherein the delivery of the personal property or the funeral or burial merchandise or the furnishing of professional services by a funeral director or embalmer is not immediately required, is hereby declared to be against public policy and void, unless all money paid thereunder shall be paid to and held by a bank or trust company which is authorized to do business in this state, and subject to the terms of an agreement for the benefit of the purchaser of said agreement, contract or plan.
“16-302. All such money shall be deposited with such bank or trust company and shall be held by such bank or trust company in a separate account in the name of the purchaser of said merchandise or services under said agreement, contract, or plan, until said fund is released as herein provided.
“16-303. All payments made under said agreement, contract or plan and any earnings or interest thereon shall be and remain funds with such bank or trust company until the death of the person for whose service the funds were paid: Provided, however, Said funds shall be released to the purchaser of the merchandise or services under said agreement, contract or plan who shall be entitled to receive the same, or any part thereof, at any time upon demand upon said bank or trust company.
“16-304. If any balance remains in said account upon the death of the person for whose services the funds were paid, the same shall not be paid by such bank or trust company to the person, association, partnership, firm or corporation until the expiration of at least 5 days after the date of death of the person for whose services such funds were paid. Said funds shall not be paid by said bank or trust company until a certified copy of the death certificate of such person shall have been furnished to said bank or trust company, together with a verified statement setting forth that all of the terms and conditions of such agreement have been fully performed by said person, association, partnership, firm or corporation. Any balance remaining in said fund after payment for the merchandise and services as set forth in said agreement, contract or plan shall inure to the benefit of the estate of the purchaser of said agreement, contract or plan.”
Defendants admit non-compliance but say these statutes do not apply to their operations and also that these provisions are unconstitutional. Inasmuch as the trial court sustained the latter contention it will be dealt with first. Defendants contend generally that the act constitutes an unwarranted exercise of police power, that it is confiscatory and not regulatory, impairs the right to contract and thereby violates the due process clauses of state and federal constitutions.
Defendants cite and rely on the case of Gilbert v. Mathews, 186 Kan. 672, 352 P. 2d 58, in which the “New Goods Public Auction Law” (Laws 1955, ch. 172) was held to be unconstitutional. In that case the court discussed the extent of the police power, saying:
“This court has repeatedly held that the police power of the state extends not only to the protection of the public health, safety and morals, but also to the preservation and promotion of the public welfare. (State v. Consumers Warehouse Market, 183 Kan. 502, 329 P. 2d 638, and cases cited therein.)
“While the police power is wide in its scope and gives the legislature broad power to enact laws to promote the health, morals, security and welfare of the people, and further, that a large discretion is vested in it to determine for itself what is deleterious to health, morals or is inimical to public welfare, it cannot under the guise of the police power enact unequal, unreasonable and oppressive legislation or that which is in violation of the fundamental law. (Little v. Smith, 124 Kan. 237, 257 Pac. 959.)
“When once a subject is found to be within the scope of the state’s police power the only limitations upon the exercise of the power are that regulations must have reference in fact to the welfare of society and must be fairly designed to protect the public against the evils which might otherwise occur. Within these limits the legislature is the sole judge of the nature and extent of the measures necessary to accomplish its purpose.” (pp. 676-678.)
We have no difficulty in saying the subject is within the scope of the state’s police power. The state has long had regulatory statutes of various kinds touching upon disposition of dead bodies. That mentioned in A. herein, pertaining to the permanent maintenance of cemeteries, is one example. K. S. A. 65-1701, providing for licensing and regulation of embalmers and funeral directors, is another. Moreover, the contracts in question are admittedly sold on a promotion campaign basis. Many are sold to those of a comparatively young age. For example, the two contracts shown in the record are with married couples in their twenties and thirties. Delivery of the merchandise, according to the contracts, is to be made “upon the request of the Purchaser, his heirs or assigns” and then only “after receipt of the full contract price.” Certainly it cannot be contemplated as to the burial vault that delivery will be requested until after the death of the purchaser. This means then a great time lag between the time of bargaining and performance, and, as stated in A. 2 above, there is a public interest in the protection of funds intended for a particular purpose, from whatever hazard, whether the normal vicissitudes of business or plain fraud and deceit. There is nothing unusual about requiring one contracting for future performance to give some guarantee for that performance. Defendants recognize the need of some such protection for the purchaser by including in the contract a provision that they will set up what they term a merchandise trust wherein they agree they will, upon full payment of the contract price, set aside in a trust fund an amount of money based upon present wholesale cost of the merchandise plus ten percent, such sum to be for the construction and installation thereof. In the annotation in 68 A. L. R. 2d at page 1251 touching upon the subject of state regulation it was concluded:
“Pre-need burial insurance contracts have become quite common in this country, and since they present opportunities for fraud and frequently cater to people most easily duped by fraudulent schemes, many states have attempted regulation of such contracts.”
The enactment of statutes for the prevention of fraud and deceit is within the police power of the state (16 C. J. S., Constitutional Law, § 187, p. 924).
The whole enterprise presents a fertile field for fraud and imposition and is properly subject to the police power of the state.
Next is the question as to whether the particular enactment was a lawful and constitutional exercise of that power. Defendants argue that requiring one hundred percent of all money received for the sale of burial merchandise to be placed in a trust fund is obviously prohibitory. The complaint could be viewed simply as a criticism of the statute. As such it should be addressed to the legislature. Matters relating to the policy, wisdom or expediency of particular regulations under the police power are for legislative rather than judicial determination (see State, ex rel., v. Sage Stores Co., 157 Kan. 404, 141 P. 2d 655, affirmed in 323 U. S. 32, 89 L. ed. 25, 65 S. Ct. 9). The record does indicate the local cemetery corporations pay the parent corporation thirty-five percent of the contract price for selling costs. The requirement of the statute might in effect tend to limit a type of business practice wherein large promotion costs incurred in blanketing an area become necessary but it certainly does not prohibit sales, even upon a pre-need basis. Moreover, the fact that certain prohibitions may result does not in and of itself render a statute unconstitutional. In State ex rel., v. Sage Stores, supra, we find this quoted with approval:
“ ‘Whether the purposes of the statute may be attained by regulation or whether absolute prohibition is necessary are questions for the legislature.’ ” (p. 414.)
The whole enterprise described is of such nature as to invite stringent regulation. In Memorial Gardens Ass’n. v. Smith, 16 Ill. 2d 116, 156 N. E. 2d 587, in which the constitutionality of a similar statute was upheld against the same contentions made here, the court said:
“In the long interval between full receipt of the purchase price and contract performance, the opportunities for fraud are great and risk of insolvency, with consequent inability to perform, apparent. The suggestion that actual costs are a minor item and that the legislature should have required a smaller deposit is unimpressive under the circumstances. The main thrust of plaintiffs’ argument is that the regulations of the act will prevent the operation of its business of ‘pre-need’ sales and that they will be compelled to cease business if forced to make sales only at the time of death. However, the act neither restricts plaintiffs’ sales of such property at the time of death, nor prohibits ‘pre-need’ sales. . . .
“We do not believe that the present statute operates to prohibit plaintiffs’ legitimate business. It does regulate the manner in which the business may be conducted. Practically, plaintiffs will no longer be able to collect prospective profits in advance, without furnishing an adequate guarantee for performance. However, this does not prohibit the operation of this type of business. A large discretion is necessarily vested in the legislature to determine not only what the interests of the public welfare require, but what measures are necessary to secure such interests. . . . Plaintiffs’ argument amounts to an admission that they will be unable to compete with others who sell the same merchandise and services at the time of actual need. However, the public welfare need not be abrogated to enable an individual to carry on his business in the particular manner in which he has elected to proceed. The analogy which plaintiffs seek to draw between their contracts and retail sales made on the “lay away’ plan is fallacious. The lay away’ sale contemplates performance within a relatively short period of time upon payment of the purchase price. Opportunities for fraud are negligible and remedies for nonperformance are readily available.
“Plaintiffs contend that the act constitutes an unwarranted interference with the right of citizens to contract with each other and thus violates constitutional guarantees of both the State and Federal constitutions. While rights of contract are favored and protected there is no principle of absolute freedom of contract. It is a qualified right and the State may, in its legitimate exercise of the police power, pass laws which limit or affect the right of contract so long as those regulations are reasonably necessary to secure the health, safety, morals or general welfare of the community. . . . The constitutional guarantee does not withdraw from legislative supervision that department of human activity which consists in the making of contracts, or deny to government the power to provide restrictive safeguards. Liberty implies only the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community. . . . In the exercise of the police power it becomes necessary to prohibit some forms of contract entirely and to restrict others, yet the right to do so is unquestioned when the public welfare demands it. Thus the law may deny the common carrier and the telegraph company the right to make any contract with its patrons exculpating liability for negligence, may prohibit the purchase and sale of lottery tickets, and restrict the right of a minor or an incompetent to contract, except for necessaries. The regulations contained in the present act do not amount to an arbitrary or unwarranted interference with contract rights. The act neither prohibits the right to sell the services or merchandise, nor prescribes advance collections. It does require that such funds, when collected, be set aside for the purpose for which they were intended. The public has a vital interest in securing that result and, insofar as the rights of plaintiffs are affected, those considerations must yield to the paramount public welfare.” (pp. 126-129.)
Defendants claim they will not be able to operate if they are deprived of all the funds pursuant to the statute. Be that as it may, we agree with a statement quoted in the above-cited Memorial Gardens Association case wherein it is said:
“. . . it would be most unusual to expect or require prospective pur chasers to ‘furnish or advance capital funds necessary for the operation of a business.’ ” (p. 126.)
It may again be pointed out that under their contracts, aside from the so-called merchandise trust which is under their control, defendants are not required to make any expenditure for merchandise until after request and after full payment. The particular merchandise need not be held by defendants at the time of the making of the contracts, or even to be in existence. We would not deprecate promotion or sales costs in the operation of a business but these are not ordinarily permitted to become so burdensome as to put one out of business if advance profits be not drawn. That the statute may seem onerous to defendants in its operation does not render it unconstitutional. In Grigsby v. Mitchum, 191 Kan. 293, 380 P. 2d 363, this court, in upholding the constitutional validity of a municipal ordinance imposing a license fee, stated:
“Almost every exercise of the police power will necessarily either interfere with the enjoyment of liberty or the acquisition, possession and production of property, or involve an injury to a person, or deprive a person of property within the meaning of the Fourteenth Amendment to the Constitution of the United States. Nevertheless, it is well settled that an exercise of the police power having such an effect will be valid if it bears a real and substantial relation to the public health, safety, morals or general welfare of the public, and if it is not unreasonable or arbitrary.
“Whether an exercise of the police power does bear a real and substantial relation to the public health, safety, morals or general welfare of the public, and whether it is unreasonable or arbitrary are questions which are committed in the first instance to the judgment and discretion of the legislative body, and, unless the decisions of such legislative body on those questions appear to be clearly erroneous, the courts will not invalidate them.” (p. 302.)
Defendants emphasize there is no charge or proof of fraud against them, but this has no bearing. At 16 C. J. S., Constitutional Law, § 198, it is stated:
“In determining the constitutionality of a statute bearing on its face clear indication that it was designed to prevent fraud, the court, may not give weight to the fact that fraud was neither charged nor proved.” (p. 968.)
We think the case of Gilbert v. Mathews, supra, is distinguishable from the case at bar. In that case the court held that although the legislature made a reasonable classification in the enactment of the particular statute, it placed unreasonable and arbitrary burdens upon the particular class of retailer, namely, itinerant merchants or auctioneers, and was therefor bad. Here, there is no attempt at classification and whatever burdens there be are placed uniformly on all engaged in the particular enterprise, whether cemetery operator, funeral director, undertaker or what, and we cannot say they are unreasonable and arbitrary.
Most of the states have now enacted statutes similar to those under consideration, and where constitutionality has been attacked the majority have been upheld. In addition to Memorial Gardens Ass’n v. Smith, supra, see Falkner v. Memorial Gardens Association, 298 S. W. 2d 934 (Tex. Ct. Civ. App. [1957]); Reserve Vault Corp. v. Jones, 234 Ark. 1011, 356 S. W. 2d 225, (1962); and Messerli v. Monarch Memorial Gardens, Inc., 88 Ida, 88, 397 P. 2d 34, (1964); although a contrary result was reached, as to a much more restrictive statute, in State v. Gateway Mortuaries, Inc., et al., 87 Mont. 225, 287 Pac. 156, 68 A. L. R. 1512, (1930); and with strong dissent, in State v. Memorial Gardens, 143 W. Va. 182, 101 S. E. 2d 425, 68 A. L. R. 2d 1233, (1957).
Summing up, we consider the statutes to be a valid method of regulation of the business in question and not a prohibition, that is to say, they are reasonable regulations within the scope of the police power, fairly designed to protect the public from evils which otherwise might occur.
We have not overlooked defendants’ contention the statutes are unconstitutional as being in violation of the mandate (Constitution of Kansas, Art. 2, § 16) that no bill shall contain more than one subject which shall be clearly expressed in its title, but consider it to be without merit.
2. Defendants contend by way of cross-appeal that K. S. A. 16-301, et seq. do not apply to their type of sale or burial vaults under the particular contracts in question. They argue the statutes embrace only contracts “wherein the delivery of the personal property or the funeral or burial merchandise ... is not immediately required,” and that the property sold under their contracts is subject to delivery on demand at any time after the purchase price is paid. They state in their brief “there is no provision for delivery upon death.”
The contracts do provide for delivery of the merchandise to the purchaser, “his heirs or assigns,” upon the request of the purchaser, “his heirs or assigns,” after full payment. (Our emphasis.) They also contain the following provision;
“Burial Vaults: That upon the request of the Purchaser, his heirs or assigns, if enumerated and designated above as purchased, the Company will erect, complete and permanently install in and upon the designated interment spaces in Roselawn Memorial Gardens_Burial Vaults of adult size 30" or less in width and 86" or less in length. Said Vaults shall be constructed of best quality fiberglass, bell type, and finely finished in appropriate color; or it shall be such other type permanent Vault of equal quality as may be in common use by and in the cemetery at the time the Vaults hereby contracted for are delivered and installed at the cemetery.”
The contracts further contain an escalator clause which provides that if the costs of the merchandise at the time of delivery are more than fifteen percent higher than the cost at the date of the contract, the purchaser shall pay the increase in cost above the fifteen percent, and they also contain what is called a guarantee of performance clause providing for the merchandise Rust, already mentioned. They include a so-called transfer clause wherein defendants agree that if purchasers move out of the area served by defendants, the latter will upon request of one of the purchasers, accompanied by a proper death certificate, undertake to furnish comparable burial merchandise in another cemetery or refund seventy-five percent of all money received.
Bare recital of these conteact provisions makes it abundantly clear that the contracts, whether fully paid or not, are of the character contemplated by the statute, that is, contracts whereby the delivery of the merchandise is. not immediately required. For example, the merchandise trust provision manifestly presupposes nondelivery of the merchandise. Considering the subject matter, the contracts clearly contemplate delivery of the property when actually needed. No other interpretaüon can reasonably be placed upon them. The remote but highly improbable exercise of the right given to the purchaser to demand his burial vault in advance of death does not change the real nature of the conRact. Here again, as stated in A. 2 above, a statute will not be consRued so as to defeat its unmistakable intenRon. In arguing that the statute is inapplicable to their operaRons defendants ignore the fact it covers conRacts providing for installment payments as well as lump sum payments, whereas under the contracts delivery will not be made unRl after full payment of the enRre purchase price. More could be said but the matter will not be further labored. Of course, in the unlikely event of immediate delivery of the merchandise then, we scarcely need point out, the statute is inoperable by its own terms. The trial court committed no error in ruling the sale of burial vaults subject tiiereto.
C. Insurance.
Plaintiff alleged in its original petition that defendants were engaged in the insurance business in violation of our insurance code (K. S. A. 40-101, et seq.) inasmuch as they are not authorized to conduct such a business or to sell insurance in Kansas, and plaintiff sought to enjoin its continuation. This claim is based partially on the theory that the entire operation amounts to the conduct of an insurance business and partially on a so-called family protection agreement in defendants’ contracts. This in substance provides defendants will, upon proof being furnished of the death of the purchaser during the life of the contract, cancel payment of all balances not then past due under the contract and deliver the property constituting its subject matter, provided that ten percent (twenty percent in some instances) or more of the total purchase price shall have been paid with no payment delinquent more than thirty days, and provided further that the purchaser was in good health and not more than sixty-five years of age at the time said contract was executed. Plaintiff claims this constitutes an indemnity contract and thus within the scope of our laws regulating insurance. Defendants are not licensed to sell insurance or to conduct any kind of insurance business.
On this point in its journal entry of judgment the trial court found:
“The law and facts do not require that the defendants be enjoined from providing in their contracts for the cancellation of indebtedness upon the death of a debtor and injunction based upon such claim is denied.”
Additionally, the court in a very helpful memorandum decision discussing the equity of granting the requested injunction found:
“The cancellation of indebtedness feature of defendents’ contracts is incidental to the real purpose of such contracts and is truly minor. No specific charge is made to the purchaser for the incorporation of such agreement into the contract. . . .”
The court made no specific finding as to whether or not defendants were conducting an insurance business.
At pretrial conference an agreement between the parties was made that the provision in question was a “sales gimmick” and was an inducement to the potential purchaser. It was also agreed that after the institution of this lawsuit defendants purchased from a Kansas qualified life insurance company credit life insurance on all outstanding unpaid sales contracts.
Our statutes do not specifically define insurance but K. S. A. 40-201, defines an insurance company as follows:
“For the purposes of this article the term ‘insurance company’ shall, unless otherwise provided, apply to all corporations, companies, associations, societies, persons or partnerships writing contracts of insurance, indemnity or suretyship upon any type of risk or loss. . . .”
The term insurance has been judicially defined as any contract whereby one party promises for a consideration to indemnify the other against certain risks (The State, ex rel., v. Ins. Co., 30 Kan. 585, 2 Pac. 840) and the court has had occasion to consider certain enterprises held to constitute the conduct of an insurance business. In The State v. Burial Association, 73 Kan. 179, 84 Pac. 757, an undertaker established an association wherein, upon payment of assessments classified by age, members were given a certificate entitling them to burial services. Assessments were to be paid during the lifetime of the members as needed, and the right to receive burial benefits was dependent upon the payment of all assessments levied, all rights being forfeitured upon cessation of payments. A case of like import is The State v. Burial Association, 79 Kan. 28, 98 Pac. 1134. In these cases it appears members of the associations were required to pay specific assessments during their lifetime in order to avail themselves of the benefits and that the real and only purpose of the associations was to pay expenses for burial services. These cases are illustrative of situations held to constitute the conduct of a burial insurance business, but they are not helpful as to any claim for insurance regulation based solely on the inclusion in the contract of the family protection agreement. Most of the cases cited by plaintiff make no such distinction and plaintiff’s principal argument is in fact premised on the general claim that the entire operation amounts to the conduct of an insurance business. It may be conceded the whole enterprise, the pre-need sale of burial property, bears some analogy to insurance, but this alone is not sufficient to bring it within the realm of the insurance industry.
While the definition of insurance must perforce be a very broad general one, it does not necessarily follow that every contract which contains some technical element of indemnity or insurance is an insurance contract for the purpose of state regulation.
In 44 C. J. S., Insurance, § 59, at page 528, we find this:
“Whether a company is engaged in the insurance business depends . . . on the character of the business that it transacts . . . and whether the assumption of a risk, or some other matter to which it is related, is the principal object and purpose of the business.”
In Jordan v. Group Health Ass’n, 107 F. 2d 239, the court in considering whether a group health association was conducting an insurance business said this:
"That an incidental element of risk distribution or assumption may be present should not outweigh all other factors. If attention is focused only on that feature, the line between insurance or indemnity and other types of legal arrangement and economic function becomes faint, if not extinct. This is especially true when the contract is for the sale of goods or services on contingency. But obviously it was not the purpose of the insurance statutes to regulate all arrangements for assumption or distribution of risk. That view would cause them to engulf practically all contracts, particularly conditional sales and contingent service agreements. The fallacy is in looking only at the risk element, to the exclusion of all others present or their subordination to it. The question turns, not on whether risk is involved or assumed, but on whether that or something else to which it is related in the particular plan is its principal object and purpose. . . . ‘Care must be taken to distinguish mere contracts to render service on the happening of a contingency from true contracts of insurance. . . . The cases have failed to declare a satisfactory rule for distinguishing between the two types of agreements, but it would seem that the contract should not be classed as insurance if the paramount purpose in its formation was to be the rendition of the services rendered. . . . However, it should be insurance if the chief purpose of the agreement is the protection against the risk involved. . . .’ [Note No. 26]” (pp. 247, 248.)
One of the normal elements of insurance is payment of a premium, that is, a consideration for the risk borne. This premium is usually based on the age of the person whose life constitutes the risk. These features are missing here, as specifically found by the trial court.
Upon the facts presented in this record we think the principal object and purpose of the business of defendants is basically that of selling cemetery lots, burial vaults and markers, and not that of assumption of risks; the latter being merely incidental to the former, or as the parties themselves put it, a "sales gimmick” or an inducement to the potential customer to buy the merchandise. We have just held defendants accountable under K. S. A. 16-301 for all moneys received for burial vaults and markers not delivered, and under K. S. A. 17-1311 for at least ten percent of money received for lots. To this extent this in effect constitutes the setting aside of reserve funds for the protection of contract holders. The establishment of reserves in the insurance business is, of course, one of the main purposes and objects of state regulation. If the legislature had considered pre-need contracts to furnish such property as being within the realm of state insurance regulation there would have been little occasion for the enactment of K. S. A. 16-301. This may be considered some indication of legislative intent as to what is embraced within the insurance code. The entire subject is within legislative compass and further supervision should be left to legislative direction. We cannot say the trial court erred in declining injunctive relief in this area.
The orders of the trial court upon appeal and cross-appeal are affirmed with the exception that its order holding K. S. A. 16-301 to 16-304, inclusive, to be unconstitutional and void is reversed with directions to grant the relief under those statutes requested by plaintiff against defendants in accordance herewith.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fontron, J.:
This action was brought by the plaintiff, R. W. Ellsaesser, to recover damages resulting to his automobile from the alleged negligence of defendant, J. E. Arnold. Joined as defendants with Arnold were his employer, Amy Distributing Company, and Amy’s Insurance carrier, Mid-Continent Casualty Company, Inc.
An answer was filed by Amy alleging, among other matters, that plaintiff was not the real party in interest. Arnold and Mid-Continent filed both a joint answer denying liability and a joint counterclaim in which Arnold asked damages for personal injuries and Mid-Continent sought to recover the amount it had paid for damages to Arnold’s car.
Arnold and Mid-Continent also filed a motion to dismiss the action on the ground that plaintiff was not the real party in interest. At a hearing on this motion, it was disclosed that all but a small part of plaintiff’s loss had been paid by his insurance company.
On this showing, the district court ruled that plaintiff and his insurance company were both real parties in interest and directed that the insurance company be .made a party plaintiff in the case or, in the event the company did not desire to be a party plaintiff, that the action then be dismissed. The trial court also ordered that plaintiff’s cause of action be tried separately from Arnold’s counterclaim.
In compliance with Rule No. 5 of this court, the plaintiff thereupon filed his motion for permission to take an interlocutory appeal from the trial court’s order, under the provisions of K. S. A. 60-2102 (b). Plaintiff’s motion was granted, and this appeal then perfected.
The rule has long been established in this jurisdiction that an insured property owner, who has been but partly reimbursed for his loss, is the proper party to bring suit against a third party wrongdoer for the entire loss. In case of recovery, the insured is said to hold in trust for his insurer such part of the proceeds as has been paid him on his loss. (Railroad Co. v. Insurance Co., 59 Kan. 432, 53 Pac. 459; Insurance Co. v. Cosgrove, 85 Kan. 296, 116 Pac. 819, (reaffirmed on rehearing) 86 Kan. 374, 121 Pac. 488; Smith v. United Warehouse Co., 123 Kan. 515, 255 Pac. 1115; Clark v. Missouri Pac. Rld. Co., 134 Kan. 769, 8 P. 2d 359; Watson v. Travelers Mutual Cas. Co., 146 Kan. 623, 73 P. 2d 64.) In Watson, the court said:
“. . . It is undoubtedly the law of this state that although the civil code requires that an action must be brought in the name of the real party in interest, our own decisions have broadly held that where a property loss is in excess of the insurance collectible thereon, the insured is the proper party to bring the action against the wrongdoer, and that he is accountable to the insurance company as trustee and must proportionally reimburse it out of whatever judgment is recovered. . . .” (p. 631.)
For cases from other states applying the same rule see Flor v. Buck, 189 Minn. 131, 248 N. W. 743; York v. Cumberland Const. Co., 312 Ky. 797, 229 S. W. 2d 970; Wyker v. Texas Co., 201 Ala. 585, 79 So. 7.
This rule is tempered by the qualification that in the event the insured has fully settled his loss with the wrongdoer, or has otherwise released his claim against him, or for any reason refuses to bring suit to recover the full loss, then the insurer may bring the action. (Insurance Co. v. Railway Co., 98 Kan. 344, 157 Pac. 1187.)
Roth the rule and the exception are clearly and succinctly stated in City of New York Ins. Co. v. Tice, 159 Kan. 176, 152 P. 2d 836:
“1. Where the loss has not been fully covered by the insurance payment, and the property owner still asserts a claim against the wrongdoer. In this ease both he and the insurer are real parties in interest, but action should be brought by the property owner, who will hold as trustee for the insurer in respect to such part of the amount recovered as the insurer has been compelled to pay under the policy. If, in such a situation, the property owner refuses to bring action, justice requires that the insurer be permitted to bring the action.” (p. 186.)
On oral argument, defense counsel acknowledged that such has been the rule in this state, but contended that the rule as to joinder was changed by the recently enacted code of civil procedure. We believe this contention is unfounded.
The following provisions of Kansas Statutes Annotated are pertinent to the question presented: “ 60-217. (a) Real party in interest. Every action shall be prosecuted in the name of the real party in interest; . . .” This language is essentially the same as that contained in G. S. 1949, 60-401, and, in our view, effects no change in our former practice.
“60-219. (a) Necessary joinder—persons with joint interest. Subject to the provisions of section 60-223 hereof, persons having a joint interest shall be made parties and be joined on the same side as plaintiffs or defendants. When the consent of a person who should join as plaintiff cannot be obtained, he may be made a defendant.
“(b) Other parties necessary for complete determination. When a complete determination of the controversy cannot be had without the presence of other parties, the court may order them to be brought in by an amended or supplemental petition; and service of process.”
We believe it was never contemplated by those instrumental in preparing and drafting the code that sections 60-219 (a) and (b) should effect any fundamental change in the existing law pertaining to joinder of parties. The committee’s notes appended to 60-219 which are found in Kansas Judicial Council bulletin, November, 1961, Special Report, p. 27, read as follows:
“This section and the following section (60-220) cover the provisions of G. S. 60-410 and G. S. 60-411 and are not substantially different. Paragraph (a) also covers the provisions of G. S. 60-412.”
Judge Gard in his valuable work, Kansas Code of Civil Procedure, annotated, makes this comment as to 60-219 (a):
“Explanation of Changes in Kansas Law: No change is intended. It is assumed that ‘persons having a joint interest,’ taken from the federal rule, will be given the same construction as ‘parties united in interest’ as used in the former statute. [G. S. 1949, 60-412] . . .” (p. 101.)
On the following page, the author has this to say in explanation of 60-219 (b):
“Prior Law and Explanation: This subsection simply provides the manner in which indispensable or necessary parties may be brought in. It is complimentary (sic) to similar procedures set out in sections 60-213 (h) and 60-214.” (Emphasis supplied.)
Our belief that enactment of 60-219 (a) and (b) intended no substantial change in the practice then current finds further support in the following sections of Vernon’s Kansas Forms, annotated:
Ҥ 2.2626
“K. S. A. 60-219 (a) is substantially the same as the old provisions. . . .” (p. 665.)
Ҥ 2.2641
“K. S. A. 60-219 (b) is quite different from the Federal Rule 19b. The Kansas provision reads:
“ ‘When a complete determination of the controversy cannot be had without the presence of other parties, the court may order them to be brought in by an amended or supplemental petition, and service of process.’
“It is permissive procedure to permit a complete determination of all of the issues.” (p. 671.)
. Further documentation on this point is deemed superfluous. We are convinced that 60-219 (a) and (b) were not meant to supplant the rule enunciated years ago in Railroad Co. v. Insurance Co., supra, and consistently followed ever since. Nor do we perceive any compelling reason to depart from our prior holdings, for the rule not only accords with views long held by this court but affords adequate protection to the rights of everyone concerned, as well. Speaking on the latter subject, this court, in Smith v. United Warehouse Co., supra, said:
“. . . In this instance, application of the rule produced this result: Defendant’s entire liability is adjudicated, plaintiffs recover an amount equal to the insurance money for the benefit of the insurance company, and defendant is not exposed to further litigation.” (p. 516.)
A like view is expressed in Braniff Airways v. Falkingham, (Minn.) 20 F. R. D. 141, wherein the court states:
“The instant case as presently aligned cannot possibly embarrass movant financially. Eventually there can be but one recovery. A judgment in favor of plaintiff, who is the party in legal interest, would insulate movant against another suit by plaintiff’s insurer. In any event, the recovery may be im pressed with a trust in favor of the party claiming the right to subrogation.” (pp. 144, 145.)
Similarly, in King v. Cairo Elks Home Association, 145 F. Supp. 681, the court points out:
“. . . Only one judgment and only one satisfaction thereof could be had, and there would be no advantage to the defendants if the insurance carrier would be brought into the suit as a party plaintiff except that such action might have an emotional effect upon the jury in arriving at a verdict. . . .” (p. 686.)
We recognize that there is disagreement among the several United States courts concerning the compulsory joinder of an insurer which has partially compensated its insured for his loss. This division of opinion is pointed out in 2 Barron and Holtzoff, Federal Practice and Procedure, § 513.6, p. 124, where it is said:
“. . . Some cases have said that an insurer who has paid only part of the loss is not a necessary party to an action by the insured against a wrongdoer. It is usually held, however, that in such a situation the defendant may require joinder of the insured. , . .”
Although the majority federal rule does require joinder, on timely motion, of an insurance company which has partly paid a loss, except where its presence would destroy federal jurisdiction, the minority view is, more consonant with the practice in this state and, hence, we find it preferable.
Accordingly, we are constrained to hold that the trial court erred in its order directing plaintiff’s insurance company to be made a party plaintiff in this action or, in the alternative, that plaintiff’s action be dismissed.
In view of this holding, the reasons assigned by the trial court for ordering plaintiff’s cause of action tried separately from Arnold’s counterclaim no longer exists, and we consider further discussion of the order to be unnecessary.
The judgment of the trial court is reversed and this cause is remanded for further action consistent with the views herein expressed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to recover damages for the tortious breach of a fire insurance contract issued by the Atlas Assurance Company, Ltd., of Chicago, Illinois. The jury returned a verdict in favor of the plaintiff in the amount of $2,217.04 actual damages, and awarded him punitive damages in the sum of $1,000.00.
The facts are briefly summarized: Plaintiff had a fire loss on September 27, 1961, damaging the contents of his dwelling. He reported the loss to Atlas which employed Don E. McCosh, an adjuster with Underwriters Adjustment Company, as its agent to adjust the claim. McCosh’s investigation disclosed plaintiff’s property was co-insured under a homeowners’ policy issued by the Republic Insurance Company of Dallas, Texas. Republic employed McCosh as its agent, so McCosh represented both insurers in the matter.
McCosh consulted with the plaintiff about repairs and replacements and they agreed that the amount of the loss was $877.59. McCosh prepared and submitted for plaintiff’s signature, a proof of loss statement for each insurer. Atlas’ proof of loss showed the total loss as $877.59, and its portional share as $217.04. On November 2, 1961, the executed documents were forwarded to the home office of the respective insurance companies. Atlas examined the proof of loss in Chicago, circled the amount $217.04 appearing thereon, wrote “pay assured” upon the face of the proof of loss, and issued a check on November 6, 1961, for $217.04 in payment of the claim. The check was forwarded to Atlas’ agent in Kansas City who delivered it to the plaintiff.
The plaintiff received payment for his loss from each insurer. McCosh urged him to immediately deposit both checks and pay the materialmen and repairmen. He endorsed the checks and deposited them in a joint checking account at the Riverview State Bank, upon which his wife was authorized to draw checks. Mrs. Grohusky drew checks on the joint account to pay materialmen and repairmen and other current obligations.
Meanwhile, Atlas discovered what it thought was an error in apportioning the loss between it and Republic. It notified Edward Switz, its state agent in Kansas City, of the claimed error, who in turn telephoned McCosh. During the ensuing conversation, McCosh was advised that Atlas was stopping payment on the $217.04 check it had issued and delivered to the plaintiff. McCosh requested that Atlas not stop payment on the check and suggested since the error involved only a question concerning apportionment, that Atlas should contact Republic and negotiate a settlement. Switz’s answer was in the negative. On November 14,1961, McCosh telephoned plaintiff advising him of Atlas’ intention to stop payment on the check but assured him that the difficulty was a matter between the insurance companies and everything would be all right. The conversation was confirmed by letter on November 16, 1961, which also contained a corrected proof of loss showing Atlas’ portional share as $121.85. Plaintiff refused to accept the second proof of loss.
Atlas’ order stopping payment on the check caused the plaintiff’s personal checks to “bounce.” The Riverview State Bank rejected them for insufficient funds. The plaintiff was harassed by creditors who sought to recover the value of their dishonored checks. After discussing the matter with the bank, the plaintiff visited with John Lillig, Atlas’ local agent from whom he had purchased the fire insurance policy. The plaintiff enumerated the events that transpired by testifying:
“. . . I asked John, ‘What’s going on?’ I says, T have got these checks bouncing.’ I says, ‘Why did they stop payment on this check?’ and he said, T don’t understand it,’ and he got on the phone and immediately called somebody and they told him that everything would be all right, to just go ahead and tell them people to send their checks back through; and John said, ‘Don’t worry about it, just go on home, they will okay this check.’ . . .”
Atlas was well aware of plaintiff’s domestic and financial affairs. It knew he was married; that he had four minor children; that he worked for the City Health Department during the day and had to supplement his income as an automobile salesman at night and on weekends; that he lived from one paycheck to the next, and that his checking accoimt was joint. Atlas’ continual refusal to honor its check compelled the plaintiff, in order to protect his credit, to make personal loans from friends with which to reimburse the holders of his dishonored personal checks.
The trial consumed three days and the issues were vigorously contested. At the conclusion of the defendant’s evidence, the case was submitted to the jury which returned its verdict for the plaintiff, and Atlas has appealed.
Atlas first contends the district court erred by admitting in evidence checks drawn by Mary H. Grohusky, the plaintiff’s wife, on the joint back account. It argues that checks are not legally binding upon a plaintiff regardless of the surrounding circumstances unless he actually wrote them. We do not agree. The checks were dishonored because of insufficient funds rather than because of an unauthorized signature. Moreover, there was no evidence that the plaintiff failed to authorize or refused to ratify Mrs. Grohusky’s acts.
We agree that neither husband nor wife has the power to act as the other’s agent merely by virtue of the marital relation, however, an agency on the part of the wife to draw checks may be created by a deposit of money of the husband in a bank to the account of himself and his wife. (41 C. J. S., Husband and Wife, Sec. 65c, p. 539.) In Wilson v. Haun, 97 Kan. 445, 155 Pac. 798, it was held:
“To establish the relation of agency an express appointment and an acceptance thereof is not essential, but it may be implied from other facts, such as the statements of the parties, their conduct and the relevant circumstances.” (Syl. tfl.)
See, also, Fritchen v. Mueller, 132 Kan. 491, 297 Pac. 409; State Exchange Bank v. Naylor, 144 Kan. 703, 62 P. 2d 887; Greep v. Bruns, 160 Kan. 48, 159 P. 2d 803, and Stevens v. Stag Drilling, Inc. 173 Kan. 770, 252 P. 2d 616. Under the facts and circumstances disclosed by tbe record, we think the district court did not err in admitting in evidence the checks written by Mrs. Grohusky on the joint bank account.
Atlas next contests the propriety of the district court’s admission of plaintiff’s testimony relating to statements made by McCosh, contending the statements were hearsay evidence. We have searched the record and find no objection by Atlas to the evidence or statements it claims were erroneously admitted into evidence, and we are compelled to be guided by K. S. A. 60-404 in disposing of the contention. This rule establishes a must requirement for trial court practice and requires a timely and clear objection to the admission of evidence. The rule simply restates the practice prevailing prior to the adoption of the section requiring specific and timely objections and the ignoring of harmless admission of evidence. (4, Vernon’s Kansas Statutes Annotated, Code of Civil Procedure, pp. 191, 193, 194; Gard, Kansas Code of Civil Procedure, Sec. 404, p. 367.)
Atlas next contends the district court erred in permitting Achilles V. Wheat to testify as an expert witness as to ordinary practices and procedures of the insurance business, claiming that Wheat was not an expert in the general meaning of the term. We do not agree. K. S. A. 60-456 (b) and (c) provide:
“If the witness is testifying as an expert, testimony1 of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.
“Unless the judge excludes the testimony he shall be deemed to have made the finding requisite to its admission.”
The uneontroverted evidence reveals that Wheat had 17 years experience in the insurance business. During that period, he became familiar with various insurance policies and adjusting procedures. In the course of his duties, he appointed adjusters to dispose of insurance claims and worked with them to solve the various problems that arose. He testified, “we do inject ourselves into loss adjustment situations.”
Atlas complains that Wheat was not qualified because he had little or no formal training. A witness, in order to be competent as an expert, must show himself to be skilled or experienced in the business or profession to which the subject relates. There are no precise requirements as to the mode in which skill or experience shall have been acquired. Scientific study and training is not always essential to qualify a witness as an expert. A witness may be competent to testify as an expert although his knowledge was acquired through the medium of practical experience rather than by scientific study and research. (20 Am. Jur., Evidence, Sec. 784, pp. 657, 658.) Fundamentally, the expert must be qualified to impart to the jury knowledge within the scope of his special skill and experience that is otherwise unavailable to tire jury from other sources. The district court has the primary function to determine whether or not a witness is an expert. (2 Wigmore, 3rd Ed., Evidence, Sec. 561, [1940].) In the instant case, the district court is deemed to have made the finding as a prerequisite to the admission of Wheat’s testimony. (K. S. A. 60-456 [c].)
Atlas also objects to Wheat’s testimony that the instrument of payment it issued was a check. Wheat testified:
“Q. . . . assume further that after the Proof of Loss had been received from the adjuster that thereupon the Atlas Assurance Company, Limited, had issued the instrument which is marked as Plaintiff’s Exhibit 2, and I will ask you to examine that.
“A. Looks like a standard loss check.
“Q. I want to ask you further, Mr. Wheat, after having examined Plaintiff’s Exhibit 2, which is this standard loss check, what is the ordinary practice and custom in the insurance business as to whether or not this instrument is a check or a draft; how is it treated by people engaged in the insurance business and in the settlement of losses based upon your experience and in your opinion?
“A. Normally we receive them—we don’t distinguish whether they are checks or drafts; I wouldn’t know the difference; but normally when we receive from an insurance company or even from an adjustment company with authorization from the company a loss check or draft, we forward it to our customer with the full expectation it will be paid and this has always been so.”
The rule is stated in 10 C. J. S., Bills and Notes, Sec. 5 (2), p. 410, as follows:
“The terms ‘draft’ and ‘check’ are, in some instances, used interchangeably and the ordinary meaning of the term ‘check’ is sufficient to include a draft, the only distinguishing feature between the two being that in, the case of a draft the drawer is a bank while in the case of the ordinary check the drawer is an individual. So an instrument purporting to be a draft which is drawn by the drawer upon itself and payable at a bank is in effect a check.” (Emphasis supplied.)
Atlas prepared the instrument in question; it was payable through a bank; Atlas was the drawer, and plaintiff was the payee—it had all the characteristics of a check. Furthermore, on the reverse side of the check was a release which reads:
“In endorsing this draft I/we hereby acknowledge receipt of the amount hereof, in full satisfaction, final settlement, and compromise of all claims and demands for loss and damage, indicated on the face hereof.”
The plaintiff’s endorsement of the instrument, having the characteristics of a check, acknowledged full consideration from Atlas of all claims and damage by reason of the loss and waived all future claims he might have by reason of the loss. Under the circumstances heretofore related, we hold that the instrument was a check and not a draft which was subject to Atlas’ acceptance in its branch office in Chicago.
Atlas asserts that the district court’s instructions 8, 9 and 10 erroneously and prejudicially stated that law with respect to the check, draft, and apportionment of loss, and that it erred in refusing to give four of its requested instructions. The record shows the court changed its instructions and incorporated parts of Atlas’ requests. The rule is well settled that error cannot be predicated on the refusal to give certain instructions where those given cover and include the substance of those which were refused. We see no useful purpose to prolong this opinion by setting forth the instructions. Suffice it to say we have carefully considered all arguments advanced by Atlas in support of its claims of error. Considering the instructions as a whole, we conclude they fairly and substantially stated the law applicable to the theories of the parties as presented by the evidence introduced at the trial.
The next question presented is whether there was sufficient evidence to support an instruction on punitive damages. In a recent case, Kohler v. Kansas Power & Light Co., 192 Kan. 226, 387 P. 2d 149, we discussed the rule of punitive damages, and said:
“. . . In die early case of Telegraph Co. v. Lawson, 66 Kan. 660, 72 Pac. 283, with citation of numerous cases, it was said:
“‘. . . The rule is too well settled in this state to admit of modification or change, that in all actions to recover damages for negligence, where actual damages are recoverable, the plaintiff is entitled to recover exemplary damages if the negligence be so gross as to amount to wantonness. (Cases cited.) The term “wantonness” as here used does not necessarily mean malice, but a reckless disregard of rights of others.’ (1. c. 662, 663.)
“In Allman v. Bird, 186 Kan. 802, 353 P. 2d 216, rules relating to the allowance of punitive damages, the purposes for which they are allowed, and the conditions and circumstances under which they may be recovered, were discussed and applied, and in the opinion it was said:
“ ‘. . . this court has held that generally the intentional doing of a wrongful act with full knowledge of its character, and without cause or ex cuse, is malicious and warrants an award of exemplary damages. (Cases cited.)’” (1. c. 228.)
See, also, Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P. 2d 822. In Watkins v. Layton, 182 Kan. 702, 324 P. 2d 130, the rule relating to the sufficiency of proof of punitive damages was stated, and it was held:
“The law does not require a specific finding of an intentional and ruthless desire to injure in order to sustain an award of punitive damages. The burden of proof is sustained, once the injured party shows such gross neglect of duty by the wrongdoers as to evince a reckless indifference of the rights of others.” (Syl. ¶ 5.)
The plaintiff presented evidence that the agreed total loss of $877.59 was never contested by any party; that Atlas prepared the apportionment of loss; that it approved the apportionment in writing and directed that the check in the amount of $217.04 be made payable to the plaintiff; that it was aware of plaintiff’s financial circumstances and knew that checks had been written on plaintiff’s account; that its agent had urged it not to stop payment on the check and requested that Atlas’s contact Republic and negotiate a settlement; and that plaintiff relied upon Adas, assurance “that everything would be all right” and for plaintiff to tell the holders of his personal checks to “send their checks back through.” Moreover, McCosh’s cross-examination disclosed:
“Q. So they agree on the amount of $877, and isn’t it a fact that the only reason that this company didn’t pay the $217 that was shown in your apportionment, that they had had an opportunity to examine before they ever wrote this check or draft and sent it to the Grohuskys—the only reason they didn’t pay it was not because of any disagreement with the Grohuskys but because of a disagreement that they thought they had with Republic?
“A. Yes.
“Q. I believe you testified that in your experience that sometimes drafts are not honored because there have been mistakes or that they are just not proper in some way. I want you to look at the name of the payee on this Plaintiff's Exhibit 2; that is James E. Grohusky, is it not?
“A. Yes.
“Q. And the endorsement is James E. Grohusky; that’s proper, is it not?
“A. Yes.
“Q. It’s the same?
“A. Yes.
“Q. So there is nothing wrong with the endorsement that would lead Atlas to refuse to pay it?
“A. No.
“Q. There are no alterations or erasures and no change in the figures, the amount that the Atlas Assurance Company originally drew this check or draft in was $217.04 which was the amount of the Proof of Loss that you prepared and your recommendation as to their payment, and they had written on the Proof of Loss to pay that amount so there is no question of a mistake in the amount, is there?
“A. No.”
In view of the foregoing, we conclude it was proper for the district court to submit to the jury the issue of punitive damages.
Plaintiff contends in his cross-appeal that the district court erred by refusing an allowance of attorney’s fees under K. S. A. 40-908 or K. S. A. 40-256. The action was for tortious breach of contract. The plaintiff was not compelled to institute an action to enforce provisions of his policy, but he sought to recover damages caused by Adas’ toritous conduct. Under those circumstances, we cannot say the district court erred in denying plaintiff’s attorney his fee.
All points briefed and argued have been considered, but we think the foregoing disposes of all the contentions. The record discloses that a full and complete trial was had on the merits. The district court’s instructions correctly stated the applicable law, and it approved the jury’s verdict in favor of the plaintiff. The burden was upon Atlas to show that error was committed, but we find nothing in the contentions which require or warrant a reversal of the judgment. Accordingly, the judgment of the district court is affirmed with respect to both the appeal and the cross-appeal.
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The opinion of the court was delivered by
O’Connor, J.:
This was an action to cancel a real estate contract and for possession of the property involved. The original plaintiff in the action, Laura Estella Sexton, is now deceased. Her daughter, Arzela Sexton Carry, as executrix of her will, has been substituted as party plaintiff and will hereafter be referred to as the plaintiff. We will refer to the defendant W. O. Homer, the only appellee, as Homer, and the other defendant, Tom Givens, as Givens.
Trial was to the court without a jury. Judgment was entered canceling the contract and determining the amount due thereon. The defendant Homer, having obtained an assignment of all of Givens’ interest in the contract after this action was begun, was given the right to redeem the subject real estate as a part of the court’s order. From an order of the trial court overruling plaintiff’s motion for new trial, she has appealed.
All parties agree the contract had been breached. The main dispute concerned the balance due on the contract at the time of its breach.
In order to fully understand the questions involved on appeal a detailed statement of facts is deemed necessary. On July 17, 1952, the plaintiff, acting by and through her husband and duly authorized agent, Harvey Sexton, sold a farm consisting of 425 acres to Givens for the sum of $60,000. The sale was evidenced by a written agreement which provided for a down payment of $10,000 and the balance payable in ten annual installments.
On December 11, 1953, Givens sold a portion of this same real estate to Homer for the sum of $33,101 with a down payment of $5,516 and the balance payable in ten annual installments. This sale was evidenced by a written agreement which named the plaintiff as a third party. The agreement contained a provision which provided that all installment payments were to be paid by Homer to Givens and the plaintiff jointly and were to be applied upon the balance due under the real estate contract dated July 17, 1952. Refore the agreement was drafted the matter was discussed with the plaintiff’s husband, Harvey Sexton. After the agreement had been executed by Givens and Homer, Givens and Homer’s attorney took the agreement to Mr. Sexton for the purpose of securing the plaintiff’s signature. Sexton read the agreement but refused to permit his wife to sign it. At that time Homer’s attorney informed Sexton that Homer would make the installment payments provided in the agreement by checks made payable jointly to Givens and Mrs. Sexton in order to be sure that Homer’s payments were received by Mrs. Sexton.
On March 2, 1956, Given sold another portion of the real estate involved in the contract of July 17, 1952, to Homer for the sum of $21,000 with a down payment of $5,183.44 and the balance payable in eight annual installments. Again this sale was evidenced by a similar three-party agreement which named the plaintiff. The agreement contained a similar provision to that in the December 11, 1953, agreement regarding the installment payments by Homer to Givens and plaintiff jointly, and that they were to be applied to the balance due on the basic contract of July 17, 1952. This agreement was not signed by the plaintiff, and there is nothing in the record to indicate it was ever shown to the plaintiff or her husband.
From May 26, 1955, to March 7, 1961, Homer, by separate checks each made payable to Givens and Mrs. Sexton jointly, made seven payments on the amounts due on the contracts of December 11, 1953, and March 2, 1956. These checks were endorsed by Givens and deposited in the plaintiff’s account in the Abilene National Bank. The payments made by Homer beginning March 2, 1956, were intended by him to be applied by the plaintiff to the balance due on the basic contract of July 17, 1952, between the plaintiff and Givens. During this same time Givens made additional payments to the plaintiff on his basic contract of July 17, 1952.
At the request of Givens $4,000 of the $6,629.69 payment made by Homer on March 2, 1956, was applied by the plaintiff to another debt owed her by Givens. Also at Givens’ request $1,500 of the $4,500 payment made by Homer on March 1, 1958, was applied by plaintiff to another account owed her by Givens. Neither Givens nor the plaintiff informed Homer about the manner in which these two payments had been applied by the plaintiff until 1964.
On January 28,1957, Homer drew a check in the sum of $1,431.94 payable to Harvey Sexton to cover delinquent taxes for the years 1953 through 1956 paid by Sexton on the land which Homer was purchasing from Givens. This check was delivered to Givens who in turn delivered it- to Sexton. Although from the record it is not clear whether the delinquent taxes related to the real estate involved in both the contracts of December 11, 1953, and March 2, 1956, between Homer and Givens, it is noted that the contract of March 2.1956, made Homer liable for all taxes and assessments on the real estate covered by said contract for 1955 and succeeding years.
On October 17, 1958, the plaintiff and Givens executed a written memorandum in the nature of an account stated in which it was acknowledged that as of that date the principal balance due under the basic contract of July 17, 1952, was the sum of $25,000. Homer was not a party thereto, nor did he have knowledge of the memorandum. It should be noted that the balance acknowledged in the memorandum as being due under the basic contract did not give Homer credit for the full payments made by him on March
2.1956, and March 1,1958.
After allowing Homer credit for the two payments which were not applied to the basic contract by the plaintiff, the trial court calculated the balance due on the basic contract between the plaintiff and Givens was the sum of $7,901.65. In its conclusions of law the court said:
“1. That the plaintiff, having actual knowledge by and through her agent Harvey Sexton of the sale of a part of the real estate covered by the basic contract between plaintiff and Givens by Givens to the defendant Homer under a written contract dated December 11, 1953, having been informed that the defendant Homer would make the payments required under the latter agreement by checks made payable to Givens and Sexton jointly which were to be applied to the basic contract, and having received such checks which were deposited in her bank account, could not apply such payments to any other obligation of Givens even though Givens had directed such application.
“2. Plaintiff’s crediting of the sum of $5,500.00 derived from payments made by the defendant Homer to other obligations of the defendant Givens under the circumstances above-mentioned constitutes a fraudulent application of such payments and is illegal and void.
“3. The written memorandum dated October 17, 1958, and signed by Sexton and Givens constitutes an account stated which is only prima facie evidence of its correctness and may be set aside for fraud or mistake.
“4. The stated account set out in the memorandum dated October 17, 1958, was based upon an erroneous and fraudulent application of payments made by the defendant Homer and since Homer was not a party to this memorandum and had no knowledge of the facts upon which the alleged settlement was based he is not bound thereby.
“5. The two payments made by Homer on March 2, 1956, in the sum of $4,000.00 and on March 1, 1958, in the sum of $1,500.00 should be credited to the balance due under the basic contract between Sexton and Givens as of the respective dates of such payments as set out in Paragraph 9 of this decision.
“6. The defendant, W. O. Homer, shall have six (6) months from the date of this judgment within which to redeem the basic contract between Sexton and Givens dated July 17, 1952, by paying to tbe Clerk of the District Court the sum of $7,901.65, with interest at 5% per annum from March 13,1961.”
On appeal there are two questions raised: (1) whether or not the plaintiff could apply a portion of two payments received by her from Homer to other indebtedness owed to the plaintiff by Givens, and (2) if the payments were misapplied, whether or not the memorandum agreement dated October 17, 1958, between the plaintiff and Givens, which determined the balance due on the basic contract without giving Homer full credit for the two payments in question, is binding upon Homer.
The plaintiff contends that the court erred in holding that under the foregoing facts the plaintiff could not apply portions of two payments received by her from Homer to other indebtedness owed her by Givens.
Both parties cite two Kansas cases dealing with the general subject of the right of a creditor to make application of payments.
The first case on which the plaintiff relies is Presbyterian Church v. Santy, 52 Kan. 462, 34 Pac. 974. In that case the church had employed a contractor to build a new sanctuary. The church trustees paid the contractor on his contract, and the contractor in turn paid a hardware company the sum of $200 which was more than the total amount of the materials furnished for the sanctuary. Neither the trustees nor the contractor gave any direction about how the money should be applied. The hardware company gave the contractor credit on his general account. The hardware company then filed a materialmans lien on the sanctuary and foreclosed. The trustees of the church claimed the money they paid the contractor should be applied to pay for the material that went into the building. The district court granted judgment in favor of the hardware company, and the case was affirmed on appeal. In the course of the opinion the court-said:
“. . . Nothing was said by Thompson [contractor] when the payment was made as to where the money came from, nor was any direction given by the trustees or by Thompson as to its application. . . . The facts disclosed merely show that the trustees made Thompson a payment on his contract, which, for anything that appears, he was free to use as he pleased —to pay to the hardware company, or anyone else he saw fit. . . . It is well settled, that where the debtor fails to direct the appropriation of a payment the creditor has the right to make it. (King v. Sutton, 42 Kas. 600 [22 Pac. 695]).”
Plaintiff also contends that her position is bolstered by the holding of Crane Co. v. Terminal Railway Co., 98 Kan. 336, 158 Pac. 59. In that case a contractor had a contract to build a railroad terminal at Wichita. The contractor gave a performance bond. The plumbing portion of the contract was sublet to one, Crombie. While the terminal building was being constructed Crane Company (materialman) furnished material to the plumbing subcontractor for other jobs. The contractor notified Crane Company when it made payments to the subcontractor Crombie. Crombie directed Crane Company as to the manner in which payments received by him from the contractor were to be applied. Some payments were applied to other indebtedness of the subcontractor to Crane Company for other jobs. When the terminal was completed Crane Company still had a debt due for materials furnished and used in the terminal building by the subcontractor and filed its lien and brought suit on the contractor’s bond. Upon appeal to this court judgment was entered for Crane Company. Again this court recognized the general rule that a debtor has the right to direct the manner in which payment on his indebtedness shall be applied, and if no direction is given, the creditor may apply the payment as he desires. In the course of the opinion the court observed:
“. . . In this case the contractor simply paid Crombie what it owed him. The payment was made without reservation to satisfy the contractor’s own debt. Unconditional title to the money passed to Crombie and it became his, free from any right or equity in the contractor to control his use of it. He could pay his taxes or club dues with it or could pay such of his merchandise creditors as he desired. When Crombie deposited the money in the bank to his general account it lost its identity, and when he gave his check to the plaintiff and directed the plaintiff to apply the proceeds in a specific way the plaintiff had no choice with respect to its conduct. It was obliged to apply the money as directed. . . .” (p. 338.)
In the Crane case a number of cases from other jurisdictions were cited and carefully analyzed, but the court concluded those decisions were directly opposed to the holding of Presbyterian Church v. Santy, supra. For other cases in this state where the general rule set forth in the Presbyterian case and the Crane case was recognized and followed see Edelblute v. Waddell & Reed, Inc., 171 Kan. 508, 233 P. 2d 757, and cases cited therein.
In their briefs both parties refer to a lengthy annotation regarding the right of a debtor who pays a creditor to control application of payments made by the latter to his creditor with proceeds of the original payment. In 41 A. L. R. 1297 (supplemented in 130 A. L. R. 198 and finally in 166 A. L. R. 641) the author recognizes there are two lines of authority on the subject. In 6 Williston on Contracts, §1804, et seq., (Rev. Ed.), Professor Williston thoroughly discusses the application of payments and interests of third persons.
The question involved here arises most frequently in mechanic’s lien cases where a contractor, having received payment from the owner of the property, uses the proceeds to discharge another debt due from the contractor to the materialman.
In calling our attention to a number of cases in other jurisdictions in which the right of the owner to direct application of payment is dependent upon the knowledge or notice which a materialman has as to the source of the funds and the owner’s intention as to that application, Homer cites Modesto Lumber Co. v. Wylde, 217 Cal. 421, 19 P. 2d 238. In that case a loan association issued checks made payable to materialmen and gave them to the contractor with instructions they be delivered to the materialmen in payment for materials furnished and used in the construction of the owner’s house. The contractor delivered the checks but directed their application to his personal accounts. In an action by the material-men to foreclose liens for claimed amounts due, judgment was entered for the owner. The court, in the course of its opinion, observed that the checks were made payable directly to the loan association and not to the contractor, and thus, the materialmen had a duty to inquire of the loan association as to the manner in which the funds were to be applied. The court further pointed out:
"The majority rule seems to be that where the materialman is furnishing at the same time materials to a contractor for the construction of buildings upon the property of different owners, the materialman may, in the absence of notice of the source of the funds, accept the same from the contractor and apply them upon any agreed account or as specified by law, even if in such case it develops that the contractor has violated his trust while using the funds of A to pay for materials used on the property of B. . . . But it seems equally clear that where the materialman does have knowledge of the source and ownership of the funds delivered to him by the contractor, he may not apply them on the account of any other than the true owner, even though the contractor may have consented to their application elsewhere. . . .” (p. 425.)
We have examined the other cases from other jurisdictions cited in Homer’s brief and are of the opinion that regardless of the general rule followed in a particular jurisdiction, the facts in the case at bar go beyond mere knowledge or notice by the creditor of the source of the funds with which payment is made.
In this case the plaintiff by and through her authorized agent had full knowledge of the contents of the contract between Givens and Homer, dated December 11, 1953, and knew that all payments made thereunder were to be applied to the basic contract of July 17, 1952. Although she did not sign the contract, she was fully informed at the time by Homers lawyer that payments would be made to her and Givens jointly “for Homer s protection.” She then proceeded to accept joint payments from Homer on this contract as well as the contract dated March 2, 1956, between Givens and Homer. She obviously had notice of the source of the funds and the manner in which Givens and Homer agreed the payments were to be applied. We also note that Homer, by check made payable to the plaintiff’s husband, paid delinquent taxes for 1953 to 1956 on the land in question. The plaintiff’s course of conduct over the years in accepting the payments and applying all but two of them according to the manner intended by Homer hardly permits her in equity and good conscience to say now that she and Givens had the right to apply the two payments in question to other indebtedness due her from Giyens.
After a careful study of our previous holdings in the cases cited by the parties, we note that in none of them do we find a similar fact situation; neither do we find fault with the decisions heretofore reached in the Presbyterian and Crane cases under the individual facts of each case. The facts here, however, are clearly distinguishable. The payments by Homer were to the plaintiff and Givens jointly—not to Givens alone to do with as he pleased. The plaintiff was informed of the manner in which the payments were, to be applied, by virtue of the contract of December 11, 1953. The payments made by Homer did not become the unconditional property of Givens; he could not cash the checks delivered to him by Homer on his endorsement alone, nor could he deposit the checks in his bank account and commingle the proceeds with his own funds. These are all factors noted as not being present in the Presbyterian and Crane cases. The facts here give rise to a situation not covered by the holdings of either of the aforementioned cases. We therefore conclude that under all of the circumstances the trial court correctly determined that the two payments made by Homer should have been fully credited by the plaintiff to the basic contract of July 17, 1952.
Having decided that plaintiff misapplied the payments in question, we now turn to the memorandum agreement of October 17, 1958, between the plaintiff and Givens, which both parties concede was in the nature of an account stated. Homer had no knowledge of this instrument and he was not a party to it.
Plaintiff contends that the balance due of $25,000, as stated, in the memorandum, was as binding upon Homer as it was upon Givens. As a basis for her contention plaintiff argues that when Homer took from Givens the assignment of the basic contract between plaintiff and Givens after commencement of this action, he took it subject to the provisions of the account stated, and that under the law of assignments Homer, as assignee of Givens’ interest in the basic contract, acquired no greater rights than those possessed by Givens as the assignor.
It also appears from the record that over the plaintiff’s objection the trial court permitted Homer to introduce' evidence of his contracts with Givens that were entered into prior to the date of the account stated in an effort to show that the latter instrument was void by reason of a mutual mistake of fact. The plaintiff complains that in admitting this evidence the trial court erred. Plaintiff’s argument on this point completely overlooks the fact that an account stated is only prima facie evidence of its correctness and it may be reopened and corrected for mistake or fraud. (McCue v. Hope, 97 Kan. 85, 154 Pac. 216; Swaller v. Milling Co., 116 Kan. 329, 226 Pac. 1001.)
In the instant case the balance due on the basic contract, as acknowledged in the account stated, was arrived at without credit being given for payments made by Homer which were improperly applied by the plaintiff. Homer had no knowledge of the account stated nor its contents. The balance due, as recited therein, was incorrect. Under such circumstances Homer was not bound by the incorrect amount. The trial court, therefore, properly admitted into evidence the two contracts between Homer and Givens in order that the correct amount due on the basic contract could be determined.
All points raised by the plaintiff having been carefully examined, we are of the opinion the trial court did not err. The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
Plaintiff, a doctor of medicine, brought this action in mandamus to compel his admittance as a surgeon on the medical staff of defendant hospital. The parties stipulated as to the facts and each side moved for summary judgment. The trial court sustained plaintiff’s motion and directed defendant to admit plaintiff forthwith to its medical staff, from which order defendant has appealed.
It appears that plaintiff, who is duly licensed to practice medicine and surgery in Kansas and whose educational and internship qualifications are not questioned, became a resident of Beloit in September, 1963, and immediately made application for membership as a surgeon on defendant’s medical staff which application was rejected by defendant acting through its board of directors.
The defendant is a private non-profit hospital initially endowed by what is known as the Commonwealth Fund. It receives no support from taxation but is tax-exempt and it solicits funds from the general public for its operation and maintenance. Payment is required of all patients able to pay; welfare patients are admitted with payment made therefor by the municipality in which the patients reside. The defendant’s agreement with the Commonwealth Fund requires that it be so operated “as to secure the approval of the American College of Surgeons for this class of hospital” and that “the governing body of the hospital must delegate the responsibility of the medical functions to the medical staff, including recommendations as to professional qualifications of all who practice in the hospital,” with staff appointments to be made by the governing body. Defendant’s by-laws pertinent to medical staff appointments provide as follows:
“article in section 4. procedure of appointment. Application for membership to the medical staff shall be presented in writing, on the prescribed form, which shall state the qualifications and references of the applicant and shall also signify his agreement to abide by the by-laws, rules and regulations of the Medical Staff. The application for membership on the medical staff shall be presented to the Administrator who shall transmit it to the secretary of the Medical Staff. At the first regular meeting thereafter, the secretary shall present the application to the Medical Staff, at which time it shall be either recommended for rejection or referred to the Credentials Committee. The Credentials Committee shall investigate the character, qualifications, and standing of the applicant and shall submit a report of findings at the next regular meeting of the medical staff or as soon thereafter as possible, recommending that the application be accepted, deferred, or rejected. In no case shall this report be delayed for more than three months. If the recommendation is for deferment or rejection, the reason shall be stated. When determining qualifications, the Credentials Committee shall also recommend privileges as provided in Article VI of these By-Laws. On receipt of the report of the Credentials Committee, the medical staff shall immediately recommend to the governing body that the application be accepted, deferred, or rejected. And, if accepted, the privileges to be granted. The recommendation of the medical staff shall be transmitted to the governing body of the hospital through the Administrator. The governing body shall either accept the recommendation of the medical staff or shall refer it back for further consideration stating the reason for such action. When final action has been taken by the governing body, the Administrator of the hospital shall be authorized to transmit this decision to the candidate for membership and, if he is accepted, to secure his signed agreement to be governed by these by-laws, rules and regulations.”
Plaintiffs application was referred by the hospital administrator to defendant’s medical staff and its credentials committee which thereafter recommended to the executive committee of the board of directors that it be rejected. The executive committee consists of seven officers and members of the board of directors who manage defendant’s business affairs during the interim between meetings of the board. The executive committee accepted the recommendation and in turn the full board of directors approved the action of the executive committee and rejected plaintiff’s application. In so doing, the board acted solely upon the recommendation of the medical staff.
The statute pertinent to the licensing and regulation of hospitals in Kansas (K. S. A. 65-431) provides in part:
“. . . boards of trustees or directors of institutions licensed pursuant to the provisions of this act shall have the right to select the professional staff members of such institutions . . . and no rules, regulations or standards of the licensing agency shall be valid which, if enforced, would interfere in such selection. . . .”
The board of directors of a hospital is thus given plenary power to select its professional staff and the state has expressed a policy not to interfere with that selection.
Plaintiff contends that by its by-law above quoted and by its action in this case defendant’s governing body has unlawfully delegated and has abdicated ultimate control of appointments to its medical staff and that this constitutes an abuse of discretion.
We cannot agree. We think plaintiff attempts to place too narrow a construction on the by-law in question. The by-law does contemplate that the governing body, the board of directors, shall take into consideration the recommendation of the medical staff but we think it equally clear that the recommendation must be treated as advisory only and that final action on an application is to be taken by the board of directors. This must be the certain import of the language used,
“When final action has been taken by the governing body. . . .” (Our italics.)
The power of the medical staff appears to be that of investigating and recommending, whereas the board has authority to take final action.
Moreover, in the instant case it is clear that the board of directors did in fact take the final action in the rejection of the application. The hospital appears to have followed its by-law and both the by-law and the board’s action herein are reasonable and in harmony with the provisions of K. S. A. 65-431.
While the question is novel in Kansas, it has received much attention elsewhere. In 26 Am. Jur., Hospitals and Asylums, § 9, p. 592, the general rule is stated as follows:
“It seems to be the practically unanimous opinion that private hospitals have the right to exclude licensed physicians from the use of the hospital, and that such exclusion rests within the sound discretion of the managing authorities.”
Cases in support of this general rule may be found at the annotation in 24 A. L. R. 2d 850, et seq., and a more recent case extensively reviewing later authorities to the same effect is Shulman v. Washington Hospital Center, 222 F. Supp. 59 (D. C. D. C., 1963).
Necessarily, in so important a matter as selection of members of a surgical staff, there are the soundest of reasons for a lay hospital board to seek and follow competent professional advice of a known character and quality. The only claim of abuse of discretion or arbitrary action made against the board being that it acted solely upon the recommendation of its medical staff, and there being no material fact issue, mandamus will not lie to control the action of the board and the order of the trial court in sustaining plaintiff’s motion for summary judgment was clearly erroneous. That order is reversed with directions to sustain defendant’s motion for summary judgment.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment in an action to construe a will which held a devise in trust void as in violation of the rule against perpetuities.
The facts material to the determination of the controversy are not in dispute.
D. N. Freeman died December 21, 1959, leaving a will which he had executed November 10, 1955.
Although it may burden this opinion an attempt to construe the instrument will be meaningless unless we present the verbatim language used by the testator. Only the portions of the will essential to the determination of the questions before us will be considered. The will provides insofar as material to the issues to be determined as follows:
First Article
“I hereby direct that all my just debts, including the expenses of my last illness and funeral expenses, the expenses of the administration of my estate and all Federal and state inheritance, succession and estate transfer taxes or charges be paid out of the corpus of my estate by my executor as soon after my decease as is practical.
Second Article
“I hereby give, devise and bequeath to my daughter, Margaret Elizabeth Perotti, the sum of Five Thousand Dollars ($5,000) in cash.
Third Article
I hereby give, devise and bequeath to my granddaughter, Nancy Ann Braile, the sum of Five Thousand Dollars ($5,000) in cash.
Fourth Article
"All the residue of my estate, after satisfying the charges thereon hereinbefore mentioned, I hereby give, devise and bequeath to the NATIONAL BANK OF TOPEKA, Topeka, Shawnee County, Kansas, or its successors, as Trustee, in trust nevertheless for the benefit of my daughter, Margaret Elizabeth Perotti, my granddaughter, Nancy Ann Braile, Linda Locke, adopted daughter of my daughter, Margaret Elizabeth Perotti, and Margaret Annan Freeman, widow of my deceased son, Duane A. Freeman, to be used for their use and benefit in the manner hereinafter described and designated.
"This Trust shall be administered and distributed as follows:
“I hereby direct my Trustee, upon the termination of probate of my estate, out of the property transferred to it by my Executor, and the income therefrom, to pay to the beneficiaries of the trust as follows:
“1. To my daughter, Margaret Elizabeth Perotti, or to her duly appointed and qualified guardian, if my said daughter shall survive me, during the lifetime of my said daughter, so much as shall be necessary to provide her with the necessities of life, such payments to be made monthly in sums not to exceed Two Hundred Fifty Dollars ($250.00), provided, however, that should the condition of the health of my daughter be such that any additional medical and/or hospital expense should become necessary or advisable, then in that event, my Trustee is hereby authorized to expend such sums as may be necessary for such medical expense and/or hospitalization. Upon the death of my said daughter, my Trustee is empowered to spend such sum as may be necessary to cover all funeral expenses.
"2. To my granddaughter, Nancy Ann Braile, if my said granddaughter shall survive me, the sum of One Hundred Fifty Dollars ($150.00) per month, payable monthly, so long as she may live, provided, however, that should medical expense and/or hospital expense become necessary at any time, then in that event my Trustee is hereby authorized to expend such sums as may be necessary for such medical expense and or hospitalization. Upon the death of my said granddaughter, my Trustee is empowered to spend such sum as may be necessary to cover all funeral expenses.
“3. To Linda Locke, the adopted daughter of my daughter, Margaret Elizabeth Perotti, or to her guardian if she be a minor at the time of my death, if the said Linda Locke shall survive me, the sum of Fifty Dollars ($50.00) per month, payable monthly, until she shall have received a total num of Four Thousand Dollars ($4,000).
"5. In the event that none of the above named beneficiaries be living at the time of my death and if my daughter, Margaret Elizabeth Perotti, and my granddaughter, Nancy Ann Braile, shall have left issue of their bodies surviving at the time of my death, then in that event the entire net income from the trust estate hereby created shall be paid one-half (%) to the issue of my daughter, Margaret Elizabeth Perotti, share and share alike, and one-half (%) to the issue of my granddaughter, Nancy Ann Braile, share and share alike, and at the death of such issue, to the issue of their bodies until the youngest shall have reached the age of twenty-one (21) years, at which time the trust shall be terminated and the residue of the estate remaining in the hands of the trustee shall be distributed to such issue as may be then living.
“In the event that none of the above named beneficiaries be living at the time of my death and if either my daughter, Margaret Elizabeth Perotti, or my granddaughter, Nancy Ann Braile, shall have died without issue living at the time of my death and the other shall have left issue surviving at the time of my death, then in that event the entire net income from the trust estate hereby created shall be paid to the issue of either my said daughter or my said granddaughter, whichever leaves issue surviving at the time of my death, and at the death of such issue, to the issue of their bodies until the youngest shall have reached the age of twenty-one (21) years, at which time the trust shall be terminated and the residue of the estate remaining in the hands of my Trustee shall be distributed to such issue then living.
“6. If none of the above named beneficiaries survives me and if both my daughter, Margaret Elizabeth Perotti, and my granddaughter, Nancy Ann Braile, shall have died without issue of their bodies surviving, then in that event I hereby direct my Trustee to pay the residue of my trust estate hereby created to Community Hospital of Beloit, Kansas.
“7; If at any time during the administration of the trust, the income from the trust shall not be sufficient to make the payments provided for herein, my Trustee is hereby authorized, in its discretion, to make such payments from the corpus of the trust.
“8. I hereby direct that my Trustee herein named shall serve without bond.
Fifth Article
“If the trust hereby created shall not have been terminated for any of the reasons set forth in the Fourth Article of this, my Last Will and Testament, and if neither my daughter, Margaret Elizabeth Perotti, nor my granddaughter, Nancy Ann Braile, shall have at the time of their respective deaths issue surviving, then in that event this trust shall remain in full force and effect until the death of my daughter, Margaret Elizabeth Perotti, or the death of my granddaughter, Nancy Ann Braile, whichever death occurs at the later date, and from and after the date of the death of whichever occurs first, the entire income, subject to the payments provided in paragraphs 3 and 4 of the Fourth Article, shall be paid to the survivor until the date of the death of the survivor, provided, however, that should the payments provided in paragraphs 3 and 4 of the Fourth Article not have been completed, the trust shall continue in full force and effect until all payments due under paragraphs 3 and 4 of the Fourth Article have been paid in full, following which the residue shall be paid by my Trustee to Community Hospital of Beloit, Kansas.
“In the event my daughter, Margaret Elizabeth Perotti, at the time of her death, and my granddaughter, Nancy Ann Braile, at the time of. her death, shall have left issue of their bodies surviving, then in that event the entire net income, subject to the payments provided in paragraphs 3 and 4 of the Fourth Article hereof, from the trust estate hereby created shall be paid one-half (8) to the issue of my daughter, Margaret Elizabeth Perotti, share and share alike, and one-half (8) to the issue of my granddaughter, Nancy Ann Braile, share and share alike, and at the date of the death of such issue, to the issue of their bodies until the youngest shall have reached the age of twenty-one (21) years, at which time the trust shall be terminated and the residue of the estate remaining in the hands of the Trustee shall be distributed to such issue as may be then living.
“In the event that at the time of my death either my daughter, Margaret Elizabeth Perotti, or my granddaughter, Nancy Ann Braile, shall have died without issue or in the event that either my daughter, Margaret Elizabeth Perotti, or my granddaughter, Nancy Ann Braile, should, subsequent to my death, die without issue and the other shall have left issue surviving, then in that event the entire net income, subject to the payments provided in paragraphs 3 and 4 of the Fourth Article hereof, from the trust estate hereby created shall be paid to the issue of either my said daughter, Margaret Elizabeth Perotti, or my said granddaughter, Nancy Ann Braile, whichever leaves issue surviving, and at the death of such issue, to the issue of their bodies until the youngest shall have reached the age of twenty-one (21) years, at which time the trust shall be terminated and the residue remaining in the hands of my Trustee shall be distributed to such issue as may be then living.”
Named in the will as beneficiaries were the following persons or corporations who were then living or in existence:
1. Margaret Elizabeth Perotti, testator’s only daughter;
2. Linda Locke, an adopted daughter of Margaret Elizabeth Perotti and her previous husband, Orville Locke;
3. Nancy Ann Braile (now Howell, testator’s granddaughter, only child of testator’s deceased son;
4. Margaret Annan Freeman, testator’s daughter-in-law, the wife of testator’s deceased son; and
5. Community Hospital of Beloit, contingent beneficiary of the corpus of the testamentary trust.
All of the above named were living or in existence on the date the will was made and on the date of the testator’s death, but Margaret Annan Freeman had remarried and for that reason the bequest to her was ineffective and was by the terms of the will given instead to the testator’s granddaughter, Nancy Ann Braile. In addition, Margaret Elizabeth Perotti had adopted a daughter, Michelle, and three children, Daniel Joseph, Linda Ann and Pamela Rose, had been born to Nancy Ann Braile.
On February 24, 1961, Margaret Elizabeth Perotti and Nancy Ann Braile filed a petition in the probate court for construction of will. The petition for construction was transferred to the district court and as amended heard on its merits. The district court entered its judgment upon the amended petition on June 4, 1964. The district court held:
. . that the testamentary trust to be established under the Will of D. N. Freeman, deceased, be and the same is hereby declared null and void, that all provisions of the Will of D. N. Freeman, deceased, except those relating to the testamentary trust, be and are hereby deemed to be valid and shall be administered accordingly by the Probate Court of Mitchell County, Kansas, and that after having paid all debts, taxes and expenses of administration, as provided in the First Article of the Will of D. N. Freeman, deceased, and after having paid over to the named beneficiaries, the specific bequests, provided for in the Second and Third Articles of the Will of D. N. Freeman, deceased, the Executor, The First National Bank of Topeka, shall convey and set over all of the residuary estate to the testator’s heirs at law under the laws of intestate succession, all of the foregoing actions to be taken in accordance with and under the probate jurisdiction of the Probate Court of Mitchell County, Kansas, and in conformity with the judgment and decree of this Court, as hereinabove set forth.”
The effect of the court’s decree was to uphold the first three articles of the will and void the balance, leaving the greater part of the estate to pass intestate.
The executor has appealed.
The appellant frankly concedes that some of the alternative contingencies are too remote to avoid the application of the rule against perpetuities.
The common law rule against perpetuities has long been in force in Kansas. (In re Estate of Dees, 180 Kan. 772, 308 P. 2d 90.) The rule has reference to the time within which the title vests and it is not concerned with the postponement of enjoyment or possession. (In re Estate of Swingle, 178 Kan. 529, 289 P. 2d 778.) It prevents the creation of any future interest in property which does not vest within twenty-one years after some life or lives presently in being plus the period of gestation if gestation is in fact taking place. (In re Estate of Davis, 171 Kan. 605, 611, 237 P. 2d 396.) In re Estate of Woods, 181 Kan. 271, 311 P. 2d 359, states at page 280 of the opinion:
“The rule against perpetuities has been stated many times and in In re Estate of Davis, 171 Kan. 605, 237 P. 2d 396, it was again set out as meaning that no future interest in property can lawfully be created which does not necessarily vest within twenty-one years after some life or lives presently in being, excluding from such computation of years the incipient life of infants in ventre sa mere.
“Broadly stated, the rule against perpetuities is grounded traditionally on a farsighted public policy which frowns on the total exclusion of property from commerce for long periods of time and is supported by the practical needs of modem times (Lasnier v. Martin, 102 Kan. 551, 554, 171 Pac. 645); it governs both legal and equitable interests, and interests in both realty and personalty. (Gray, The Rule Against Perpetuities, 4th ed., § 202, p. 192.) In Bunting v. Speek, 41 Kan. 424, 21 Pac. 288, this court set out the rule that no remainder will be construed to be contingent which may, consistently with the words used and the intention expressed, be deemed vested. Courts are inclined toward a construction favorable to the early vesting of an estate so as not to defeat the intent of the testator but there must necessarily be a vesting within the limits of the rule against perpetuities. (Klingman v. Gilbert, 90 Kan. 545, 548, 549, 135 Pac. 682; Tretbar v. Aged Ministers Home, 180 Kan. 18, 21, 299 P. 2d 58.)”
In ruling upon whether a future interest violates the rule against perpetuities, speculation concerning the probabilities of various subsequent developments is not indulged in by the courts. It is a sufficient violation of the rule if an interest might possibly vest beyond the period permitted. The test for determining whether an interest violates the rule is simple: Can a hypothetical case be posed, based upon the facts as they existed at the date of the testator s death, in which the interest will vest later than lives in being and 21 years? If so, the interest in question is void.
The testator, in the terms set forth in Article Fifth of his will, has provided for three inconsistent alternative contingent gifts of the same corpus interest. Only one of these gifts can take effect. Each alternative gift depends upon the occurrence of the event upon which it is contingent for its effectiveness. Which gift of the three will ultimately take effect can only be known upon the occurrence of one of the three inconsistent events upon which that gift only is dependent.
The appellant in substance suggests that the gift of the corpus of the estate, and two other possible class gifts of income, are made contingent upon three separate events and given in the alternative by the Fifth Article in the following manner:
First. If Margaret and Nancy leave no issue surviving them at the date of their respective deaths, whichever occurs later, the entire corpus of the trust is given out-right to the Community Hospital of Beloit, Kansas.
Second. If Margaret and Nancy both leave issue (it is suggested that the context indicates that “issue” was used by the testator to mean children) surviving them at the time of their respective deaths, one-half of the net income from the trust is given to the surviving children of Margaret for life and one-half to the surviving children of Nancy for life. At the termination of these life income class gifts, a second class gift of income is given to the surviving grandchildren of Margaret and Nancy until the youngest shall reach twenty-one years of age. When the youngest grandchild reaches twenty-one, the corpus of the trust is then given outright to such grandchildren as may then be living.
Third. If Margaret or Nancy, but not both, leave issue (used to mean children) surviving her death, a life income gift is given to those children. Upon the termination of this life income class gift, a second class gift of income is given to the surviving grandchildren of either Margaret or Nancy until the youngest of such grandchildren reaches the age of twenty-one years. When the youngest of the grandchildren reaches the age of twenty-one, the corpus is' given outright to such grandchildren as may then be living.
In the case at bar the contingent income gift to the grandchildren of Margaret and Nancy and the ultimate contingent disposition of corpus to those same grandchildren under the second and third Alternative Contingent Gifts above, violate the rule. A hypothetical case based upon the facts at the date of the testator’s death can easily be posed whereby these interests vest later than the time period permitted by the rule against perpetuities.
The remorseless construction and the infectious invalidity rule was followed at one time by most courts recognizing the rule against perpetuities. If there was a possibility that any part of a devise might vest beyond the period permitted the entire devise was stricken down.
Later the intention of the testator was made the “pole star” in construing ambiguous language contained in a will, and5 by the same token, many courts sought to make the desire or wish of the testator the controlling factor in determining what parts of a devise would be permitted to remain where some of the provisions could not be harmonized with the rule against perpetuities. It will be understood that none of the courts found fault with the general purpose of the rule which was to prevent dispositions which tie up property for remote periods. It was the infectious invalidity rule that came under criticism. If some of the contingencies are too remote there would appear to be no reason why the valid contingencies should fall if it appears that standing alone they would have been desired by the testator.
An effort to escape the harsh application of the rule against perpetuities has fostered numerous named doctrines and many independent decisions which have caused considerable confusion. Our attention has been called to the “wait and see” doctrine, the “second look” doctrine, the “alternative contingency” doctrine, “striking modifying clauses” doctrine and the “partial invalidity excision” doctrine.
Under the “wait and see” doctrine the courts “wait and see” to determine whether the contingency happens within the period of the rule. A judicial decision is simply postponed until all possible valid contingencies and possibilities for vesting has occurred. (Simes and Smith, The Law of Future Interests, § 1230, p. 126.)
This court has not and does not now place its approval on the "“wait and see” doctrine. The creating instrument takes effect upon the death of the testator, the contingent future interest immediately •comes into existence and the validity of the interest should be determined as of that time.
The “second look” doctrine indicates a further tendency on the part of the courts to be as lenient as possible in the application of the rule which tends to defeat the testator’s intention and desire. This doctrine is applied in situations where the instrument creating the life estate gives the life tenant power or authority to appoint or select his successor in interest. Under the early law in order to determine the validity of the appointment or selection it must be read back into the original instrument creating the power—the computation of time was to begin with the date of the original instrument. The “second look” doctrine qualified the foregoing rule by permitting the words used by the donee of the power in appointing or selecting his successor to be construed as they are at the time the power is exercised. (Morris and Leach, The Rule Against Perpetuities, p. 143.) The brief summation is sufficient to refute appellees’ contention that the theory the appellant would apply is nothing more than the “second look” doctrine. There is no power of appointment extended, therefore the doctrine has no application to the facts before us. Any further discussion of this particular doctrine would be unwarranted.
The “alternative contingency” doctrine is explained in 41 Am. Jur., Perpetuities and Restraints on Alienation, § 59, p. 102, as follows:
"Sometimes a devise is made to take effect on either one of two alternative conditions, one of which may not occur within the period of time allowed by the rule against perpetuities, and the other being one which must occur within that period, so that the validity of the devise depends on the actual happening of one or the other of the two mutually exclusive conditions. In such a ease the contingencies are considered separable for purposes of the rule against perpetuities, and the invalidity of one will not affect the validity of the other. For purposes of the rule against perpetuities the alternative gift is treated as two gifts. So far as the gift over depends upon the single event which may or may not happen within the required time, it is void, and the actual happening of the event within that time cannot make it good; but, so far as it depends upon the alternative event, which must happen, if at all, within the limit of the rule, the gift over is good, and if that event actually does happen the estate will take effect without regard to the consideration that upon a different contingency, which might or might not happen within the lawful limit, die limitation would be void for remoteness.” (See, also, 70 C. J. S., Perpetuities, § 6 (2), p. 582.)
Under this doctrine the nature of the contingent interest and the time it will vest, if ever, is determined as of the effective date of the instrument creating the devise. It is this doctrine that appellant contends should be applied to the devise under consideration.
Perhaps the next two matters to be discussed should be designated as “rules of construction” rather than “doctrines.” However, their importance in the field of the law under consideration requires that they be treated with the same dignity as the first three doctrines discussed.
The “striking the modifying clause” doctrine means just what the language indicates. Where the language creating a gift contains a clause which taken by itself is sufficient to create an outright gift which is valid under the rule against perpetuities but a second clause appears which expresses a different intent and declares a life estate plus a remainder which is void under the rule, the qualifying clause will be stricken and the valid clause permitted to stand. (American Law of Property, Vol. 6, § 25.28, p. 233.)
The “partial invalidity excision” doctrine has been the one most commonly used by the courts not wedded to the “infectious invalidity” rule. In case the failure to vest title within the time limits of the rule against perpetuities causes the invalidity of part but not all of the limitations in a devise under a will, the invalid parts will be deleted and the valid limitations permitted to stand. (American Law of Property, Vol. 6, § 25.65, p. 321.) This doctrine, as all others, is subject to the general proposition that if the deletion of a part causes a distortion of the testamentary plan the entire devise must fall.
There would appear to be nothing in the three doctrines or rules of'construction, last discussed, which would in anyway conflict with the disposition this court has made of devises some part of which violated the rule against perpetuities.
This court has never adhered to the classical view of “remorseless” construction developed in England. Neither has it become a slave to the rule of “infectious invalidity.” On finding an instrument ambiguous this court has gone far in resolving the ambiguity in favor of the construction which will uphold the gifts. (Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 682.) It has also gone far in striking invalid provisions and leaving valid provisions stand where the procedure appears to be in harmony with the wishes of the donor. The appellees contend that if we strike a part of the will and leave the remainder stand we are rewriting the testator’s will. They also contend:
“The rule aganst perpetuities is an arbitrary one, applied for the purpose ■of preventing an owner of property from controlling its devolution beyond a certain period. It is not a rule of construction. In the application of the rule, every provision of the will or deed is to be construed as if the rule did not exist, and then, when the real intent of the testator in a will, or the grantor in a deed, is determined, the rule is remorselessly applied, and if the paper thus construed offends the rule, it will not be allowed to stand.”
We do not agree. As previously stated we do not approve of the remorseless rule of construction. Neither do we believe that the infectious invalidity rule should be remorselessly applied. Striking of void provisions does not place the court in the position of rewriting the testator’s will. The rule itself renders nugatory the invalid parts. We cannot assume that because the testator could not have all that he desired that he wanted no part. The deleting of invalid provisions and leaving the valid ones stand does no violance to the purpose of the rule against perpetuities, which is to keep property alienable within the reasonable limits fixed by the rule.
At this point an analysis of our past decisions may be helpful.
In Dreisbach v. Spring, 93 Kan. 240, 144 Pac. 195, the testator’s will provided that his property was to be held in trust for the use and benefit of his four named grandchildren, “or the survivors of them, during their natural lifetime, but only the net income from said real and personal property thus held in trust shall be paid to my said grandchildren or their survivors in equal shares, said income to accumulate in the hands of the trustee until each of said grandchildren becomes of age, when its respective share is to be paid to it, and thereafter to be paid annually, and at the death of the last survivor of my said four grandchildren all of the estate held in trust, both real and personal, shall be equally divided between the heirs of my said grandchildren being issue of their bodies, but should they all die without issue, then said estate is to go to the heirs at law of my brothers and sisters and their heirs and assigns; forever. . . .” The clause which provided that should the four grandchildren all die without issue the estate should go to the heirs at law of the testator’s brothers and sisters and their heirs and' assigns forever was held void in the district court as in violation of the rule against perpetuities. On appeal it was argued that the void provision destroyed the entire will. This court held:
“When one provision of a will falls for illegality the remainder is not thereby avoided when it appears that the illegal part has reference to a contingency so remote and improbable as to lead fairly to the conclusion that the testator did not deem it of controlling importance.” (Syl. 4.)
In Blake-Curtis v. Blake, 149 Kan. 512, 89 P. 2d 15, a provision-in the will directed the executor to control and manage testator’s-ranch until he could sell the same for $20 per acre or an aggregate-sum of $40,000, and then to divide the proceeds among certain-named children. The direction to hold the property was held to-violate the rule against perpetuities, however, it was held:
“Where one provision of a will is invalid because it violates the rule against perpetuities, and the testamentary scheme of the testators can be determined and carried out regardless of the void provision, that provision will be stricken, out and the testamentary plan given effect.” (Syl. 3.)
In Beverlin v. First National Bank, 151 Kan. 307, 98 P. 2d 200, it is stated in the syllabus:
“A testator devised and bequeathed to each of his two daughters real and' personal property to be held in trust until such time as each daughter should1 attain the age of forty years, at which time the property should be turned over to them; it was further provided that in the event of the death of either daughter without legitimate child or children of their body, the share of such daughter would go to the other living daughter, but in case of the death of' either daughter leaving a legitimate child of her body, the share of such-daughter should be held in trust until the period when such daughter would' have attained the age of forty years, provided such child or children had1 arrived at the age of twenty-five years, if not, to be held in trust until such, time as the age of twenty-five is reached. Held, the gift to the grandchildren-, of the testator upon attaining the age of twenty-five years violates the rule-against perpetuities and is void; that if either daughter should die under the-age of forty without legitimate child or children of her body, her share in the-estate would go to the living daughter; that should either or both daughters, attain the age of forty years the trust would terminate and the share of either or both daughters attaining such age would become indefeasibly vested.”
The Beverlin case followed paragraph 3 of the syllabus in the. Blake-Curtis case previously quoted.
In McEwen v. Enoch, 167 Kan. 119, 204 P. 2d 736, it was stated in the syllabus:
“1. In an action for a declaratory judgment to construe a written trust agreement, where the record discloses the purported trust was created for the benefit of settlor’s eleven- and fifteen-year-old grandchildren with the legal title to the corpus in a trustee, and the income to be used for the benefit of the two grandchildren until the younger of them reached the age of forty if she lived, or until such time as she would have reached the age of forty, at which time the trust was to terminate and the property pass absolutely to the grandchildren or their issue or heirs as provided in the trust agreement, it is held, that upon the creation of the purported trust, the two grandchildren by its terms took only a contingent interest with the possibility of its vesting being delayed longer than a life or lives in being and twenty-one years, which violated the rule against perpetuities, and the trust was void.
“2. In an action such as described in syllabus paragraph 1, where the trust, as such failed of existence, every effort will be made to carry out the ultimate intent of the settlor, and the gift to the two grandchildren beneficiaries will be accelerated so as to become an absolute gift to them as of the time the purported trust was created.” (Syl. 1 and 2. Emphasis supplied. )
Although what was done in the McEwen case was called “acceleration,” it amounted to nothing more than a deletion of the void provisions.
In re Estates of Dees, 180 Kan. 772, 308 P. 2d 90, has not been overlooked. However, the case discusses both the rule against perpetuities and the common law rule against restraints on alienation. The two rules were not distinguished and it is difficult to determine which rule carried the most weight. The fifth paragraph of the syllabus is in harmony with the cases heretofore discussed. It reads:
“Where one provision of a will is invalid because it violates the rule against perpetuities, and the testamentary scheme of the testator can be determined and carried out regardless of the void provision, that provision will be stricken out and the testamentary plan given effect.”
Our last consideration of the questions is to be found in In re Estate of Foster, 190 Kan. 498, 376 P. 2d 784, 98 A. L. R. 2d 795. The clause of the will under consideration was summarized by the court as follows:
“The testatrix Sarah G. Foster had created a trust which included practically her entire estate, which is of considerable worth, and provided that Miriam F. Ball would receive an income of fourteen-twentieths (14/20) of the income for life and six-twentieths (6/20) of the income to be reinvested in the trust property or new property and that the trust should not be distributed until the time the ‘youngest child of the body, and not by adoption, of my daughter, Miriam F. Ball, reaches the age of twenty-three (23) years, or at the death of my said daughter, Miriam F. Ball, whichever event occurs the later, in the following manner and in the following shares, to wit.’ The gift was to the children of the body of the daughter Miriam, and to any issue of predeceased children per stirpes.” (p. 499.)
It was stated on page 504 of the opinion:
“We are quite well aware that under paragraph Fifth L. 3 of the will, it is provided that distribution shall take place at the time ‘the youngest child . . . of my daughter, Miriam F Ball, reaches the age of twenty-three . . . or at the death of my said daughter, Miriam F. Ball, whichever event occurs the later. . . .
“But whatever else is true, it is also plain that the will can validly provide that distribution may be postponed until after the death of Miriam—a life in being. It comes quite readily to mind that the ideas of the testatrix can probably be carried out if the invalid provisions as to the age of twenty-three years—as it relates to the grandchildren—be stricken and the trust made to terminate at the time of the death of the daughter Miriam.”
Both parties have cited numerous cases in support of their various contentions. The cases are of very little aid to us. It may be safely said that at the present time cases may be found to support any theory that might possibly be presented in connection with the rule against perpetuities.
Appellees also suggest that the devise violates the common law rule against accumulations. We cannot agree. The income from the trust was to be accumulated in part only until the deaths of Margaret and Nancy who are lives in being. After their death the' entire net income from the trust was to be distributed. There could, be no further accumulation after the deaths of the lives in being,, therefore, the accumulation anticipated by the will did not violate' the common law rule against accumulations. The rule against accumulations is concerned only with the time of accumulation and. not with the dollar amount. Kansas must follow the common law rule since we have no statute. (In re Estate of Yetter, 183 Kan. 340, 328 P. 2d 738.) The leading American case on accumulations at. common law is generally said to be Gertman v. Burdick, 123 Fed. 2d. 924. In that case it was held that the period of limitations for accumulations is the same as the common law rule against perpetuities, i. e. lives in being plus 21 years. This court discussed the common law rule in In re Estate of Foster, supra.
It is obvious that the testator s dominant purposes were:
1) to provide life interests only for Margaret and Nancy and thus prevent their dissipating the corpus of the estate,
2) to vest the corpus of the estate in the Community Hospital of Beloit should Margaret and Nancy die without leaving issue,
3) to leave the issue (children) of Margaret and Nancy, if any, a life interest only,
4) to vest the title to the corpus in the grandchildren of Margaret and Nancy, if any, when the youngest reached the age of 21 years.
It is conceded that the testators purposes 3 and 4 violate the rule against perpetuities and are void. However, purposes 1 and 2 do not offend against the rule.
We conclude that the devise to Margaret’s and Nancy’s issue and then to the issue of the body of such issue when the youngest reaches the age of 21 is void and must be stricken.
The life interests devised to Margaret and Nancy are valid and will be permitted to stand. If they should die without leaving issue the property covered by the trust will pass in fee to the Community Hospital at Beloit. If they should die and either of them leave issue the trust must fail.
At this point we no doubt have followed the doctrine of “alternate contingencies.” However, if we follow that doctrine alone and permit the valid provisions to stand without striking the void ■contingencies the trust must fail at the death of either Margaret ■or Nancy whichever dies first leaving issue, because it is then known that the valid alternate contingency can never take effect. We see no reason why the testator’s valid wish, definitely expressed, should not be carried out, and Margaret and Nancy continue to receive the income under the provisions of the will until they are both ■deceased.
There remains to be determined what disposition should be made of the corpus of the estate when and if the trust fails. The question was considered by this court in Kirkpatrick v. Kirkpatrick, 112 Kan. 314, 211 Pac. 146, where a trust was in violation of the rule against perpetuities but the will contained a residuary clause. It was held:
“The void devise fell into the residuum, and was disposed of by the residuary clause, the rule of the common law, that a lapsed or void devise goes to the heir, having been abrogated by the statute of wills.” (Syl. 3.)
It was stated in the opinion:
“. . . There is no policy in this state to keep any class of property in a favored channel of inheritance as against a will, and when there is a will the presumption is against intestacy. The rule that a lapsed devise, in a will with a residuary clause, was not disposed of and went to the heir, contravened the intention of the testator, compelled him to die intestate with reference to a portion of his property when he had indicated a contrary desire, and is not in harmony with the policy underlying our, law. The result is, this court could not, if called on to do so, state a satisfactory reason for making a present-day distinction between the destination of a lapsed devise and of a lapsed legacy, in a will containing a residuary clause applicable to each.” (p. 329.)
We would suggest that if it clearly appears that passing, the property under the residuary clause will tend to distort the testator’s desire, then the property may pass the same as if there was no residuary clause.
The will which we are considering does not contain a residuary clause. In the absence of such clause we are forced to conclude that should the trust fail on the death of both Margaret and Nancy, because either leaves issue, the corpus of the trust passes to the heirs of the testator by intestate succession. (Lasnier v. Martin, 102 Kan. 551, 171 Pac. 645.)
The judgment is reversed and the case remanded for such further proceedings as are necessary and not inconsistent with this opinion.
approved by the court.
Fontron, J., not participating. | [
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Per Curiam:
This is an appeal from a judgment of the district court permitting the recovery of an alleged excess payment of income tax to ihe State of Kansas. The only issue before the trial court was whether appellee should apportion its income tax for the year 1960, under the provisions of G. S. 1949, 79-3218, as amended, or under the provisions of G. S. 1949, 79-3217.
Other than procedural matters which are not questioned the same issue of facts and legal questions were before this court in Webb Resources v. McCoy, 194 Kan. 758, 401 P. 2d 879, No. 44,062, recently decided. What was held in the second paragraph of the syllabus and stated in the corresponding part of the opinion controls the decision in the present case.
The judgment is therefore reversed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This appeal involves the question whether Della Cooper, widow of Milton I. Cooper who died intestate on March 21, 1963, waived her right to inherit any part of his estate by reason of a postnuptial property settlement agreement.
Della and Milton were married at Hoxie, Kansas, on December 17, 1953. Each had previously been married and divorced, and each had one son by the previous marriage. Erwin D. Cooper is Milton’s only child and resides at Mattoon, Illinois; Dave Potter is Della’s only child and resides at Friend, Nebraska; both are adults. No children were born to Milton and Della.
Following Milton’s death, a petition for administration of his estate was signed by the appellant, Della Cooper, and the appellee, Erwin D. Cooper, and sworn to by both parties, alleging that they were “the sole and only heirs at law of the decedent, and as such have an interest in said estate.” Later, Della filed a petition in the probate court asking that a widow’s allowance of $750.00 and an automobile be set aside to her. Erwin filed a petition in the probate court setting out the postnuptial agreement hereafter referred to, and asked that all the assets of the estate be assigned to him. He also filed an answer to Della’s petition for a widow’s allowance and asked that her petition be denied. Both petitions were transferred to the district court (K. S. A. 59-2402b) where additional pleadings were filed and the parties entered into a stipulation of fact. Following a trial to the court, judgment was entered that the postnuptial agreement was a valid agreement and that Della was barred from inheriting any property of the decedent’s estate by reason thereof.
The material facts are summarized: Mr. Alex Fromme, an attorney at Hoxie, Kansas, was the scrivener of the postnuptial agreement in question. Mr. Fromme had known both the decedent and Della for at least twenty years. The decedent was previously married to Nelle L. Cooper, which marriage ended in divorce on February 24, 1947, and Della was divorced from her previous husband, Clarence D. Potter, on May 20, 1946. As previously indicated, the decedent and Della were married December 17, 1953. The evidence showed that the relationship between the decedent and Della during the early part of their marriage was “pretty stormy.” Both parties had serious drinking problems which caused bad quarrels and then separations would occur. The parties were separated three or four times a year between 1953 and 1958. They lived in a house in Hoxie which belonged to Della, but the decedent kept a bed, refrigerator, cook stove and other furniture in a small house on his farm northeast of Hoxie where, during their separations, he would sometimes go, and at other times he would go to a rooming house in Hoxie.
During one of the separations in the latter part of May or the first part of June, 1956, the decedent went to Mr. Fromme’s office and stated that he was interested in having some type of separation agreement prepared. Fromme prepared such an agreement and the decedent took a copy to Della and her attorney for their study. Fromme identified plaintiff’s Exhibit A, the pertinent portions of which are hereafter quoted and summarized, as the agreement he prepared for the decedent. On June 7, 1956, the decedent, together with Della, returned to Fromme’s office with the agreement unsigned and the paragraph containing the language, “It is further agreed that in case of divorce each party is to pay his or her own attorney fee,” was stricken out. At the direction of both parties, Fromme prepared an additional page, hereafter quoted, which was identified by him as defendant’s Exhibit 1. Both documents, Exhibit A and Exhibit 1, were then executed by the decedent and Della. One set of the documents was given to Della and the decedent directed that his set be retained by Fromme in his office.
Plaintiff’s Exhibit A is quoted and summarized:
“This agreement entered into this 7th day of June, 1956, by and between Milton I. Cooper and Della Cooper of Hoxie, Sheridan County, Kansas, husband and wife, witnesseth:
“The parties hereto fully realizing that they are incompatible and cannot live together as husband and wife and have any peace of mind, and that such incompatibility, the state of their minds and conditions of their health make it inevitable that a separation must necessarily take place between them, they hereby agree to separate and further agree as to their property rights, real and personal owned jointly or severally, by them or either of them, as follows . .
The agreement allotted to Della her home in Hoxie, household goods, furniture and fixtures; her business located in the city of Hoxie known as Della’s Cafe including inventory, furniture, fixtures and supplies; a 1955 Chevrolet automobile; the bank account kept in her name, and the TV tower and air conditioner located in her home in Hoxie.
Milton was allotted his 320-acre farm; all farm machinery and implements; a 1953 Ford automobile; all crops growing on his land and upon real estate which he rented; the bank account standing in his name; all feed, grain and seed on hand; such personal items as clothing, fishing equipment and so forth, and the household goods and furnishings located in the farm home. The agreement then provided:
“Each party hereto agrees never to set up any claim to any of the property hereto allotted to the other or any after acquired property either in life or by way of inheritance.
“Each agrees that the other may hold, use, incumber, alienate, grant, bargain and sell as his or her separate property, to the same extent as though the parties hereto were never married to each other and that, upon any gift, conveyance, or incumbrance of any property by either, the other will join in a proper instrument of writing necessary to the release of all claims therein, and in default of signing such writing this agreement shall operate as written consent thereto and as a waiver of any and all rights therein or thereto.
“In consideration of the covenants herein contained it is agreed that each party shall be solely responsible for any indebtedness upon the respective property allotted to each.
“The said Della Cooper, wife of said Milton I. Cooper, in consideration of the foregoing provisions releases her husband from all obligation to support her, and, in case of divorce, from all obligation to pay her alimony.
“This agreement is tended as a fair, full and complete settlement of all rights in property now owned by the parties hereto or either of them.”
Defendant’s Exhibit 1 reads as follows:
“Agreement as to Attorney’s Fees and Costs
“It is understood and agreed by and between Milton I. Cooper and Della Cooper, husband and wife, of Hoxie, Kansas, that as soon as the separate agreement dated this same date which covers division of property and rights of the parties on separation is signed and executed that a divorce action shall be filed and prosecuted by Milton I. Cooper to obtain the divorce and obtain approval by the court of the property agreement made in the separation agreement made this date, and that said action shall be prosecuted without contest by default; and that the total expense of the costs and attorney fees shall be paid by the said Milton I. Cooper.”
After the postnuptial agreement was signed, the decedent and Della solved their drinking problems and resumed living together. The record discloses they enjoyed a normal, happy married life together. On two occasions Fromme asked the decedent what to do with the agreement and the decedent directed him to keep it in his office. Fromme testified that he put the agreement in “his inactive files” where it remained until this controversy arose.
With respect to the execution of plaintiff’s Exhibit A and. defendant’s Exhibit 1, Fromme testified:
“Q. Were they a part of the same agreement?
“A. The two of them together make the whole agreement, signed at the same time and referring to the same subject matter.”
Fromme further testified that after the agreement was executed, Milton did not come back and ask him to file a divorce proceeding or to file a separate maintenance proceeding against Della; that the Coopers were legal residents of Sheridan County and that he knew Milton had never filed any action for divorce or separate maintenance or sought approval of the property settlement; that defendant’s Exhibit 1 provided that a divorce action should be filed and prosecuted and that subject was discussed before the agreement was prepared and executed, and that it was agreed a separation between the parties was inevitable and that the parties were separated at that time.
In rendering judgment sustaining the validity of the postnuptial agreement, the district court filed a memorandum opinion stating that at the time the agreement was executed, the parties were living separately and both were represented by competent counsel, and that:
“As a part of this agreement provision was made on a separate piece of paper regarding the attorney fees and costs of a divorce action. This separate agreement would be void, or if it is not a separate agreement, but part of the total agreement, this portion of the contract would be void, but has no effect on the balance of the contract.
“This Court finds that the contract entered into between these parties on the 7th of June, 1956, is valid and legal and binding, that the resumption of living together as man and wife would not void this contract. The agreement as to the institution of action for divorce and payment of attorney fees does not void the contract.”
The appellant principally contends the postnuptial agreement was void as against public policy because it required that a divorce action “shall be filed and prosecuted . . . without contest by default,” and if not invalid, it was ineffective and not binding on the parties until presented to the district court for approval and approved.
Are plaintiff’s Exhibit A and defendant’s Exhibit 1 separate agreements, to be considered and construed as separate documents, or are they to be read and construed together as one instrument? It is well settled in this jurisdiction that where two or more instruments are executed by the same parties contemporaneously or even at different times in the course of the same transaction, and concern the same subject matter, they will be read and construed together so far as determining respective rights and interests of the parties, although they do not in terms refer to each other. (MacLorinan v. Finley, 124 Kan. 637, 640, 261 Pac. 587; Skinner v. Skinner, 126 Kan. 601, 270 Pac. 594; Steele v. Nelson, 139 Kan. 559, 32 P. 2d 253; Setchell v. Reed, 153 Kan. 818, 820, 113. P. 2d 1050; Shepard, Executrix v. John Hancock Mutual Life Ins. Co., 189 Kan. 125, 134, 368 P. 2d 19; 17A C. J. S. Contracts, § 298, p. 714.) It is evident under the foregoing rule that plaintiff’s Exhibit A and defendant’s Exhibit 1 must be read and construed together; they were not only executed at the same time and by the same parties, but concern the same subject matter, that is, the division of the property of the parties and a severance of their marital relationship. Moreover, Exhibit 1 specifically refers to that part of the agreement with respect to the division of property and the rights of the parties therein when the marriage relationship was terminated by divorce.
We think the district court erred in its conclusion that defendant’s Exhibit 1 was a separate agreement, or if it was not a separate agreement but a part of the total agreement, it had no effect on the balance of the contract. The postnuptial contract under consideration is indivisible; it is wholly good or wholly bad.
This court has had occasion to pass upon contracts between spouses entered into prior to or after marriage vows. Generally speaking, a contract incident to divorce is to be distinguished, as to its validity, from one promotive of divorce. Contracts between spouses made in good faith, free from fraud, which are just and equitable in their provisions, are not invalid merely because made in contemplation of divorce, or pending divorce proceedings, where not directly conducive to divorce, especially where subsequently approved by the court in its decree granting a divorce. (Nelson, Divorce and Annulment, Vol. 1, § 13.23, p. 505.) In the case of In re Estate of Cantrell, 154 Kan. 546, 119 P. 2d 483, it was said:
“The general rule in this state is that contracts, made either before or after marriage, the purpose of which is to fix property rights between a husband and wife, are to be liberally interpreted to carry out the intentions of the makers, and to uphold such contracts where they are fairly and understanding^ made, are just and equitable in their provisions and are not obtained by fraud or overreaching. (See Dunsworth v. Dunsworth, 148 Kan. 347, 352, 81 P. 2d 9, and cases cited.) Generally speaking, such contracts are not against public policy, although a different rule obtains where the terms of the contract encourage a separation of the parties. . . .” (1. c. 551, 552.)
It is well settled and beyond controversy that a contract between spouses which facilitates or promotes their divorce is invalid and is unenforceable as contrary to public policy. (Nelson, op. cit., supra, § 13.22, p. 504.) This court is numbered among the authorities which are committed to this general rule. (Neddo v. Neddo, 56 Kan. 507, 44 Pac. 1; King v. Mollohan, 61 Kan. 683, 688, 60 Pac. 731; Fincham v. Fincham, 160 Kan. 683, 165 P. 2d 209.) See, also, 17 Am. Jur., Divorce and Separation, §§ 13, 14 and 15, and Restatement of the Law, Contracts, § 584, Comment 2.
The difficulty which arises in connection with the application of the foregoing rule is when such an agreement can be said to invite, facilitate, or encourage divorce. It is generally held that an agreement between husband and wife, under which there is an obligation to sue for or procure a divorce, is void as contrary to public policy. (Nelson, op. cit., supra, § 13.24, pp. 505, 506.) Likewise, it is generally held that contracts between spouses which obligates one spouse to not defend or contest a divorce suit by the other spouse as a part of a support or property agreement, is invalid as contrary to public policy. (Nelson, op. cit., supra, § 13.26, p. 507; Rapp v. Cansdale, 214 N. Y. S. 2d 522; Gardine v. Cottey, 360 Mo. 681, 230 S. W. 2d 731; Perry v. Perry, 183 Tenn. 362, 192 S. W. 2d 830.)
The appellee cites and relies upon King v. Mollohan, supra, and Kistler v. Heartburg, 81 Kan. 191, 105 Pac. 1117, to sustain the post-nuptial agreement, and asserts it is immaterial whether the agreement is considered as two documents or as one. The opinion in Kistler conceded that if a postnuptial agreement provided that one spouse would not contest a divorce action if a divorce suit followed the agreement, it was void. And in the King case, the court found that public policy forbids an agreement to obtain a default divorce. However, in the King case, it was concluded that the husband who had received the benefits of a contract fully executed and carried out, would hardly be in a position to attack it and that those claiming under him occupied no better position. The Kistler case followed the reasoning in the King case.
The agreement before us specifically provided that when it was signed and executed, Milton would file and prosecute an action for divorce and obtain approval by the court of the property agreement therein, and, further, that the action would be prosecuted without contest by Della and that a decree of divorce would be entered by default. It is doubtful if a postnuptial agreement could be more specifically drawn to invite, facilitate or encourage divorce than the one before us, which imposed an obligation to sue and procure a divorce, and, further, to obtain the decree by a bargain that there would be no contest or defense on the part of the other spouse. Such an agreement is void on the ground that it is collusive and against public policy. What the parties attempted to do was to provide by two agreements wbat they could not do in one agreement, and since they were executed contemporaneously and concern the same subject matter and since Exhibit 1 specifically refers to Exhibit A, we are compelled to hold that one contract resulted, which is indivisible, and under the foregoing rules, is unenforceable as contrary to public policy. The district court erred in its conclusion that the contract entered into between the parties was valid and legal and binding and that Della was barred from inheriting any property of the decedent’s estate by reason thereof.
The judgment is reversed. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, brought by William R. Hazen in the district court of Shawnee county, on May 26,1882, against Harvey M. Rounsa-ville, to recover lots 385 and 387 on Taylor street, in the city of Topeka. The case was tried before the court and a jury, and the jury found a general verdict in favor of the plaintiff and against the defendant, and judgdment was rendered accordingly. The defendant brings the case to this court for review. It is admitted that both parties claim title to the property under Jay Ward, and it is incontestably proved that both parties hold title under George M. Noble, the grantee of Ward and wife and the grantor of Rounsaville. The principal facts of the case appear to be substantially as follows: On January 14, 1873, Ward owned the property in controversy, and on that day he and his wife conveyed it to George M. Noble by a quitclaim deed duly executed and acknowledged before John A. Gray, notary public. This deed was recorded January 16, 1873. The defendant attempted to show that this deed was a forgery, but utterly failed in the attempt. On February 1, 1875, Janet Butler recovered a judgment in the district court of Shawnee county against Samuel F. Craig and wife and George M. Noble. All the property of Craig and wife, subject to judicial process, was sold on such judgment, but not for enough to satisfy the judgment, and there still remained due on the judgment a sum of money ranging somewhere from $300 to $400. On October 22, 1878, Noble procured F. G. Hentig to enter a release of the judgment as against Noble on the appearance docket of the district court of Shawnee county, which release reads as follows: “ October 22, 1878. — This judgment, rendered against George M. Noble as indorser, is hereby released as to him, this 22d day of October, 1878.— F. G. HbNTIG-, Attorney of record.” On October 25, 1878, Noble, with his wife, conveyed the property in controversy, by warranty deed, to Harvey M. Rounsaville, the defendant in this action, and the deed was recorded on December 30, 1878. About January 21,1880, Noble commenced an action in the district court of Shawnee county against Mrs. Butler and others, to enjoin the collection, as against him, of the remaining portion of said judgment, upon the ground that the judgment had been obtained against him through fraud and mistake, and had been subsequently released. This case was finally decided against Noble, and in favor of Mrs. Butler, at the January term of the supreme court in 1881. (Noble v. Butler, 25 Kas. 645.) On November 15, 1881, Mrs. Butler assigned and transferred the judgment to William R. Hazen. Executions had been issued on this judgment from time to time, so that the judgment never became dormant. On March 25, 1882, a final execution was issued on the judgment, and was immediately levied upon the aforesaid lots, and on April 29, 1882, the lots were sold under such execution to William R. Hazen, for $1,334. On May 22, 1882, the sale was confirmed, and on the next day the sheriff executed a deed for the property to William R. Hazen; and on May 26, 1882, Hazen commenced this action against Rounsaville for the recovery of the property. After paying the foregoing judgment, with all the interest and costs thereon, out of the proceeds of said sale, a balance of $369.40 still remained in the hands of the sheriff, and a dispute arose as to who was entitled to this surplus fund — Noble, or Rounsaville. It was finally decided, however, in the supreme court, that Rounsaville, as the grantee of Noble, was entitled to the fund. (Butler v. Craig, 29 Kas. 205.)
The plaintiff in error, defendant below, claims that the court below erred: First, “in declaring as a matter of law that the release executed by Hentig was void;” second, in holding that the notice of the sheriff’s sale was valid, the notice having been published in a weekly newspaper for more than thirty days, but not in every issue of the newspaper up to the day of sale. (McCurdy v. Baker, 11 Kas. 111; Whitaker v. Beach, 12 id. 492.)
We shall consider these alleged errors in their order.
I. The plaintiff in error, defendant below, claims that the court below erred in declaring as a matter of law that the said release was void, for various reasons, among which are that, presumptively, the lease is valid. Presumptively, Hentig had authority as an attorney-at-law to enter the release; the evidence of Noble and even of Hentig tended to prove that Hen-tig had authority to enter such release; the record of the ease in which the judgment was rendered tended to show that Hentig had such authority; Rounsaville was an innocent and bona fide purchaser of the property; and as Mrs. Butler and Hazen permitted him to occupy the property and to make improvements thereon from October 25, 1878, the time when Noble and wife conveyed the property to Rounsaville, up to May 26, 1882, the time when Hazen commenced this action against Rounsaville, Hazen is estopped from claiming that the said release is void. We are inclined to think, however, that the decision of the court below with reference to the validity, or rather invalidity, of the release is correct. The release, as entered upon the appearance docket, had no more force than though it had been entered upon a separate piece of paper and handed to Noble or Rounsaville; for there is no statute authorizing a release, or even a satisfaction of payment, of a judgment to be entered upon the appearance docket. And the release in the present case does not purport to show a satisfaction or payment of the judgment, or any payment on the part of Noble, and in fact Noble had never paid anything; but the release merely purports to show a naked, voluntary release; and it does not even show that Hentig was the attorney or agent of Mrs. Butler; and he was not in fact her attorney or agent at the time of entering the release. The evidence is conclusive upon that point. At one time it seems he was her attorney, but that relation had ceased to exist long before this release was entered. It does not appear that he was Mrs. Butler’s attorney of record when the judgment was rendered in her favor and against Craig and wife and Noble; and it does not appear that at that time he was even an attorney of record at all. John A. Gray was her attorney of record at that time. It hardly appears that Hentig was ever Mrs. Butler’s attorney of record; but even if it does, he was not her attorney in any respect when the release was entered. Besides, an attorney-at-law has no power, except by special authority from his client, to release his client’s judgment, where the judgment has not been paid or satisfied. (Marbourg v. Smith, 11 Kas. 554, 561, 562; Herriman v. Shomon, 24 id. 387, 388, and cases there cited; Jones v. Inness, 32 id. 177; Beers v. Hendrickson, 45 N. Y. 665; Lewis v. Woodruff, 15 How. Pr. 539; Wilson v. Wadleigh, 36 Me. 496; Varnum v. Bellamy, 4 McLean, [U. S. C. C.] 87; Kellog v. Gilbert, 10 Johns. 220; Simonton v. Barrett, 21 Wend. 362; Boyne v. Hyde, 6 Barb. 392.) And there is no pretense in this case that the judgment had been paid or satisfied when this release was entered; and there is not the slightest evidence in all the record tending to show that Mrs. Butler ever gave any person authority to release the judgment as to Noble or as to anyone else; but all the evidence, so far as it goes and so far as it is applicable, tends to show directly the reverse. It is true that Noble testified that it was the understanding between the parties before the judgment was rendered, that no judgment should be rendered against him; but he does not even intimate that Mrs. Butler at any time afterward ever consented to a release of the judgment. Noble in fact testified that he had no knowledge that any judgment was ever rendered against him until the very day or the day before he procured Hentig to enter said release on the appearance docket. It is also true that Noble testified that he had been Mrs. Butler’s agent “all the way down” from the time when the money was first loaned, which created the claim upon which said judgment was rendered, until after the release was entered; but he did not state the full nature or character of his agency, or that it included the power to release judgments rendered in favor of Mrs. Butler and against himself, or against anyone else, and it certainly cannot be presumed from the nature of the transactions between them that any such power or agency did in fact exist.
It is also in evidence that Rounsaville had full knowledge of said judgment before the release was entered, and before he purchased the property from Noble; and that while he and Noble were negotiating with reference to the purchase and sale of the property they procured an abstract of the title to the property, which showed that the judgment was in fact a lien upon the property; and the evidence is undisputed that Hen-tig himself, during that very time, told Rounsaville that the judgment was a lien upon the property, and that, while he was willing to release the judgment, as Noble desired him to do, yet that he did not consider that anything he, Hentig, might do with reference to the matter, would be worth anything. This conversation between Hentig and Rounsaville occurred-while the negotiations were pending between Noble and Roun-saville with reference to the purchase and sale of the property, and on the same day or the day before, Hentig in fact entered the release; but it does not appear that it occurred in the presence of Noble. Mrs. Butler resided in Topeka at that time, but it does not appear that Rounsaville or Noble, or anyone for them, consulted her with reference to the matter. Rounsaville purchased the property with a full knowledge of all the facts, and he cannot in any sense be considered as an innocent purchaser, and neither is Hazen estopped by any of the facts disclosed, from maintaining this action. The evidence further shows that Hazen and Rounsaville, at different times, had the question of a compromise with reference to their conflicting claims to the property, under consideration, but that they could never agree upon the terms of the compromise. As before stated, we think the decision of the court below upon this question is correct.
II. The plaintiff in error, defendant below, also claims that the court below erred in holding that the notice of the sheriff’s sale was valid: It appears from the evidence that this notice was published in a weekly newspaper, on March 30th, April 20th, and April 27 th, of the year 1882, for the sale which was to take place, and did take place, on April 29th of that year, and that the notice was not published in such newspaper on April 6th, or April 13th, but for some unexplained reason was omitted from the issues of the paper on those days and of those dates. Does this omission render the notice void? We think it renders the notice voidable, and for that reason the sale might have been vacated or set aside upon proper motion before its confirmation. (McCurdy v. Baker, 11 Kas. 111; Whitaker v. Beach, 12 id. 492.) But we do not think that the omission renders the sale void, or that it may be treated as void in any collateral proceeding, or upon any collateral attack like the present. (Freeman on Executions, §§286, 339; Freeman on Void Judicial Sales, §28; Herman on Executions, §§ 251, 292, 301; Paine v. Spratley, 5 Kas. 525; Moore v. Pye, 10 id. 252; Pritchard v. Madren, 31 id. 38, 50, et seq., and cases there cited; Cross v. Knox, 32 id. 725.)
Perceiving no error in the rulings or judgment of the court below, the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
John P. Johnson brought this action in the district court of Doniphan county, to recover upon two promissory notes executed by George W. Moore, one for $745.92, and the other for $117.45, both bearing date July 14, 1882, and also to foreclose a mortgage upon a certain tract of land alleged to have been executed by George W. Moore and his wife, Adaline Moore, to secure the payment of the said notes. The plaintiff in his petition alleges that Moore and his wife had for many years been indebted on the mortgaged premises, first, by a mortgage executed by them to Mrs. Patton and Mrs. Plank, dated January 14, 1873, to secure the sum of $725; that on December 1, 1877, the defendants, for the purpose of paying off this last-mentioned mortgage, obtained money from Pryor Plank, and executed to him a mortgage upon the same tract of land; that by the error and mutual mistake of the con-veyancer and of the parties to the mortgage to Pryor Plank, the description of the land therein conveyed was erroneously described as the east half of the northwest quarter of section No. 6, town 2, range 20, instead of the east half of the Southwest quarter of said section, town and range, which they intended to convey and describe in said mortgage, and which they supposed they had described and conveyed; that the mortgage of December 1, 1877, was to secure the payment of the sum of $725, the balance remaining due at that date on the former mortgage, and was evidenced by three promissory notes they had executed to Pryor Plank, and bearing interest at the rate of ten per cent, per annum from the date thereof; that from time to time until the 14th day of July, 1882, the defendant Moore paid small sums of money on said notes, and on that day there remained yet due and unpaid thereon the sum of $863.37; that to pay off and settle these notes of Pryor Plank, the notes sued on in this action were executed by the defendant Gr. ~W. Moore to the plaintiff Johnson, who took up and surrendered to Moore the three notes executed by him to-Plank, December 1, 1877, and which were an existing lien upon said Moore’s homestead, by virtue of the mortgage at the same time executed and delivered by him and wife to said Plank, and that it was understood and agreed between the parties that the plaintiff Johnson should have and acquire a. lien upon said homestead by advancing the said sum of $863.37, to pay off and satisfy said Plank notes and mortgage, which amount was due at that time.
The petition further states that the defendant’s wife, Mrs. Ad aline Moore, claims that after the execution of said mort gage by her to the plaintiff, there were such alterations made in said instrument as to render the same inoperative as to her, which claim the plaintiff denies, and he avers that if there were any such changes or alterations made in the mortgage as to render it inoperative, he is entitled to be subrogated to all the rights of said prior mortgages, and to have the lands sold to pay off the amounts due on such prior notes and mortgages as represented by the new notes given to Johnson, and prays that the mortgage of December 1,1877, given to Pryor Planlc, be reformed so as to correct the error in the description of the land; that his mortgage of July 14,1882, be foreclosed and the land declared subject to the same, and sold to pay off and satisfy said claim and interest; but if for any reason the last-named mortgage should be held and declared invalid and void, he asks to be subrogated to the rights of Pryor Plank, as mortgagee in the mortgage of December 1, 1877.
Defendants answer separately. Adaline Moore pleads non est factum. She further states that she and her husband, George W. Moore, together with their family, have for many years prior to July 14,1882, occupied and still are occupying the mortgaged premises as their homestead, and that if the plaintiff in fact holds any such mortgage as he describes in his petition, that the same was never authorized or executed by her; that after she had signed and acknowledged a mortgage of that date for another and different, and for a less consideration, and after it had been delivered to Johnson, that the same was altered and changed by the insertion of an increased consideration, and as security for the said described note of $117.45, without her knowledge, consent, or authority, and that she has never since consented thereto, and now repudiates and denies the execution of, and refuses her consent to, said described mortgage so altered and changed, and asks that the mortgage be adjudged null and void and held for naught.
■ The defendant, George W. Moore, denies the execution of the mortgage described in the petition, and alleges that the tract of land sought to be foreclosed is the homestead of himself and family, and states that the mortgage which plain tiff is seeking to foreclose has been altered and changed by the plaintiff after its execution and delivery to him, by increasing the consideration and by describing therein the additional note of $117.45, without his knowledge, authority, or consent. He admits that he signed each of the notes sued on in this action, but alleges that he is entitled to certain credits thereon. He states that the three notes of Pryor Plank, for which the new notes were given, were transferred after maturity to John P. Johnson, who claimed to this defendant that he was the innocent purchaser, and as such entitled to have and claim the sum then appearing to be due upon the face of the notes without any regard to set-offs or credits which the defendant might be entitled to on that account, in the hands of Pryor Plank, and then represented to the defendant that the amount due up to July 1,1882, was $745.92, and that unless paid, suit would be brought; and on account of having no knowledge of plaintiff’s l'ights, and relying upon his representations, George W. Moore says he consented to execute his note to the plaintiff for said amount on one year’s time and secure the same by a mortgage upon their homestead, which mortgage was duly executed, acknowledged, and with the note delivered to the plaintiff, and the plaintiff surrendered to this defendant the old notes as full satisfaction, and then, in part consideration therefor, promised and agreed with the defendant that any credit which Pryor Plank would admit or defendant should establish against him should be credited on such new note; that afterward the plaintiff contended that the old notes in fact amounted to $117.45 more than was included in the first note; that there was an error to that extent, and that the same must be secured, and that the note should be given him for this additional sum, and that the sum should be secured by mortgage or forthwith suit would be begun; and this defendant, George W. Moore, to avoid the trouble that defendant threatened, aud without consideration therefor, signed the note for $117.45, and thereupon, without th.e knowledge of defendant’s wife, and without any further act on the part of. George W. Moore, the plaintiff changed the mortgage so theretofore executed and delivered as agreed, for said note of $745.92, and incorporated the second note for $117.45 into the mortgage as thereby constituting the consideration thereof; that thereafter he recovered a judgment against Pryor Plank for $114.70, which, with other payments theretofore made upon said old notes, he asks to have credited upon the new notes.
The questions thus raised were tried by the court and jury. Special findings of fact were made by the jury, and a general verdict returned, assessing the amount of the plaintiff’s recovery against the defendant George W. Moore at the sum of $728.48, and further finding in favor of the defendants George W. Moore and Adaline Moore, as to the execution of the mortgage dated July 14, 1882, finding that they did not execute the mortgage substantially as sued upon. The plaintiff moved for a jugment decreeing a foreclosure on the special findings and general verdict, which was overruled, and this ruling is complained of.
From the special findings, it appears that the notes sued on were executed by George "W". Moore; that the amount of principal and interest of said notes at the time of the trial was $728.48, and that the plaintiff, Johnson, agreed with George W. Moore, at the time the notes sued on were given, that he would give Moore credit thereon for any amount that he would establish by judgment against Pryor Plank, as a proper credit upon the old notes, and that George W. Moore afterward obtained a judgment against Pryor Plank for $120.95; that the notes sued upon were executed by the defendant Moore to the plaintiff, to discharge a prior mortgage lien on the lands in dispute, and that the amount of such lien at the time the mortgage sued on was executed, July 14,1882, was $624.42; that the mortgage sued on was altered in a material part after it was executed, acknowledged and delivered to the plaintiff; that the mortgage was materially changed by adding the note of $117.45, and that it was clone-by the procurement of the plaintiff after' leaving defendant Adaline Moore, and.without her authority; that Adaline Moore has never executed, authorized or consented to the mortgage as now existing.
The questions presented by the record then are: First, Does the alteration found to have been made, vitiate the mortgage and render it void as a security for both of the notes described therein ? Second, If the mortgage given to the plaintiff is held to be void, did he acquire a lien upon the homestead to the extent of the money advanced by him to pay off the prior mortgage debt upon the same property, and is he entitled to be subrogated to the rights of the prior mortgages and to a decree of foreclosure?
I. The first question, we think, must be answered in the affirmative. In this case we are not left to presumptions in regard to whether the alteration in the mortgage was made before or after the execution and delivery of the instrument, nor whether the change therein was made with the consent of the mortgagors. These questions have been determined by the jury, who find, as has been stated, that the mortgage was changed by increasing the stated consideration thereof from the sum of $745.92, to the sum of $863.37, and by including therein an additional note for $117.45; and this was done without the knowledge or consent of Adaline Moore. The alteration was not the act of a stranger, but was voluntarily made by Johnson while the instrument was in his custody, and after its execution, acknowledgment and delivery. The change was made to benefit himself, and was against the interest of the mortgagors. Mr. Jones, in his treatise on the Law of Mortgages, states the rule to be that—
“A material alteration of the mortgage made without the consent of the mortgagor, by the holder of it, or by anyone after delivery and while in the possession or custody of the rightful owner of it, has the effect of destroying and annulling the instrument as between the parties to it.” (1 Jones on Mortgages, § 94.)
In Marcy v. Dunlap, 5 Lans. 365, Mr. Justice Johnson in .stating the same principle says:
“I am clearly of the opinion that this material alteration of the description in the mortgage after its execution and delivery, without the defendant’s consent, works a complete destruction of the mortgage as against her. That the alteration was material, cannot be doubted; but it is equally clear that it was made in the interest and for the benefit of the plaintiff, and without the defendant’s knowledge or consent. This destroys the mortgage as against the defendant, according to all the cases, so far that no action can be maintained upon it by the plaintiffs.”
Plaintiff’s counsel contend that the mortgage should be upheld as to the note of $745.92, which was included in the mortgage at the time of its execution and before its alteration by the plaintiff, and they cite as authority in support of this claim, Collins v. Collins, 51 Miss. 351. That case, we think, is not analogous to the present one. There, the mortgage was originally made to secure a loan of $1,800. Subsequently the mortgagor obtained an additional loan of $300, and the mortgage was altered and interlined by adding on the face thereof the words, “the further sum of $300.” This was done with the consent of all the parties to the instrument, and all appeared before the clerk of the court immediately after the alteration and interlineation, and acknowledged that the same was done at the personal request of the parties whose names appear thereto, and had the record of said trust deed altered and interlined so as to show the same. The court in upholding the deed of trust as the security for the original loan of $1,800, stated that as the security for $1,800 was perfect in all its parts, and there was no wish or agreement on the part 'of anyone to change it in that respect, and that the alteration or rather an addition was attempted but not completed, that in all respects the contract remained the same as when first executed, except the attempt to secure the further and later loan. There was no attempt to mix the two funds into one by changing the $1,800 so that it should read $2,100, but simply to embrace within the trust deed the additional loan of $300, and whatever was done, was upon the personal request of all the parties to the transaction.
In this case, however, the mortgagors had no knowledge of, and did not at any time give their consent to the alteration. The consideration stated in the mortgage was changed from $745.92 to $863.37, and from the findings of the jury it appears that the sum which was added to the consideration of the mortgage by the alteration was not due and owing from the defendants, or either of them, to the plaintiff. Clearly, we think the action of the plaintiff in the unauthorized alteration of the mortgage rendered it nugatory, and that it is not enforceable as a security in his behalf for the payment of the notes.
II. Having come to the conclusion that’the mortgage is void, the question remains, whether the plaintiff, having advanced the money to discharge the prior mortgage deed upon the homestead, acquired a lien to the extent of the amount advanced, and is entitled to be subrogated to the rights of the prior mortgages. Is the plaintiff in a position to ask the aid of a court of equity to relieve him from the loss' occasioned by the destruction of his mortgage? He claims to be entitled to this relief under the authority of Ayres v. Probasco, 14 Kas. 198, where Mr. Justice VALENTINE says:
“ Whenever a person advances money with the consent of the owner of a homestead, to extinguish some lien upon the homestead, with the understanding of the parties that the person so advancing the money shall acquire a lien upon the homestead, such person will in equity acquire such lien to the extent of the money so advanced and so used to extinguish such first-mentioned lien, notwithstanding the instrument intended by the parties to create the lien in favor of the party advancing the money, or to be evidence of such lien, may be void.”
Doubtless this is correct doctrine where the principle stated is applicable; but he who asks for equity must come into court with clean hands. If the alteration of the mortgage had been accidentally or innocently made by plaintiff, he might have successfully applied for the application of the equitable doctrine of subrogation. It is well settled, however, that the doctrine of subrogation will not be applied to relieve a party from the consequences of his own unlawful act. (Sheldon on Subrogation, § 44; Wilkinson v. Babbitt, 4 Dillon, 208; Railroad Co. v. Soutter, 13 Wall. 517; Guckenheimer v. Angevine, 81 N. Y. 394.)
According to tbe unchallenged findings of the jury, the alteration of the mortgage by the plaintiff was not inadvertently made, nor was it done for the purpose of carrying out the intention and understanding of all the parties thereto, but was evidently made by plaintiff solely to advance his own interest at the expense of the defendants. He sought to extend the liability of the mortgagors beyond what they had agreed that it should be, and his action in making the alteration was not only a fraud upon the defendants, but under the statutes of Kansas constitutes a public offense. The application of the maxim, “He that hath committed iniquity shall not have equity,” forbids the granting of the relief asked for by plaintiff.
Another objection made by the plaintiff is, that the court ought not to have submitted to the jury the question of the materiality of the alteration made in the mortgage. While we think that the materiality of the alteration was a question for the court, yet it appears that the plaintiff not only made no objection to the submission of this question, but that he prepared and tendered it to the court for submission to the jury, and therefore his objection at this time comes too late.
In other of the special findings returned, the jury found what the alteration consisted of, and it is clear that it is a material one. The findings and verdict were accepted by the court, and upon a motion for a new trial they were approved; hence the answer of the jury to the special question complained of could not have prejudiced the rights of the plaintiff.
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
Horton, C. J.:
An information was filed against the defendant, charging that he had been convicted, before the police judge of the city of Jamestown, in Cloud county, of an offense against the ordinances of said city; that he had been sentenced to pay a fine and the costs'of the prosecution; that he had been committed to the city,prison of Jamestown until the fine and costs were paid; that thereafter, while being legally confined in said city prison, he unlawfully and feloniously broke the prison and escaped therefrom. On motion of the defendant, the court quashed the information, upon the ground that it does not state facts sufficient to constitute an offense, and thereupon discharged the defendant. This ruling is complained of.
The statute provides:
“If the defendant plead or be found guilty, the police judge shall declare and assess the punishment, and render judgment accordingly. It shall be part of the judgment that the defendant stand committed to the city prison, or the jail of the county in which the judgment is rendered, until the judgment is complied with; and-the police judge shall forthwith issue a mittimus requiring the defendant to be committed to the city prison, or the jail of the county in which- the judgment was rendered, at his discretion.” (Comp. Laws of 1879, ch. 19a, § 83.)
The defendant was, therefore, at the. time of his escape, lawfully confined in the city prison, and the only question is, whether he violated any section of the act regulating crimes and punishments, in breaking the prison and escaping therefrom. Counsel on the part of the state say “that the information charged an offense within the letter and spirit of the statute, as stated in §§ 167 to 187, ch. 31, Comp. Laws of 1881.” He does not name the particular section under which the information was drawn. An examination of all the sections referred to does not justify the conclusion. The only sections which we need comment on are 179 and 182.
Section 179 reads:
“ If any person, confined in a place of confinement for any term less than for life, or in lawful custody, going to the place of confinement, shall break such prison or custody and escape therefrom, he shall, upon conviction, be punished by confinement and hard labor for a term not exceeding five years, to commence at the expiration of the original term of imprisonment.”
And § 182 reads:
“ If any person, confined in any county jail, upon convic tion for any criminal offense, or held in custody, going to such jail, shall break such prison or custody and escape therefrom, he shall, upon conviction, be punished by confinement and hard labor not exceeding three years, or in a county jail not less than six months, to commence at the expiration of the original term of imprisonment.”
Said §179 cannot apply, because the defendant was not sentenced to the city prison for any regular or specified term, nor did he escape while going to the said prison. Moreover, it is evident from the language of this section and the other sections of the statute, that it was not in the mind of the legislature to punish anyone under said section for escaping from prison or custody, where such person was committed to jail merely for the non-payment of a fine. .This is evident, as said section concludes as follows: “ He shall, upon conviction, be punished by confinement and hard labor for a term not exceeding five years, to eommenee at the expiration of the original term of imprisonment.”
Section 182 has reference to persons confined in a county jail, or held in custody going to such jail. As a rule, penal statutes must be strictly construed, and they cannot be extended beyond the grammatical and natural meaning of their terms, upon the plea of failure of justice. (Remington v. State, 1 Oregon, 281; State v. Lovell, 23 Iowa, 304; Gibson v. State, 38 Ga. 571.)
We are not at liberty to interpolate into the statute “city prison,” nor can we judicially determine that a “city prison” is a “county jail.” It is therefore our opinion that the matters charged in the information do not constitute any offense within the statute. The omission is one for which the legislature is responsible. It is probably a easus omissus, which the legislature may, but the court cannot, supply.
The order and judgment of the district court must be affirmed.
VALENTINE, J., concurring.
Joi-inston, J., not sitting in the case. | [
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The opinion of the court was delivered by
HortoN, C. J.:
The only question presented in this case upon the record before us is as to the constitutionality of an act of the legislature of this state approved February 21,1885, authorizing the board of education of the city of Topeka to issue bonds of its school district for the purpose of purchasing sites for school buildings, erecting new school buildings, etc., in an amount not exceeding one hundred thousand dollars, upon a majority vote of the electors of the district. The plaintiffs contend that the act is a special law, and therefore in conflict with § 17 of article 2 of the constitution of the state, and that the act confers corporate powers, and thereby is also in conflict with §1 of article 12 of the constitution. The first objection to the act must be disposed of favorably to its constitutionality, upon the authority of The State v. Hitchcock, 1 Kas. 178; and Comm’rs of Norton County v. Shoemaker, 27 Kas. 77. It was decided in The State v. Hitchcock, supra—
“That the .legislature must determine whether its purpose can or cannot be expediently accomplished by a general law, and the mere fact that certain results could be accomplished by a general law does not necessarily avoid a special law passed to effect them.”
In Comm’rs of Norton County v. Shoemaker, supra, the writer of this stated in the opinion, among other things, that—
“The legislature, under the constitution, has discretion to determine the necessity for such special laws, and such statute is analogous to those conferring authority by special acts upon counties, townships and school districts to issue bonds.” (Sec also Beach v. Leahy, 11 Kas. 23; Harvey v. Comm’rs of Rush County, 32 id. 159.)
The other objection involves a more difficult question; but upon careful consideration, we think the decision in Beaeh v. Leahy, supra, and the reasoning of the court therein, decisive •of the case in favor of the affirmance of the judgment of the court below.
In commenting upon article 12 of the constitution, Mr. Jus tice Brewer, speaking for the court in that case, said, with reference to counties, townships and school districts, that—
“They are called in the statute bodies corporate; yet 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 ai’e granted to enable them more readily to perform their public duties. . . . 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. This distinction between quasi corporations and corporations proper is no new thing, nor of recent recognition. . . . The conclusion to which these investigations have led us is, that among public corporations only corporations proper are included within the scope of article 12 of the state constitution, and that a school district is only a quasi corporation, and not covered by its provisions.”
The board of education of the city of Topeka, of course, is not a private corporation, nor is it a corporation created with political and legislative powers like cities and towns for the local civil government and police regulation of the inhabitants of the particular district included in the boundaries of the corporation. The fact that its limits or boundaries are the same as those of the city of Topeka, makes no difference in that particular. It is just the same as if it constituted any other territorial district described as the board of education of said district. The board of education has power to select its own officers, to make its rules- and regulations, to establish a high school whenever in its opinion the educational interests of the city demand the same, and to exercise sole control over the public schools and school property of the city. The title of all property held for the use or benefit of the public schools within the territory over which the board of education has jurisdiction, is vested in the board. The board is required annually to make an estimate of the amount of funds necessary and requisite for the support and maintenance of the public schools under its. charge, and also of the amount necessary to pay the interest on the bonds issued by the board, accruing during the year, and the amount of sinking fund necessary to be collected during such year for the payment and redemption of the bonds; and shall cause to be certified by the president and clerk of the board to the county clerk of the county in which the city is situated, the percentage by it levied on the real and personal property of and within the city, as returned on the assessment-roll of the county. The board may also issue bonds and negotiate the same for school buildings, etc., upon conditions prescribed by the statute. In brief, the corporate functions of the board of education of a city of the first class are granted by the state to assist in carrying out the general common-school system adopted by the state. (Laws of 1876, ch. 122, art. 10; Laws of 1881, ch. 149, §§1,2; Laws of 1885, ch. 100, §1.)
In our opinion, the board of education of the city of Topeka is a distinct corporation from the municipal corporation of the city of Topeka. We think it is a quasi corporation only, and is not a corporation proper, as embraced within the scope of article 12 of the state constitution. (Heller v. Stremmel, 52 Mo. 309; Wright v. Stockman, 59 Ind. 65.)
For a fuller statement, and a further discussion of the case, we refer to the opinion of the learned trial judge, in whose conclusion as to the constitutionality of chapter 56, we concur.
The order and judgment of the superior court will be affirmed.
All the Justices concurring:. | [
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The opinion of the court was delivered by
VALENTINE, J.:
The Parsons Water Company is a corporation organized under the laws of Kansas—
“ For the purpose of supplying water to the public in or near to the city of Parsons, and to that end to build and maintain a dam, canal, and reservoirs, and to build, maintain and operate a system of water works for supplying with water the streets, alleys, lanes, squares and public places of the said city of Parsons, and for supplying water for extinguishing fires, and for domestic, manufacturing, hydraulic, irrigating and industrial purposes in said city and country adjacent thereto, and to erect, build and maintain all buildings, machinery and apparatus necessary in order to accomplish the purpose above named.”
The city contracted with the company for a supply of water for fire purposes, and granted to it the right to construct, maintain and operate its water works in said city, and to lay its mains in the streets thereof; and to obtain an adequate supply •of water for the purposes for which it was organized, the company desired to construct a dam across a stream known as the “ Big Labette creek,” and to overflow certain lands above this ■dam, and for the purpose of procuring the right to do these things, the company instituted condemnation proceedings, under article 9 of the act relating to private corporations, (Comp. Laws of 1879, cb. 23.) In these proceedings an award of damages of $330 was made by the commissioners to Caroline M. Knapp, who owned a farm through which the stream runs. She appealed, from this award to the district court, where another award was made to her for the sum of $1,000, and judgment was rendered in her favor for costs; and to reverse this award and judgment the case is now brought to this court.
The first assignment of error is, that the district court erred in entertaining the condemnation proceedings, for the reason that a water company organized for the purposes for which this company was organized has no power under the statutes to obtain any easement or any right or interest in real estate by virtue of condemnation proceedings. We do not think that it is necessary to decide this question; for the water company itself instituted the proceedings to obtain such right, and Mrs. Knapp did not contest its right or power to do so, but consented thereto, and merely contested as to the amount of the damages which might be awarded to her. The company asked for the right, she consented, and the entire contest was with reference to the amount of damages which she should receive. No question as to the company’s right to institute and carry on the proceedings, or to obtain what it asked for, was raised in the district court, and therefore whatever might have been the result if the question had been raised by either party in that court, we think it must now follow that the water company will get what it asked for, if the award and judgment of the district court shall finally be affirmed, and if the company complies with such award and judgment. In support of this pi’oposition, see C. B. U. P. Rld. Co. v. Andrews, 26 Kas. 702, 710, 711.
The next alleged error is, the refusal of the district court to grant a continuance. It appears that the case was taken to the district court in proper time to be tried at a special term thereof. It was regularly on the trial docket, and was iegu-larly and properly called for trial, when on November 4,1883, the parties by consent continued the case to the next regular term of the court,’commencing on-November 12, 1883. No trial docket was made out for that term; but if there had been, it would not have contained this case, for it would have been made out before this case was continued. (Civil Code, § 313.) On November 20, 1883, the case was regularly called for trial, except that no trial docket had been made out, as aforesaid. The water company then asked for another continuance, for the reason that no trial docket had been made out for that term, and for the fürther reason that the company could not safely proceed to trial for the want of material evidence which it had been unable to procure; but no diligence was shown in attempting to procure evidence or in preparing for trihl, and the court overruled the application for the continuance. We cannot say that the court committed material error in this ruling. The granting aud refusiug of continuances rests to some extent within the sound judicial discretion of the trial court. The trial court can know more of the circumstances surrounding the ease than it is possible for the supreme court to know, and hence, unless error is clearly shown in the refusal of the court to grant a continuance, the supreme court will not reverse therefor. The trial court, exercising a sound judicial discretion, might perhaps very properly have delayed the case for a time on account of the sickness in the family of the president of the water company, and for other reasons, but we cannot say that it materially erred in refusing to do so.
The next claim of error is, that the court belufr tried the case upon an erroneous theory, which resulted in a large increase in the amount of the damages awarded to Mrs. Knapp and it is claimed that this error is shown by the evidence that the court permitted the plaintiff, Mrs. Knapp, to introduce, over the objections and exceptions of the water company; by an instruction of the court to the jury, excepted to by the water company;, by the refusal of the court to give certain instructions asked for by the water company; by a special finding of the jury awarding to the plaintiff $385.31 damages because, as was supposed, the water company obtained the right to the exclusive use of the water, and Mrs. Knapp was excluded from its use; and by the refusal of the court to reduce the aggregate amount of the damages awarded to Mrs. Knapp by striking out said $385.31. We are inclined to think that the court below did err in this particular. It seemed to have tried the case upon the theory that the water company procured the right to the exclusive use of the stream — the big Labette creek — to the total and entire exclusion of the plaintiff, Mrs. Knapp. Now the water company did not ask for such an exclusive right, and we do not think that under the statutes or its petition in the condemnation proceedings it could obtain any such exclusive right; and it should not be required to pay for more than it received. After the final termination of these condemnation proceedings, we think the water company will have the right to take just so much water as it asked to take, or to do just what it asked to do when it instituted the proceedings, and no more; and the plaintiff will .still have the right to all reasonable and proper use of the water in connectiou with her farm. Except with the consent of the plaintiff, the water company can interfere with her rights or interests only to subserve some paramount public interest or purpose, and only as far as such public interest or purpose requires or authorizes. With her consent, however, the company may procure greater interests in her. property. As the •court below tried the case upon an erroneous theory, we think its award and judgment must be reversed, unless the plaintiff consent to diminish the award by deducting therefrom the sum of $385.31.
It is also claimed that the court below erred in permitting •a question to be asked a certain witness with reference to “the amount of damage sustained” by Mrs. Knapp. We think the court below erred in permitting the question to be asked; but taking into consideration the answer given and the many other questions asked this witness and the answers given thereto, we think the error was wholly immaterial. The answer to the question was in substance that the value of the property was diminished one-half.
The next ruling of the court below complained of is the correction of the judgment which had previously been rendered. We perceive no error in this. The judgment was corrected so as to make it correspond with the decision rendered by this court in the case of the St. Louis, Lawrence & Denver Rld. Co. v. Wilder, 17 Kas. 239, 247.
If the plaintiff, Mrs. Knapp, consents to the reducing of the award by deducting $385.31 therefrom, the award and judgment as thus modified will be affirmed; otherwise, they will be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a conviction of arson in the second degree.
The defendant, William Shaw, and Larry Sayler were jointly charged in an information with feloniously burning an auditorium belonging to Kansas State University. Both of the boys were students in the department of music which was housed in the building.
It was agreed by counsel, and the court ordered, that the defendants be tried separately. Shaw was tried first and convicted of second degree arson. He has appealed. He makes no complaint of any trial errors in the admission of evidence or instructions to the jury, but contends that the evidence was not only insufficient to prove defendant committed the crime charged but failed to prove that a crime had been committed. His specific complaints are that the court erred in failing to order a discharge at the close of the state’s evidence and in failing to set aside the verdict rendered.
The function of this court in reviewing the record for the purpose of determining the sufficiency of the evidence to sustain a criminal conviction is quite limited.
An appellate court will not weigh conflicting evidence. (State v. McCoy, 160 Kan. 150, 160 P. 2d 238.) It is the function of the trier of facts, not that of a court of appellate review, to weigh evidence and pass upon the credibility of witnesses. (State v. Osburn, 171 Kan. 330, 232 P. 2d 451; State v. Stout, 175 Kan. 414, 264 P. 2d 1056; State v. Russell, 182 Kan. 649, 323 P. 2d 913; State v. Gregory, 191 Kan. 687, 383 P. 2d 965.) A verdict of guilty, when approved by the trial court, must stand if supported by substantial competent evidence. (State v. Ledbetter, 183 Kan. 302, 327 P. 2d 1039; State v. Young, 190 Kan. 453, 375 P. 2d 611; State v. Wood, 190 Kan. 778, 378 P. 2d 536; State v. Sims, 192 Kan. 587, 389 P. 2d 812; State v. Goering, 193 Kan. 307, 392 P. 2d 930.) Where the sufficiency of the evidence is being reviewed the function of an appellate court is limited to ascertaining whether there was a basis for a reasonable inference of guilt. (State v. Brizendine, 114 Kan. 699, 220 Pac. 174; State v. Fouts, 169 Kan. 686, 221 P. 2d 841; State v. Crosby, 182 Kan. 677, 324 P. 2d 197.) The general rule is, before a verdict approved by the trial court may be set aside on appeal for insufficiency of the evidence, it must clearly appear that on no hypothesis: whatever is there sufficient substantial evidence. (State v. Ellis, 192 Kan. 315, 387 P. 2d 198.)
Guided by the above rules we have no difficulty in concluding that there was substantial competent evidence to support the verdict.
The evidence consisted chiefly of the testimony of two students at Kansas State University with whom the appellant and Larry Sayler discussed the burning of the auditorium.
William Wilson testified in substance as follows:
On January 7, 1965, the witness and Ronald Chase were at the Holiday Inn where they were joined by the appellant and Larry Sayler who arrived shortly after 12 midnight. The four youths sat in a booth drinking coffee. Sayler said something to the effect, “How would you like to burn the auditorium?” The witness said, “It sounds great.” Sometime during the conversation the witness asked Sayler how he planned to get in the auditorium. Sayler said he had a key to one of the doors. The witness had been a night watchman at the auditorium and he wrote out the rounds of the night watchman on a napkin which he gave to Sayler. Sayler and the appellant left the Holiday Inn at approximately 12:25 a. m. after Sayler had suggested to the witness that they return to the Holiday Inn at 1:00 a. m. the following Friday night to compare newspaper clippings. Sayler and the appellant returned to the Holiday Inn a little after 1:00 on the same evening. The witness asked if “they did it” and Sayler replied, “No, we chickened out.”
The night watchman testified that about 12:55 a. m., January 8, he discovered a fire in the basement of the auditorium and extinguished it.
On January 15, 1965, a little after 1:00 a. m. the witness and Ronald Chase were again sitting in a booth at Holiday Inn when they were joined by Sayler and the appellant. Sayler glanced at the clock on the wall and said, “We have been here since 12:20 a. m., haven’t we?” As Sayler was sitting down in the booth he stated, “We didn’t make it last time because they caught it too soon.” Sayler stated that, “We sat in this window until the night watchman left, then we went down to the stage and lit the curtains.” Sayler said he ‘lit them on one side and Shaw lit them on the other” and that they stood back a few minutes to make sure that they were going good. The witness told Larry Sayler that he better be quiet about this and the appellant said, “That’s right.” Sayler got up and walked away and the witness told appellant that he did not believe that he did it and appellant said something about “you’ll find out or you’ll see.”
The testimony of Ronald Chase was substantially to the same effect as William Wilson’s except that he testified:
“A. Larry Sayler said that ‘as we were leaving the auditorium, the curtains sure were going up good.’
“Q. Did Shaw say anything that you recall?
“A. As we were—as they were leaving, he said ¡that—well, Bill Wilson said, not believing that they started the auditorium on fire, ‘you really didn’t do it, did you?’ and Bill Shaw said, ‘well, you’ll see’ and he also said something about, approximately in the middle of the conversation, ‘if you don’t believe us, you’ll read it in the morning papers.’ ”
It should be understood that basically the appellant does not make a specific argument to the effect that the evidence does not establish the commission of a crime. He contends that the damaging evidence consisted of the testimony of third parties as to the admission of a party who was not charged with being an accomplice. Appellant argues:
‘‘It should be noted that the State did not charge the defendant with aiding or counseling the burning of any building and the jury’s verdict was that the defendant was guilty as charged in the Information.”
He further argues:
“. . . As has been further noted, basically the State’s only evidence in this case concerned a conversation between William James Wilson and the said Larry Sayler. The defendant did not partake in these conversations in any extent and the only evidence the State offered to the jury to convict the defendant was the fact that William Shaw entered the Holiday Inn with Larry Saylor on the two nights of these supposed conversations. It is respectfully submitted that this is a case of conviction because of association. Why the State picked out William Shaw to prosecute is a mystery to the defense because the main association and conversation on these two nights took place between Larry Sayler and the witness William James Wilson.”
The same argument is made as to the testimony of Ronald Chase:
“. . . This witness further testified that defendant took a minor part in this conversation and that he could not attribute any incriminating statements to the defendant.”
Where two persons are charged jointly, a specific charge of a conspiracy in the information is not necessary for the purpose of making the admissions of an accomplice or co-conspirator admis sible against another. It is sufficient if the evidence establishes the fact. (State v. Borserine, post.)
K. S. A. 60-460 (i), dealing with hearsay evidence, makes a statement admissible when—
“. . . (2) the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination. . . .”
The above rule of evidence follows the case law previously laid down by this court. The matter was fully discussed in a well written opinion in the case of State v. Borserine, 184 Kan. 405, 337 P. 2d 697, where it was stated at page 411:
“. . . Evidence of the acts and declarations of the co-conspirators, done and made in the absence of the accused, is admissible so far as it pertains to the furtherance of the common criminal design, to its consummation, to the disposition of its fruits, and to acts done to preserve its concealment, as an exception to the rule against the admissibility of hearsay evidence. (State v. Emory, 116 Kan. 381, 226 Pac. 754, and cases cited therein.) The order of proof in such case is largely controlled by the trial judge; and where the crime has to be established by circumstantial evidence the prosecutor must be given permission to present that proof bit by bit as best he can without too rigid enforcement of the rule. If upon completion of the State’s case, all the facts tend to show a conspiracy, the order of proof in which the acts of the conspirators are shown is not of much importance. (State v. Shaw, 108 Kan. 781, 196 Pac. 1100, and cases cited therein.)” (See, also, State v. Richmond, 96 Kan. 600, 603, 152 Pac. 644; State v. Addington, 158 Kan. 276, 147 P. 2d 367; State v. Smith, 173 Kan. 807, 252 P. 2d 917.)
There is a more all-inclusive reason why the statements of Sayler were admissible against the appellant.
Where an accusatory statement is made in the presence and hearing of a party involving him in a crime and he remains silent, although he has full liberty to speak, his failure to reply is admissible in evidence as an admission of the accused. The rule is covered in Rules of Evidence, K. S. A. 60-460 (g), dealing witih exceptions to the hearsay rule, which reads:
“Admissions hy parties. As against himself a statement by a person who is a party to the action in his individual . . . capacity. . . .”
The following statement is found in Gard’s Kansas Code of Civil Procedure, p. 475, dealing with the above rule:
“ ‘Statement’ as used in this subsection is subject to the definition in section 60-459 which includes nonverbal conduct. Thus under proper circumstances there may be an admission by silence or by other conduct which is the equivalent of spoken words. A good example is where statements are made in the presence of the party which he would normally be expected to deny if they were not true; and his silence amounts to an admission of the truth.”
This again is simply an application of the law existing in this state at the time the Rules of Evidence were adopted. We held in State v. Cruse, 112 Kan. 486, 212 Pac. 81, in paragraph 6 of the syllabus:
“Statements of a third party to the prejudice of one accused of crime, made in his presence and which he tolerates without resentment, explanation or denial, are ordinarily admissible as some evidence of his consciousness of guflt.” (See, also, State v. Parks, 133 Kan. 568, 1 P. 2d 261; 22A C. J. S., Criminal Law, § 734 [1].)
Whether the statements were made within the hearing of the accused and understood by him, and whether there was an opportunity and necessity for their denial are questions for the jury to determine from all of the evidence in the case under proper instructions of the trial court, if requested.
Neither can we agree with appellant’s suggestion “that the defendant did not make any incriminating statements.” Appellant’s statement, “that is right” to Wilson’s statement to Sayler that “he bad better be quiet about this,” and appellant’s statement, “if you ■don’t believe us you will find out” when Wilson questioned setting the fire, were certainly incriminating. Such statements were not ■only incriminating in themselves but they tended to adopt the previous incriminating statements made by Sayler.
An examination of the record discloses sufficient competent evidence to support the verdict of guilty.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fatzer, J.:
This appeal arises out of the provisions of K. S. A. 60-1507, whereby the appellant, who is presently confined in the Kansas State Penitentiary, sought to vacate and set aside an alleged void sentence of the district court of Saline County entered March 17, 1961, upon his pleas of quilty to two counts of forgery in the second degree. Relief was denied by the district court, hence this appeal.
The facts are not in dispute. On August 10, 1960, a complaint was filed in the city court of Salina, Kansas, charging the appellant, hereafter referred to as defendant, with two counts of forgery in the second degree. On that same day, a warrant for the defendant’s arrest was duly issued to the sheriff of Saline County on the complaint. At the time the complaint was filed and the warrant issued, the defendant was duly and lawfully confined in the Kansas State Penitentiary at Lansing, Kansas. A detainer was issued notifying the warden of the Kansas State Penitentiary of the pendency of the ■crriminal complaint in the city court of Salina, Kansas.
On August 25, 1960, the defendant, through the warden, attempting to comply with the Uniform Mandatory Disposition of Detainers Act (K. S. A. 62-2901, et seq.) caused a request for disposition of the detainer placed against him to be sent by certified mail to the sheriff of Saline County, the district court of Saline County, .and the county attorney.
On February 24,1961, the defendant was returned from the penitentiary and appeared before the judge of the city court of Salina; lie waived preliminary examination on both counts of forgery in the .second degree then pending against him, and the city court bound Rim over to the district court to stand trial on those charges.
On March 9, 1961, an information was filed in the district court •charging the defendant with two counts of forgery in the second ■degree. On March 14, 1961, the defendant was brought before the •district court and it being made to appear to the court that the defendant did not have counsel and that he desired the court to appoint counsel to represent him in that cause, the court appointed Mr. Harold L. Smither, a member of the Bar of Saline County, to represent the defendant.
On March 17, 1961, the defendant and his counsel appeared before the district court for arraignment; and upon being asked by the court how he desired to plead to the charges of forgery in the second degree, the defendant entered his plea of guilty to each of said charges. Thereupon, the court sentenced the defendant to confinement in the Kansas State Penitentiary for a period of not more than ten years on each count pursuant to G. S. 1949, 21-631, the term of each sentence to run concurrently with the other and with the remaining sentence under which the defendant was then serving in the Kansas State Penitentiary.
On February 3, 1964, the defendant filed a petition for a writ of habeas corpus in the district court of Saline County, alleging that he had fully complied with the requirements of the Uniform Mandatory Disposition of Detainers Act and that the failure of the authorities of Saline County to bring him to trial before the expiration of the period of time fixed in the Act rendered the convictions of March 17, 1961, illegal and void, and the district court of Saline County was without jurisdiction to impose sentence upon him.
On February 7, 1964, the district court permitted the defendant to proceed in forma pauperis set his petition for hearing on February 21, 1964, and entered an order which was served upon the defendant, ordering him to submit to the court prior to the hearing any and all documentary or written evidence available to him in support of his allegations of compliance with the Uniform Mandatory Disposition of Detainers Act, and specifically, to show proof of mailing of the request for disposition of detainer to the court in which the indictment, information, or complaint was pending against him and the manner and date of mailing.
On February 18, 1964, the district court appointed Mr. Bryan J. Hoffman, a practicing attorney of Salina, to represent the defendant.
On February 21, 1964, the court found that the relief asked for by the defendant in his petition for a writ of habeas corpus was in effect a motion for relief under the provisions of K. S. A. 60-1507, and ordered that the defendant’s petition be treated as a motion for relief thereunder. Upon request of defendant’s counsel, the hearing on the motion was continued until March 9,1964.
On that date, the court found that the defendant’s application under the Uniform Mandatory Disposition of Detainers Act was directed to the district court of Saline County and that all matters then pending against him relating to the offenses of forgery in the second degree were contained in the complaint then pending in the city court of Salina and no other court; that none of the notices requesting disposition of the detainer were mailed by him through the warden to the city court of Salina; that the defendant did not comply with the provisions of the Act, and that his allegation that he was not tried within 180 days as provided in K. S. A. 62-2903 was not correct and was not proved by the defendant, and that, therefore, the notice and request made by him did not comply with the Act and did not deprive the district court of jurisdiction to accept his pleas of guilty on March 17, 1961, or to find him guilty on said pleas and to sentence him to confinement in the Kansas State Penitentiary.
The district court further found that his pleas of guilty entered on March 17, 1961, were legal in all respects and that the defendant was not entitled to relief in this proceeding, and entered its order denying relief under K. S. A. 60-1507.
It appears from the record that 179 days elapsed from August 25, 1960, when the defendant attempted to comply with the provisions of the Disposition of Detainers Act, until February 24, 1961, when he was returned to Saline County and brought before the judge of the city court of Salina when he waived his right to a preliminary examination. On March 9, 1961, the county attorney filed an information in the district court charging the defendant with two counts of second degree forgery. Thereafter, the defendant voluntarily entered his pleas of guilty to those charges on March 17,1961. Approximately 201 days had elapsed from the time he mailed his request for disposition of detainer on August 25, 1960, until he was brought to trial on March 17,1961.
In State v. Goetz, 187 Kan. 117, 353 P. 2d 816, this court held that the speedy trial provided by section 10 of our Bill of Rights of an accused prisoner incarcerated in a penal institution of this state has, under specified conditions, been legislatively defined by the Uniform Mandatory Disposition of Detainers Act. (K. S. A. 62-2901 et seq.)
The Act, in pertinent part, is summarized and quoted: Section 62-2901 provides that any person who is imprisoned in a penal or correctional institution of this state may request final disposition of any untried indictment, information or complaint pending against him. The prisoners request shall be in writing, addressed to the court which the indictment, information or complaint is pending and to the county attorney charged with the study of prosecuting him. The warden or superintendent having custody of prisoners shall promptly notify each prisoner in writing the source and nature of any untried indictment, information or complaint against him of which he has knowledge or notice and of the prisoners right to make a request for final disposition thereof.
Section 62-2902 provides that the prisoner’s request shall be delivered to the warden or superintendent having custody of the prisoner, who shall forthwith send by registered or certified mail, return receipt requested, one copy of the prisoner’s request and certificate to the court and one copy to-the county attorney to whom it is addressed.
Section 62-2903 provides:
“Within one hundred eighty (180) days after the receipt of the request and certificate by the court and county attorney or within such additional time as the court for good cause shown in open court may grant, the prisoner or his counsel being present, the indictment, information or complaint shall be brought to trial; but the parties may stipulate for a continuance or a continuance may be granted on notice to the attorney of record and opportunity for him to be heard. If, after such a request, the indictment, information or complaint is not brought to trial within that period, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment, information or complaint be of any further force or effect, and the court shall dismiss it with prejudice.” (Emphasis supplied.)
The record in this case does not contain the defendant’s written request for disposition of detainer placed against him, which was directed to the district court of Saline County, and to the sheriff and county attorney. The defendant contends there was substantial and sufficient compliance with the Uniform Mandatory Disposition of Detainers Act when he prepared the request for disposition of the detainer, notwithstanding the fact that the notice and request were mailed to the district court of Saline County rather than to the city court of Salina where the untried complaint was then pending against him.
The Disposition of Detainers Act clearly provides that the prisoner in any penal or correctional institution of this state may request final disposition of a criminal charge or proceeding pending against him by a request in writing “addressed to the court in which the indictment, information or complaint is pending.” The court below specifically found that when the defendant mailed his request for disposition of detainer, the criminal charges then pending against him were pending in the city court of Salina and in no other court. The right to a speedy trial as provided in section 10 of our Bill of Rights is a personal right and, as previously indicated, has been legislatively defined by K. S. A. 62-2901 et seq. However, the right to invoke that statute requires compliance by the prisoner with all its provisions including the preparation by him and the mailing by the warden of his notice for request of disposition of detainer to the court in which the untried indictment, information or complaint is then pending against him. While the Act is to be construed so as to effectuate its general purpose to make uniform the law of those state which have enacted it, we cannot say that when a request for disposition of detainer is mailed to a court other than the one in which the criminal charge against the prisoner is then pending, is a compliance with the Act so as to require the state to bring the defendant to trial within the time and under the terms and conditions of section 62-2903.
In State v. Goetz, supra, the criminal charges against the defendant were pending in the county court of Finney County, Kansas. The request for disposition of detainer complied with the Act—it was sent by certified mail to the judge of the county court and the county attorney of Finney County. Later, the defendant was given a preliminary examination and bound oyer to the district court for trial. He was not brought to trial in the district court wtihin 180 days from the date of his request for disposition of detainer and this court held that the district court did not have jurisdiction to accept the defendant’s pleas of guilty and to sentence him to confinement in the penitentiary.
In the instant case, the only court to which the defendant could direct his notice for disposition of detainer was the city court of Salina. That was the only court which then had criminal charges pending against him. Not until he waived his right to a preliminary examination and an information was filed in the district court charging him with forgery in the second degree, did the district court have jurisdiction to try those charges. While a prisoner who is confined in a penal institution of this state must be brought to trial within 180 days after receipt of his request by the court and county attorney, he is required to comply with the Act to receive its protection. Where, as here, the defendant directed his notice to a court which did not have criminal charges pending against him, his re-
quest for disposition of detainer was ineffective to invoke the benefits of the Act. Hence, in failing to comply with the provisions of the Act, the defendant waived his right to question whether he had a speedy trial by his pleas of guilty entered on March 17, 1961. (Moore v. Hand, 187 Kan. 260, 356 P. 2d 809.)
This court is compelled to conclude that the defendant failed to comply with the provisions of the Uniform Mandatory Disposition of Detainers Act by his failure to serve his notice and certificate upon the city court of Salina, and the district court of Saline County was not deprived of jurisdiction to accept his pleas of guilty on March 17, 1961, or find him guilty on said pleas and to lawfully sentence him to confinement in the Kansas State Penitentiary.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order of the district court dismissing an application for review of orders of the State Corporation Commission.
The facts are not in dispute and will be highly summarized.
The DeSoto Mutual Telephone Company filed an application with the State Corporation Commission for permission to cease its telephone operations. Subsequently the Wheat State Telephone Company and the Southwestern Bell Telephone Company each filed an application with the Commission to take over the telephone service sought to be abandoned.
The applications were consolidated for hearing. The Commission issued its order on the applications in September, 1963, and granted applications for rehearing October 3, 1963. Following the rehearing, and on April 21, 1964, the Commission issued separate orders disposing of the three applications.
The orders denying the application of the Wheat State Telephone Company and granting the application of the Southwestern Bell Telephone Company to take over the abandoned service were mailed to the parties on May 6, 1964. The order granting the application of the DeSoto Mutual Telephone Company to cease telephone operations was mailed to the parties on May 7, 1964.
On June 10, 1964, the Wheat State Telephone Company and the stockholders of the DeSoto Mutual Telephone Company filed an application with the district court for review of the Commission’s three orders last mentioned.
Thereafter the Commission filed a motion to dismiss the application for review which reads:
“The respondents respectfully move the Court for an order dismissing the above-entitled action on the ground that the court lacks jurisdiction because the application for Review herein was not timely filed pursuant to the provisions of Section 66-118c, G. S. 1949, and the Rules of Practice and Procedure of the State Corporation Commission of the State of Kansas effective on and after March 23, 1964.”
The district court sustained the foregoing motion to dismiss. Thereupon the applicants for review perfected the instant appeal wherein the only issue for determination is the proper calculation of the time in which to appeal under the facts presented.
The statutes and rules of the Commission material to a determination of the sole issue involved will now be considered.
The thirty-day period within which an application for review, such as the one filed in the district court by the appellants, must be filed is established by K. S. A. 66-118c. Pertinent portions of this section of the statute read:
“. . . then within thirty (30) days after the rendition of the decision on rehearing, the applicant may apply to the district court of the county in which the order of the commission is to become effective for a review of such order or decision; . . .”
Under the current rules of practice and procedure of the Commission, revised after the adoption of the new Code of Civil Procedure and effective March 23, 1964, there are two sections concerning the rules for computation and extension of time which were adopted practically word for word from the corresponding sections of the new code. These rules and the code references are as follows:
“82-1-217 . . . (a) Computation; legal holiday defined. In computing and period of time prescribed or allowed by these Rules or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a legal holiday. . . . When an act is to be performed within any prescribed time under any law of this state, or any rule or regulation lawfully promulgated thereunder, and the method of computing such time is not otherwise specifically provided, the method prescribed herein shall apply. [K. S. A. 60-206 (a)]
“(c) Additional time after service by mail. Whenever a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three (3) days shall be added to the prescribed period. [K. S.A. 60-206 (e)]”
The Commission also adopted a rule regarding service which likewise refers to a three-day period. The applicable portion of this rule is:
"82-1-216. Service of Pleadings. (a) Manner of service of papers: Notices, motions, pleadings, orders or other papers may be served personally or by mail except where the statute prescribes a specific mode of service which shall be followed. Service upon an attorney of record will be deemed to be service upon the party. Service by mail shall be deemed to be completed three days after the mailing of the notice or document to be served. (This subsection is Former Rule 82-1-8, except that Section 60-206 (c) sic [e] of the Kansas Code of Civil Procedure specified ‘three days’ rather than two days.)”
The Commission has also adopted a rule providing when its orders are filed and when effective. Rule 82-1-217 (d) provides:
“(d) Orders of the Commission, when filed and when effective. All orders made by tire Commission will be filed in the office of the Commission in Topeka. Orders of the Commission shall be deemed to become effective upon service pursuant to Rule 82-1-216 (a) unless otherwise expressly provided in said order or by statute. (This subsection is Former Rule 82-1-10.)”
The parties appear to agree that May 7, 1964, should be accepted as tire controlling date on which the orders were mailed by the Commission. Therefore we proceed on that premise.
All parties omit May 7 and start their calculation of time as of May 8. The district court used the same date for commencing its calculation but concluded:
‘‘G. S. 1949, 66-118 (c) provides that within 30 days after rendition of the decision on rehearing an application for review may be filed. This would mean 30 days from the date service of the orders was deemed complete, or May 10th.
“In computing time under Section 60-206 (a) of the Code of Civil Procedure the day of the ‘act, event or default’ from which the designated period of time begins to run shall not be included. Thus, the date of May 10th would be excluded. The 30 days within which to apply for review expired on June 9, 1964, which was on a Tuesday arid not a legal holiday. . . ”
• The appellants contend that the trial court should have omitted May 7 as the day the orders were mailed and that it should also have omitted May 11, as the beginning of the thirty-day period allowed for filing an application for review. The last of the thirty days for filing the application for review would then have fallen on June 10, the day the application for review was filed.
The appellees, although not supporting the trial courts method of calculation, contend that it reached the right conclusion and that the judgment should be affirmed.
It would serve no useful purpose and merely encumber our reports to discuss in detail the various suggested methods of calculating the time allowed for filing the petition for review under the rules adopted by the Commission. That state agency has adopted the rules provided by the Code of Civil Procedure for calculating time. These rules were adopted from the Federal Rules of Civil Procedure and have a well-settled meaning.
In computing the period of time allowed the day of the act from which the designated period of time begins to run shall not be included. (Commission Rule 82-1-217 [a]; K. S. A. 60-206 [a].) May 8 is the first day to be included. When service is by mail three days shall be added to the prescribed period. (Commission Rule 82-1-217 [c]; K. S. A. 60-206 [e],) When three days are added to the thirty days prescribed for filing a petition for review we arrive at a period of thirty-three days. Calculating thirty-three days from and including May 8, we find the last of the thirty-three days falls on June 9. The rule simply means that the three additional days allowed where service has been made by mail should be added to the original period and the total taken as the period for the purpose of computation.
The application for review having been filed on June 10, 1964, it was filed too late.
We find ample support for our conclusion in cases construing similar provisions of the Federal Rules of Civil Procedure. See, e. g., United States v. Onan, 8 Cir., 190 F. 2d 1; Wilson v. Shamrock. Amusement Corporation, 9 Cir., 221 F. 2d 687; Klein v. Rancho Montana De Oro, Inc., 9 Cir., 263 F. 2d 764, and In Re Estate of Iofredo, 241 Minn. 335, 63 N. W. 2d 19. See, also, Barron and Holtzoff, Federal Practice and Procedure, Vol. 1. § 219, pp. 801, 802.
The Commissions rule 82-1-216 (a) providing that “Service by mail shall be deemed to be complete three days after the mailing of the notice or document to be served” in no way conflicts with what has been said. Service by mail is considered complete upon mailing (K. S. A. 60-205 [&].) The Commission by its rule 82-1-216 has simply made an arbitrary extension of three days where service is by mail. Receipt by mail may take one day or may take five days for service by mail, but three days additional time is to be allowed in all cases. Nothing is to be done at the end of the three-day period. That period of time is simply to be added to the thirty days in which the party has to file a petition for review.
We find no merit in appellant’s contentions.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a proceeding instituted pursuant to K. S. A. 60-1507 in which the district court of Nemaha County, Kansas, denied the petitioners motion for discharge from the Kansas State Penitentiary. Appeal has been duly perfected.
The only question raised by the petitioner, an indigent, is whether he was entitled to court-appointed counsel at his preliminary hearing in the criminal proceeding which resulted in his conviction.
The petitioner was charged with three counts of burglary in the second degree. On October 1, 1963, pursuant to such charges the petitioner was brought before a justice of the peace in and for the city of Seneca, Nemaha County, Kansas, for his preliminary hearing. No verbatim record was made of the proceedings conducted at the preliminary hearing, but the journal entry discloses the petitioner was not represented by counsel or asked if he wished to retain counsel. The petitioner waived a reading of the complaint and also waived the preliminary hearing, following which he was bound over for trial to the district court. Thereupon an information was filed in the district court of Nemaha County, Kansas, charging the petitioner with burglary in the second degree in three separate counts.
At the petitioner’s arraignment in the district court on the 21st day of October, 1963, the petitioner appeared without counsel. The court, after advising him of his right to counsel and ascertaining that the petitioner was an indigent, appointed counsel to represent him. After consulting with his court-appointed counsel, the petitioner waived a reading of the information and entered a voluntary plea of guilty to each count of burglary in the second degree as set forth in the information.
After pronouncing sentence the trial court informed the petitioner that, even though he had entered a plea of guilty, he had the right to appeal to the Kansas Supreme Court, and if he was not able to employ counsel, to have counsel appointed to assist him in such appeal. Upon inquiry by the court the petitioner answered that he understood his rights.
In due course, pursuant to the sentence, the petitioner was taken to the Kansas State Penitentiary to serve his sentence. On the 21st day of December, 1964, he filed his motion for discharge in accordance with K. S. A. 60-1507 (a). The petitioner’s motion.was filed in compliance with the provisions of Rule No. 121 (e) on a form provided by the court. It raised the single question heretofore stated.
The trial court, after hearing this * motion on the 7th day of January, 1965, denied it. The journal entry discloses that the trial court specifically found it was not necessary to appoint an attorney to represent the petitioner at the hearing on the motion; that all issues raised by the petitioner’s motion could be determined from the files and records before the sentencing court; and that it was not necessary for the petitioner to be brought before the court for testimony. The court then recited in its journal entry what the “Court Docket Trial Sheet” disclosed in the criminal proceeding which resulted in the petitioner’s conviction.
The petitioner thereafter filed a motion for rehearing in which he complained because he was not represented by counsel and was not given an evidentiary hearing. This motion was denied on the 18th day of January, 1965.
On the 8th day of February, 1965, the petitioner filed a notice of appeal to the Kansas Supreme Court and a motion for the appointment of counsel to represent him on appeal. On the same day the trial court appointed counsel for him. With the assistance of counsel his appeal to this court has been duly perfected.
The only point urged by the appellant on this appeal for a reversal of the trial court’s order denying his motion for discharge is that he was not represented by counsel at his' preliminary hearing in the criminal proceeding. The appellant’s counsel relies on many of the familiar federal decisions. These decisions have been cited to the court recently on numerous occasions where the question here presented has been determined adversely to the appellant.
Our court has held under Kansas law that failure to appoint counsel for an indigent defendant in a criminal proceeding at a preliminary examination is not error. It has further held that any so-called alleged “irregularity” pertaining to a preliminary examination is deemed to have been waived where a defendant in a criminal proceeding enters a voluntary plea of guilty in the trial court. A case almost identical to the instant case on the facts is State v. Blacksmith, 194 Kan. 643, 400 P. 2d 743, where the recent decisions of this court on the point in question are cited. We adhere to these decisions.
In the instant case counsel was not appointed for the appellant, an indigent, to present his motion for discharge under 60-1507, supra, in the sentencing court, while in State v. Blacksmith, supra, counsel was appointed to represent the petitioner in the sentencing court. This is the only fact at variance in the two cases. Under the facts and circumstances presented in the instant case, and under the present state of the law in Kansas, this variance is immaterial.
Where a proceeding is brought under the provisions of K. S. A. 60-1507 and the files and records of the case in the sentencing court conclusively show that the petitioner is not entitled to relief, it is not required that a formal plenary hearing be had, or that counsel be appointed for the petitioner, or that the petitioner be produced for a hearing. (State v. Burnett, 194 Kan. 645, 400 P. 2d 971.)
We hold in the instant case that the files and records before the trial court, as presented by the record on appeal, conclusively show that the appellant is not entitled to discharge from the sentence under which he is serving for the reasons stated in his petition, and that the trial court properly found, pursuant to 60-1507, supra, and Rule No. 121 (194 Kan. xxvii) of this court (1) that it was unnecessary to appoint counsel to represent the appellant in the sentencing court at the hearing on his motion filed pursuant to 60-1507, supra; (2) that all issues raised by the appellant in his motion could be determined from the records before the trial court; and (3) that it was not necessary for the appellant to be brought before the court for a plenary hearing.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
VALENTINE, J.:
This was a criminal prosecution for libel. The defendants, James Mayberry and June B. Mayberry, were charged witb the offense of libeling John E. Rastall, the editor of the Osage County Chronicle, and were convicted, and sentenced to pay a fine of $25 each, and the costs of the suit; and from this conviction and sentence they now appeal to this court. The alleged libel was an article published in the Osage County Democrat, a newspaper published in the city of Bur-lingame, Osage county, Kansas, of which newspaper the defendants were the editors and proprietors. The said article read as follows:
“Characteristic OF Him. — The sneaking innuendo thrown out by the Chronicle last week at ex-Gov. Robinson and Col. Glick, is characteristic of the hypocritical puppy who wrote it. Both gentlemen alluded to by our subterranean contemporary are too well known and too highly esteemed to be affected by cowardly insinuations coming from a source so notoriously unreliable as the Chronicle. Coarse insinuation is the. favorite weapon of the poltroon, and this accounts for the constabulary organ’s use of it.
“Upon assuming editorial management of this paper we mentally resolved never to indulge in personalities, except for the purpose of exposing wrong, or subserving the ends of justice, and consider it no violation of our rule when we state that the editor of the Chronicle has been intoxicated on several occasions, and that, too, after he was elected to the legislature as the champion of prohibition. We have evidence in our possession of the truth of the above statement; aud give it to the public that they may know what kind of a creature it is that indulges in covert insinuations against such men as Gov. Robinson and Col. Glick, and the large and (with the exception of Rastall and a few kindred spirits) respectable audience that gave them such a hearty greeting.”
In the court below the defendants moved to quash the information upon which they were charged, upon the ground that it did not state facts sufficient to constitute a public offense, which motion the court overruled, and the defendants severally excepted; and this is the first ruling of the court below of which the defendants now complain.
The defendants claim that the information is insufficient for the following reasons: First, “that there are no averments in the information, no statement of any such facts as make it ap parent that the persons who knew him would on reading the article copied in the information perceive that John E. Eastall, the prosecuting witness, was referred to or criticised; ” second, that “the facts, if properly averred or stated, are insufficient to constitute a libel.”
Of course, in order that the foregoing article should be held to be libelous as to John E. Eastall, it is necessary that the language of the same should be such that persons seeing it and reading it should, in the light of surrounding circumstances, be able to understand that it referred to Eastall j but we think the article answers this description. The words “Chronicle” and “editor of the Chronicle” and “Eastall,” and other words used in the article referring to Eastall and his newspaper, make it very clear that John E. Eastall, the editor and publisher of the Osage County Chronicle, a newspaper published in Osage county, Kansas, was intended. Besides, the information charges that the alleged libelous article was published “ of and concerning the said John E. Eastall,” and a profusion of innuendoes is inserted in the information, making it clear beyond all pos.sible doubt that Eastall was the party intended by the article. And the article itself is good English, and not obscure or enig-matical, or difficult of comprehension.
"We also think that the matter contained in the article, if false and malicious, as is alleged in the information, is libelous. 'The article charges “that the editor of the Chronicle has been intoxicated on several occasions, and that, too, after he was elected to the legislature as the champion of prohibition,” and the article also uses many epithets in connection with the above charge, “tending to provoke him to wrath, or expose him to public hatred, contempt or ridicule, or to deprive him of the .benefits of public confidence or social intercourse.” And the information also alleges that all the foregoing charges against Eastall were false and malicious. In this state—
“A libel is the malicious defamation of a person, made public by any printing, writing, sign, picture, representation or •effigy, tending to provoke him to wrath, or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse/’ etc. (Crimes and Punishments Act, § 270.)
But “the truth may be given in evidence to the jury; and if it shall appear that the alleged libelous matter was published for justifiable ends, the accused shall be acquitted.” (Const-., Bill of Rights, §11.)
It is also claimed on the part of the defendants that the court below erred in excluding certain evidence. The record with respect to this matter reads as follows:
“The state gave evidence, written and oral, tending to show the allegations contained in the information, and then rested; that thereupon the defendants offered and produced competent witnesses who were sworn and testified in said cause, and gave testimony tending to prove that John E. Rastall had been intoxicated as alleged in the publication set forth in the information, and thereafter the defendants offered and produced George Hoover, a competent witness in said cause, and he was duly sworn to testify in said cause; and the said George Hoover testified as follows: ‘I reside in Burlingame; have been a resident of Osage, off and on, for about twenty years; am acquainted with John E. Rastall.’ Question by defendants’counsel: ‘Did you ever see him under the influence of intoxicating liquors?’ Answer: ‘Not that I know of; no, sir.’ Question: ‘What did you say?’ Answer: ‘Not that I know of.’ Question by defendants’ counsel: ‘Well, did you ever see him when he acted as though he was under the influence of liquor?’ To this question the state objected, as incompetent, and irrelevant and immaterial. Question by defendants’ counsel: ‘I will ask you whether you ever saw him acting as though he was intoxicated?’ To this question the state objected, and the court sustained said objection, and refused to allow the witness to answer said question by the counsel for said defendants; to which ruling of the court the defendants at the time excepted. Whereupon the defendants, by their counsel, Ellis Lewis, offered to prove by said witness, George Hoover, that both before and after the election of John E. Rastall to the legislature, that is, after the 5th and 12th days of October, 1882, and prior thereto, the witness saw John E. Rastall acting as though he was intoxicated; and also, defendants offered to prove by said witness that said John E. Rastall, at both these times, both before and afterward, acted as this witness says he, the witness, acted when he, the wit ness, was intoxicated. To wbicb testimony the state objected, and the objection was by the court sustained, and said testimony excluded by the court; and the defendants at the time excepted to the ruling of the court in sustaining said objection and excluding said testimony.”
We can scarcely understand why the court below refused to permit the defendants to show by the witness Hoover that he saw Eastall “acting as though he was intoxicated.” The witness had been a resident of Osage county, off and on, for about twenty years; he was acquainted with Eastall; had worked with him in the same office for six or seven months; and intoxication may be proved by showing how the person supposed to be intoxicated acted; and the witness may not only state how the supposed intoxicated person acted, but he may also state whether he appeared to be intoxicated, or not. (Castner v. Sliker, 33 N. J. L. 507; People v. Eastwood, 14 N. Y. 565;) and the witness may give his opinion as to whether the supposed intoxicated person was intoxicated, or not. (Lawson on Expert and Opinion Evidence, 473, et seq., and cases there cited; Eogers on Expert Testimony, 5; 1 Greenl. Ev., § 440a.)
It does not appear that any objection was made to the witness himself because of any supposed incompetency on his part to testify with respect to this matter, but the objection was made to the testimony itself as being incompetent, irrelevant, and immaterial. Any person is competent to testify with regard to the acts of another which he has seen; he is competent to testify whether such person acted as though he was intoxicated, or not; and he may give his opinion with reference thereto. (See the authorities above cited.) All persons of sufficient age and understanding are supposed to have had sufficient experience for this purpose. We think the evidence excluded was competent, relevant, and material. The gist of the alleged libel was, that the defendants had falsely and maliciously published that Eastall had been intoxicated. Now, was it true or false that Eastall had been intoxicated? The defendants, under the constitution, had the right to prove that it was true, and the evidence which they offered to introduce tended to prove the same.
We think the court below erred in excluding this evidence, and for this error its judgment must be reversed, and the cause remanded for a new trial.
HortoN, O. J., concurring.
JOHNSTON, J., 'not sitting. | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal from an order denying petitioner’s second motion filed under the provisions of K. S. A. 60-1507 to vacate and set aside a judgment and sentence.
On January 10, 1958, petitioner, being twenty-two years of age, and with a prior criminal record, appeared before the district court of Phillips county charged with the offense of statutory rape. The nature of the charge was fully explained to him by the court. Being indigent and without counsel, his right to have counsel appointed was explained to him in detail. He stated he did not want counsel and that he desired to plead guilty to the charge. Accordingly, he signed a written waiver of counsel, and the court made a finding that the appointment of counsel over his objection would not be to his advantage, all as provided by what now appears as K. S. A. 62-1304. He thereupon entered a plea of guilty and stated that he had no reason to offer why sentence should not be pronounced. He was sentenced to confinement in the state penitentiary until discharged according to law.
On December 17, 1964, while still confined in the penitentiary, petitioner filed in the district court of Phillips county a motion to vacate his sentence under K. S. A. 60-1507. The motion was on the form prescribed by this court for use in connection with procedure under the statute (194 Kan. xxviii). Question No. 10 of that form directs a petitioner to state concisely all of the grounds on which he bases his allegation that he is being held in custody unlawfully. The substance of petitioners answer to the question was that the Phillips county attorney filed the complaint and then prosecuted the case, thus making his sentence illegal and unlawful.
On January 19, 1965, the motion came on for hearing. Petitioner was not returned from the penitentiary for the hearing and no ■counsel was appointed for him. The court filed a memorandum ■opinion in the nature of findings and conclusions. The opinion reviewed in considerable detail the proceedings of the criminal prosecution of January 10, 1958. With respect to the one ground for relief urged by petitioner in answer to question No. 10 of the motion, above, the court stated that it was not aware of any decision making it illegal for a county attorney to sign a complaint in a criminal case, that it had long been the accepted practice for a county attorney to do so, and that petitioner had cited no authority to the contrary.
In conclusion, the court found that an examination of the motion and files and records of the case showed conclusively that petitioner was entitled to no relief, and denied the motion.
On February 15, 1965, petitioner filed a second motion for relief under K. S. A. 60-1507. This motion likewise was filed on the prescribed form and alleged several reasons why the sentence should be vacated. In answering questions 12 (c) and 13 of the motion, petitioner stated that he had previously filed in the district court of Phillips county a motion to vacate on “frivilouse ground’s” and that it had been denied.
On March 2, 1965, this second motion came on for hearing. Petitioner was not present and counsel was not appointed for him. The motion was denied on the ground that it was a second or successive motion for similar relief on behalf of the same prisoner. Petitioner has appealed from that ruling, and Mr. W. C. Sullivan was appointed to prepare and conduct the appeal. He has done so.
It first is contended that it was error not to grant an evidentiary hearing on the second motion—the merits thereof not having previously been ruled on. Secondly, with respect to the grounds of the second motion, it is contended that in the proceedings of the criminal prosecution on January 10, 1958 (heretofore related) petitioner was not advised of the consequence of his plea of guilty at or before his arraignment, that he was not advised of his right to trial by a jury, that the court lacked jurisdiction to accept his plea because no counsel was appointed for him, and that petitioner was not advised of his right to appeal.
The sole and only question presented by this appeal, however, concerns the correctness of the order denying petitioner’s second motion on the ground that it was a second or successive motion for similar relief on behalf of the same prisoner.
Rule No. 121 of this court (194 Kan. xxvii) was adopted in order to clarify and make more uniform the procedure in proceedings under K. S. A. 60-1507. Subdivision (e) of the rule directs that a motion to vacate a sentence be submitted on a prescribed form which shall be furnished by the court in which it is to be filed.. As above stated, question No. 10 of that form directs that a petitioner state concisely all of the grounds on which he bases his-allegation that he is being held in custody unlawfully. Petitioner’s first motion was on the prescribed form and listed as his only ground for relief the fact that the county attorney filed the complaint and then prosecuted the case. It was within the province of this court to adopt rules implementing the statute, and when, in answer to question No. 10 of the prescribed form of motion a petitioner sets out a ground or grounds for relief—he is presumed to have-listed all of the grounds upon which he is relying. To hold otherwise would mean that successive motions, each setting out a different and additional ground, could be filed indefinitely—contrary to the obvious intent and meaning of subdivision (c) of the statute which reads—
“The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.”
and of division (d) of Rule No. 121, above.
Our conclusion is that under the facts shown by this record petitioner’s second motion for relief was properly denied. The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
The plaintiff, Harvey Lee Riggs, commenced this action to require the defendant to reinstate him as a police officer of the city of Beloit, and to recover the salary due from the date of his unlawful discharge to the expiration of the term of his employment. Both parties filed motions for judgment on narrative admissions made and exhibits admitted at a pretrial conference. The district court sustained the motion of the city of Beloit, and the plaintiff has appealed.
The facts are not in dispute, and those pertinent are summarized. The city of Beloit, hereafter referred to as the city, is a city of the second class with a mayor-council form of government. At the organization meeting of the city council on April 20, 1965, Robert Belknap was appointed police officer, Patrolman No. 2, pursuant to K. S. A. 14-201 by the mayor, and by and with the consent of the council, for a' term of one year. On May 10, 1965, Belknap resigned his office to enter private business.
On May 24,1965, the plaintiff was appointed police officer, Patrolman No. 2, by H. Frank Cagle, the chief of police, after consultation and with the consent of the mayor, to fill the vacancy created by Belknap’s resignation. On that date the plaintiff commenced work, and Cagle provided him with an official card reciting the following:
“Beloit Police Department
“This is to certify that Harvey Lee Riggs has been appointed by the Mayor and the governing body of the City of Beloit, Kansas, to the position of Patrolman No. 2 to do and perform any and all lawful acts pertaining to the Police Department of the City of Beloit, Kansas.
“H. F. Cagle
“Mayor or Chief of Police.
“Subscribed and sworn to before me this 24th day of May, 1965.
“Seal.
“Geo. D. Colby
“City Clerk”
The card was signed by Harvey Lee Riggs on the left-hand margin in the space provided for the officer s signature. The plaintiff was furnished an official police badge and his oath of office was administered by the city clerk. At that time, no formal action was taken by the city council confirming the plaintiff’s appointment, but his employment was announced in the May 24, 1965, issue of the Beloit Daily Call. The plaintiff was a citizen of the United States; he had resided in the state of Kansas for a period of more than six months, and was more than 21 years of age. He was qualified to act as a police officer of the city except that he and his family were residing in Downs, Kansas, which fact was known to the mayor and each member of the city council.
On June 2, 1965, the plaintiff and his family moved to Beloit and have continued to reside therein during the period covered by this litigation. During all the time involved, the plaintiff reported regularly for duty and continued to perform duties normally assigned to a police officer. On August 17, 1965, he was summarily discharged by the chief of police due to a personality clash between the two officers. The plaintiff was not accorded a hearing by the mayor and council as contemplated by K. S. A. 14-822 before his purported discharge. He has done nothing since that date which would disqualify him from being an officer of the city, and has held himself ready to perform his duties. The vacancy created by the plaintiff’s purported discharge was never filled by the mayor and city council.
On March 16, 1965, the city governing body adopted ordinance No.' 1158 fixing the compensation for all statutory officers of the city. Section 4 of the ordinance related to members of the police department, and fixed the salary for Patrolman No. 2 at $325 per month. The Plaintiff was paid by the city after his salary was included in regular bimonthly payroll ordinances which were approved by the mayor and adopted by unanimous vote of all councilmen. On each payroll ordinance the plaintiff was listed as “Patrolman No. 2” and his salary, as well as the salary of other statutory officers, was charged to the City General Operating Fund Á. The plaintiff received checks pursuant to payroll ordinances dated June 1, June 15, July 6, July 20, August 3, August 17, and September 7, 1965.
In a memorandum opinion, the district court concluded the plaintiff was a de facto officer and not entitled to reinstatement, and was not entitled to compensation following his discharge by the chief of police. It concluded the plaintiff’s appointment was illegal because he lacked residential qualifications when appointed, and that the mayor and city governing body failed to formally make and confirm his appointment.
The pertinent portions of applicable statutes relating to second-class cities with a mayor-council form of government, read:
“Elective and appointive officers; terms; compensation . . . The mayor shall appoint, by and with the consent of the council, a city marshal, city cleric, city attorney, city assessor, and may appoint an assistant marshal, street commissioner, and such policemen and other officers as they may deem necessary. Officers so appointed and confirmed shall hold their offices for a term of one (1) year and until their successors are appointed and qualified. The council shall by ordinance specify their duties and compensation, and by ordinance abolish any office created by them whenever they may deem it expedient . . .” (K. S.A. 14-201.)
“Qualification of officers; how vacancies filled; oath and bond. All officers-elected or appointed shall be qualified electors of said city, and the removal from such city of any officer shall occasion a vacancy in such office. Vacancies in the offices of the governing body shall be filled for the unexpired term at a special election to be called and held for that purpose, as may be provided by ordinance. Other vacancies, except in the offices of justice of the peace and constable, shall be filled until the next annual city election by appointment by the governing body. The clerk shall enter every appointment to office, and the date thereof, on the journal of proceedings . . .” (K. S, A. 14-205.)
The plaintiff concedes he was a de facto officer when he was appointed by the chief of police with the consent and approval of the mayor, since he was not a resident of the city, however, he contends the disqualification to hold the office related only to residence, which was removed when he and his family moved to Beloit on June 2, 1965, and that he became a qualified elector thirty days thereafter on July 2, 1965. He argues that by the repeated passage of five payroll ordinances, none of which were vetoed by the mayor and all of which were unanimously consented to by the city council, listing him by name as being paid as Patrolman No. 2 under ordinance No. 1158, together with all other officers of the city, he was effectively appointed by the governing body as contemplated by the statute for Belknap’s unexpired term, and he was a de jure officer from and after the passage of the ordinance on July 6, 1965. He cites and relies on Hale v. Bischoff, 53 Kan. 301, 36 Pac. 752, where the court refused to find the appointment to be void even though the mayor and city council did not act in full compliance with the statute.
It is noted that, with respect to the filling of a vacancy, K. S. A. 14-205 provides that "other vacancies . . . shall be filled until the next annual city election by appointment by the governing body. . . .” This language differs considerably from that used in K. S. A. 14-201 which states that “[t]he mayor shall appoint, by and with the consent of the council” the city officers enumerated, “. . . for a term of one (1) year and until their successors are appointed and qualified. . . .” The plaintiff suggests it is unnecessary that the same formal record be made when a vacancy is filled as compared to a situation when the original appointment is made. Be that as it may, the important question is the substance of the matter and not mere form and ceremony of the governing body.
While K. S. A. 14-201 requires that the duties and compensation of the statutory city officers enumerated, including policemen, shall be fixed by ordinance, no particular requirement or formal method is prescribed as to how the mayor shall appoint or the consent of the city councilmen shall be given. Likewise, K. S. A. 14-205 requires that the city clerk shall enter every appointment to office on the journal of proceedings, but no formal method is prescribed with respect to such entry on the journals of the city.
It is conceded the plaintiff was a de facto officer when he was appointed on May 24, 1965. However, on July 2, 1965, he became a qualified elector of the city and his disability was removed. Thereafter, and on July 6, 1965, the mayor approved payroll ordinance No. 737 which listed the plaintiff by name and authorized the payment of his salary for “Patrolman No. 2” pursuant to ordinance No. 1158 from the City General Operating Fund A, which ordinance was consented to by the unanimous vote of all the city councilmen, and such ordinance was entered on the official journal of the city by the clerk. Thereafter, the mayor approved and the city council unanimously consented to four subsequent bimonthly payroll ordinances identical to ordinance 737, and this court is of the opinion that when the plaintiff was summarily discharged on August 18, 1965, he was a de jure officer of the city and that the ordinances heretofore mentioned constituted his appointment by the mayor, by and with the consent of the city council, in substantial compliance with the statute.
We note, but cannot approve, the city’s contention the plaintiff was a de facto officer when he was summarily discharged by the chief of police. Having been appointed by the mayor, by and with the consent of the council, he was a de jure officer and was entitled to a hearing before the governing body pursuant to K. S. A. 14-822. The powers of the chief of police in a city of the second class with a mayor-council form of government are provided in K. S. A. 14-819. They relate to making arrests, and do not in any manner provide for the discharge or removal of the officers of the department. As indicated, the method of removal of the city marshal, also known as the chief of police, or any member of the police department in such a city is provided in K. S. A. 14r822. It is unnecessary to here quote the statute since it was not followed. It is sufficient to say that plaintiff was not lawfully discharged for any of the reasons stated therein and his right to hold the office and receive the emoluments thereto could not be terminated by the summary discharge of the chief of police.
During oral argument counsel for the plaintiff stated the plaintiff was only claiming compensation from August 18, 1965, to the first Tuesday in April, 1966, the expiration of Belknap’s appointive term. Hence, it is unnecessary to further discuss the case.
We are of the opinion the district court erred in concluding the plaintiff was a de facto officer when he was discharged and was not entitled to reinstatement, or to the emoluments of the office. It is evident the plaintiff’s claim for reinstatement is moot; the term for which he was appointed has expired, but he is entitled to compensation for the position of Patrolman No. 2 for the remainder of the term for which he was appointed. (Moore v. Smith, 160 Kan. 167, 160 P. 2d 675.) As indicated, the plaintiff claims compensation only until the expiration of Belknap’s unexpired term. Accordingly, the judgment of the district court is reversed with directions to enter judgment in favor of the plaintiff for compensation due him as provided in ordinance No. 1158 from August 18, 1965, until the first Tuesday in April, 1966.
It is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action for personal injuries sustained by the driver of a motorcycle when he became involved in an intersection collision with a taxicab. The case was tried to a jury which returned a verdict in favor of the defendants.
Appeal has been duly perfected.
Various trial errors have been raised for consideration on appeal, nearly all of which resolve into whether there is sufficient evidence in the record to warrant a jury’s finding that the driver of the motorcycle was guilty of contributory negligence.
The pleadings of the parties were sufficient to raise the usual issues of negligence on the part of the defendants and contributory negligence on the part of the plaintiff involved in the accident.
The evidence disclosed that Elvis Prior (plaintiff-appellant) was riding his Honda motorcycle at approximately 1:30 p. m. on June 13, 1963, when he was involved in an accident at the intersection of Ninth Street and North Broadway in the city of Wichita, with a taxicab owned by Best Cabs, Inc., and driven by its employee, Frank A. Brown (defendants-appellees). The motorcycle involved in the accident was purchased new by the appellant approximately ten days prior to the accident, during which time the appellant had driven it approximately 1,000 miles.
On the day in question the appellant was headed north on Broadway, a through street, and the Best Cab was headed east on Ninth Street. It stopped for the stop sign at the intersection.
The appellant received a head injury as a result of the accident and had no recollection of the events leading to the accident, nor for a period of several hours after the accident, and so testified.
Sgt. Donald L. Hinton, the police officer who investigated the accident, was called on behalf of the appellant and testified that when he arrived at the scene of the accident at 1:30' p. m. he found the Best Cab still in the middle of the street headed east and the cycle standing close to the point where it had struck the cab; that Broadway was a north-south street 46 feet wide, and Ninth Street was an east-west street 30 feet wide, with an offset on the east side of Broadway to the south 20 feet; that there were stop signs on both sides of Broadway for traffic using Ninth Street; that the report taken from the cab driver, Brown, stated:
“I was going east on Ninth Street. Had stopped at stop sign at Ninth and Broadway. A car was stopped on east side of street with signals for south turn on. When car turned south I started' across street headed east, and motorcycle headed north dodged or swayed to miss cab, hitting right front fender of the cab.”
Further conversation between Officer Hinton and the cab driver-revealed that Brown saw the appellant’s motorcycle just before they came together, “just a moment prior to the time that the vehicles struck each other.”
On cross examination Officer Hinton testified that he would say the cab’s speed was approximately 10 miles per hour, possibly a little more, due to the skid marks that he made, and the speed of the motorcycle was 25 miles per hour.
The motorcycle struck the cab on the right front fender just behind the front wheel, indicating by the damage to the fender that it struck the cab while in an upright position.
He also testified:
“Q. All right, sir. Now, this motorcycle left no skidmarks, did it?
“A. No, sir, no skids at all visible for the cycle, that’s correct.
“Q. All right, sir. In other words, there is nothing about this accident to indicate that the driver of the motorcycle saw this automobile before the impact unless perhaps it was within his reaction time, is that a fair statement?
“A. Yes, sir.”
The evidence before the jury disclosed the day was clear, the road was dry, and the visibility of the appellant at the intersection was unobstructed.
From the foregoing testimony and the record presented, it may be conceded the cab driver was guilty of negligence by proceeding into the intersection from the stop sign in the face of oncoming traffic, which he admittedly did not see until just a moment prior to the collision.
The jury returned a verdict for the defendants, no special questions having been submitted.
Various motions by the appellant, both during the trial and after the verdict, were designed to challenge the sufficiency of the evidence in the record as to the contributory negligence of the appellant, who throughout the proceeding contended that there was no evidence of contributory negligence on his part.
The appellant takes the position the evidence in the record established a prima facie case of negligence against the cab driver; and because of the appellant’s inability to recollect the events concerning the accident, there is a presumption that the appellant exercised due care for his own safety, citing cases from other jurisdictions.
He argues this presumption was never rebutted but continued to operate, and as a matter of law required the trial court to direct a verdict for the appellant. (Citing, K. S. A. 60-414.)
Assuming, without deciding, that there is such presumption, we think the. statement in the report of the accident made by the cab driver, and read into the evidence by Officer Hinton without objection, together with the speed of the motorcycle at the intersection under the circumstances related, were sufficient to rebut the presumption and make the matter of the appellant’s contribu tory negligence a question for the jury. In other words, there was sufficient evidence in the record from which a jury could find the appellant guilty of contributory negligence. Upon all of the evidence presented by the record the trial court would have committed error in directing a verdict of liability- for the appellant. (Newcomb v. Brettle, 196 Kan. 560, 413 P. 2d 116; Sullivan v. Sullivan, 196 Kan. 705, 413 P. 2d 988; Smith v. D’s, Inc., 197 Kan. 83, 415 P. 2d 251; and Gardner v. Pereboom, 197 Kan. 188, 416 P. 2d 67.)
For the reasons heretofore stated the appellant’s objections to the trial court’s instructions on contributory negligence are without merit.
The appellant also objected to the giving of an intersection instruction by the trial court to the effect that the driver of every vehicle shall drive at an appropriate reduced speed when approaching and crossing an intersection, and when special hazard exists with respect to other traffic.
The appellant concedes this instruction is a correct statement of the law taken directly from K. S. A. 8-532(c) (and see, PIK 8.12 [c]) as an abstract proposition, and says it is probably a good rule when applied to an open intersection, but he argues here we have a through street, North Broadway, U. S. 81 Highway, through the city of Wichita protected by stop signs on all side streets, and not one scintilla of evidence that the appellant failed to drive at an appropriately reduced speed when approaching and entering the intersection.
When trying a case before a jury, one of the court’s duties is to instruct the jury on the law applicable to the theories of both parties so far as they are supported by any competent evidence. The instructions given must be germane to the issues raised by the pleadings, and must be limited to those issues supported by some evidence. (State v. Ringler, 194 Kan. 133, 397 P. 2d 390, and cases cited therein.)
Our examination of the record discloses the instruction to have been properly given because the evidence established the existence of another vehicle in the intersection making a left turn onto Broadway from the stop sign at the east side of the intersection.
The mere fact that one is traveling on a through highway protected by stop signs on both sides does not give him the right to travel through an intersection with undiminished speed where there is other traffic congesting the intersection.
Whether the appellant should have reduced his speed at the intersection in question by reason of other traffic using the intersection, was properly a question for submission to the jury. Here there was no evidence that the appellant applied his brakes or in any way reduced the speed of his motorcycle prior to the collision. On cross examination his own witness said the speed of the motorcycle was 25 miles per hour.
On appellate review we find no merit in any of the points assigned as error.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Doster, O. J.
The principal plaintiff in error, the Standard Oil Company, as a-judgment creditor of the defendant in error, C. H. Angevine, issued an execution on its judgment, and caused it to be levied on a stock of intoxicating liquors belonging to the debtor. The liquors were sold under the execution, whereupon the defendant, Angevine, brought an action for damages for the wrongful conversion of his property. He recovered judgment for $102 in the district court. This judgment was affirmed by the court of appeals. Error is now prosecuted to this court. The counsel for plaintiffs in error contend that the sale of intoxicating liquors upon legal process for the satisfaction of debts is not forbidden by the prohibitory amendment to the constitution, nor by the statute enacted in pursuance thereto ; because, as they'say, to hold otherwise would be to extend the operation of the exemption laws to an additional class of property, a thing not warranted in their view by sound rules of interpretation of the constitution and statute in question. They ask :
“Was it intended by the adoption of such amendment, and the enactment of this statute, to extend the exemption laws without limitation as to value of property privileged from levy and sale for debts? Was it intended thereby to debar the state from the right to levy and collect a tax upon such property, and thus to impose upon it, in proportion to its value, its just share of the public burden? Was it intended to make intoxicating liquors rightfully in the hands of administrators, assignees for the benefit of creditors, and trustees in bankruptcy, regardless of their value, absolutely worthless as assets from which to pay the debts of the estate?”
The claim is that inasmuch as none of the statutes relating to the exemption of property from seizure and sale for debts, taxes, etc., in terms includes- intoxicating liquors, such liquors, therefore, may be sold upon execution, as in this case. From this it is obvious that the question brought to this court is one of statutory interpretation and not of constitutional right. The inquiry does not relate to the validity of a statute but to the rules by which it shall be construed. The determination of this inquiry does not of necessity draw in question the prohibitory amendment, either for purposes of the construction of its language or the enforcement of its provisions. The statute is precisely the same as the constitution. (Gen. Stat. 1897, ch. 101, §1; Gen. Stat. 1889, ¶ 2521.) This statute does not derive its efficacy from the constitution. It could have been enacted without the previous adoption of the prohibitory amendment. The controversy therefore arises upon the statute, and nowise upon the prohibitory amendment. Evidently realizing this, counsel for plaintiff in error seek to discover a repugnancy between the statute and section 16, article 2, of the constitution, which reads: “No law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.” It is claimed that the statute is ineffectual to add intoxicating liquors to the list of property exempt from seizure and sale, because to do so would be a repeal pro tanto of the general exemption laws, or an amendment or addition thereto, none of which can be done without an express repeal or amendment of such general exemption laws. The argument is that under section 16, article 2, of the constitution, th6 only method .by which the general exemption laws could be amended and repealed pro tanto was by specifying the section amended, distinctly changing its language, and then repealing the old law ; that inasmuch as nothing of that kind was done the general exemption laws necessarily stand in letter and spirit as they existed before the enactment of this statute.
It has been repeatedly held that the constitutional provision above quoted does not prohibit repeals or amendments of existing statutes by implication. (Stephens v. Ballou, 27 Kan. 594; Comm’rs of Norton Co. v. Shoemaker, 27 id. 78; The State v. Cross, 38 id. 700, 17 Pac. 190; The State v. Studt, 31 id. 245, 1 Pac. 635; The State v. Guiney, 55 id. 532, 40 Pac. 926; The State v. Countryman, 57 id. 815, 48 Pac. 137.) The supreme court of Nebraska has held that a constitutional provision in terms the same as ours above quoted “has no application to acts complete in themselves and not in their effect simply amendatory. Such complete acts are valid, although they may modify or destroy the effect of previous legislation.” (Van Horn v. The State, 46 Neb. 62, 64 N. W. 370.) If, therefore, the statute enacted in pursuance of the prohibitory amendment to the constitution of this state has the effect of adding intoxicating liquors to the list of property exempt by other statutes from seizure and sale, it is one which maybe rightfully allowed without violating section 16 of article 2 of the constitution. Construing the statute as adding intoxicating liquor to the list of property exempt from seizure and sale does not make such statute repugnant to the prohibitory amendment to the constitution, but on the contrary harmonizes the statute with the constitution. The constitution prohibits the sale of intoxicating liquors except for medical, scientific and mechanical purposes. The effect of the statute is to prohibit their sale for the payment of debts, sales for which purpose are not within 'any of the constitutional exceptions. It is apparent, therefore, that our attention has been challenged to no question of constitutional right, but only to a question of statutory interpretation. Upon such question the plaintiff in error has no right of appeal to this court. Section 14 of the act creating courts of appeals (Laws 1895, ch. 96, Gen. Stat. 1897, ch. 84) allows proceedings in error to this court as a matter of right only 1 ‘ in any case involving the tax or revenue laws of this state, or the title to real estate, or the constitution of this state, or the constitution, laws or treaties of the United States.” The case brought here “involving” none of these questions, it will therefore be dismissed. | [
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The opinion of the court was delivered by
Allen, J. :
A very elaborate brief has been filed by the plaintiff in error, and numerous questions are discussed at great length. Such only as seem essential to a determination of the case will be mentioned. The third division of the plaintiff’s reply alleges, in substance, that Shaffer presented his claim to McAfee as assignee and obtained its allowance as a claim against the estate in his hands ; that the assignee then had $20,000 of assets, and that Shaffer was estopped and precluded from maintaining another action against the assignor for the recovery of the same debt. A demurrer to this portion of the reply was sustained, and of this complaint is made. The question presented is not an open one in this state. It was held in the case of Limbocker v. Higinbotham, 52 Kan. 696, 35 Pac. 783:
“A creditor may maintain an action upon the original claim against an assignor who has made an assignment for the benefit of creditors which is still open and recover a personal judgment against him for the amount due, notwithstanding such creditor has presented and had allowed in full a claim against the estate upon which no payment has been made.”
This decision was followed in Smith v. Higinbotham, 53 Kan. 250, 36 Pac. 336. There is no inconsistency in the remedy pursued in this action and in obtaining an allowance from the assignee whereby the creditor seeks payment from the estate in his hands. In suing the assignor he still seeks payment, but from other sources, and without denying the validity of the assignment. The assignee does not appear to have ever asserted any claim to the property in controversy. Whether he might have done so it is not necessary to determine.
The question as to the validity of Shaffer’s attachment is discussed at great length. It is contended that no sufficient levy was made ; that copies of the attachment were not posted in a conspicuous place, and that no copy was served on the occupant of the land. It is said that this is in the nature of a direct attack on the attachment proceedings, and that the plaintiff may take advantage of any defect in them. It must be borne in mind that Shaffer’s action against Knox and wife was prosecuted to final judgment before Henderson obtained any lien on the land. The judgment in favor of Shaffer was rendered on the 14th of March, 1892, and the attached property was then ordered sold to satisfy the plaintiff’s claim. There can be no question that this judgment bound John D. Knox and wife and was a complete adjudication, so far as they were concerned, not only as to the amount of the claim but as to the validity of the attachment. The sale subsequently made, and the deed based thereon, passed to Shaffer whatever equitable or legal title Knox and wife had in the property. The subsequent actions brought against John D. Knox, jr., and Martha P. Knox were also'prosecuted to final judgment rendered therein on the 21st of December, 1892. By this judgment it was determined that neither Martha P. Knox nor John D. Knox, jr.,had any real interest in the property, but that Shaffer was entitled to a conveyance from them of the apparent legal title which they held. All this occurred before the judgment in Henderson’s favor was rendered against Knox and wife. This judgment did not become a lien on the land for the reason that the judgment debtors'then had no title to it, nor had the fraudulent grantees even the apparent title remaining in them. Irregularities in the proceedings in the attachment case are not available to the plaintiff in this action, for the final judgment and confirmation of the sale under it were adjudications by which all the right and title of Knox were divested.
The- plaintiff cannot build any rights on the deed made by Martha P. Knox to Henderson, for in his original petition, filed long before the execution of the deed, he had asserted that the conveyance to her was without consideration and made in fraud of the creditors of Knox, and this has been the theory of both of the parties to this action from tho inception of the actions under which they sought to subject the property to the payment of their claims. If the land had been taken in satisfaction of Henderson’s claim or a part of it equal to the value of the land, and this had been with the consent of the debtors, a different question would be presented ; but no credit was given by Henderson on his claim against John D. Knox & Co. . He prosecuted his action to the end and took judgment for the full amount of his claim. The deed executed by Martlia P. Knox recited a consideration of $5500. This sum, however, was> not credited to John D. Knox & Co.
It is urged that the action instituted by Harvey Henderson against McAfee, as assignee, created a Us pendens from the time of filing the petition in March, 1891, and that no priority could be gained by their creditors through legal process thereafter issued. The record shows that McAfee, as assignee of John D. Knox & Oo. and of John D. Knox, was the only party to that action as originally brought, but a summons was, in fact, served on John D. Knox. Whether this made him a party to the action or not we deem unimportant. It was not instituted for the purpose of subjecting this property to the payment of the plaintiff’s claim, but was a suit seeking to have the plaintiff’s debt paid as a preferred claim out of the assets in the hands of the assignee. It did not take the form of an action to subject this specific property to the payment of Henderson’s claim until after judgment had been rendered against John D. Knox and Mary D. Knox and execution thereon issued and returned unsatisfied. Then for the first time the petition was so amended as to make it in effect a creditor’s bill to reach the land which had been fraudulently conveyed. But long before this amendment was made the whole title to the property had passed to Shaffer by virtue of the proceedings before mentioned. The action does not become a lis pendens so' as to charge others with notice of the plaintiff’s rights to the property in controversy until a pleading is filed asserting his rights and seeking their protection. Henderson never at any time acquired any lien on this property and never had any interest in it which he could protect by a suit. The mere fact that he was seeking to obtain a judgment on his claim gave him no right to withhold any of the debtor’s property from other creditors. Whatever the rule may be elsewhere, it is settled in this state that before a creditor can interfere with a transfer of the debtor’s property he must reduce his claim to judgment or at least in some manner obtain a lien on the property. (Bank v. Chatten, 59 Kan. 303, 52 Pac. 893; Tennent v. Battey, 18 Kan. 324.) In this we but follow the great weight of authority. Finding no error in the record the judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
On the 5th day of October, 1896, a judgment was rendered in the district court of Reno county against the plaintiffs in error, as sureties of the Bank of Greensburg, in favor of the board of county commissioners of the county of Kiowa, for the sum of $53,-924.21. The action was founded upon a bond executed by said parties to the county in the sum of $100,000, the conditions of which were as follows :
“ Whereas, the said Bank of Greensburg, Kansas, has been designated by the board of county commissioners of said county of Kiowa, state of Kansas, as a depository of the funds of the said county of Kiowa, Kansas, in accordance with an act of the legislature of the state of Kansas relating to the public money, and amendatory of section 1 of chapter 131 of the Session Laws of 1887, approved March 2, 1889, the condition of this obligation is such that if the said Bank of Greensburg, Kansas, shall at all times hereafter, so long as the said bank shall remain the depository of the said county funds, promptly pay on check or draft of the treasurer of the said county of Kiowa any and all of said county funds deposited with it, and shall on the first Monday of each month file with the county clerk 'a statement of the amount of money on hand during the previous month and the amount of interest accrued thereon until date, and shall faithfully and honestly and diligently perform and discharge any and all duties imposed by law upon it as such depository of the said county funds, and shall, when required, pay or deliver the money so deposited with it by said county of Kiowa, state of Kan sas, to the said county of Kiowa, state of Kansas, then this obligation shall be void, or otherwise tlie same shall remain in full force and effect.” .
The defendants below objected at the trial to the introduction of any evidence under the petition upon the ground that the bond sued on was not a valid obligation, in that its conditions were not in accordance with the statute authorizing the taking of the same by the board of county commissioners. The statute reads:
“That in all counties having a population of less than 25,000 inhabitants the county treasurer shall deposit daily all public money in some responsible bank or banks located at the county-seat, to be designated by the board of county commissioners, in the name of said treasurer as such officer, which bank shall pay such interest on average daily balances as may be agreed upon by the board of county commissioners ; and such bank or banks shall credit the same monthly to the account of said treasurer ; and before making such deposits the said board shall take from such bank or banks a good and sufficient bond in a sum double the largest approximate amount that may be on deposit at any one time, conditioned that such deposits shall be promptly paid on the check or draft of the treasurer of said county ; and such bank or banks shall on the first Monday of each month file with the county clerk a statement of the amount of money on hand at the close of business each day during the previous month, and the amount of interest accrued thereon to said date.” (Laws of 1889, ch. 189; Gen. Stat. 1889, ¶ 1725.)
This law provides that the county treasurer shall deposit daily in the designated bank all public money, and that the bond shall be conditioned that such deposits shall be promptly paid on the check or draft of said treasurer. The contention of the sureties is that, the bond being conditioned for the prompt payment by the bank of county funds only, there is such a departure from the statute that the obligation is void; that the words “county funds” in the bond mean such moneys as properly belong to the county, in contradistinction to the funds of the state, township, school districts, etc. ; and that a surety, being favored in law, cannot be held beyond the exact terms of his contract. ■ -
We do not think the position taken by the plaintiffs in error is well founded. The words “public money ” used in said section of the statute and the expression “ county funds ” employed in the bond seem to us to be convertible terms. The funds of a county are the moneys and securities in the possession of the county treasurer. In the statute relating to the quarterly examination of the funds in the hands of the county treasurer, the words “funds of the county” are used to mean all of the moneys in the treasury. (Gen. Stat. 1889, ¶ ¶ 1708, 1709; Gen. Stat. 1897, ch. 27, §§ 113, 114.) This court, in the case of Brown v. Wyandotte County, 58 Kan. 672, 50 Pac. 888, said: “The Argentine Bank, of Argentine, was a depository of the funds of Wyandotte county, made such under the provisions of paragraph 1716, General Statutes of 1889.”
The money deposited by the treasurer in the Bank of Greensburg was all credited on the books of the bank to him as such officer. He was the instrument for the collection of public funds. There can be no private ownership of money in the county treasury until it is actually disbursed. Condemnation money and redemption money have been held to be public funds within the meaning of the statute governing deposits, although the county is not the owner of such money. (Spratley v. Comm’rs of Leavenworth Co., 56 Kan. 272, 43 Pac. 232.)
The county treasurer of Kiowa county kept separate accounts with the various townships, school districts, and other municipalities, and these accounts are re ferred to as so many different funds ; and the amounts due to these different municipalities were apportioned on the county treasurer’s books in January, March, June, and November, but this constituted a mere computation. The money in the treasurer’s hands was not actually divided. These funds .in the treasurer’s hands, the proceeds of other than county taxes, must, in our judgment, be regarded as belonging to the county until they are actually paid over to the state, municipality or person for whom they were collected. The county is responsible for their safe-keeping, and if it is not the absolute owner it holds as trustee for the benefit of the real owners. In the case of Thacher & Stephens v. Comm’rs of Jefferson Co., 13 Kan. 188, the court says :
"In many cases the county is by law constituted the general agent or guardian for the protection of the rights and interests of townships and of other subdivisions of the county, and may prosecute or defend therefor. Thus, the county, through the board of county commissioners, may maintain an action against the county treasurer for a misappropriation or misapplication of the funds of a township or school district, etc., although the county, as a corporation, can have but little interest in the funds of such township or school district. (Comm’rs of Jackson Co. v. Craft et al., 6 Kan. 145.)”
Again, it will be noticed that the bond executed by the plaintiffs in error contains a recital that the principal, the Bank of Greensburg, had been designated by the board of county commissioners of Kiowa county as a depository of funds in accordance with an. act of the legislature relating to public money, and amendatory of chapter 131 of the Laws of 1887, the statute set out above. While this recital precedes the conditions of the obligation, yet it tends to aid in de termining the scope of the whole writing. This act referred to in the bond, and set out above, required the county treasurer to deposit daily in the designated bank all public money. The employment of the words “county funds” in the bond, and the recital of the law which authorized the deposit, point to the fact that the sureties considered the words “county funds ” and “ public money ” synonymous terms.
It appears from the evidence, and the court found, that on the 9th day of January, 1893, the same day the bond was accepted and approved by the board of county commissioners, the treasurer of Kiowa county had on deposit in said bank a large sum of money, amounting to .$59,463.57. The statute above cited, which authorized the designation of the depository and the taking of bonds, provides that “before making such deposits the said board shall take from such bank or banks a good and sufficient bond.” It is insisted that under this provision the bond covers deposits made only after its acceptance and approval. This identical question was fully considered by this court in the late case of Brown v. Wyandotte County, 58 Kan. 672, 50 Pac. 888, and determined against the position taken by the plaintiffs in error. In that case the obligation was “ to pay any and all deposits of the county which may be deposited with it.” In the case at bar it is “ that it shall promptly pay any and all of said county funds deposited with it.” If there is any material difference in the meaning of the language of the two obligations, the retrospective feature is-stronger in the latter than in the former case.
It is further assigned as error that the trial court admitted in evidence certain pass-books of the bank, showing the receipt of deposits made from time to time by the treasurer. The evidence of the deputy county treasurer, which preceded the introduction of these pass-books, showed that the entries in these books were made by the officers of the bank and by persons in charge of the bank’s business at the times when the money was deposited. . It was further shown by her testimony that all the money deposited by the treasurer was deposited in the Bank of Greensburg. We can see no error in the ruling which admitted these pass-books in evidence.
The findings of 'the trial court show that the bank became insolvent on December 22, 1893, and was closed by the state bank examiner ; that the amount for which judgment was rendered against the sureties on the bond was the amount of public funds then on deposit in the bank less an amount paid to the county by the bank’s receiver as a dividend. Other errors are assigned and argued in the brief of plaintiffs in error, but they are mere amplifications of the points discussed in this opinion. The judgment will be affirmed. | [
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The opinion of the court was delivered by
Doster, C. J. :
This was an action brought by Mrs. E. M. Norton, a widow, against O. L. Anthony, for damages for the seduction of her daughter, Turie Norton. Besides a denial of the imputed act, the defense was that the daughter was of full age, and did not, as to-'-her mother, stand in the relation of a servant .to a mistress, and that no loss of service to the mother, as mistress, had resulted from the alleged wrong. The daughter was about twenty-five years old at the time of the seduction- charged, and was clerking in a store. At and before that time she lived with her mother as a part of the family, and occasionally performed some slight household services. The court,-among-other matters -of law, instructed the jury as follows :
“If you find from the evidence that the plaintiff is a widow, and the mother of Turie Norton, whom it is alleged that the defendant seduced, and that, at the time of said seduction, the said Turie Norton lived with her-mother and performed service for her (and you are instructed that the performance of any slight service is sufficient to satisfy the law in that regard ), then plaintiff will be entitled to recover, if you find that the seduction was accomplished as alleged. That you may find that the said Turie Norton was in the service of the plaintiff, you need not find that a contract existed between them for such service. It will be sufficient if she lived with her mother when the se-, duction occurred, and took part in the housework. And such service need not be paid for, and no pay need be promised or expected.”
A request made by the defendant for the following instruction was refused :
“I instruct you that the mere relation of mother ap-d daughter will not permit a recovery by the former for the seduction of the latter.”
The instruction given is in accord with the almost unanimous voice of the courts, and if it were the only one to be considered we should have no hesitation in approving it; but the request preferred by the defendant and refused by the court brings before us the question as to whether an action for seduction can be maintained upon the mere relation of parent and daughter alone, especially where, as in this case, the daughter is of age and lives with. her-parent and constitutes a part of the family. Upon this question the holdings of the courts are uniform to the effect that an action for the seduction of a daughter, brought in the parental capacity alone, is not maintainable, except as allowed by statute. At common law the — - action is maintainable by the parent only in the capacity of master or mistress, and it must be in form an action for loss of the daughter’s services as a servant. That the rules of the law should thus degrade the injured parent’s right of action to one of mere compensation for the impaired ability of the daughter to perform labor, and for the recovery of the expenses incident to such sickness as results from the wrong done, has been, throughout the course of judicial decision, a matter of regret among the judges. So grievously has this reproach upon the law been felt, that the courts quite a time ago began to sanction a wide latitude of evidence as to damages in such actions, until now the rule has become firmly established that, notwithstanding the action must be in form for loss of services and expenses incurred in sickness, compensatory damages for parental, and even general, family shame and mortification may be recovered, together with an additional punitory sum for the flagrant wrong committed by the seducer. It will be profitable at this point to illustrate by quotations from the authorities the present liberal holdings of the courts upon this subject, and to note the extreme departure of the rule of proof from the rule of pleading, and also to note the lament of the judges over the arbitrary and technical theory which compelled the parent to disguise his action in the false and abhorrent form of a master’s suit for loss of services.
Mr. Sedgwick, in his work on Damages (8th ed., vol. 2, § 471), áays : “ The common-law action of case, by the father or master, for seducing a daughter or female servant, is_ one of a peculiar character. It is eminently a legal fiction; the demand is based upon the mere loss of service; but the damages are very much at large, and in the discretion of the jury.” Following the above statements the author briefly traces the evolution of the rule of damages from one of mere compensation to the master for loss of services to one of compensation for' parental mortification, anguish, and violated honor.
In Sutherland on Damages (vol. 3, p. 735), it is said :
“At common law this action rests on the relation of master and servant, and proceeds in form for loss of. service. Trespass vi et armis is deemed the proper action where the servant resides with the master or parent ; case may also be brought where the injury is not committed with force or where the servant is only constructively in the master’s service. Slight evidence will establish sufficiently the relation, and the' extent of the loss of service is not the measure of damages. The allegations and proof on these points are almost an unmeaning formula — an obeisance to a shadow of the past — to reach the actual grievance. The action in reality is to afford redress for the injury done to the parent or other near relative or person standing in loco parentis for the dishonor and degradation suffered by the family in consequence of the seduction. And large damages, which the court will seldom relieve against, are recoverable, both for recompense to the plaintiff and punishment to the defendant. Catón, J., said: ‘Technically the ground of recovery is the loss of the services of the daughter, and the rule of the books seems to be that the father must prove some service in order to entitle him to maintain the action. This is nominally the ground on which the plaintiff’s right of action rests, while, practically, the right to recover rests on far higher grounds ; that is, the relation of parent and child, or guardian and ward, or husband and wife, as well as that of master and servant; and it seems almost beneath the dignity of the law to resort to a sort of subterfuge to give the father a right of action which is widely different from that for which he is really allowed to recover damages. But the law may still require proof of service, or at least the right to service when the child is a minor; but this, as well as any other fact, may be proved by circumstances sufficient in themselves to satisfy the jury that the party seduced did actually render service to the plaintiff, and the most trivial service has always been held sufficient.’ (Doyle v. Jessup, 29 Ill. 462.) Even in England, where stricter proof of service is required, Blackburn, J., said: ‘In effect, the damages are given to plaintiff as standing in the relation of parent; and the action has at present no reference to the relation of master and servant, beyond the mere technical point on which the action is founded.’ (Terry v. Hutchinson, L. R. 3 Q. B. 602.) This is according to the general current of authority. While the courts adhere so far to the original distinctive character of the action as to require proof that the seduced female was in the service of the plaintiff at the time of the seduction, they do not require very strict proof; very slight evidence of loss of service suffices in favor of one standing in loco parentis, and affected by the graver consequences of the seduction. The actual loss sustained by the plaintiff, 'through the diminished ability of his daughter, relative or ward to yield him personal service, as well as the servile position of the supposed servant herself in the family of her protector, is ordinarily little more than a mere fiction. It is one of those cases in which an action devised for one purpose has been found to serve a different one, by the aid of the discretion which courts have assumed in instructing the jury, and the readiness of the jury to render substantial justice by their verdict, where the forms of law imposed by the instructions of the court admit of their so doing.”
In Pollock on Torts, 201, it is said:
“ The capricious working of the action for seduction in modern practice has often been the subject of censure. Thus, Sergeant Manning wrote forty years ago : ‘ The quasi fiction of servitium amisit affords protection to the rich man whose daughter occasionally makes his tea, but leaves without redress the poor man whose child is sent unprotected to earn her bread amongst strangers.’ All devices for obtaining what is virtually a new remedy by straining old forms and ideas beyond their original intention are liable to this kind of inconvenience. It has been truly said that the enforcement of a substantially just claim ‘ought not to depend on a mere fiction over which the courts possess no control.’”
In Phelin v. Kenderdine, 20 Pa. St. 361, the court says :
“Although the action by a parent for the seduction of his daughter has its technical foundation in the loss óf his daughter’s services, it is well settled that proof of the relation of master and servant, and of the loss of service by means of the wrongful act of the defendant, has relation only to the form of the remedy, and that the action being sustained in point of form by the introduction of these technical elements, the damages may be given as a compensation to the plaintiff, not only for the loss of service but also for ‘ all that the plaintiff can feel from the nature of the injury.’ ”
In Badgley v. Decker, 44 Barb. 588, the court says :
“ The rule is still adhered to with us, that the loss of service is the legal gravamen of the action .(Bartley v. Rightmyer, 4 Comst. 38), but to accommodate the action to cases where the daughter rendered no service, a presumed or a fictitious service is resorted to as the gravamen. (3 Burr. 1893, 2 D. & E. 166, 168; 7 Carr. & Payne, 528; 9 John. 389; 2 Wend. 459; 21 id. 79-82.)
“All the modern cases hold that the legal gravamen of the action is not the real gravamen, as is apparent when we come to consider the rule of damages recognized in the action, and judges have not unfrequently spoken of the action as resting upon a fiction. . The real gravamen, of the action is not the loss of service ; that is a very small item in the measure of damages. The loss of service in many cases could not be considered anything in reality, and often when the least service is performed the highest damages are given. The real gravamen of the action is the mortification and disgrace of the family and the wounded feelings of the plaintiff.”
In Davidson v. Abbott, 52 Vt. 570, the court says :
“ The action in form is to recover damages for loss of service ; but it has become well settled for a century in England and this country that the loss of service is slight and nominal in most cases, and-the recovery is had essentially for wounded feelings, dishonor, and disgrace.”
In Riddle v. McGinnis, 22 W. Va. 271, the court says :
“While at common law the father and master was obliged to allege and prove the-loss of service, howéver trivial or valueless, as the foundation of the recovery, yet it was regarded only as the foundation, for the courts have always treated the relation of master and servant and the loss of service as innocent fictions which merely served to give the court jurisdiction, while the measure of the plaintiff’s damages was not merely the actual value of the service lost, but compensation for the . shame, disgrace and anguish suffered'by the father in the defilement and ruin of his daughter. These elements now enter into and generally constitute the real measure of damages, while the jury in estimating them must almost necessarily be influenced and controlled by the position of the parties in society, and by all the other circumstances surrounding each particular case.”
Many more quotations like those above could be made from text-writers and reported decisions. The views of all legal authorities upon the subject are to the effect that the rule which requires a parent suing for the seduction of a daughter to plead loss of her services as his servant, but which obligates him to only nominal proof of the cause of the action stated, is an empty and senseless legal fiction, a pretense and a sham, which does discredit to the law, and with which it is highly desirable to dispense.
What seems to us a satisfactory definition of a fiction of law, though one admittedly broad, is that given in Maine’s Ancient Law, page 26. It is : ‘‘Any assumption which conceals or affects to conceal the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified. . . . The fact is that the law has been wholly changed. The fiction is that it remains what it always was.” The substance of all the definitions of a legal fiction is that it is a pretense that' the law as to a particular matter is different from what it really is.
The legal fiction in actions by a parent for seduction is that he has lost the services of his daughter and has been subjected to expense on her account, wherefore he sues for such loss and expense, and for them alone. The fiction assumes his right to recover for these and these alone. The fact is that he has lost no services and has been subjected to no expense', but the law is that, notwithstanding his lack of loss and expense, he may nevertheless recover for the wounds to his parental feelings, and may mulct the seducer in punitive damages also. We say the law is that he may recover notwithstanding his lack of loss in his capacity as master. The courts make a pretense of holding him to proof of such loss, and make a pretense of withholding relief if he fails to make the proof; but it is a pretense only. Proof of the very slightest kind of service will suffice. The service proved need be nothing more than nominal. It need not be actual or beneficial; and many of the courts hold that where the daughter was not actually in the service of the parent she nevertheless was, if a minor, constructively in his service, and that such constructive service was sufficient to uphold the right of action. It is a shameful pretense to hold that a daughter whose labors, for instance, merely consist in pouring the tea at her father's table and doing the honors of his household to his guests, is in his service as a servant, and that he may recover damages because of the loss of such labors through her seduction.
Many of the courts have deplored the lack of legislation to enable them to dispense with the fiction in question, so as to allow them to bottom cases in theory as well as in fact upon the actual and meritorious ground upon which the damages are really awarded. If by this is meant legislation which in express terms abrogates the fiction of the relation of master and servant, we deny its necessity in this and other states which have adopted the reformed code of procedure. The code was devised for the very purpose of dispensing with legal fictions and antiquated forms of action. Its spirit in this respect can be illustrated by a score or more of its provisions. Out of them one general rule of reform is collectible, and that is that the actual facts from which the claimed right of action is deducible must be stated. Nay more, it is even expressed in some of the sections of the code. “The distinction between actions at law and suits in equity and the forms of all such actions and suits heretofore existing are abolished.” (§ 6.) “ There can be no feigned issues.” (§ 7.) “The rulej3 of pleading heretofore existing in civil actions are abolished.” (§85.) “The petition must contain a statement of the facts constituting the cause of action, in' ordinary and concise language, and without repetition.” (§87.) “All fictions in pleadings are abolished.” (§116.) '
If in fact a right of action is given to the parent as such for the seduction of the daughter ; if in fact the injury done is to the parent in that relation ; if in law the courts take to themselves -the right to probe beneath the thin veneering of the form of the action as one for the loss of services, in order to reach the heart and core of the controversy and give damages for the actual injury committed — if these things are allowed and done, it cannot be that the liberal rules of the code still require conformity to the fictitious and embarrassing formulas of the common law. Not only was it the design of the code to simplify the rules of pleading by reducing to unity all the various forms of action existing at common law and requiring the' parties to state the actual facts of the controversy, but it contemplated the existence of the modern and enlarged ideas of justice as to matters of substantive right which had begun to prevail. To furnish a better medium ■for the working out of the newer and more equitable thought was equally its design.
No relation' in life has been more visibly affected by the humanizing influence of latter-day concepts of justice than has the domestic one. Originally the child was in the fullest sense the slave of its father. Indeed, the origin of slavery, according to the view of a most learned and deep-searching historian, was in the family circle ; the child was born into slavery to its sire. . (Ward’s Ancient Lowly, cli. 2-3.)/ In the course of time the legalized state of the child passed from that of a slave to that of a servant of the one who had begotten it. Now it holds, in general estimation at least, if not in law, a quite nearly coordinate position in the family. As long as its minority lasts it is under the guardianship and tutelage of its parents, but it is no longer in fact, nor in' legal theory, their servant, and when, it being a daughter, suit is brought on account of its seduction, such suit is not in fact founded upon the idea of service lost, but upon the idea of parental affection wounded, parental anguish endured, and parental liability for care and nurture increased. Damages, therefore, in respect to the violated parental relation are the facts which the code ordains shall be stated in the petition, and the pretense of services lost to the parent as a master is the legal fiction of pleading which the code ordains shall be abolished . If necessity ever existed for cloaking the real cause of action under the nominal disguise of another one it no longer exists, and we hold accordingly. In this state a parent may maintain an action for the seduction of the daughter without averment or proof of loss of services or expenses of sickness.
A question subsidiary or incidental to the one above discussed now arises. In this c'ase the daughter was of full age. The law had emancipated her from the guardianship and control of her mother, and, so far as legal liability is concerned, the mother was absolved from responsibility for the acts and conduct of the daughter. May the mother, therefore, maintain the action? As before stated, the daughter constituted in fact a part of the mother’s family. The mother was the head of that family, and was chax’ged with that moral responsibility for the virtue and orderly conduct of its various members which devolves upon the head of a household. The purity and rectitude of behavior of those within the domestic circle were in an especial manner the objects of her solicitude and care. The law, therefore, will not deny compensation to her for the invasion of her home by the ruthless destroyer of its peace and happiness simply because in law she could no longer command the.services of her daughter. The mere fact of the legal emancipation of the daughter from parental control has never been 'made a test of the right to maintain the action for seduction. When the right to maintain it was founded upon the legal fiction of loss of services the cases divided themselves into two classes — one where the daughter was a minor, in which instance the right to the service was legally presumed ; the other where the daughter was of age, in which instance proof of a contract of service was required', or in lieu thereof proof of facts from which it could be inferred. The right of action was given in the last-mentioned case as well as in the former, and the courts, although adhering in the last case, as well as in the former, to the fiction of the loss of services, nevertheless gave damages in vindication of the parental right and in melioration of outraged parental feelings.
In Badgley v. Decker, 44 Barb. 577, and in Davidson v. Abbott, 52 Vt. 767, the daughters were twenty-five and thirty-one years, respectively, at the times of their seduction. The actions were held maintainable in these cases, and in the following, ones they were likewise upheld, although the females had passed the period of minority : Sutton v. Huffman, 32 N. J. (Law) 58; Wert v. Strouse, 38 id. 185; Lamb v. Taylor, 67 Md. 85, 8 Atl. 760; Moran v. Dawes, 4 Cow. 412; Lipe v. Eisenlerd, 32 N. Y. 229; Villepigue v. Shuler, 3 Strob. (Law) 462; Long v. Keigtley, 11 Irish Law Times, 77. Many other like cases might be cited, but these are sufficient to show that the minority of the daughter has never been held essential to the right of recovery by the parent.
There exists no reason for distinguishing between cases of minority and of full age of the daughter, and granting a recovery in the former while denying it in the latter, merely because the legal fiction of services lost, upon which they were formerly both prosecuted, has been cleared out of the way, and the fight of recovery placed in law as well as in fact upon its real ground. There is no magic in'the passing of a daughter’s eighteenth birthday anniversary to relieve against parental solicitude and care, or parental anguish over her fall from virtue. At what time in the advancing age of a daughter the feelings of parental mortification over such fall become sufficiently dulled and the sense of parental responsibility sufficiently weakened to reduce the damages to a nominal sum or to deny them altogether we need not concern ourselves. The law heretofore has set no time for the passing of parental feelings as to such matters into a condition of indifference, and we need not speculate as to it. Each case will depend upon its own particular facts and as to such facts the jury is the judge. .
Two other claims of error are made. They are founded upon the court’s instructions and its refusal of requests for instructions. One of. them relates to the meaning of the word “seduction” and raises a question as to its legal definition ; the other relates to the measure of damages recoverable. Both of them, however, are unfounded, and the judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by
.Johnston, J. :
On June 1, 1896, Ozro E. Hart applied for membership and insurance in the Modern Woodmen of America, and on June 5, 1896, a beneficiary certificate was issued to him, providing that while in good standing he was entitled to participate in the benefit fund in the amount not to exceed $3000, which was to be paid at his death to his mother, Ruth America Hart. On June 13, 1896, Ozro E. Hart also obtained a beneficiary certificate in the order of the Knights of the Maccabees in the sum of $3000, payable at his death to Everett L. Hart, his son. In the case of the Modern Woodmen of America, it was expressly provided that the certificate should be void and all benefits which might have accrued absolutely forfeited if the insured should die “by his own hands, whether sane or insane.” In the application Hart was asked if he understood that the order did not indemnify against death by suicide, to which he made an affirmative answer, and it was provided that the statement should constitute a part of the insurance contract.
In the case of the Knights of the Maccabees, the certificate provides that when the applicant becomes a member of the order he is entitled to the rights and benefits of the same subject to the provisions of the laws of the order. The laws of the order expressly provide that no benefits shall be paid on account of the death of a member when death is “the result of suicide within one year after admission, whether the member so taking his own life was sane or insane at the time.” On the certificate itself is printed this provision of the law, exempting the order from liability if the member commit suicide within one year after admission to the order, whether sane or insane. The application of Hart also contains this declaration : ‘11 also agree that should I commit suicide within one year from the date of my admission into the order, whether sane or insane at the time, this contract shall be null and void.” And he further stipulated that the application and'laws of the order should constitute a part of the certificate.
■Within a few days after his admission into the orders and the taking out of the beneficiary certificates, Ozro E. Hart committed suicide, and the facts with reference to the suicide were agreed on between the' parties and are as follows :
“ The said Ozro E. Hart was married on the 4th day of July, 1889, and lived and cohabited with his wife until the time of his death, and that his wife was the mother of said Everett L. Hart and he the father of said child ; that on the night of the 19th or 20th day of June, 1896, the said Ozro E. Hart first learned and discovered that his wife and one Pitt were occupying the same bed and illicitly cohabiting together, and that his said wife was guilty of adultery with the said Pitt, and.that the said knowledge and information of the infidelity of his wife affected the mind of said Hart to such an extent and in such a manner that his reasoning faculties became so impaired that he, the said Ozro E. Hart, became unable to understand the moral character of his. acts and became insane1, and while in such condition of mind, and while being so insane, he shot and killed his said wife, then turned the pistol on himself, and shot and killed himself, in the city of Wichita, Sedgwick county, Kansas, on June 21,1896.”
In the trial the principal controversy was whether the self-destruction of Hart exempted the orders from liability, and the decision in each case was in favor 'of the defendant. While there is some contention to the contrary, it is clear that an exception as to non-liability because of death by suicide, whether sane or insane, is a part of each of the insurance contracts under consideration. In one case it is plainly written on the face of the certificate, and in the other it is clearly provided for in the application and by-laws, which are referred to and made a part of the certifi cate, which .together show the contract of the parties and that the exception is included.
Much diversity of judicial opinion has arisen as to the effect of the suicide of the insured. The supreme court of the United States has distinctly held that intentional self-destruction by the insured while sane is not a risk covered by a life-insurance policy, even when the policy contains no exception as to such a death, and it was there said that such a risk could not be legally covered by an insurance contract, as it would be against public policy to make such a contract. (Ritter v. Mutual Life Ins. Co., 169 U. S. 139, 18 Sup. Ct. 300; Supreme Commandery Knights Golden Rule v. Ainsworth, 71 Ala. 436; Hartman v. Keystone Ins. Co., 21 Pa. 466.) Other authorities hold that where life insurance is effected for the benefit of wife or children the suicide of the insured while sane is not a defense, in the absence of a condition or exception to that effect in the policy. (Fitch v. American Popular Life Ins. Co., 59 N. Y. 557; Darrow v. Family Fund Society, 116 N. Y. 537, 22 N. E. 1093; Mills v. Rebstock, 29 Minn. 380, 13 N. W. 162.) The supreme court of Wisconsin has held that intentional suicide while sane does not avoid a life-insurance policy in the absence of any provision therein to that effect, if third persons are beneficiaries. (Patterson and others v. Natural Premium Mutual Life Ins. Co., 100 Wis. 118, 75 N. W. 980.) There is much conflict in the authorities where the insurance contract merely excepts death by suicide or self-inflicted injuries — the result of varying standards in measuring the mental capacity and responsibility of the insured. With respect to this provision, Justice Gray, of the supreme court of the United States, remarked :
“The decisions upon the effect of a policy of life insurance which provides that it shall be void if the assured 1 shall die by suicide ’ or 1 shall die by his own hand ’ go far toward determining this question. This court, upon full consideration of the conflicting authorities upon that subject, has repeatedly and uniformly held that such a provision, not containing the words ‘ sane or insane/ does not include a self-killing by an insane person, whether his unsoundness of mind is such as to prevent him from understanding the physical nature and consequences of his act, or only such as to prevent him, while foreseeing and premeditating its physical consequences, from understanding its moral nature and aspect.” (Accident Ins. Co. v. Crandad, 120 U. S. 527, 7 Sup. Ct. 685.)
To avoid disputes as to the meaning of “suicide” and definitely to fix the extent of the risk, it is not uncommon to incorporate a condition in an insurance contract that it shall be void if the insured die by suicide, sane or insane. No reason is seen why a stipulation exempting the insurer from liability for acts of the insured committed while insane should not be enforced. It does not contravene sound morals or public policy,. and courts must enforce the intention of the parties as expressed by it. As to the right of insurance companies to include such an exemption in the policy, it has been said that if “ they are at liberty to stipulate against hazardous occupations, unhealthy climates, or death by the hands of the law, or in consequence of injuries received when intoxicated, surely it is competent for them to stipulate against intentional self-destruction, whether it be the voluntary act of an accountable moral agent or not.”
As to the effect of the words “sane or insane,” added to the condition, the same authority said :
“Nothing can be clearer than that the words ‘sane or insane’ were introduced for the purpose of excepting from the operation of the policy any intended self-destruction,- whether the insured was of sound mind or in a state of insanity. These words have a precise, definite, well-understood meaning. No one can be misled by them, nor could an expansion of this language more clearly express the intention of the parties. In the popular, as well as the legal sense, ‘suicide’ means, as we have seen, the death of a party by his own voluntary act; and this condition, based as it is on the construction of this language, informed the holder of the policy that if he purposely destroyed his own life the company would be relieved from liability.” (Bigelow v. Berkshire Life Ins. Co., 93 U. S. 294.)
Such a condition does not admit of an interpretation to include death by accident or by mistake, although it may have resulted from the immediate act of the assured, but under an exception such as we are considering, if the insured purposely takes his own life the insurer goes free. (Pierce v. Travelers’ Life Ins. Co., 34 Wis. 389; De Gogorza v. Knickerbocker Life Ins. Co., 65 N. Y. 241; Searth v. The Security Mutual Life Society, 75 Iowa, 346, 39 N. W. 658; Sarah E. Billings v. Accidental Ins. Co. of North America, 64 Vt. 78, 24 Atl. 656; Streeter v. Insurance Society, 65 Mich, 199, 31 N. W. 779; Salentine v. Mutual Benefit Life Ins. Co., 24 Fed. 161; Union Central Life Ins. Co. v. Hollowell, 14 Ind. App. 611, 43 N. E. 278; Riley v. Hartford Life and Annuity Co., 25 Fed. 316; Travelers’ Ins. Co. v. McConkey, 127 U. S. 661, 8 Sup. Ct. 1360; Sabin v. National Union, 90 Mich. 177, 51 N. W. 202.)
In interpreting such an exception, a distinction has been made by some of the authorities between cases of insanity where the suicide was conscious of the physical nature and result of the act which causes his death, and cases where he did not appreciate the physical consequences of such act. If there be ground for such a distinction there is no room for it in the cases under consideration. The agreed facts show a case of intentional self-destruction, and that, while he did not understand the moral character of his acts, he had sufficient intelligence as to what the physical end and consequences of the same would be. We are not required to determine the effect of such an exception where the insured was so wholly bereft of reason that he did not understand the natural result of his acts, nor what would be the effect if, in addition to this exception, the contract contained a clause making it incontestable after a stated time and the death had occurred after that time. From the language of the contracts and the agreed facts as to the manner of Hart’s death, it is clear that the risk was not within the contemplation of the contracting parties. The judgments of the district court will therefore be affirmed.
Doster,, C. J., concurring.
Smith, J., not sitting. | [
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Per Curiam :
This was an action brought by Patrick Loob, as a son and heir of Thomas Loob,. to set aside a wall executed by the latter, upon the ground that he had been induced to make it by Sarah Fenaughty, a daughter and heir of the deceased, through undue influence exercised by her over him when he was intoxicated, sick, and infirm of mind. The district court sustained a demurrer to the plaintiff’s evidence. The case-made recites that the jury were instructed to remain outside the court-room during the argument of the demurrer, at the close of which argument they “were again called into court, and were instructed by the court that said case had been determined upon a legal proposition, and that they were discharged from further consideration of the case.”
A demurrer to the plaintiff’s evidence in a case tried to a jury raises the legal question as to whether any showing of fact why the plaintiff should recover has been made. In such cases we are compelled to examine the evidence. We have done so in this instance, and are satisfied that the court was in error. It should have overruled the demurrer and put the defendants upon their defense, for there was evidence tending to sustain the plaintiff’s allegations. Such cases as this are not triable to a jury as a matter of right. If, however, a jury be impaneled, and evidence adduced before them for their consideration, the same rules obtain as those which govern cases triable to juries as a matter of right, unless the court thereafter dispense with the jury for the purpose of trying the case itself. If in this case the court had dispensed with the jury for the purpose of trying it itself, the decision by it upon the demurrer might be regarded, although we do not so decide, as a determination of a question of fact, but, under the above-quoted recital in the record, it is clear that the question arising upon the demurrer was regarded as a question of law, which, as in such cases, it really was.
For the error made in sustaining the demurrer to plaintiff’s evidence the judgment is reversed and a new trial ordered. | [
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The opinion of the court was delivered by
Allen, J. :
This is an original proceeding brought in this court for the purpose of testing the validity of the incorporation of the city of Kensington, in Smith county. The defendants assume and claim the right to exercise the functions of officers of Kensington as a city of the third class. On the 7th day of October, 1892, the board of county commissioners of Smith county acted on a petition praying for the incorporation of the city, and caused a record of their proceedings to be made and entered on their journal in the folio wing form :
“Commissioners proceedings, regular session, one o’clock p. m., October 7, 1892.
‘PETITION TO INCORPORATE KENSINGTON.
‘ To the honorable hoard of county commissioners of Smith county, Kansas:
‘ Gentlemen — We, the undersigned, legal electors of the town of Kensington, county of Smith and state of Kansas, respectfully repre sent that said town of Kensington is included within the metes and. bounds to wit: (Here follows description by metes and bounds.) We further represent that the number of inhabitants in said town is over-two hundred and fifty (250), and we respectfully petition your honorable. body to order and declare said above-mentioned town incorporated as a city of the third class by the name and style of “The City of Kensington,” and that you designate in order the metes and bounds thereof, and further your petitioners ask not.’
“The board finding the above petition legal and reasonable, and signed.by a majority of the taxpayers, and that the same was published for three consecutive weeks in the Kensington Mirror, order and declare it a city of the third class by the name of ‘ The City of Kensington.’ ” (Then follow provisions for the first election of officers.)
The only question we find it necessary to consider in determining the case is whether the order of the board of commissioners is sufficient under the statute. The attempt to incorporate Kensington was made under section 3 of chapter 38, General Statutes of 1897, which is as follows :
“ § 3. Whenever a petition signed by a majority of the electors of any unincorporated town or village within the state shall be presented to the board of county commissioners of the county in which such town or village is situated, setting forth the metes- and bounds of their village and commons, and stating as near as may be the number of the inhabitants-of such town or village, and praying that such town or village may be incorporated as a city, with satisfactory proof that such petition has been published in full in some newspaper printed in said town or village at least once in each week for three consecutive weeks, and such board of county commissioners shall be satisfied that a majority of the taxable inhabitants of such town or village are in favor of such incorporation, and that the prayer of the petitioners is reason-’ able, and that the number of the inhabitants of such town or village exceeds 250 and does not exceed 2000, such board of county commissioners may, at any regular session thereof, by order reciting the'substance of such petition, and the due publication thereof, and their finding that a majority of the taxable inhabitants of such town or village are in favor of such incorporation, and that the prayer of the petitioners is reasonable, and that the number of the inhabitants of such town or village is within the limits hereby required, declare such town or village incorporated as a city of the third class by the name and style of ‘ The city of-’ (naming it), and designating in such order the metes and bounds thereof ; and thenceforth the inhabitants within such bounds, and such further territory as from time to time may be lawfully added thereto, shall be a body politic and corporate by that name, and they and their successors (except such corporation be lawfully dissolved) shall have perpetual succession.” (Gen. Stat. 1889, ¶ 923.)
It will be observed that the statute is quite explicit in its directions as to what shall be contained in the order. It must recite the substance of the petition. In this case it appears to be copied in full, which'is, of course, sufficient. It must recite the due publication thereof. We do not care to say whether it is sufficient or not in this respect. It must contain a finding that a majority of the taxable inhabitants of such town or village are in, favor of such incorporation. The board finds the "petition legal and reasonable and signed by a majority of the taxpayers.” This is not equivalent to a finding that a majority of the taxable inhabitants of the town are in favor of such incorporation. Taxpayers may be inhabitants or not. They may even be non-residents of the state. There is no finding that the number of inhabitants of the town is more than 250 and less than 2000, nor are the metes and bounds of the city of Kensington, as incorporated, designated in the order. These requirements are substantial, and essential to the validity of an order of incorporation. It is shown by the agreed statement of facts that the territory contained within the boundaries given in the petition in chided lands never platted into lots and blocks. In fact, by far the larger part of the tract was agricultural and grazing land. It appears also that less than 250 persons resided on the platted portion of the. territory. We do not deem it necessary to determine whether the unplatted land could lawfully be included within the corporation without the consent.of the owners of it, nor whether there were sufficient inhabitants in fact to authorize the incorporation, but it was essential that the board of commissioners pass both on the sufficiency of the number of inhabitants and on the propriety of including all the territory designated in the petition within the corporate limits. The boundaries of the corporation, as established by the board, would not necessarily be identical with those stated in the petition. The statute contemplates that the order shall show what the petitioners prayed for and what the board granted. This it fails to do in the essential particulars pointed out. As it is agreed that this is the only order for incorporation ever made, the defendants are assuming to exercise the functions of city officers without right. Judgment of ouster as prayed for will be entered. | [
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The opinion of the court was delivered by
Allen, J. :
This action was commenced in the district court of Reno county by Ephraim J. Lash and wife and Robert H. Smith against the plaintiff in error. It was alleged in the petition that on or about the 16th day of May, 1889, the plaintiffs entered into a written contract with the defendant, by the terms of which the plaintiffs were to receive a loan of $2201.35 from the defendant on the completion of a certain two-story dwelling-house on a lot in Hutchinson ; that the plaintiffs executed and delivered their note and mort gage for $2500, payable in five years, with interest; that the contract and note were in the possession of the defendant, and for that reason the plaintiffs were unable to attach copies thereof to the petition; that the building had been completed according to the terms of the agreement and accepted by the defendant ; that the plaintiffs had performed all the terms and conditions of the contract, and by reason thereof were entitled to the payment of the sum first mentioned, and that the defendant refused to pay the same. The defendant answered, denying generally the averments of the petition, and alleging that all moneys that were ever due to the plaintiffs on account of their loan were paid to V. P. Caffrey on the written order of the plaintiffs, a copy of which 'was attached to the answer. The plaintiffs replied with a verified denial of the execution of the order. In March, 1891, the case was tried, and resulted in a verdict and judgment in favor of the plaintiffs for $1622.79. On proceedings in error this judgment was reversed and the cause remanded for a new trial. (National Mortgage Co. v. Lash, 5 Kan. App. 633, 47 Pac. 548.) On the 26th of April, 1897, the case was again tried, and resulted in a verdict for the plaintiffs for $3043, on which judgment was entered. The defendant now brings the case to this court for review. The defendant’s answer was not verified.
The first evidence offered by the plaintiffs was the deposition of Ephraim J. Lash, one of the plaintiffs, to which was attached as an exhibit a copy of the written application for the loan, signed by Lash and Smith, from which it appears that the application was made to the Kansas Mortgage Company, and in which were contained representations as to the title to the lot and value of the lot and buildings, and au tliority to the mortgage company to perfect any flaws in the title at the expense of the applicants. It contained representations that there was nothing due for work or materials furnished for improvements on the property .and that there were no liens thereon except such as were shown by the abstract. In the deposition Lash testified that the original application, of which that attached to the petition was a copy, was the application which was the basis of the action. A stipulation had been made and signed by the attorneys for the parties in the case agreeing that a copy corresponding to that attached to the deposition of Lash was a true copy of the original, and that it might be used in evidence the same as the original. Before the deposition was allowed to be read in evidence, the court of its own motion excluded from the consideration of the jury those parts of the deposition which referred to the application, holding that the execution of a contract in writing of the legal import stated in the petition was admitted by the failure of the defendant to verify the answer, and that evidence proving a different contract was inadmissible. It is to be observed that the deposition containing this testimony was the deposition of one of the plaintiffs and was offered by the plaintiffs in proof of their case.’ Thereupon, the defendant asked leave to verify its answer denying the allegations with reference to the terms of the' contract. This the court refused to permit, and rigidly excluded all evidence with reference to the terms of the written contract, and also with reference to the existence of liens upon -the property. .
It appeared from the depositions of the plaintiffs that there were unsatisfied liens on the property, and that the terms of the application had not been complied with, and that the plaintiff's under their own testimony were not entitled to collect the amount awarded them ; but by the exclusion of their own sworn statements they succeeded in getting a judgment as before stated. The defendant offered to show that a mechanic’s lien amounting in the aggregate to between six and seven hundred dollars had been foreclosed against the plaintiffs and the property sold to satisfy the claim. The defendant also offered the original case-made on which the prior judgment was reversed, for the purpose of showing that the case was then tried on the theory that the averments of the petition with reference to the terms of the contract were in issue and that the application was then received in evidence. The plaintiffs objected, and the objection was sustained. It was a manifest abuse of discretion, under the circumstances, for the court to refuse to permit the defendant to verify its answer. It was also error for the court to exclude the evidence showing that the plaintiffs were not entitled to receive the amount of their loan. The net result of the transaction, as appears from the evidence admitted and the competent evidence offered but excluded, seems to be that the plaintiff in error paid the amount of the loan to Caffrey on an order which the jury find was not executed by the plaintiffs. It holds a note for $2500 and interest, but the property covered by the mortgage given to secure the loan has been sold to satisfy prior liens. The result of the trial of this case was that the mortgage company was adjudged to pay the plaintiffs $3043 more, with a very dubious prospect of ever collecting anything in return for it. This result hardly commends itself to our sense of justice. The judgment is reversed, and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Smith, J. :
Nellie McDonald recovered a judgment in the court of common pleas of Wyandotte county against the defendant below for $7500 by reason of the wrongful acts, neglect and default of the city in causing the death of her husband. Andrew J. McDonald was a member of the fire department of Kansas City, Kan., and the driver of a hook-and-ladder wagon. On the rfight of August 10, 1896, in responding to an alarm of fire in the south part of the city, the truck upon which he was riding, while being driven at a high rate of speed, ran against and upon an obstruction in the roadway, consisting of a pile of rocks from 18 to 24 inches high and 40 feet long, extending into the street about 12 feet from the west curb. The violence of the collision threw McDonald forward upon the rocks and he was instantly killed. William Clarke, captain of the truck, was riding with McDonald at the time of the accident. The obstruction mentioned was in front of some houses then building and-the rock was for use in their erection. There was at the time an ordinance of the city in force providing that persons engaged in the construction of any building might occupy so much of the street in front thereof-as was necessary for the purpose of depositing material for use in its construction, not over one-third of the width of the street so to be occupied. It was alleged in the petition that by the passage of said ordinance the city wrongfully and negligently authorized persons to obstruct the street, including South Seventh street at the place where the accident occurred, with earth, sand, gravel, stones, etc., without requiring them to place thereon guards, lights, or other danger-signals to warn persons passing of the existence of such obstructions. The defendant city, among other things, pleaded in defense the following ordinance:
“Any person who shall intentionally ride or drive any horse, mule or other beast faster than an ordinary traveling gait in any of the streets, avenues or alleys' within the city, or so drive as to endanger the safety of others, or who shall so ride or drive as to be likely to cause other teams to be frightened or run away, shall upon conviction thereof be fined in any sum not exceeding $100.”
The court below sustained a demurrer to that paragraph of the answer which pleaded the ordinance as a defense, and this is the first assignment of error. It is contended that the ordinance was proper evidence to show that McDonald, by its violation, was guilty of contributory negligence. We do not think that the ordinance was intended to govern the actions of firemen or regulate the speed of fire-engines or-trucks. Such an intention is nowhere expressed, and!, if it had been the ordinance would have been unreasonable. Cities do not provide horses of high mettle,, trained to propel speedily apparatus for the extinguishment of fires, and then impede them in their progress by a requirement that they shall not be driven faster than an ordinary traveling gait. Various appliances have been devised by which such horses are harnessed with incredible speed that no time may be lost in reaching the fire with hose and other aids to prevent the destruction of property. It is of first importance that a fire be reached in its incipiency, and, to accomplish this purpose, the utmost haste is necessary. A compliance with this ordinance* by the firemen and the enforced delay required by its terms would convert the fire department into a purely ornamental adjunct to the city government, proficient only on parade. In Farley v. The Mayor, etc., 152 N. Y. 222, 46 N. E. 506, it is said :
"The safety of property and the protection of life may,-and often do, depend upon celerity of movement, and require that the greatest practicable speed should be permitted to the vehicles of ,the fire department in going to fires. Section 1932 was intended to regulate the speed of horses traveling on the streets and using them for the ordinary purposes of travel, and from the nature of the exigency cannot apply to the speed of vehicles of the fire department on their way to fires.”
'The restriction as to speed, when applied to the fire department, renders the ordinance unreasonable, and unreasonable ordinances will not be upheld by the courts. (1 Dillon, Mun. Corp., § 319; Crawford v. City of Topeka, 51 Kan. 756, 38 Pac. 476; Anderson v. City of Wellington, 40 id. 173, 19 Pac. 719; State v. Sheppard, 64 Minn. 287, 67 N.W. 62.)
A general demurrer was also sustained to the fourth paragraph of the answer of the city, which reads :
"The defendant further says, that under and by virtue of the provisions of chapter 363 of the Laws of 1895, and out of the funds created and provided for by said law, it purchased, on the 7th day of August, 1896, an accident insurance policy for said Andrew McDonald, in plaintiff’s petition named, from the Travelers’ Insurance Company, by which contract, and policy said company agreed to pay, and did pay,, to the plaintiff, on account of the death of said Andrew McDonald, by reason of the causes in plain tiff’s-petition set forth, the sum of $2000, which sum the-plaintiff did receive and still retains.”
There is .nothing in the act of 1895 (Gen. Stat. 1897, ch. 74, §§ 38-44) implying that indemnity is furnished to the city against damages to the widow or next-of-kin of a fireman killed by its negligence. The; accident policy cost the city nothing. The premiums were paid by foreign insurance corporations doing business in the state, a tax being laid by the state of two dollars a hundred upon the amount of all premiums on policies written for fire and lightning insurance within the limits of such city for each year.. The law authorized the amount of the tax to be invested in the purchase of accident insurance upon the members of the fire department. The tax is collected by the state for the purposes mentioned, and the mayor and council in cities having a paid fire department are constituted its agents, charged with the duty of applying the amount of the tax to further the objects named. The demurrer to said paragraph of the answer was properly sustained. (Coots v. City of Detroit, 75 Mich. 628, 43 N. W. 17.)
Evidence was introduced by the plaintiff below showing that at the time of the accident there was a pile of sand, cinders and earth on the east side of the street south of but near the place where the first obstruction mentioned was situated. Counsel for the city complain that the admission of this testimony tended to convey to the jury an impression that the city was unmindful of the streets and permitted any and all persons to obstruct them. It was competent to show the width of the roadway in condition for travel at and near the place of the accident, as it anight properly be shown that one side of the street was higher or lower than the other, and the condition in general of the surroundings. There was proof tending to show that the rocks upon which the wagon struck were of light color, similar to that of the block pavement in the street, and hence not distinguishable from the pavement at' night. Clarke, who was riding with McDonald, saw this pile of cinders and sand, and it was not improper for the jury to know of the existence of this obstruction and to consider whether McDonald also saw it and, in order to avoid it, was driving further -west than he otherwise would have done. The jury found, in answer to a particular question submitted, that the sand and cinder pile was not one of the causes of the accident, so that the defendant below cannot be said to have suffered from the admission of that evidence.
Again, we cannot say that the evidence admitted in cross-examination of the witness Edmunds, showing that there was a movement on hand to reorganize the fire department, was prejudicial to the city. It would seem to be harmless in itself. We think, however, that counsel for plaintiff below went to greater lengths in his comments on this evidence before the jury than he should have done, making an application of the testimony not justified by the language of the witness. The defendant below, however, merely excepted to the language of the opposing counsel. No objection preceded this exception and the court had made no ruling. This was insufficient. “An exception is an objection taken to a decision of a court or judge upon a matter of law.” (Gen. Stat. 1897, ch. 95, § 309; Marder, Luse & Co. v. Leary, 137 Ill. 319, 26 N. E. 1094; Pike v. City of Chicago, 155 id. 656, 40 N. E. 567.) In Marder, Luse & Co. v. Leary, supra, the court said :
“The remark ‘I except to the statement’ meant nothing, in a legal sense, in the connection in which it occurred. The court had made no ruling to which it was applicable, and if it was intended to be an objection it was ineffectual, because it was not pressed upon the attention of the judge and his ruling obtained thereon. (E. J. & E. Rld. Co. v. Fletcher, 128 Ill. 619, 21 N. E. 577.)’’
The plaintiff in error urges that the court erred in refusing to permit it to show the rules of the fire department requiring that firemen drive in the middle of the street. If there was such a rule its object was to insure safety to the men, teams and vehicles when going at a rapid rate of speed in answer to an alarm of fire. A violation of any precaution affecting safety would have been equally negligent on the part of the driver whether the exercise of such precaution was demanded by the rules or not. The condition of the street would largely determine the course to be taken, and what part of the street to be avoided, whatever the rule might be. To drive a hook-and-ladder wagon in the middle of those streets upon which cable-car tracks are in use, with rough stone blocks between the rails, would be exceedingly dangerous to the driver and vehicle, and render collisions with street-cars probable. The fact of the existence of a rule as claimed, which McDonald violated, would not demand of him greater care. The condition of the street, as it appeared to him, should determine his course in driving, whether there was a rule on the subject or not. There are cases where a violation of a rule would be a material consideration. If a man were engaged in a dangerous employment, without an experience fitting him to determine the safer of one or two courses which he was called upon to take, then rules for his guidance, fixed by persons skilled in the particular work or business, should be followed.'
We have examined the instructions tendered by the city and refused by the court, and see no error in their refusal. The court instructed that McDonald was not in any manner responsible for any negligence of Olarke, the captain of the truck. They were not fellow-servants. (1 Beach, Pub. Corp., §§ 741-744; 2 Dillon, Mun. Corp. 977-980; Lawson v. Seattle, 6 Wash. 184, 33 Pac. 347; Peters v. City of Lindsborg, 40 Kan. 654, 20 Pac. 490.) The last case is authority for the statement that McDonald and Olarke were not servants of the city. That they were fellow-servants of some one else is immaterial. But if they were fellow-servants of the city, and if Clarke failed to notify McDonald of the existence of rocks in the street, and if he was guilty of negligence in not doing so, and if his failure to give such notice contributed to the death of McDonald, yet the negligence of the city was the primary and proximate cause, without which the accident would not have occurred, and the negligence of Olarke the remote cause. The claim that the death of McDonald was caused by the negligence of a fellow-servant, and that the city is not therefore liable, is untenable. We do not see how the failure of Olarke to notify McDonald of the danger can affect the city's liability. The negligence or omission of a stranger to notify McDonald could not excuse the municipality from the consequences of its own negligence.
The court below held, and so instructed the jury, that McDonald was a lawful traveler upon the streets, and as such the city owed the duty toward him to keep and maintain its streets in reasonably safe condition for public travel — in fact, that he was entitled to the same protection as an ordinary traveler upon the highway. This ruling was correct. (Coots v. City of Detroit, 75 Mich. 628, 43 N. W. 17; Palmer v. City of Portsmouth, 43 N. H. 265; Farley v. The Mayor, etc., 152 N. Y. 222, 46 N. E. 506.) In Coots v. City of Detroit, supra, it is held that a fireman is not held to that degree of care and caution in driving along a public street required of a common traveler proceeding at an ordinary 'gait.
The defendant below requested the court'to submit to the jury seventy-eight particular questions of fact, thirty-five of which were refused. Many of the questions were immaterial, and some were repetitions of others. While it is the duty of the court to submit to the jury questions pertinent to the issues, we think the court performed that duty in this case.
As to the verdict being excessive, while the jury are restricted to the pecuniary loss suffered by the widow or next-of-kin, yet they are not confined, in estimating the damages, to any exact mathematical calculation, but are invested with considerable discretion, with which the courts will not interfere unless it has been abused. ’ Considering the age and capacity for earning wages possessed by the deceased, his relations to his family, and his habits of life, we cannot say that the amount of the verdict was unreasonable. The case was carefully tried by the learned judge of the court below, and all legal rights of the defendant protected.
The ordinance permitting a use of a portion of the street for the deposit of building material thereon was not invalid. (Dillon, Mun. Corp., 4th ed., § 730.) In the absence of such ordinance a license thus to encroach upon the street might be implied, and a temporary oc cupatiou be lawful, from the necessities of the case, when buildings fronting on the street were being erected. Yet, such use being exceptional and foreign to the purposes for which the thoroughfare was laid out and maintained, the duty devolved upon the city to exercise vigilance with respect to the rights of a traveler who might be harmed by such obstructions in his way.
Several questions raised in the brief of the plaintiff in error are not discussed in this opinion, but we have examined the same and find nothing substantial in the claim of error. The negligence of the city was clearly shown. It suffered one of its principal thoroughfares to be obstructed in a place, likely to occasion injury to persons having a right to travel thereon, and permitted this obstruction to remain unguarded and without lights or warnings to prevent accidents in the night-time, in disregard of a lawful duty imposed upon it.
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The opinion of the court was delivered by
Johnston, J. :
The first objection brought to our attention in this review is to the rulings of the court on challenges of persons called to serve as jurors. Some of them stated on their voir dire that they had formed opinions as to the commission of the offense charged, but it appears upon further examination that the opinions so formed did not extend beyond the fact that O’Shea had fired the fatal shots. The fact that Dawson was shot by O’Shea, and that death resulted from the shooting, was not disputed. Throughout the trial the shooting and consequent death of Dawson were conceded, and the claim of the defendant was that the act was justifiable, being done in self-defense. Opinions upon matters not in issue do not disqualify the jurors entertaining’ them, and especially where, as in this case, it is shown that they have not formed or expressed an opinion as to the guilt or innocence of the defendant, and where there is nothing indicating that they cannot give the defendant a fair and Impartial trial. (The State v. Wells, 28 Kan. 321; The State v. Gould, 40 id. 258, 19 Pac. 739; The State v. Wells, 54 id. 166, 37 Pac. 1005.)
•The controlling questions in this case arise upon the admission .of statements contained in what is termed the “Dying Statement of James Dawson.” Objections which are deemed to be sufficient were made to every part of the dying declaration, and the contention is that many of the statements were mere hearsay conclusions, and such as cannot be shown in a dying declaration. There is good reason for the complaint that is made. Many of the statements are in relation to former transactions distinct from the act of killing. Some of them are matters of opinion or belief; some are mere conclusions as to a motive for the commission of the offense ; others would not have been competent if made by the declarant as a witness upon the stand. Although there was a great deal of testimony as to the killing and the circumstances connected with it, probably no testimony produced before the jury was so impressive and telling in its effect as the statements contained in the dying declaration. It is well known that jurors give great weight to statements made by those conscious of impending death and who, without hope or expectation of recovery, are supposed to be free from passion or prejudice or any motive which would induce a false or colored statement. It cannot be said, therefore, that the statements claimed to have been made by the deceased, and which were erroneously received, were immaterial or without prejudice.
The rule admitting such declarations, made without sanction of the oath, not in the presence of the defendant, and where there is no opportunity for cross-examination, is exceptional, and because it cannot be subjected to the ordinary tests it is necessarily restricted. It is limited to cases of homicide, and is confined to the act of killing and the circumstances immediately attending the act which form a part of the res gestee. Statements relating to former and dis tinct transactions, and embracing facts and circumstances not immediately connected with the killing, cannot be received. Mere conclusions, opinions and beliefs, which would not be received if the declarant were a witness, are not admissible. (The State v. Medlicott, 9 Kan. 257; State v. Draper, 65 Mo. 335; Lieber v. Commonwealth, 9 Bush, 11; Starr v. Commonwealth, 97 Ky. 193, 30 S.W. 397; State v. Shelton, 2 Jones [N. C.] 360; Nelson v. State, 7 Humph. 542; Hackett v. The People, 54 Barb. 370; Reynolds v. The State, 68 Ala. 502; The State v. Baldwin, 79 Iowa, 714, 45 N. W. 297; People v. Fong Ah Sing, 64 Cal. 253, 28 Pac. 233; Montgomery v. The State, 80 Ind. 347; Whart. Crim. Ev., § 288; 1 Greenl. Ev., § 156; 10 A. & E. Encycl. of L., 2d ed., 376.)
The statements of what occurred at O’Shea’s place in the afternoon before the shooting were separate and distinct transactions, and manifestly inadmissible. After these occurrences Dawson went to another part of the city, and did not return until nine o’clock at night, which was seven or eight hours later than the transactions of the afternoon. While these occurrences may be proper testimony for some purposes, if related by competent witnesses, they were not immediately connected with the killing, and therefore were not receivable as dying declarations. As said in Montgomery v. The State, supra, “matters which do not form part of the res gestee are not provable by dying declarations. The rule is confined to a statement of the circumstances connected with the fatal act and forming part of the same transaction. It is quite well settled that what occurs before or after the act has been done does not constitute a part of the res gestee, although the interval' of separation may be very brief.” The statements related to the matter of motive and state of feeling between the parties,' and were in direct conflict with the testimony given on behalf of the defendant. Statements to the effect that he had with him in the afternoon a pocketbook containing |300 ; that defendant knew that he carried it and had it with him ; that it was either taken or fell out of his pocket in the afternoon, and that he thought the defendant had it; that he went back at night after his money, etc., were especially prejudicial, as they, in a certain sense, attributed to the defendant the taking of the money, and suggested the motive that the defendant may have killed Lawson to conceal the larceny and to prevent the recovery of the money. '
The statements that they were friendly and had no difficulty in the afternoon; that he had always thought that he and the defendant were the best of friends ; that he had frequently spent much money at his place, and had been taken around and introduced by the defendant as a schoolmate and friend; that on the afternoon of the day he was shot he made him a present of a revolver and also of some jewelry, were wholly inadmissible as dying declarations, within the rules stated and the authorities cited. Prom these statements the jury might infer that there was no provocation or cause for the killing, nor any reason for the defendant to shoot in self-defense. Besides, they were objectionable in form, being largely opinions, beliefs and conclusions which would not have been competent testimony in the first instance if given by Dawson as a witness.
Equally objectionable were the statements- that he had never in any manner or form attempted to harm “Paddy,” nor had any reason to do so; that he had no gun with him, and did not go there for any other purpose than to get his pocketbook and money; and that he was shot without any cause or provocation whatever. The statements made by him, and which were introduced in rebuttal, contradicting the defendant and other witnesses, formed no part of the res gestee and could not properly be included in a dying declaration.
Testimony tending to show that the deceased frequently used profanity to the nurses and attendants just before his death, about the time the dying declaration was made, was offered by the defendant and excluded. In view of the character of the declaration and the statement by him that he firmly believed in a God and in a hereafter, and that he was about to die and meet his Creator, these statements were competent to contradict and impeach his declaration. The supreme court of the United States holds that such declarations may be contradicted and impeached in this manner. It decided that such “declarations by no means import absolute verity.” “ The history of criminal trials is replete with instances where witnesses, even in the agonies of death, have, through malice, misapprehension, or weakness of mind, made declarations that were inconsistent with the actual facts ; and it would be a great hardship to the defendant, who is deprived of the benefit of a cross-examination, to hold that he could not explain them.” In the same connection, the court stated that such declarations “ may be discredited by proof that the character of the deceased was bad, or that he did not believe in a future state of reward or punishment.” (Carver v. United States, 164 U. S. 694, 17 Sup. Ct. 228.)
In Tracy v. People, 97 Ill. 101, it was held that “ when dying declarations are offered in evidence, it is competent for the accused to show by cross-examination of the people’s witnesses, or by other witnesses, that the deceased in making the statements was in a reckless, irreverent state of mind, and entertained feelings of malice and hostility toward the accused ; and proof of the indulgence in profane language at or about the time of making the statement is clearly competent for that purpose.” See also The State v. Elliott, 45 Iowa, 486; Commonwealth v. Cooper, 5 Allen, 494; Goodall v. State, 1 Ore. 333; Roscoe, Crim. Ev. 35.
Other objections were made to the rulings of the court, but we discover no prejudicial error in them, nor do they require special consideration. For the errors mentioned the judgment will be reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Doster, O. J. :
This was an action brought by Isaac Landrum against Felix Flannigan to recover damages on account of injuries to him in his person, property, and means of support, in consequence of his wife, Barbara, falling into a condition of habitual intoxL cation upon liquors sold to her by the defendant. The action was founded upon section 41, chapter 101, General Statutes of 1897 (Gen. Stat. 1889, ¶ 2535), which reads as follows :
“Every wife, child, parent, guardian or employer, or other person, who shall be injured in person or property or means of support by any intoxicated person, or in consequence of intoxication, habitual or. otherwise, of any person, such wife, child, parent or guardian shall have a right of action in his or her own name against any person who shall by selling, barter-* ing or giving intoxicating liquors have caused the in-¿ toxication of such person, for all damages actually sustained, as well as for exemplary damages; and, a married woman shall have the right to bring suit, prosecute and control the same, and the amount re: covered, the. same as if unmarried; and all damagés recovered by a minor under this act shall be paid either to such minor or to his or her parents, guardian or next-friend, as the court shall direct; and all suits for damages under this act shall be by civil action in any of the courts of this state having jurisdiction thereof.” ' ' ’
An objection to the introduction of evidence under the petition was sustained, upon the ground that on account of the peculiar wording of the statute a right of action was not given to a husband. As will be observed, the classes of persons in whom the statute in its first few lines apparently intends to vest a right of action are wives, children, parents, guardians, employers, or •“ other persons,” but after thus enumerating the classes in whom the statute apparently intends to vest the right of action, it proceeds by its mere verbal phraseology to limit the right to wives, children, parents, or guardians, omitting employers as a specific class, and likewise omitting “other persons” as a class, both of whom are enumerated in the first lines of the section.
The question presented to us for determination is, Does the statute, rightly interpreted, confer a right of action upon all of the classes first enumerated, as it at first apparently undertakes to do, or is the right of action limited to the lesser number of classes last mentioned ? The question is not difficult. The first and most important aid to the ascertainment of legislative intent is, of course, the words employed. When these are plain of meaning the statute needs no interpretation. It interprets itself. If the words be of doubtful meaning ; if they be inartistically arranged ; if the syntax be violative of the rules of composition ; if ellipsis, tautology or redundancy occur, the statute must be examined in other lights than those'afforded by the mere words employed, and chief among these lights are those afforded by the evident purpose and intent of the legislature and the entire context of the statute.
Another important rule is that all parts of the act must, if possible, be given a meaning and be allowed to stand. In this case either the right of action is limited to wives, children, parents, and guardians, as indicated by the last enumeration of classes, in which event the words ‘ ‘ employer or other person ’ ’ used in the first enumeration would have to be stricken from the statute by construction, or those words must be allowed to stand, and the classification last made be extended to correspond with the one first made. In our judgment the latter should be done. There can be no question of the legislative intention to include employers in the list of persons upon whom the right of action is conferred, nor any question that the like intent was to confer it upon ‘ ‘ other persons ’ ’ of a like kind with the classes first specifically enumerated. The failure to include “ employers ” and “other persons” in the list last enumerated was clearly an inadvertent omission, and upon well-settled rules of statutory interpretation the last enumeration may be extended by construction to correspond with the one first made. The cases in which the courts have been called upon to supply evident legislative omissions by the interpolation of words to complete the sense of the act, and thus harmonize it with the obvious, legislative intent, are frequent. Many of them will be found collated in Sutherland on Statutory Construction, §§260, 261, and Endlich on Interpretation of Statutes, §§39, 298-300.
The plaintiff in error contends that in the interpretation of the statute the last enumeration of classes of persons should be eliminated, because wholly tautological and adding nothing to the meaning of the section. To do so would, of course, correct the composition to accord with rhetorical rules, but it would not make the legal sense of the act any clearer. The interpretation of a statute by the elimination of some of its words maybe sometimes allowable (Endlich, Interp. Stat., §§ 301, 302); but only, we'think, aá to words -which are wholly meaningless, or which; being'contradictory of the evident intent of the legist lature, are therefore rejected by the inherent: sense of the whole act. The words of enumeration last used are unnecessary, but they are not meaningless. They are not contradictory of anything else in the statute. On the contrary they áre in harmony with its other •parts. They, are simply incomplete as an evidently purposed enumeration or list. We follow a safer rule by allowing them to remain as used by the legislature, and' allowing the inadvertently omitted classes mentioned in the preceding clause a place in the list with them. Doing so, the remaining question is plain. A husband falls within the general designation of “ other person” as used in the statute under consideration. He is ejusdem generis with ‘‘ wife ’ ’ as specifically enumerated, and is entitled to maintain the action given by the statute.
The judgment of the court below will be reversed, with directions to proceed in accordance with this opinion. | [
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The opinion of the court was delivered by
Doster, C. J. :
This was an action by the Kansas Grain Company, as plaintiff, against the First National Bank of Hutchinson, Kansas, as defendant, to recover the amount of a deposit of money made by the plaintiff in the defendant bank, which the latter had refused to pay to plaintiff in person, and also to recover damages on account of loss of business character and standing caused by the refusal to honor plaintiff’s checks issued to other persons. The claim for the recovery of the amount of the deposit was, of course, upon the implied contract to pay upon demand. The claim for damages was in the form of two additional causes of action, in each of which the issuance of checks to third persons, their presentation to the defendant and its l'efusal to pay were stated. These refusals were alleged to have been wilful and malicious, and made with the intent to injure the plaintiff’s business character and standing, and to have resulted in such consequence. The case was tried to the court without a jury. Special findings of fact were made. Judgment upon these findings was rendered for plaintiff for $4063.75 upon the cause of action for the recovery of the deposit, and $1 of actual and $100 of exemplary damages upon each of the two other causes of action. From this judgment the defendant below prosecutes error to this court.
One of the claims of error is that the findings and judgment are unsupported by the evidence. Other-claims of error are the admission and rejection of evidence upon the trial. None of these claims can be inquired into by us because of defects in the preparation of the case-made. This document does not purport to contain all the evidence and other pro ceedings occurring on the trial. Following the order of the judge settling the case is this statement: “The above and foregoing case-made contains all of the pleadings, motions, orders, evidence, exhibits, rulings of the court, judgments, findings of fact, and conclusions of law, and all other proceedings and exceptions had in the above-entitled cause.” Following this are fifty or more pages of matter, apparently the testimony of witnesses and documentary evidence used upon the trial of some action. It appears from statements made to us upon the argument of .the case that this testimony and these documents were suggestions of amendment to the case-made in question, which the counsel for plaintiff in error had accepted as properly forming parts of it. However, they are not incorporated into it, and therefore we cannot consider them, nor consider the evidence in the original case-made itself. In Kelley v. Stevens, 57 Kan. 506, 46 Pac. 943, it was ruled: “Everything intended to be incorporated in a case-made for the consideration of this court should precede the signature of the judge who settles it; and held, that on the record presented in this case a general finding of the trial court in favor of the defendants must be affirmed.”
Counsel for plaintiff in error strenuously insist that there was a misjoinder of causes of action; that a, cause of action on contract and one or more in tort cannot be joined unless they arise out of the same transaction, or transactions connected with the same subject of action (Gen. Stat. 1889, ¶ 4166; Gen. Stat. 1897, ch. 95, § 83); that the several causes of action in question did not so arise, and therefore that their demurrer for misjoinder should have been sustained. Under the special circumstances of this case, as disclosed by the findings of the court, it is unnecessary to pass upon this question. No actual damages were allowed to the plaintiff upon either of the causes of action sounding in tort. On each of these causes of action the court found only one dollar of actual damages. These are but nominal sums, considering the character of the demands made. It is inconceivable that one whose commercial reputation has been slandered has not sustained thereby more than a dollar of actual damages. Therefore, the sums adjudged on each of these causes of action can be considered in no other light than aá1 nominal awards. The rule is settled that- exemplary damages cannot be allowed unless actual damages have been sustained. The allowance of a nominal sum constitutes no basis for the imposition of exemplary damages. (Schippel v. Norton, 38 Kan. 567, 16 Pac. 804; Adams v. City of Salina, 58 id. 250, 48 Pac. 918.) The court below was in error, therefore, in awarding to the plaintiff $200 exemplary damages, resting upon no other basis than the nominal sum of two dollars. However, these consid erations do not dispose of the question of misjoinder. They only dispose of the judgment'for exemplary damages. Nevertheless, the judgment for one dollar of actual damages in each of the two causes of action in tort does not constitute any substantial basis upon Avhich to rest a continued claim of error in overruling the demurrer for misjoinder.
Had no judgment at all been rendered upon these tAVO causes of action, it is clear that the error in overruling the demurrer, if, indeed, it was an error, Avould have been cured, or rather would have been rendered harmless. “Although a demurrer may have been improperly overruled, yet, if the demurrant was not harmed by such ruling, judgment will not be reversed on account of the harmless error.” (6 Encycl. of Pl. & Pr. 368.) In reason, the rule can be nowise different where, instead of rendering no judgment at all upon some of the causes of action improperly joined, judgment upon them for a nominal sum only is'awarded. Rarely do errors dn judgments for nominal sums constitute grounds for reversing cases, and it would be a violation of the spirit, if not the letter, of the code, as well as a violation of the ordinary rule just stated, to reverse a judgment for a substantial amount, rendered upon a meritorious cause of action, merely because of its improper joinder with another cause of action, upon which judgment for a nominal sum only was awarded.
The judgment of the court below is ordered to be modified to the extent of the $200 of exemplary damages. In all other respects it is affirmed. The costs of this court are ordered to be equally divided. | [
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The opinion of the court was delivered by
Allen, J. :
To discuss at length all the assignments of error argued in the brief, and answer fully all the contentions of counsel for the plaintiff in error wmuld extend this opinion to an unwarranted length. Such of the assignments only as are deemed most important will be mentioned. The first is that the court erred in refusing to require the plaintiff separately to state and number her causes of action. It is claimed that five separate causes of action were included in the petition, as follows: (1) For interest paid; (2) for rents and profits of the land ; (3) to have the Boss contract assigned to plaintiff; (4) to recover the other quarter-section of land ; (5) to cancel the judgment entered in the foreclosure case. Most of these supposed different causes of action are in no sense separate and distinct. The recovery of interest paid and of rents and profits of the land have somewhat the appearance of severable causes of action, yet these are directly connected with the single main transaction. The substance of the plaintiff’s case was that she had given into the possession of the' bank by way of mortgage her property; that through foreclosure proceedings the bank had obtained the legal title to her land and taken the rents and profits thereof, and had also collected on these notes interest payments which it had no right to retain, and that it fraudulently retained her property so received after the debt of her husband, which it was given to secure, had been fully discharged from funds of his own. There really Avas but one cause of action, which was for a full accounting as to these transactions and to such relief as the equities of the case entitled her.
The demurrer to the amended petition was rightly overruled. Boss, Miller, Woodrum or any of the other judgment creditors Avas not a necessary party to the action. There Avas no impropriety in joining the several causes of action. The petition stated facts sufficient to constitute a cause of action. The action was not based on any parol trust agreement, void under the statute of frauds, but was one arising by implication of law from the transactions of the parties. Many of the averments of the petition, and some of those contained in the reply, were unnecessary and might properly have been stricken out as surplusage, as asked in the defendant’s motion, but they appear to us to have been harmless. The question of prime importance in the case was whether the two notes executed by the plaintiff to the bank and secured by mortgage on her land represented an indebtedness which she owed to the bank for the land itself which she had bought from the bank, or whether, as claimed by her, these notes were delivered to and held by the bank solely as collateral security to debts of her husband which were primarily evidenced by other notes executed by him. If her claims were true, on payment of her husband’s debt from his own funds, the bank would be by implication and intendment of law a trustee liable to account for all securities belonging to her which it held, and it would still be so liable no matter what changes in the form or character of such securities had taken place. It must be observed, in order that there may be no misunderstanding of the px-inciple here applied, that the contract entered into at the time the notes and mortgage were delivex’ed to the bank was not such an one as the statute of frauds x’equires to be ixx writing. It was nothing xnore nor less than the ordinary transaction of pledging notes secxxred by mortgage for the debt of another. All liability on such notes would of course cease whenever the principal debt which they were given to secure was paid. The cases of Ingham v. Burnell, 31 Kan. 333, 2 Pac. 804, and Gee v. Thrailkill, 45 id. 173, 25 Pac. 588, much relied on by the plaintiff in error, are not in point. This is not a case of the conveyance of land upon a trust not evidenced by writing.
The objection to the petition based on the conclusiveness of the judgment in the foreclosure case as a final adjxxdication of the rights of the parties at first blush appears somewhat forcefxxl, but oix closer examination it will appear that at the time of the fox’eclosure, which was prior to the payment by J. G. Woodrxxm of his indebtedness to the bank, the plaintiff had xxo defense which she could have maintained in that case. The notes executed by her were due by their terms. The debt of her husband was unpaid. The bank had a right to x'esort to this collateral security for the payment of the principal debt and to a judgment foreclosing its mortgage. It also had the right to proceed to sell the mortgaged land. It had the right to appropriate the proceeds of the sale to the payxnexit of J. G. Woodrum’s debt. This, however, it did not do. Having bid in the land it saw fit to retain the land itself as security rather than to reduce Woodrum’s debt by the amount of the bid. This it did in accordance with the parol agreement set out in the petition. There was no wrong or impropriety in its doing so, but as a result of this change in the form of the security the, bank did not come absolutely to own the plaintiff’s land. It had paid nothing for it either to the plaintiff or by an allowance of credit on her husband’s indebtedness. It held the land as it had originally held the notes and mortgage, as security, and only as security for the unpaid debt of the husband.
Much stress is laid on the statements in the petition with reference to the foreclosure judgment cutting off the liens of general judgment creditors. It is contended that the agreement with reference to this foreclosure, as set up in the petition, shows that a fraud on the rights of other creditors was intended, and that the judgment finally rendered in this case returns to the plaintiff her land freed and discharged from the claims of creditors, which constituted incumbrances on it prior to the foreclosure. This contention is without substance. The plaintiff having been the owner of the equitable title to the land from the time of the execution of the mortgage to the entry of .the decree in this case, all judgments against her were liens on that equitable interest, and when, by the judgment in this case, the legal title was restored to her, the creditors were benefited rather than injured by having the evidence of her title to the land disclosed and made of record in such form that they could resort to it for the payment of their debts, freed and cleared from the apparent title of the bank.
The allegations of error based on the refusal of the court to require the plaintiff to elect whether she would stand on the alleged contract or the claim of fraud, on the impaneling of the jury and admission, and rejection of evidence, the bank’s demurrer to the evidence, the instructions, and the special questions, the motions for judgment and for a new trial, present merely in different forms the substantial questions already determined. Some testimony was admitted which might with propriety have been excluded, but it does not appear of sufficient importance to warrant a reversal of the case.
After all, the substance of the controversy was as to whether the $1000 note and the $600 note represented a separate and distinct indebtedness which the bank had a right to collect or were given merely as collateral security to a debt of J. G. "Woodrum’s. This controversy was resolved by the jury on ample testimony in favor of the plaintiff. This conclusively settles the fundamental difference between the parties-, and all else follows as a legal consequence of this finding taken in connection with the further finding that J. G. Woodrum had fully paid all his debt to the bank from his own funds. The bank still held Mrs. Wood-rum’s property, and she was entitled to have it restored to her, with the rents and profits resulting from its possession. She was also entitled to have the money judgment which had been entered against her in the foreclosure suit canceled, not on the theory that it was wrongfully or erroneously rendered in the first instance, but that the payment of her husband’s debt operated as a payment of this judgment, which stood merely as security for-it.
No material error appearing in the record the judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
The appeal here is from an order of the district court dismissing the appeal of the present appellant from an order of the board of county commissioners incorporating the city of Lea-wood, in Johnson county.
The record discloses that on September 22, 1948, a petition to incorporate the city of Leawood as a city of the third class was filed with the board of county commissioners of Johnson county. The proposed corporate limits were described by metes and bounds in the petition and included a total area of 1,013.13 acres. Within this area is a nineteen acre tract owned by appellant, a part of which had been used as a stone quarry and is now suitable to be made into a lake. The remainder of it is suitable for residence purposes. None of it is farm land. The proposed city contained a population of something over 800 people. The petition was signed by a majority of the qualified electors. Due notice was given, as required by statute, and a hearing was had before the board of county commissioners on October 19, 1948. The appellant appeared at that meeting with his attorney and made a request in writing that his land be withdrawn from the corporate limits of the city of Leawood if and when the board should determine that the territory shown by the plat attached to the petition would be incorporated into a city of the third class. On November 30, 1948, the board of county commissioners made an order incorporating the city of Leawood as a city of the third class, with boundaries as described in the petition and the plat which accompanied it. From this order the appellant appealed to the district court. The board of county commissioners and the city of Leawood separately moved the district court to dismiss the appeal. The motions were overruled and the appeal was heard by the court. After a full hearing the court found
“That the proceedings had before the Board of County Commissioners of Johnson County, Kansas, with respect to the incorporation of The City of Lea-wood were and are regular and valid in all respects and comply with the laws of this state made and provided for the incorporation of a city of the third class as a body politic and corporate.”
and made an order dismissing the appeal at appellant’s cost. Appellant filed a motion for a new trial, which was overruled and this appeal followed.
The principal legal contention made by appellant is that the petition presented to the board of county commissioners did not correctly and within the meaning of the statute (G. S. 1935,15-102) set forth the metes and bounds of the “village and commons,” but included large tracts of ground, including the appellant’s, lying out side the statutory territory which might be incorporated. In their brief counsel for appellant cite the common-law definition and use of the word “town” as denoting a collection of towns or hamlets between a village or city, and argue that it must be of limited territorial extent, compact and contiguous, its boundaries clearly defined, and that it should embrace within its area only those having a unity and similarity of interests. They also discuss the meaning of the word “commons” as land included in or belonging to the town, set apart for public purposes, citing early Missouri cases, and conclude that since his property was not owned or used in common by any or all of the inhabitants that it could not be included as a part of the area, which the board of county commissioners was authorized to include in the corporate limits of a city of the third class. We are cited to no case in which the restricted definition of a town has been used in this state. Neither do we find any case where the word “commons” as used in our state is limited to land that had been set apart in or near a city for public use. In Levitt v. Wilson, 72 Kan. 160, 83 Pac. 397, the court held:
“The fact that the land was unplatted did not prevent its inclusion as a part of the city; . . .”
In Mendenhall v. Burton, 42 Kan. 570, 22 Pac. 558, it was held:
“A body of land containing 13.34 acres, wholly within the limits of a city, although never divided into blocks, lots, streets, alleys, etc., is subject to city taxation, although a part of it is used for agricultural purposes. . . .”
Both of these cases were cited with approval in Wellman v. City of Burr Oak, 124 Kan. 780, 783, 262 P. 2d 607.
Appellant’s difficulties he deeper than the ancient definition of the words “town” and “commons.” The creation of a municipal corporation, or the changing of its boundaries, is a legislative function. Appellant concedes this to be true. The exercise of the legislative functions of the board of county commissioners in incorporating a city of the third class is 'a matter which may not be appealed to the district court. (See, Town of Olsburg v. Pottawatomie County, 113 Kan. 501, 215 Pac. 451.) More than that, in this jurisdiction actions to inquire into the validity of the proceedings creating a municipal corporation, or modifying its boundaries, cannot be maintained by a private individual. They can be prosecuted only by the state acting through one of its . proper officers, such as the county attorney or the attorney general. All the Missouri cases cited by appellant are “State, ex rel.” cases.
Our latest case dealing with that subject is Smith v. City of Emporia, 168 Kan. 187, 211 P. 2d 101, where many of our earlier cases are cited. The case is printed also in 13 A. L. R. 2d 1272, where an extensive note (p. 1279) on “Capacity to attack the fixing or extension of municipal limits or boundary,” digests decisions from many states as well as our own and in harmony with them.
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
Thiele, J.:
This was an action wherein plaintiff sought recovery for the value of seed sold the defendant. From a judgment in favor of the plaintiff the defendant appeals.
The petition alleged that on January 19, 1949, the plaintiff sold defendant approximately 400 bags of Atlas Sorgo weighing 40,000 pounds, for $1,700, the sale being confirmed in a written document later mentioned; that on March 1, 1949, plaintiff notified the defendant the seed had been duly inspected and sealed in bags by the Kansas Crop Improvement Association and that it had been ready for delivery for sometime but defendant failed to pick up and transport the seed and without fault of plaintiff the seed was destroyed by fire; that demand for payment had been made on defendant and refused. The written confirmation of purchase, a portion of which is pleaded, was later received in evidence. To avoid repetition we here refer to the entire document. The confirmation is on a printed form entitled “Confirmation of Purchase,” shows in its caption “Mid-Continent .Seeds, Inc., Salina, Kansas” as well as dates, purchaser and other information. At the bottom are printed provisions as to weights and grades, the right of the buyer to extend time of shipment and other provisions including “Above seed to be nucrop normal germination and comply with existing seed regulations.” At the bottom is a form for signature by the purchaser, which is executed by M. E. Hurlburt, concededly the defendant’s manager. Appropriate blanks on the form are filled in to show date of purchase to be “1-19-49” when ship “Middle of Feb., 1949” and that the corporation had purchased of “Wayne Wing" Minneapolis, Kansas, “F. O. B. Farm” approximately 400 bags, 40,000 pounds, “Cert. Atlas Sorgo” at $4.25 per cwt. “99 Pure 92 Germ. Noxious Free.”
Defendant’s answer was a general denial, a denial that the alleged written contract set forth in the petition was complete, and a denial that plaintiff had performed or that the defendant had breached the contract.
The abstract does not include any reply which may have been filed.
A trial was had. After both parties had rested, defendant moved for an instructed verdict, the motion being denied. The cause was submitted to the jury under written instructions, to two of which defendant objected. The jury returned a verdict in favor of the plaintiff and answered special questions, later mentioned, but which need not be set forth. After the verdict was returned defendant moved for judgment upon the answers to the special questions, moved to have the answers to certain questions set aside and moved for a new trial. These three motions were denied and judgment was entered on the verdict. The defendant appeals.
Although in its abstract the appellant specifies error in twelve particulars, in its brief it presents only two general questions. Referring to four specifications, i. e., that the trial court erred (a) in failing to sustain its demurrer to plaintiff’s evidence; (b) in failing to sustain its motion for a directed verdict; (c) in failing to sustain its motion for judgment on the answers to special questions, and (d) in entering judgment upon the verdict, it contends first that the trial court erred in refusing judgment for it, its argument being presented under three subdivisions. Referring to its specification that the trial court erred in giving instruction No. 5 to the jury, it argues the instruction was wrong as a matter of law, its argument being presented under three subdivisions. Its other specifications of error that tire trial court erred in the admission of testimony, in refusing to set aside the answers to five special questions, and in denying a new trial, except that as to tire latter it is mentioned in presenting the second general question to the extent later treated, are not discussed and are considered as abandoned. (See e. g. Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 139 P. 2d 859.) As to a new trial the appellant not only makes no contention for a new trial but does ask that the judgment rendered be reversed with directions to render judgment for the appellant. Strictly speaking, Rial errors which should have been presented by the motion for a new trial are not before us for consideration with the exception of the instructions to the jury.
Under its argument that the trial court erred in refusing to enter judgment in its favor appellant does not separately present and argue the ruling on its demurrer to the evidence or on its motion for a directed verdict. It does make a statement of facts, favorable to itself, which is the basis for its contention of error. Under the law however, plaintiff is entitled to an interpretation of the evidence favorable to him, and such an interpretation discloses the following: In 1948 plaintiff had raised a crop of Atlas Sorgo seed and sent a sample to the Kansas Crop Improvement Association which made tests for germination and purity and issued its certificate. Plaintiff offered the seed for sale to defendant, which agreed to purchase 40,000 pounds. Inasmuch as plaintiff had no delivery equipment for that quantity the purchaser was to take delivery at plaintiff’s farm. The confirmation of purchase heretofore noted was prepared and executed by the defendant and given to the plaintiff. At the time the sale was made on January 19, 1949, it remained for plaintiff to have the seed cleaned and placed in bags for delivery by the “middle of Feb. 1949.” He had some difficulty getting cleaning equipment, informed defendant and was given such time as he needed. On February 17, 1949, the work of cleaning the seed and putting it in bags was completed, there being a total of 476 bags filled, and on February 28, 1949, the bags of seed were inspected and sealed by the Kansas Crop Improvement Association. A part of the bagged seed was stored in a metal bin and a part in a close-by building. On March 1, 1949, plaintiff went to the defendant’s office and notified it that the seed sold to it was ready for delivery. At that time defendant notified plaintiff it had no place to put tihe seed. Defendant made no effort to get the seed and its value as seed was destroyed by a fire which occurred on plaintiff’s farm on March 20, 1949. We need not detail other evidence which tended to show there was an agreement, or that there was not, that an additional test of the seed should be made or that defendant would send its trucks for the seed on March 22, 1949. The showing made by the plaintiff’s evidence was sufficient to make a prima facie case and the trial court did not err in ruling on the defendant’s demurrer to plaintiff’s evidence nor in refusing to direct the jury to render a verdict in defendant’s favor.
Appellant’s argument that the trial court erred in refusing to enter judgment for the defendant is predicated on a contention that the court had .held that the title to the seed was in the plaintiff at all times until it was loaded on defendant’s truck for delivery to the defendant; that loss followed the title and as plaintiff held title at the time of the fire the loss was his and not the defendant’s. Whether procured at the request of the defendant or not does not appear from the abstract, but among other instructions given was the following:
“4. You are instructed that the written agreement concerning the certified Atlas Sorgo involved in this case expressly contains the provision ‘F. O. B. Farm.’ The plaintiff concedes by Iris amended petition herein that this provision is included in his contract with Mid-Continent Seeds, Inc. You are instructed that this provision ‘F; O. B. Farm’ has a well defined business meaning and that it means in this case that Wayne Wing agreed to deliver the Atlas Sorgo to Mid-Continent Seeds by placing the Atlas Sorgo ‘free on board the carrier or truck at his farm’ for shipment to Mid-Continent Seeds, Inc. You are further instructed that as a matter of law the title to this Atlas Sorgo remained in Wayne Wing at all times until he placed the Atlas Sorgo free on board such carrier or truck for shipment at his farm..” (Emphasis supplied.)
The appellee objected to the instruction on the ground it did not state the law applicable to the case and failed to consider the intentions of the parties as to the passage of title. Appellant directs attention to the fact that appellee filed no cross-appeal and argues that the instruction became the law of the case and calling attention especially to the emphasized portion, says that it being the law of the case, under the undisputed fact that the seed was not loaded before the fire destroyed its value, a judgment for it was compelled. The contention made is too broad. (See Davis v. Threlkeld, 58 Kan. 763, 51 Pac. 226.) Moreover, it has been held repeatedly that instructions must be considered as a whole and all must be considered to determine whether the theory and contentions of each party are presented. An erroneous instruction does not require reversal if all of the instructions, considered together, substantially state the law of the case. See the cases set forth in West’s Kansas Digest, Trial, § 295, and Hatcher’s Kansas Digest, Trial, § 186. Instruction No. 4, in part, sets forth the appellant’s theory of nonliability, but instruction No. 5 to which appellant objected, a matter which is considered later, sets forth appellee’s theory why appellant was liable.
In its brief, appellant directs attention to authorities dealing with the question as to who must bear the loss where, after a contract of sale has been made, the property is accidentally lost, and indicating that the ultimate determination of the question depends upon whether title has passed, since it is the general rule that in the ab sence of a contrary intention or agreement the- risk follows the title — that if the title has not passed the loss falls on the seller, if it has passed the loss is that of the buyer, citing 46 Am. Jur. 463, Hunter v. Kramer, 71 Kan. 468, 80 Pac. 963, and cases from other jurisdictions applying the rule.
Appellee directs our attention to many of our cases holding that in such cases the primary consideration in determining whether title has passed is the intention of the parties, and if it was the intent of the parties to the contract that title should presently pass, that intent governs, citing Howell v. Pugh, 27 Kan. 702; Kingman v. Holmquist, 36 Kan. 735, 14 Pac. 168; Barber v. Thomas, 66 Kan. 463, 71 Pac. 845; Stewart v. Produce Co., 88 Kan. 521, 129 Pac. 181; Ely v. Gas Co., 99 Kan. 236, 161 Pac. 649; Arkansas River Gas Co. v. Molk, 130 Kan. 30, 285 Pac. 561; and Kennedy v. Glen Cove Mut. Ins. Co., 154 Kan. 327, 118 P. 2d 591. And he also directs special attention to Arkansas River Gas Co. v. Molk, supra, as holding that in the sale of a number of articles of a definitely described lot, which are in a deliverable condition and nothing remains to be done, a separation is not essential to a passing of title in the absence of circumstances indicating a contrary intent, and to Stewart v. Produce Co., supra, where a considerable review of the authorities dealing with passing of title was made.
We think it unnecessary to take up and discuss the authorities cited in support of the above propositions for generally speaking the rules stated are correct. It is true, as appellant contends, that appellee did not testify as to his intention when the title should pass, but it is doubtful that such a statement would have been competent. As to when title to the seed would pass was not explicitly fixed by the “Confirmation of Purchase” it must be deduced from all of the evidence, and, under the circumstances here, was a question for the jury. On its face tihe confirmation of purchase would indicate a passing of the title as of its execution, or not later than “middle of Feb. 1949” for there is nothing in that document to indicate that the seed was not in bags and ready for delivery on the date of its execution. The confirmation does not positively disclose, although the evidence does, that appellant was to come to appellee’s farm and get the seed at the latter date. Limited to that showing it would appear that it was the intention the delivery should then be made and title should then pass. By agreement, however, the time to have the seed bagged and ready was extended, it was bagged on February 17, it was inspected, passed and sealed February 28, and on the next day the appellant was notified that appellee had fully performed on his part. It is true there was dispute in the evidence as to who was to load appellant’s truck, once it got to appellee’s farm, as to whether subsequent tests were to be made of the seed, and as to whether there was an agreement that appellant would be there on March 22, but the jury, by its verdict, resolved the question in favor of the appellee, and no answer to any special question was to any contrary effect.
Appellant’s further argument on its first general question is premised on its assertion that the trial court by instruction No. 4 had advised the jury as a matter of law the title to the seed had not passed from the plaintiff before the fire and that such a ruling was supported by the evidence, and on that premise it is argued at length that the trial court was correct in so ruling. In our judgment the premise is not sound. The only way in which the trial court could have made such a ruling as a matter of law would be for the reason the confirmation of purchase settled the matter. It has been stated heretofore it did not. In the circumstances of this case where it could not be said as a matter of law from the confirmation of purchase that title had passed, it makes no difference that there was some evidence warranting a conclusion the ruling was correct as a matter of fact. It was the function of the jury from all of the evidence, some of which was in conflict, to determine the fact. As construed by the appellant the instruction was erroneous, but it was favorable and not prejudicial to the appellant. While the instruction, and others, could have been better stated to set forth the theories of liability and nonliability of the parties, we are of the opinion, as is shown more fully later, that taking all of the instructions together, the trial court was attempting to advise the jury as to those theories, and that the emphasized portion of instruction No. 4 as quoted above should not be isolated, as contended for by appellant, but should only be considered as a part of all of the instructions. So considered, and by reason of its ruling we must assume they were so considered by the tidal court, the trial court did not err in refusing to enter judgment for the appellant.
The second general question presented by the appellant is whether the trial court erred in its instruction No. 5. As has been noted, all of the instructions are to be considered together.
Briefly stated, by one instruction the court told the jury that plaintiff claimed he had sold the seed and on March 1, 1949, had notified the defendant that the seed had been duly inspected and sealed in bags by the Kansas Crop Improvement Association and that it was ready for delivery pursuant to the contract; that the defendant neglected to get the seed and without fault of the plaintiff it was destroyed. Under another instruction the court advised the jury of the defendant’s denial that plaintiff had so performed and that it denied any breach of the contract. The court then informed the jury that if the parties made no provision regarding time of payment, that a cash sale was intended and that payment was to be made on delivery and that it took both delivery of the goods and payment to transfer the title from the seller to the buyer. Then follows instruction No. 4 heretofore quoted. Instruction No. 5, of which appellant complains, was as follows:
“5. If you find and believe from a preponderance of the evidence that the seed sold by plaintiff to defendant on lanuary 19, 1949, was to be cleaned and bagged by the plaintiff at his farm and was to be there picked up by the defendant’s truck, and if you find that plaintiff cleaned the seed and placed it in bags within the time allowed by the contract or by any extensions made by the defendant, and that the seed was of the kind and quantity specified in the contract so that all that remained to be done was for the defendant to send its trucks and pick up the bags at plaintiff’s farm, and that plaintiff notified the defendant thereof in time reasonably sufficient for defendant to remove the seed before the same was destroyed by fire as shown by the evidence, but that defendant failed so to do, then your verdict should be for the plaintiff . . . but if you do not so find, your verdict should be for the defendant.”
Appellant contends that the quoted instruction is contrary to and inconsistent with other instructions, is misleading and submits to the jury matters which had been decided by the court as a matter of law and therefore was highly prejudicial to appellant. Appellant’s argument is divided into three parts. It is first argued the instruction is wrong as a matter of law because it does not mention the matter of the title to the seed at the time of the fire, nor matters of selection, appropriation, acceptance and delivery. This argument mingles an assertion that the title had been determined to be in the plaintiff with statements that certain evidence was uncontradicted and that the jury was completely misled. We need not go into detail. Appellant’s contention as to title to the seed has been treated heretofore in this opinion. No purpose will be served by detailing evidence to demonstrate tihere was dispute. In instructing the jury, the trial court did not need to make specific reference to the evidence. There was no dispute in the evidence as to the cleaning of the seed, that it had been placed in bags and sealed and certified, and there was no occasion to instruct the jury on those particular things or if there was, there is no showing that any such a request was made nor that in any objection such a matter was mentioned.
It is next contended the jury was permitted to find an act of the defendant constituted a breach of the contract which the undisputed evidence shows was not a breach. The claimed undisputed evidence is that additional tests of the seed were to be made and that defendant was not to take the seed until March 22. We cannot agree with that premise. Inherent in the case as a whole was whether there was an agreement for additional tests and whether appellant was at fault in not getting the seed within a reasonable time after March 1, 1949. Also involved was whether appellee had ever agreed to the March 22 date of delivery. While there is evidence which would have warranted a finding there were to be the additional tests and that appellee had consented to the March 22 delivery date, there was contrary evidence, and it may not be said the jury was advised to decide a matter concerning which there was no dispute.
As a third subdivision of the second general question, appellant presents an argument that if its failure to get the seed before March 20, 1949, the date of the fire, was a breach of the contract, it is not liable, as only such damages are recoverable as are the natural consequence of its breach and were within the contemplation of the parties when they made the contract and that the proximate cause of the destruction of the seed was the fire and the alleged failure to send out trucks and get the seed was only a remote cause and, inferentially, not a natural consequence of the breach. Our attention is directed to authorities dealing with consequential damages. At the time the instruction was given the jury had before it for consideration evidence that appellee had sold the seed to appellant and that it was necessary that the seed be cleaned, bagged, inspected and sealed before delivery; that all of this had been done and the appellant notified on March 1 that appellee had fully performed and the seed was ready for delivery. If the jury accepted those things as the facts then it could assume under the instructions given, that if appellant did not send out its trucks and get the seed within a reasonable time that title had passed and the seed was left where it was by appellant and at its own risk. Any loss consequent on its so doing would be its loss and not that of appellee. We do not believe that for any reason asserted by the appellant the jury was misled in resolving the issue.
We note that throughout the brief reference is made to much of the evidence introduced at the trial but in view of the manner in which appellant has presented its appeal we have not found it proper to comment thereon. It may be said in passing, however, that comment on and consideration of it would lead to no different result. We have not set forth the special questions and the answers of the jury thereto as, under the questions presented there can be no question as to their being supported by the evidence. Our examination shows the answers are not inconsistent with the general verdict.
The judgment of the trial court is affirmed.
Parker, J., dissents. | [
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The opinion of the court was delivered by
Price, J.:
These consolidated eight appeals are the third appearance in this court of litigation involving the parties in their actions to recover damages from the City of Augusta alleged to have resulted from a flood control project undertaken by the city.
The factual background of the matter is set forth in our two former opinions in Loomis v. City of Augusta, 151 Kan. 343, 99 P. 2d 988, and Foster v. City of Augusta, 165 Kan. 684, 199 P. 2d 779, and need not be repeated here.
Pursuant to directions in the opinion in the latter case each of these four claimants filed an amended petition which, after setting forth the factual background of his or her respective claim, alleged damage in a stated amount as a result of the flood control project undertaken by the city. A copy of the exceptions to the report of the appraisers originally filed with the governing body of the city in each instance was attached to each amended petition respectively, as Exhibit “A.”
The city moved to strike certain allegations from each amended petition and Exhibit “A,” and this motion was sustained in part in each instance.
Following the lower court’s rulings in this respect the city answered, in each case alleging (1) that any pretended cause of action was barred by the statute of limitations; that defendant city constructed the levee under statutory authority, and that any damage sustained by the claimant was indirect, consequential, speculative and incapable of measurement; (2) that the decision in the Loomis case, supra, was res judicata; (3) that by reason of the long delay and acquiescence in that decision the claimant was es-topped from maintaining the action, and (4) that the court had no' jurisdiction of the subject matter; that several alleged causes of ación were improperly joined and that the amended petition did not state facts sufficient to support a cause of action.
Each claimant then filed a reply consisting of a general denial of all matters set out in the answer inconsistent with the allegations and denials contained in the amended petition.
In each case the defendant city then countered with a motion for judgment on the pleadings, alleging in support thereof that under the admitted facts and the law the claimant was not entitled to recover.
Each of these motions for judgment on the pleadings was overruled by the lower court.
Appeals numbered 37,882, 37,883, 37,886 and 37,887 are appeals respectively by the claimants from the order of the lower court sustaining in part the city’s motion to strike certain allegations from their respective amended petitions.
Appeals numbered 38,000, 38,001, 38,002 and 38,042 are appeals respectively by the city from the order of the lower court denying its motion for judgment on the pleadings.
Claimants concede that in view of the lower court’s order denying the city’s motion for judgment on the pleadings in each case their appeals from the order striking certain allegations from their respective amended petitions and exhibits attached thereto have become relatively unimportant, but contend that if the rulings are permitted to stand they would be unduly restricted in their proof at the trial of the cause. Notwithstanding that ordinarily a ruling on a motion to strike is not an appealable order and that the matters presently complained of are not properly before us, in view of the fact this is the third appearance of this litigation in-this court, and in view of our disposition of the city’s appeal from the orders denying its motion for judgment on the pleadings, we have considered claimants’ contentions. No useful purpose would be served and nothing would be added to the body of our law by encumbering this opinion with a detailed discussion of those allegations which were stricken. It is sufficient to say, however, that we have examined them and are of the opinion that substantial rights of claimants were affected adversely by the lower court’s ruling. Even so, as we have already indicated, such conclusion does not warrant a reversal of the judgments.
In support of the city’s appeal from the order denying its motion for judgment on the pleadings, counsel for the city argue that in the Foster case, supra, this court authorized claimants to amend their petitions by setting up permanent damage to their respective land resulting from the flood control project undertaken by the city and that, as such claims are identical to those made when they first filed their claims with the city, and, having asserted such claims in the Loomis case, supra, and lost, this court’s decision in that case was a final determination of the question and is res judicata. In other words, it is contended that by our decision in the Foster case claimants had but one cause of action, based on the damage resulting from the construction of the levee, that those claims were first asserted in the Loomis case and denied, and further, that since they were also denied recovery on their theory of 1944 flood damage in the Foster case, they should not now be permitted to back up and assert their original claims.
We are not unmindful of the force of the city’s argument in this respect but are of the opinion that it completely overlooks the force and effect of what was said in the Foster case, supra, where it was held:
“The remedial rights of the objectors originally available were to have their objections heard on appeal by the district court. That right should not be denied now. Their objections and claims were for permanent damages to their' real property by reason of the construction of the levee.” (p. 693.)
In that decision each of the instant claimants was directed to amend his or her petition to conform to our interpretation of the statute. That was done, and, as we read the amended petitions now before us, the claim for damages in each is based upon the alleged diminution in value of the particular tract by virtue of the flood control project undertaken and completed by the city — that is, the difference in value immediately before and immediately after the undertaking. We think such measure of damages is in accord with the meaning of the statutes under consideration and with our decision in the Foster case, supra; that each of the amended petitions states a cause of action, and that the city’s motion for judgment on the pleadings, which was tantamount to a demurrer, was properly overruled.
In passing, we take note of the city’s contention that Ira M. Foster is precluded from recovery on account of the fact that it was his father, Ira T. Foster, who filed a claim with the city. We think this matter was adequately covered by what was said in the Foster case, supra, and that provided Ira M. Foster establishes his rights as there conditioned or by other lawful conveyance, the city’s contention is without merit.
The city also contends that claimant, Catherine Carter, is not entitled to recover for the reason that in her original claim against the city she claimed to own the fee to the tract in question, whereas, in truth and in fact, she was the owner of a life estate only, such fact being admitted in her last amended petition. While the matter is not argued in the city’s brief and therefore could be considered as abandoned, nevertheless we have examined the question and are of the opinion the only actual question arising with respect to this is the measure of her right of recovery and to whom the award, if any, should be paid. The general rule is that the holder of a life estate, as well as the remainderman, is entitled to compensation when his property is taken for public use. (18 Am. Jur., Eminent Domain, § 233, p. 867.) Here the remainderman did not file any claim for damage with the city. The award to the life tenant should be on the basis of what damage, if any, has been sustained by her life tenancy, and such award should be paid directly to her.
From what has been said it therefore follows that the rulings and judgments appealed from are affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
These two cases grow out of a collision between a truck of the Healzer Cartage Company being driven in one direction on a highway and a tractor and car being driven from the opposite direction. The appeal is from an order granting plaintiffs new trials on the question of damages only. The defendants have appealed. The actions were consolidated in the trial court and were submitted together here.
In case No. 38,094, the petition alleged that a truck belonging to Healzer, doing business as the Healzer Cartage Company, was being driven in a westerly direction on highway No. 50 and defendants negligently caused a collision between a tractor pulling a hay-rake belonging to defendant Boehm and an automobile belonging to defendant Lamar, knocking the automobile into the path of the truck, causing its driver to slacken speed and to swerve the truck into the ditch, damaging the truck and its cargo.
The petition alleged Boehm was negligent in that he was with a tractor pulling the hayrake east without lights and Lamar was negligent in that he was driving his car at a high and excessive rate of speed, and Lamar negligently and suddenly turned his automobile into the path of the truck, and he saw, or could have seen, the obliviousness of the truck driver to his peril in time for Lamar to with safety have averted damage to the cargo in the truck by giving some warning sign of his approach or by stopping and by yielding the right-of-way to the truck, but Lamar failed to do so, thereby causing damage to the cargo of the truck.
The petition further alleged that at the time the plaintiff had issued a policy of insurance on the cargo in the truck. The petition then set out the amount of cargo certain firms had in the truck as follows:
“E. S. Cowie Electric Co .............................. $240 00
Devoe & Raynolds Co., Inc.......................... 1673.25
Standard Brands, Inc.......................... 73 20
U. S. Supply Co ........................... 183 39”
The petition alleged that such cargo was damaged as a result of the negligence of defendants and plaintiff had paid the above firms $2,538.94 and had been assigned their rights.
Judgment was prayed in that amount.
The defendants demurred to this petition on the ground that the plaintiff was an insurer and had no capacity in which to maintain the action. This demurrer was overruled.
Their joint and separate answer was first a general denial and an allegation that if plaintiff sustained any damages it was caused by the negligence of the driver of the truck. The answer also alleged that plaintiff had no legal capacity to sue and the allegations of the petition were not sufficient to constitute a cause of action in favor of the plaintiff and against the defendants.
In case No. 38,095, Healzer filed a petition against the two defendants. The allegations as to negligence were identical with the allegations in the other case and in addition the plaintiff alleged that his truck and trailer had been damaged in the amount of $3,000 and he had sustained loss of use of it in the amount of $1,000. He prayed for damages against the defendants in the amount of $4,000.
To this petition each of the defendants filed an answer consisting of a general denial and an allegation of contributory negligence on the part of plaintiff and his driver.
To the answer of defendants in each case the plaintiff filed a reply by way of general denial. The actions were consolidated by stipulation.
In advance of the trial the defendants in case No. 38,094 objected to the introduction of any evidence for the reason that the plaintiff had no legal capacity to sue.
In case No. 38,095 defendants made the same objections. In connection with these objections the plaintiffs pointed out that the Home Insurance Company had a policy of cartage insurance with the Baltimore Maryland Insurance Company and that pursuant to the policy the company had paid directly to the several shippers named the amount of their loss and had received from each of them a written receipt authorizing the Baltimore Maryland Insurance Company to institute an action for the amount. These actions were being maintained by the Home Insurance Company, a successor by merger to the Baltimore Maryland Insurance Company. It was agreed that John W. Healzer, doing business as The Healzer Cartage Company, was the assured of the Home Insurance Company, plaintiff in case No. 38,094. These objections to the introduction of the evidence were overruled and it was agreed the cases should be tried. At the close of plaintiff’s evidence the demurrer of each defendant to the evidence was overruled. The jury returned a verdict for $1,000 in case No. 38,094 in favor of Lamar. In the case of Healzer, No. 38,095, the jury found in favor of the plaintiff against Boehm and assessed the amount of recovery of $1,250 and found in favor of Lamar. The jury answered special questions as follows:
“1. Did Elmer Reynolds attempt to suddenly stop the truck he was driving. A. Yes.
“2. If question one is answered yes,’ then state:
“a. Was Elmer Reynolds confronted with a sudden emergency. A.
Yes.
“b. What caused the sudden emergency, if you find one existed? A.
Tractor and Rake attached without lights.
“3. Did Elmer Reynolds negligently operate his truck at the time and place in question? A. No.
“4. If question No. 3 is answered ‘yes,’ then state in what particulars he negligently operated his truck? A. _.
“5. If question No. 3 is answered ‘yes’ then also state:
“a. Whether that negligence contributed to the damage to the truck and cargo. A. __
“b. Whether the negligent act or acts were performed or occurred after a sudden emergency arose and as a result of a sudden emergency. A. _.
“c. Whether Elmer Reynolds acted according to his best judgment as an ordinary reasonable and prudent driver, considering the time within which he had to act and the circumstance. A. _
“6. Should the Defendant LaMar, in the exercise of ordinary care have seen the hay rake in time to have stopped his automobile and have avoided going over on a portion of the Southwest half of the highway? A. No.
“7. If question No. 6 is answered ‘no,’ then state why defendant Lamar did not see the hay rake until about fifteen feet therefrom. A. No lights.
“8. What was the reasonable cost or amount of:
“a. Repair of the tractor; A. $200.00. .
“b. Repair of the trailer; A. $400.00.
“c. Rental of replacement equipment; A. None.
“d. Value of the cargo loss; A. $1,000.00.
“/s/ R. S. Whitley,
“Foreman.”
In case 38,095 the plaintiff moved the court to vacate the verdict in favor of Lamar and to grant it a new trial as against Lamar only on account of the abuse of discretion by the court, accident and surprise, plaintiff was not afforded a reasonable opportunity to present his evidence and be heard on the merits of the case, erroneus rulings of the court, erroneous instructions given by the court; that the verdict was contrary to the evidence and for newly discovered evidence. The plaintiff also moved tire court for an order entering judgment against the defendant Lamar and granting the plaintiff a new trial on the question of damages only. In support of that motion the plaintiff stated that Lamar was guilty of negligence, which caused the emergency in question, as a matter of law, and plaintiff was entitled to judgment against Lamar, as a matter of law. Plaintiff also filed a motion to set aside the answers to questions 1, 2a, 2b, 3 and 7 and to grant a new trial on the grounds that the answers were not supported by the evidence. Plaintiff also filed a motion for a new trial against defendant Boehm on the question of damages only.
In case No. 38,094 the plaintiff Home Insurance Company filed an identical motion. The defendant Boehm filed a motion for judgment notwithstanding the verdict for the reason the verdict and pleadings showed him to be entitled to judgment.
The trial court ordered that the jury’s answers to special questions 6 and 7 should be set aside, sustained plaintiff’s motion for judgment against Boehm on the question of dámages only, sustained plaintiff’s motion for judgment against Lamar, set aside the verdict in favor of plaintiff, ordered Lamar to pay plaintiff the damages, to which plaintiff was entitled, ordered a new trial for the purpose of ascertaining the amount of the judgment which should be entered against Lamar, overruled Boehm’s motion for a new trial, to set aside the verdict and answers to special questions, and for judgment notwithstanding the verdict and overruled defendants’ objections to the jurisdiction of the court and to the right of the plaintiff to bring the action.
From this order the defendants have appealed.
Their specifications of error are that the court erred in overruling their demurrer to the petition of the Home Insurance Company, their objection to the introduction of any evidence on behalf of either plaintiff, in overruling their demurrer to the evidence of each plaintiff, in overruling the post-trial motion of defendant Boehm for a new trial and to set aside the verdict and answers to special questions and for judgment notwithstanding the verdict, and in sustaining all of the post-trial motions of the plaintiffs, setting aside the judgment in favor of Lamar, entering judgment in favor of each plaintiff against Lamar, granting a new trial against defendant Lamar on the question of damages only, setting aside answers to special questions 6 and 7 and granting a new trial to defendant Boehm on the question of damages only.
Defendants first argue, their demurrers to the Home Insurance Company’s petition should have been sustained because it was not the real party in interest and because the petition actually pleads the assignment of a right of action based on a tort. They argue that an insurer may bring such an action in its own name only when the entire loss has been paid by it, where the entire loss has been paid in part by the insurer and the wrongdoer, or where the insured fails to bring the action in his own name. The statement as to what was pleaded in the petition is hardly correct. No motion was made by the defendants to make this petition more definite and certain— hence it must be given a liberal interpretation in favor of the pleader. A reasonable interpretation to be given the pleading is that the shippers, whose goods were damaged, had been fully paid for their loss by the insurer. The petition pleads payment and assignment of the rights of the shippers by subrogation. Such were not the allegations of an action based on a tort. The use of the words “by subrogation” indicates that what the pleader had in mind was, the relationship of the parties springing from the insurance contract and the duty owed the shippers by the carrier. We dealt with an argument such as this in Hume v. McGinnis, 156 Kan. 300, 133 P. 2d 162. There a trailer had been destroyed by fire and the insurer had paid the insured the total amount of the loss. It then began the action against the tort-feasor in the name of the insured. The trial court sustained a demurrer to the petition on the ground that the plaintiff did not have capacity to sue. We first stated that there was no question in the case as to the liability of the tort-feasor to the insurance company for the money it paid the insured. We then reviewed authorities on the question of the name in which the action should be brought in such cases. In conclusion we said:
“After a study of the two recent cases that are relied on by the parties in this case we have reached the conclusion that there is no real reason for the distinction that has crept into the law whereby in a situation of this sort the action should be brought in the name of the insured when the loss is only partly paid and in the name of tire insurer if the loss is fully paid. It is really no concern of the tort-feasor in whose name the action is brought just so he will net be compelled to pay twice for the same loss.”
(See, also, City of New York Ins. Co. v. Tice, 159 Kan. 176, 152 P. 2d 836.)
The trial court ruled correctly in overruling defendants’ demurrer to the Home Insurance Company’s petition.
Defendants next argue the trial court erred in overruling their demurrer to plaintiff’s evidence on the ground that the testimony of the driver of plaintiff’s truck showed him to be guilty of contributory negligence as a matter of law. We must examine this question with the rule in mind that we will not weigh evidence and every reasonable inference is to be resolved in favor of the plaintiff. The burden of this argument seems to be that the truck driver was driving with his lights dimmed and on that account could not see far enough ahead to prevent the collision. The answer to this argument is that the truck driver saw the Lamar car approaching, he saw it turn suddenly onto his side of the road; until that happened, there was nothing in front of him to see. He was not obliged to assume that the Lamar car would do such a thing. The demurrer to the evidence was correctly overruled.
Defendant Boehm next argues that the trial court erred in overruling his motion for a new trial because his objection to the introduction of any evidence in the action where the Home Insurance Company was plaintiff should have been sustained and the verdict was contrary to the evidence. We have heretofore disposed of both these arguments.
The defendants next argue that the trial court erred in sustaining plaintiff’s post-trial motions, wherein the verdicts in their favor were set aside, and they were found by the court to be guilty of negligence as a matter of law and the plaintiffs were given a new trial against them on the question of damages only. Lamar points out that the jury in answer to special questions found that Lamar should not have seen the hay rake in time to stop his car and did not see it until fifteen feet away from it. The basis of this argument is that the hay rake had no lights on it and was naturally difficult to see. Hence the rule that one must drive so as to be able to stop within the distance objects become visible by means of his headlights does not apply.
Lamar’s own testimony showed he was not over five yards from the hay rake when he first saw it; that he suddenly jerked his car to the left and in doing so collided with the hay rake. He admitted he was driving fifty miles an hour, with the bugs and dust all over his windshield. He denied this hindered his control of the car but the court was entitled to draw its own conclusions about it.
We conclude this was sufficient to warrant the trial court in finding Lamar quilty of negligence as a matter of law.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from the ruling of the trial court sustaining the defendant’s demurrer to the plaintiff’s evidence.
At some undisclosed date, but subsequent to March, 1949, the plaintiff commenced his action against the defendant, alleging that defendant had issued its policy of insurance insuring a certain automobile owned by the plaintiff against loss by theft and that on March 3, 1948, while the policy was in force the automobile, of the value of $2,242.54, was stolen and had never been located, recovered or returned to plaintiff; that plaintiff had duly fulfilled all of the conditions of the insurance policy and had given due notice and proof of loss as required by the policy and the state of Kansas; that the defendant had failed and refused to pay plaintiff the amount of his loss although demand had been made and he prayed judgment for the above amount.
Defendant’s answer admitted issuance of the insurance policy but denied that plaintiff had suffered such a loss as to cause the defendant to be hable under its terms, and further denied that plaintiff ever complied with its terms with respect to notification or proof of loss or that it was liable to plaintiff in any sum.
Plaintiff’s reply was a general denial.
We here note that plaintiff, in his petition and in his reply, did not plead any waiver by the defendant company of its right to notice or to proof of loss.
At the trial the plaintiff produced his evidence to which the defendant demurred on the ground it failed to prove a cause of action against the defendant; that the evidence affirmatively showed the terms and conditions of the policy had not been complied with by the plaintiff; that compliance with such conditions was a condition precedent to recovery and that recovery was barred. The trial court held, as against the demurrer, that there was ample evidence to determine as a matter of law that a larceny had been committed, but that the evidence did disclose failure of the plaintiff to file his proof of loss within the sixty-day period provided in the policy and that the plaintiff was barred. In view of that ruling our review of the evidence is limited.
The insurance policy issued by the defendant named as the insured “Rankers Investment Company and Automobile Dealers Named Herein” and covered loss by theft under coverages and exceptions not presently important. The “Conditions” made part of the policy included the following: Under 1 (b) when loss occurs the insured shall give notice of the loss as soon as practicable to “the company or any of its authorized agents” and under 1(c) the insured shall file proof of loss with the company within sixty days after occurrence of loss, unless such time is extended in writing by the company, in the form of a sworn statement of the insured setting forth certain required information, the details of which need not be set forth. Under Condition 11 notice to an agent or knowledge possessed by an agent shall not effect a waiver or a change in the policy or estop the company from asserting any right under it nor shall the terms of the policy be waived or changed except by endorsement issued to form a part of the policy. Ry endorsement attached to the policy it appears that plaintiff and many other dealers were included in and covered by the policy of insurance.
Plaintiff’s evidence further showed that he financed his operations as a used car dealer by loans procured from Rankers Investment Company, the home office of which was in Hutchinson, Kan., but which maintained a branch office in Wichita where one Allison was the manager. The Investment Company required its borrowers to maintain insurance on the automobiles which were mortgaged to it to secure advances made. The Investment Company does no insurance business but it procured the insurance policy in question from Bankers Service Incorporated of Hutchinson, which was the agent of the defendant company. One Wesley was in charge of the Bankers Service Incorporated. The Investment Company and Bankers Service were separate and distinct corporations which occupied the same offices in Hutchinson but maintained distinct departments. Bankers Service had no office in Wichita.
Plaintiff’s evidence further showed at some length that on March 3, 1948, he sold the automobile in question to a man calling himself Wilson, receiving in payment a check on a bank in Perry, Okla. He permitted Wilson to take the automobile but retained the certificate of title which he delivered to the Investment Company and caused to be sent with Wilson’s check to the Oklahoma bank for collection. Through Wilson’s fraud the check was not honored and it was eventually returned to the Investment Company and then to plaintiff. We need not discuss Wilson’s fraud. The automobile has never been recovered. After plaintiff discovered the check was not honored he reported what had occurred to the police at Wichita and to the federal authorities there. With respect to notice of loss and proof of loss the abstract discloses that plaintiff, testifying in his own behalf, stated that the Investment Company at Wichita notified him the check had been returned; that he went and got the check and told of his loss; that he talked with Allison and asked him if the insurance would cover the loss and Allison said he did not think it would, but he would have to consult Wesley; that later he had another conversation with Allison who told him the policy did not cover the loss. Allison, called as a witness, testified he was the manager of the Wichita branch of the Bankers Investment Company; that the base policy of insurance was kept in Hutchinson and he did not have a copy and did not show a copy to the plaintiff; that he knew of the loss from talking with plaintiff; that later he talked with Wesley about the manner in which Brown lost his car but that the matter of a claim was not discussed as neither the Investment Company nor Brown made any claim at that time; that in March, 1949, Brown made out a proof of loss and gave it to the witness who in turn sent it to Wesley in Hutchinson; that he had told Brown it was his personal opinion he was not covered by the insurance, but he had heard nothing further about the matter until in March, 1949. Later Allison testified that each month he collected the premiums due from the various dealers covered, made out a report listing each automobile and the amount for which it was insured and sent the premiums and list to Bankers Service of which Wesley was the managing officer and that witness did not work for that company; that insurance for the Investment Company is written not only in the defendant company but in other companies. The only other witness was an adjuster of the Western Adjustment and Inspection Company which handled assignments from the defendant company. Early in April, 1949, this particular assignment was given witness and he discussed Browns proof of loss and the loss with plaintiff’s attorney, at which time witness stated the company would not pay for the reason the loss was not a theft under the policy. Some sort of a document was prepared but its substance is not set forth in the abstract nor is any copy attached.
Although the trial court held there was ample evidence for it to determine as a matter of law that a larceny had been committed of a car covered by the policy of insurance, the appellant directs our attention to authorities supporting such a holding. In view of the trial court’s ruling in appellant’s favor and that there is no cross-appeal by the appellee, we need not devote any space to the portion of the demurrer raising the question. The only question for us is whether appellant’s evidence disclosed notice of loss to the “company or any of its authorized agents” and that the company, with such notice, denied the loss was covered by the policy of insurance and thereby waived proof of loss.
Directing attention to Protective Union v. Whitt, 36 Kan. 760, 14 Pac. 275, a life insurance case in which the Union on being notified at the death of the insured refused payment on the ground he was not a member of the Union and where it was held that by so doing it waived proof of death, and to Winchel v. National Fire Ins. Co., 129 Kan. 225, 282 Pac. 571, a fire loss case, in which timely notice of the fire was given the company which denied liability on the ground the policy was void and it was held the company waived proof of loss, and also to Nichols v. Casualty Co., 113 Kan. 484, 214 Pac. 1111 and Boberg v. Fitchburg Mutual Fire Ins. Co., 127 Kan. 787, 275 Pac. 211, holding that representations made by a soliciting agent, apparently within the scope of his authority, are binding on the company, as well as to authorities from other jurisdictions to like effect, appellant argues that when he learned he had been defrauded he immediately notified Allison, manager of the Investment Company, and asked him if the loss was covered by the insurance policy; that Allison told him he didn’t think so but would consult Wesley, agent of the Bankers Service, the agent of the defendant company, and later Allison told him he was not covered. On the assumption that the evidence thus showed notice to the defendant company he contends that he was lulled into a feeling it would be useless to file a formal proof of loss; that Allison’s statement was a denial of liability by the company and a waiver of the proof of loss requirement of the policy and that his failure to file a proof of loss within the prescribed time did not cause a forfeiture of his rights under the policy.
Assuming that his evidence discloses a previous course of dealing by the appellant, the Investment Company and the Bankers Service as to previous claims against the defendant company, he argues further that his notice of loss to Allison was sufficient and that he was entitled to believe that filing a proof of loss would be a vain and useless procedure. Through inadvertence or otherwise he directs attention to an Illinois case which he cites as being reported in 76 A. L. R. 34, although it is not, and he then quotes at length not from the case but from page 34 of the annotation beginning on page 33 on “Liability Insurance, clause with respect to notice of accident, claim, etc., or with respect to forwarding suit papers.” The quotation made is not in point on the question of waiver and needs no discussion.
The gist of appellee’s argument is that the purpose of provisions for notice and proof of loss is to allow the insurer to form an intelligent estimate of its rights and liabilities and to afford it an opportunity to investigate to prevent fraud upon it (citing 29 Am. Jur. 824); that reasonable provisions requiring notice of loss and proof of loss are enforceable and binding (citing La Harpe Farmers Union v. United States F. & G. Co., 134 Kan. 826, 8 P. 2d 354, and Bowling v. Illinois Bankers Life Ass'n, 141 Kan. 377, 41 P. 2d 1012) (see also Mayse v. Insurance Co., 117 Kan. 662, 232 Pac. 865) and that while there may be waiver of proof of loss by the company in certain situations such as pertained in Winchel v. National Fire Ins. Co., supra, relied on by appellant, that under the facts disclosed hy plaintiff’s evidence there was no waiver, and, inferentially, that appellant did not think so for as a matter of fact he did file a proof of loss in April of 1949 or something over a year after the loss occurred, a time too late for the company to make an effective effort to trace and recover the automobile.
We cannot agree with appellant’s contention. His evidence disclosed no course of dealing that warranted any conclusion that Allison, the agent and employee of the Investment Company was the agent of the defendant insurance company for any purpose whatever. All that Allison did was for the company which employed him. There is no evidence that Allison, by any act of his, held out to appellant that he represented the defendant company in any manner. In their conversations Allison, in response to appellant’s question, did say that he did not believe appellant’s loss was covered by the policy of insurance and he repeated that statement after he talked with Wesley, but at neither of these times did appellant assert he believed he was covered or that he was going to make a claim. Even though it be assumed that Allison’s conversation with Wesley was a notice to an authorized agent of thé defendant company of the loss, under Condition 11 of the policy it was stipulated that such knowledge did not effect a waiver or estop the company from asserting its rights under the policy. There is no showing that the defendant company, nor any one authorized by it to do so, denied liability on the policy prior to the time fixed for filing proof of loss, so that it might be said to have waived the filing of a proof of loss.
We think appellant’s evidence failed to disclose a waiver of the policy provision for filing proof of loss within sixty days from occurrence of the loss.
No question is raised concerning the sufficiency of the pleadings to raise the question of waiver and we shall not discuss it. See Gillett v. Insurance Co., 53 Kan. 108, 36 Pac. 52 and Allen v. Gheer, 98 Kan. 228, 158 Pac. 17, and cases cited.
The ruling of the trial court is affirmed.
Wertz, J., did not participate. | [
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The opinion of the court was delivered by
Parker, J.:
This was an action to recover death benefits under an accident insurance policy. The appeal is from a judgment for plaintiff, wife of the deceased insured and beneficiary under the policy, rendered by the trial court upon special and general verdicts returned by a jury. Errors, assigned as grounds for reversal of the judgment and essential to disposition of the appeal, will be given consideration in the order in which they appear in defendant’s specification of errors.
On March 6, 1941, defendant Commercial Casualty Insurance Company issued an accident policy of insurance to H. F. Rraly, a resident of Coldwater, for an annual premium of $1 per year. The policy provided death benefits only under specified limited conditions in the amount of $1,500, which increased $100 per year for 5 years if the policy should be kept continuously in force, payable to the wife of the insured as beneficiary.
Included in the policy thus issued is a provision that the death benefit covered by its terms should be payable if the accidental death of the insured should occur:
“While riding as a passenger IN A PASSENGER ELEVATOR used for passenger service only in a place regularly provided for the sole use of passengers.”
Such policy also contains an exception clause which reads in part:
“This insurance does not cover . . . death or loss . . . while getting on or off a conveyance. . . .”
For all purposes of this appeal it is conceded H. F. Rraly met his death by external, violent and accidental means on November 18, 1943, that on such date he had paid premiums on the policy for three years bringing death benefits under the conditions there specified to $1,800, that proof of loss was made by the beneficiary (plaintiff) within the time and manner required by its terms and that in view of the conditions and circumstances under which the insured met his death provisions of the policy on which the rights of the parties must ultimately depend are those heretofore quoted.
At the outset appellant contends the trial court erred in overruling its demurrer to the petition. No useful purpose would be served by setting forth the allegations of that pleading in detail. It suffices to say it contains express allegations to the effect the insured met his death while riding as a passenger in a passenger elevator located in a grain elevator and other averments of similar import which, if given the benefit of inferences to which they are entitled under the record, state facts sufficient to constitute a cause of action on the policy.
The next three errors relied on by appellant as grounds for reversal of the judgment can be considered together. In our opinion they present the most difficult questions involved in the law suit. They are that the trial court erred (1) in overruling its demurrer to appellee’s opening statement to the jury, (2) in overruling its demurrer to her evidence, and (3) in overruling its motion for judgment notwithstanding the general verdict.
Except for one question to which we shall presently refer, the gist of the over-all position of appellant on all three of the errors thus assigned is the same and is to the effect that the opening statement, the evidence, and the answers of the jury to the special questions show that the conveyance located in the grain elevator where the insured was working, and in which it is conceded he was riding immediately prior to his death, was not a passenger elevator used for passenger service only in a place regularly provided for the sole use of passengers, hence there is no liability under the policy sued on. This position necessarily requires an examination of the evidence and the answers returned by the jury to special questions. The opening statement requires little attention inasmuch as the record discloses it was in line with evidence subsequently adduced by the appellee and must stand or fall upon our decision with respect to the legal sufficiency of the facts disclosed by the testimony on which appellee relies to sustain her cause of action.
Sumarized as to substance the fair import of the evidence can be stated as follows:
The Wolcott-Lincoln Grain Elevator Company maintains and operates a grain elevator at Coldwater. The building in which it carries on its business is a structure consisting of several floors or stories. Ascent and descent to and from the upper floors of the structure is accomplished by means of ladders or by riding on the conveyance herein involved, referred to by the witnesses as a “lift.” This lift is a one man conveyance operated by the person riding it, is used exclusively by human beings, chiefly employees and inspectors, and is never employed for the purpose of carrying freight.
The construction of the conveyance heretofore mentioned, reflected by the testimony of the witnesses, is described by appellee in her brief as follows:
“Its floor was a wood platform some two to three feet square. A frame consisting of uprights and a cross beam at their top was attached to the floor. On the floor and within this frame stood the person riding. The ‘chute’ or shaft was formed of a framework of guides, runners and tracks, within which the conveyance was raised and lowered. To the top of the frame of the conveyance was attached a cable, which ran over a pulley at the top of the building, and back down. At the other end of the cable weights were attached, furnishing gravity power for the conveyance. The weight of the rider, supplemented, if necessary, by weights, counterbalanced the cable weights to control the rise or drop. A foot operated brake, working against the guides of the shaft, stopped the conveyance. At each floor a hole and pin arrangement on a cross beam held the elevator stationary when it was not in use. At each floor above the bottom, the elevator passed through an opening just large enough to accommodate it, with two or three inches to spare on each of three sides, and about eight inches clearance at the front. All about these openings, and all along the path of the shaft, were floor and wall joists and supports, and large and small beams of various kinds . . .”
On November 18, 1943, the insured, H. F. Braly was employed by the company above named. While engaged in the performance of his duties, and for some purpose of no consequence to the issues, he went to and got upon the conveyance in question, started it and rode it upward out of the sight of two other persons who were on the ground floor, one of whom was an employee of the company and the other a bystander. Each of these individuals testified at the trial. Their testimony was to the effect that they saw Braly start up on the lift, that they did not hear it stop at any floor landing until it hit the top of the grain elevator and that the next they saw of him was when his body came hurtling down the shaft feet first and crashed upon the ground floor.
So far as the record discloses W. E. Richardson, the employee who was working with Braly at the time he started up on the lift, testified at greater length than any other witness produced on behalf of the appellee. With respect to matters not heretofore mentioned he stated in substance that no one saw and he did not know what took place after the elevator left the ground floor or at the top of the elevator where Braly was but that whatever happened resulted in his death; that when he examined the body after it hit the floor he found the deceased had a fracture back of the left ear and noticed a mark over his eye or on his temple although he could not recall whether it was located on the right or left side; that after that examination he went to the third floor of the elevator and there near the shaft opening found the deceased’s hat and observed that the pin for holding the elevator at such floor was in an upward position at an angle about 45 degrees or better. He also stated during his examination that with this pin in that position the elevator would go on past the third floor and to the top of the shaft and that he did not know whether Braly had been off the elevator before it hit the top.
With the foregoing evidence and some other testimony of similar import the appellee rested her cause.
The record with respect to evidence offered by the appellant is not complete. Attached to its abstract are two photographs of the lift marked defendant’s Exhibit “1” and defendant’s Exhibit “3” and we shall assume its Exhibit “2” was of a similar nature. At any rate the matter is of little moment and need not be labored for in its brief the appellant states “There is no dispute in the facts; the lower court refused to admit in evidence (referring to defendant’s Exhibit “4”) the only testimony offered by defendant.” Be that as it may the record does reveal that after resting her case appellee was called as a witness on behalf of the appellant and asked questions to which she made answers as follows:
“Q. In connection with your claim under this policy did you write a letter to the Commercial Casualty Insurance Company? A. Well, I had forgotten but I would have to see my handwriting.
“Q. I will hand you Defendant’s Exhibit ‘4,’ and ask you if that is your signature on that? A. Yes. That is my handwriting.”
It further discloses that thereafter appellant sought to introduce this Exhibit in evidence and that an objection to its admission was sustained by the trial court on the ground it was hearsay. Appellant then rested without evidence other than the three Exhibits to which we have heretofore referred.
Inasmuch as the rejected Exhibit becomes of importance later in this opinion it had just as well be quoted at this point. It reads:
“Coldwater, Kansas
“Commercial Casualty Insurance Co. December 7, 1943
Loyalty Group Newark, 1, New Jersey RE: Claim Number-370496
Policy No. S-381067
Series 77
Insured — Mr. H. F. Braly
"Attention: F. M. Tahl, Claim Examiner (deceased)
Accident and Health Division
“Gentlemen:
“You asked for some of the circumstances surrounding my husband’s death. “Mr. H. F. Braly was employed as manager of the Wolcott-Lincoln Grain Elevator in Coldwater. On the afternoon of November 18, 1943 Walter Richardson, who worked for Mr. Braly, dumped a load of wheat for Eddie Metzger. A grain spout seemed clogged so Mr. Braly went up on the man-lift to inspect it. They could see by his tracks in the dust where he had walked over to the bin and returned to the man-lift to come down. Both Mr. Richardson and Mr. Metzger were in the driveway of the elevator when they heard a terrible noise caused by the man-lift flying to the top of the elevator. They then saw Mr. Braly fall down the elevator shaft. He had been struck on the forehead probably by the man-lift as it shot past him, and causing a concussion, a deep cut was on the back of his head and he was terribly bruised all over. The men think when he attempted to step on the man-lift the pin which held it slipped out too soon before he could catch it, the man-lift flying up and knocking him in the head, throwing him off balance, causing him to fall down the elevator shaft.
“I trust this explanation is the information you need.
“Very truly yours,
/s/ Mary E. Braly
(Mrs.) Mary E. Braly."
The special questions and answers returned by the jury on which appellant bases its claim the trial court erred in overruling its motion for judgment non obstante read as follows:
“Q. No. 1. Was the conveyance which H. F. Braly used to go to an upper floor or level of the grain elevator of the Farmers Elevator Company at Cold-water, Kansas, shortly before his death a ‘Passenger Elevator,’ as that term is commonly used? A. No. 1. Yes.
“Q. No. 2. If you answer the first question in the affirmative was H. F. Braly riding as a passenger in said elevator at the time of the accident which caused his death? A. No. 2. Yes.
“Q. No. 3. If you answer the first question in the affirmative was said elevator in a place regularly provided for the sole use of passengers? A. No. 3. Yes.
“Q. No. 4. If you answer the first question in the affirmative was H. F. Braly getting on or off of the elevator at the time of the accident which caused his death? A. No. 4. No.
“Q. No. 5. If you answer Question No. I in the affirmative, then state: (a) Was the elevator for the use of employees only? Answer Yes (b) How many adults could ride in the elevator at the same time? Answer One (c) Was the elevator used primarily by employees for their convenience in performing their regular duties? Answer Yes (d) What power, if any, was used to operate the elevator? Answer gravity & weight.”
The first contention advanced by appellant in support of the over-all position to which we have previously referred is that the term “passenger elevator” as used in the first provision of the policy, heretofore quoted, has such a plain, ordinary, and well recognized meaning that it must be construed as having reference only to elevators provided for the use of the general public in office buildings, retail stores, hotels, apartment houses and other buildings of such character or, in any event, must be construed as a matter of law as excluding conveyances of the character herein involved even though used exclusively for the purpose of carrying passengers.
It must be admitted, as the parties agree, there are no Kansas cases on the issue thus raised. Indeed appellant goes so far as to say it has been able to find but one reported case, and that a decision of a Nisi Prius Court (Ray v. Accident Insurance Co., 19 Ohio N. P. N. S. 140; 27 Ohio D. N. P. 266; 96 A. L. R. anno 1412), directly in point. It should be said our somewhat extended research has revealed another (Employers Casualty Co. v. Langston [Tex. Civ. App.] 214 S. W. 2d 131), involving facts and circumstances quite similar to those herein involved, upholding its position. Even so it must be kept in mind the rules to be applied in the construction of insurance contracts are well established in this jurisdiction and that we are not bound to follow the decision of a court of some foreign jurisdiction if upon application of our established principles of contractual construction, or others to which we subscribe, we are unable to agree with its result.
Some of the established principles to which we have referred and decisions supporting them are to be found in our decision in Knouse v. Equitable Life Ins. Co., 163 Kan. 213, 181 P. 2d 310, which holds:
“If the terms of a policy of insurance are ambiguous or obscure or susceptible of more than one construction, the construction most favorable to the insured must prevail.
“As an insurer prepares its own contracts and it is its duty to make the meaning clear, if it fails to do so, the insurer and not the insured must suffer.
“Courts should not be astute to evade the meaning of words manifestly intended by the parties, but where an insurance contract is unambiguous it must be enforced according to its terms,” (Syl. ¶¶ 1, 2, 3.)
Another such principle appears in the opinion of Spence v. New York Life Ins. Co., 154 Kan. 379, 383, 118 P. 2d 514, where it is said:
“. . . the words of contracts of insurance are to be construed according to the meaning of the terms used, and if it is clear and unambiguous its terms are to be taken and understood in their plain, ordinary and peculiar sense, (citing cases) . . .” (p. 383).
Still another is that the language of a policy of insurance, like any other contract, must, if possible, be construed in such manner as to give effect to the intention of the parties at the time it was made as expressed therein. It is to be noted, however, that in the application of this rule the test is not what the insurer intended the words of the policy to mean but what a reasonable person in the position of the insured would have understood them to mean. (See Koehn v. Union Fire Ins. Co., 152 Neb. 254, 40 N. W. 2d 874, also, Hoyt v. New Hampshire Fire Ins. Co., 92 N. H. 242, 29 A. 2d. 121, and cases there cited.)
After careful consideration of all of appellant’s arguments, and notwithstanding the two decisions on which it relies, we are unable to agree with its position the phrase “a passenger elevator” is entitled to the construction appellant would have us give it. On the contrary, our view is, that such phrase is a generic term covering more than a single type of passenger elevator and susceptible of more than one construction. Therefore, application of the foregoing rules of contractual construction requires that the phrase be construed in the sense most favorable to the insured. That, since appellant prepared its own policy, means that if it desired to exclude passenger devices of the type disclosed by the evidence it should have specifically excluded them and that having failed to do so it must suffer the consequences. It follows the question whether such conveyance was a passenger elevator, within the meaning of that term as used in the policy, was one of fact and properly submitted to the jury.
In holding as just indicated, we frankly confess, we have failed to find any reported case that can be classed as directly in point. However, it can be said our examination of the authorities has revealed several decisions wherein courts have refused to uphold contentions similar to those advanced by appellant and hold in accord with our decision. See Wilmarth v. Pacific Mut. Life Ins. Co., 168 Cal. 536, 143 Pac. 780, holding that under an accident insurance policy providing for double indemnity for any bodily injury sustained by an insured while in a passenger elevator, the term “passenger elevator” did not refer to a definite type of elevator, but included any elevator ordinarily or customarily used for conveying passengers, though also used for conveying freight, and though not of any particular form, made in any particular way or with any particular kind of gates or safety contrivances. See, also, Fitzpatrick v. Metropolitan Life Ins. Co., 15 Cal. App. 2d 155, 59 P. 2d 199; Boles v. Royal Union Life Ins. Co., 219 Iowa 178, 257 N. W. 386; 96 A. L. R. 1400, anno at 1410; Losie v. Royal Indemnity Co., 171 N. Y. S. 174. By analogy, Smith v. Connecticut General Life Insurance Company, 18 Pa. District & County Reports 230, is to the same effect.
In passing it should perhaps be said that even if the term “passenger elevator” as used in the policy was to be regarded as unambiguous we would still be unwilling to say, as a matter of law, that when given its plain and ordinary meaning or subjected to the test applicable when construed in such manner as to give effect to the intention of the parties at the time it was included in the policy as executed that it was intended to or did exclude a passenger conveyance of the type disclosed by the evidence.
It is next argued the demurrer should have been sustained because the insured was not riding the elevator “as a passenger”. The burden of appellant’s argument on this point is that Braly was riding such conveyance as an employee in the performance of his duties and that such phrase must be construed as excluding employees from the passenger classification. Again we cannot concur in appellant’s construction of the contract. Instead we adhere to the rule announced in Fitzpatrick v. Metropolitan Ins. Co., supra, holding the fact an insured at the time of an accident on an elevator car was an employee of the company maintaining the elevator and was carrying on his duties as such did not exclude him from “passenger” classification under an accident policy providing for double indemnity if death was caused by injury received while riding as a passenger in a regular passenger car, and approve of the statement (See 59 P. 2d 199, 202) appearing in its opinion which reads:
“Other than seeking to invoke the rule applied in railroad cases, appellant advances no argument which would justify the adoption of a broad judicial doctrine denying the status of passenger generally to all employees while riding in their employers’ elevators in the pursuance of their employments. Nor are we prepared to so hold for the reason that under such a doctrine many thousands of employees in this state, private and public, who in the performance of their duties are obliged to ride daily in regular passenger elevators maintained in their employers’ buildings, would be precluded in actions based on accident insurance policies from claiming the status of passengers merely because of their legal relationship as such employees and the fact -that they are engaged in transacting their employers’ business.”
There is another sound reason for rejecting appellant’s contention on the point last mentioned. That the parties intended the term “as a passenger” as used in the provision of the policy under consideration to include employees is evidenced by the fact that the provision immediately preceding it, providing for liability under other circumstances, reads: “WHILE ACTUALLY RIDING AS A PASSENGER, and not a railroad employee on duty . . . within a surface or elevated railroad or subway car . . .” (Emphasis supplied.) Obviously, if appellant had intended to exclude the risk of accidental injury or death to employees in the involved provision of the contract it would have written into it an express exception similar to the one just quoted.
Finally appellant suggests the word “passengers” in the phrase “in a place regularly provided for the sole use of passengers” required the trial court to sustain the demurrer because the evidence disclosed the elevator would carry but one passenger. This suggestion merits little consideration. We believe it is crystal clear the word “passengers” as used in this phrase has reference to the utilization of elevators not their carrying capacity.
The undisputed evidence is to the effect that immediately prior to the accident the insured was riding in an elevator used for passenger service only in a place regularly provided for the sole use of passengers. Even so, and with the contract construed as heretofore indicated, appellant insists the trial court erred in overruling its demurrer because appellee’s evidence failed to establish the insured was injured while riding in the elevator. We shall not devote space to a review of the evidence. It suffices to say that even the appellant concedes the evidence discloses the accident resulting in insured’s death occurred while he was getting on or off the elevator. The law is clear that under such conditions and circumstances, in the absence of an exception in the contract, appellant would be liable. See 45 C. J. S. 991, § 990(f); 29 Am. Jur. 731 § 970; 5 Couch, Cyclopedia of Insurance Law, 4005, § 1151 (k), 1 Appleman 742, § 603. True, as we have heretofore stated, the instant contract con tains such an exception. But this fact in and of itself is not enough. The rule in this and other jurisdictions (See Lamb v. Liberty Life Ins. Co., 129 Kan. 234, 282 Pac. 699; Broyles v. Order of United Commercial Travelers, 155 Kan. 74, 122 P. 2d 763; 29 Am. Jur. 1083, § 1444, and 46 C. J. S. 440, § 1319 [4] [a] is that where, in an action to recover death benefits under an accident insurance policy, the defendant seeks to avoid liability on the ground the accident or injury for which recovery is sought is covered by some specific exception in the policy the burden is on defendant to prove the facts which bring the case within the specified exception. Here it is not even claimed that appellant met that burden and it is certain it cannot be said appellee’s evidence affirmatively established facts which relieved it from doing so.
What has been heretofore stated compels the conclusion the trial court did not err in overruling the demurrer to the evidence. For the same reasons and, since it is clear there is evidence to sustain the answers to the special questions and nothing in such answers to compel the setting aside of the general verdict, we hold there was no error in overruling the motion for judgment non obstante.
Heretofore we have indicated the trial court refused to permit the appellant to introduce as part of its evidence a letter written by the appellee, supplementing her original proof of loss and stating the circumstances under which the insured met his death, rejecting it on the ground it was hearsay and therefore incompetent evidence. This letter shows on its face that it was written in reply to the appellant’s request for additional information regarding the cause of the insured’s death and in our opinion must be regarded as supplementing the original proof of loss. Appellant insists the rejection of this evidence was error and entitles it to a new trial.
The general rule is that proof of injury or death furnished by a beneficiary to an insurance company is admissible in evidence against such beneficiary as an admission against interest, and that rejection of such evidence is reversible error even though the beneficiary, after it is admitted, may contradict adverse statements or admissions appearing therein by showing they were made through inadvertence, mistake, or misinformation and were erroneous. This, it can be stated, is the rule even though the information therein contained has been furnished to the beneficiary by third persons and is based upon statements made by them. (See 7 Cooley’s Briefs on Insurance [2d Ed.] 5927 to 5943, inch, § 10[a] to [g], inch, also 3 Appleman Insurance Law and Practice, 83 to 98, incl., §§ 1471 to 1479, incl., 29 Am. Jur. “Insurance” 1115, § 1488; 46 C. J. S. 482 [c] [1].)
Insurance Company v. Newton, 89 U. S. 32, 22 L. Ed 793, holds that the preliminary proofs presented to an insurance company in compliance with the condition of its policy of insurance, are admissible as prima facie evidence of the facts stated therein against the insured and on behalf of the company. In the opinion of that case it is said:
“But the court also erred in excluding from the jury the proofs presented of the death of the insured when offered by the company. When the plaintiff was permitted to show what the agent and officers of the company admitted the proofs established, it was competent for the company to produce the proofs thus referred to and use them as better evidence of what they did establish.
“But independently of this position the proofs presented were admissible as representations on the part of the party for whose benefit the policies were taken, as to the death and the manner of the death of the insured. They were presented to the company in compliance with the condition of the policy requiring notice and proof of the death of the insured as preliminary to the payment of the insurance money. They were intended for the action of the company, and upon their truth the company had a right to rely. Unless corrected for mistake, the insured was bound by them. Good faith and fair dealing required that she should be held to representations deliberately made until it was shown that they were made under a misapprehension of the facts, or in ignorance of material matters subsequently ascertained.
“There are many cases which hold that where a mistake has occurred in the preliminary proofs presented, and no corrected statement is furnished the insurers before trial, the insured will not be allowed on the trial to show that the facts were different from those stated. The case of Campbell v. The Charter Oak Insurance Company, decided by the Supreme Court of Massachusetts, and the case of Irving v. The Excelsior Insurance Company, decided by the Supreme Court of the City of New York, are both to this effect. It is not necessary, however, to maintain any doctrine as strict as this in the present case; and possibly the rule there laid down is properly applicable only where the insurers have been prejudiced in their defense by relying upon die statements contained in the proofs. Be that as it may, all that we now hold is thai the preliminary proofs are admissible as prima facie evidence of the facts stated therein against the insured and on behalf of the company. No case has come under our observation, other than the present, where the preliminary proofs presented by the insured have been entirely excluded as evidence when offered by the insurers, the question being in all the cases whether these proofs estopped the insured from impeaching the correctness of their statements, or from qualifying them, or whether they were subject to be explained and varied or contradicted on the trial.” (pp 35, 36.)
For just a few of the many other decisions to the same effect see Pythias Knights Supreme Lodge v. Beck, 181 U. S. 49, 45 L. Ed. 741, 21 S. Ct. 532; Crotty v. Union Mutual Life Ins., 144 U. S. 621, 36 L. Ed. 566, 12 S. Ct. 749; Tobin v. National Casualty Co., 63 Cal. App. 578, 219 Pac. 482; Lockway v. Modern Woodmen of America, 121 Minn. 170, 141 N. W. 1; Thornell v. Missouri State Ins. Co., (Tex) 249 SW 203; Union Mut. Aid Ass’n v. Carroway, 201 Ala. 414, 78 So. 792. See, also, Roses Notes on U. S. Reports Vol. 8 (revised Ed.) 782 to 786 inch, and 1 A. L. R. (2d) Anno. 365, also Jensen v. Continental Life Ins. Co., 28 Fed. 2d 545.
Decisions of courts of this state dealing with the admissibility of a proof of loss when an insurer seeks to introduce it in defense of an action on. an insurance policy are not numerous. However, it can be said that those giving that question consideration have recognized and indicated approval of the general rule announced in the decisions and authorities heretofore cited.
Long ago in Modern Woodmen v. Von Wald, 6 Kan. App. 231, 49 Pac. 782, it was held:
Where proofs of death are required by such fraternal order to be made to it before any right to recover for such benefits should accrue to the claimant, proofs of. death furnished by the plaintiff are competent evidence in behalf of tire defendant, and it is error for the court to reject them.” (Syl. f 3.)
See, also, National Reserve Life Ins. Co., v. Jeffries, 147 Kan. 16, 75 P. 2d 302, a comparatively recent decision of this court, which holds:
“Statements contained in an affidavit of proof of death, which is submitted by a beneficiary to an insurance company as a basis for the collection of a claim on tire policy, are competent evidence to show the existence of an ailment of the insured at tire time of his application for insurance and that he had received treatment therefor. Such facts amount only to prima facie evidence of their truth, but if unrebutted or unexplained, or unqualified by other evidence tending to show that they are erroneous or untrue, they are binding and conclusive on the beneficiary or other claimant under the policy.” (Syl. ¶ 3.)
Based on the foregoing authorities we are convinced the trial court erred in refusing to permit the appellant to introduce the letter, which as we have indicated is tantamount to a supplemental proof of loss, in evidence. As applied to the facts of the instant case the soundness of the general rule, and the reasons why appellee’s claim that its rejection resulted in no substantial prejudice to the appellant cannot be upheld, are well illustrated. Appellant had the burden of proving the insured was injured while he was getting on or off the elevator. It had been advised by appellee that tracks in the dust showed that he had left the elevator, walked over to the bin and was injured after he had returned to and while he was attempting to get upon such conveyance. Conceding that information was erroneous and susceptible of explanation the proof of loss was competent and should have been admitted at least for purposes of permitting the jury to determine the weight to be given the testimony of the witnesses who were actually present at the time the accident occurred if, in fact, they had changed their version of its cause and the insurer to show it had not arbitrarily disclaimed liability under the terms of the policy.
In view of the conclusion just announced the determination of divers other trial errors assigned by appellant as grounds for re-, versal of the judgment, many if not all of which will become unimportant on a new trial, do not require consideration in this opinion.
The judgment is reversed, solely upon the ground heretofore stated, with directions to grant a new trial.
Wedell and Price, JJ., concur in the result but dissent from subdivision (1) and from subsections (c) and (d) of subdivision (2) of paragraph 11 of the syllabus and corresponding portions of the opinion. | [
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The opinion of the court was delivered by
Smith, J.:
This is a replevin action to recover possession of an automobile and damages for its retention. Judgment was for plaintiff. An intervening petitioner has appealed.
The petition alleged the giving to plaintiff bank, a corporation located in Marion county, of a chattel mortgage on the car; that it was filed with the register of deeds of Marion county on March 24, 1948; and that a note given at the same time and described in the mortgage had been renewed. A copy of the mortgage and of the last note executed by defendants was attached. It bore the date of August 1, 1949. The petition then alleged the car was wrongfully detained from plaintiff; a demand for possession; the failure of the defendants to deliver; that the car had been removed by defendants from Marion and McPherson counties without the consent of plaintiff; that the note was past due; the value of the car was $850 and by reason of its detention by defendants plaintiff had been damaged in the sum of $50. Judgment was asked for possession of the car and $50 damages. A copy of the note sued on was attached and bears the date of August 1,1949.
In due time Consumer Plan, Inc., a corporation, filed an intervening petition, in which it alleged that on August 1, 1949, the defendants had executed a note to it in the amount of $685.80 and to secure that note had given it a mortgage on the same car.referred to in the petition; that this mortgage was filed in the office of the register of deeds of McPherson county on August 10, 1949; that defendants moved from McPherson, Kan., to Peabody in Marion county about January 1, 1948, and about September 1, 1948, moved from Marion county to Geary county, Kansas, and about February 1, 1949, moved from Geary county, Kansas, to McPherson, Kan., where they had resided since then; and that the plaintiff at all times knew, or should have known, the place of residence of defendants and could with due diligence have ascertained such place of residence. The intervening petition further alleged that the promissory note referred to in the petition was the last of a series of notes, the first of which was made on March 22,1948. All the notes given by defendants to plaintiff were attached to the intervening petition. These notes showed the first one given for $1,580 on March 22, 1948, and a renewal of this note every three months until the note given on May 22, 1949, was made due by its own terms on August 1, 1949, for $1,100, and on August 1, 1949, the note on which plaintiff sued was given for $1,100. The intervening petition further alleged that the plaintiff’s chattel mortgage was at no time ever filed with the register of deeds of McPherson county, and the Consumer Plan, Inc., had neither actual nor constructive notice of any prior mortgage when it advanced the consideration of its note and mortgage. The petition further alleged that the defendants were in default in payments; that it deemed itself insecure and wished to take possession of the automobile; that the defendants had paid to them $59.60 and there remained due $628.20.
The prayer of the intervening petition was for possession of the automobile; that it be ordered sold and the proceeds of the sale applied to the indebtedness due Consumer Plan, Inc., from the defendants and the balance turned over to the court.
On December 14, 1949, plaintiff filed a motion to strike certain allegations from the petition on the ground they were irrelevant, redundant and did not state facts sufficient to constitute a cause of action or legal defense against the plaintiff in favor of Consumer Plan, Inc. This motion was treated as a demurrer and the court sustained it, whereupon the intervenor filed an amended petition, which alleged what we have already stated as to the renewal notes being given plaintiff by defendants. Intervenor attached copies of those notes to the petition. The plaintiff filed a motion to strike from the amended intervening petition — first, the allegations that the plaintiff at all times knew the place of residence of the defendants; second, the allegation that the plaintiff had at no time filed its mortgage in McPherson county for the reason that these statements were irrelevant and redundant and did not constitute a cause of action or legal defense against the plaintiff or warrant the intervention of Consumer Plan, Inc.; and third, they were a mere repetition of the same statements which had been ordered stricken from the original petition.
The motion also asked that the allegations in the intervening petition that the intervenor had neither constructive notice of any prior mortgage or hen of any kind at the time it advanced the consideration for the note and chattel mortgage and that “it was entitled to the possession of the automobile” be stricken from the intervening petition for the reason that they were mere legal conclusions. The motion also asked that words alleging the automobile should be ordered sold and “the money received therefrom be deposited with the clerk of the court to abide further orders” should be stricken because it was not germane to the issues of the action, constituted an attempt by Consumer Plan, Inc. to change the character of this proceeding and was a repetition of the allegations ordered stricken from the original intervening petition.
The motion also asked for judgment on the pleadings in favor of the plaintiff for the reason that the remaining statements of material fact raised no issue of fact. The court found that the motion to strike was tantamount to a demurrer to the amended intervening petition at which they were specifically directed and that the motion for judgment on the pleadings was equivalent to a demurrer and that both motions should be sustained. Judgment was rendered accordingly giving plaintiff possession of the automobile.
The intervenor has appealed from the order sustaining the motion to strike and sustaining tire motion for judgment and from the order granting the plaintiff possession of the automobile.
Stated succinctly, the pleadings and motion raised the question whether when a mortgagor moves from the place where he resided when he executed a chattel mortgage and takes the mortgaged chattel with him and the mortgagee knows of such removal, does G. S. 1935, 58-301, require tire filing of the chattel mortgage at the new place of residence in order to give notice to subsequent mortgagees of the existence of that mortgage? The position of plaintiff is that the recording of the chattel mortgage on March 24, 1948, in Marion county, served as constructive notice to the world of the existence and the priority of the chattel mortgage given plaintiff by defendants.
Plaintiffs argue that the filing of the mortgage was in complete conformity with the requirements of the statute. The statute in question is G. S. 1935, 58-301. It provides as follows:
“Every mortgage or conveyance intended to operate as a mortgage of personal property, . . . shall be absolutely void as against . . . subsequent purchasers and mortgagees in good faith, unless the mortgage or a true copy thereof shall be forthwith deposited in the office of the register of deeds of the county in which the mortgagor resides, and also in the county where the mortgaged property is located at the time the mortgage is executed. . . .”
At the time the mortgage and first note were executed the defendant mortgagor lived in Marion county. The mortgaged car was also located in Marion at that time.
Intervenor points out first, the object of a recording statute is to give notice to persons who might subsequently be interested in either loaning money or buying the mortgaged chattel. There can be no doubt about that. It next points out that the mortgage to plaintiff was executed by defendants on March 22, 1948, in the amount of $1,580 and a note was executed on that same date between the same parties for the same aomunt due in three months from the date. He points out that this note was renewed on June 22, 1948, for three months and notes executed thereafter until the one sued on by plaintiff was executed on August 1, 1949. Intervenor then states the note and mortgage constitute a single contract, even though executed at different times, and are but one transaction— hence when this renewal note was renewed on March 22, 1949, and was given by defendants to the plaintiff there was also in effect a renewal of the mortgage given a year earlier. They argue that this renewal of the original chattel mortgage was no less a mortgage than the original mortgage given a year earlier and imposed upon the bank the same statutory obligation to file it for record as if the transaction had been a new one. Defendants point out that by the time the last note was given plaintiff, mortgagees were residents of McPherson county; plaintiff knew this and it was obligatory on the plaintiff to file the mortgage for recording in that county.
The validity of this argument depends on the weight to be given the argument that the execution of the new notes were in effect the giving of a new mortgage. The authority cited and relied on by the intervenors is not helpful to us since the mortgage in the case cited was a real estate mortgage and there are other factual differences.
There is nothing in G. S. 1935, 58-301, requiring a chattel mortgage to be filed for record in the county to which the property is removed. In fact the statute requires but one recording. We find nowhere in the books any statement that where the note is renewed it amounts to a renewal of the mortgage. As a matter of fact the chattel mortgage in this case provides:
“This mortgage to cover all renewals hereof.”
Clearly the parties contemplated only one mortgage.
The rule is stated in 10 Am. Jur. 777, section 95 as follows:
“In tire absence of any specific statutory provision regarding the removal of mortgaged property, tire record of a chattel mortgage in the town or county where it is required to be originally filed for record constitutes constructive notice to all the world, and the mortgage is valid even though not refiled in the town or’county to which the property is subsequently removed.”
(See, also, Note in 103 A. L. R. 198.) The purpose of the chattel mortgage recording statute is described in Jones on Chattel Mortgages (Bowers 6th Ed. 1933) sec. 260, p. 434 as follows:
“The object in requiring a record of the mortgage is to give publicity to it, and to provide a source of information common to all persons, so that they may determine, with some degree of facility, convenience, and certainty, the question of title to the property, whenever they may be interested to know it, while at the same time it is not among the purposes of the recording acts to subject a bona fide mortgagee to the inconvenience of the constant vigilance and ceaseless watching which would be requisite to guard and secure his interests, if he were obliged to record his mortgage in every town into which die mortgagor might see fit to remove with the property. If he were required to do this, his security would be well-nigh worthless; for before he could do this, a creditor of the mortgagor might seize the property by process of law, or the mortgagor himself might pass the title to it by way of sale to an innocent purchaser.”
This rule does not leave entirely without remedy those dealing with mortgagors of automobiles, where the proposed mortgagor has removed from the county where a prior mortgage was recorded. In this case the intervenor could have ascertained the former residence of the mortgagor by examination of the certificate of title to the car in question. An examination of the records in the proper office of Marion county would have disclosed the existence of the prior mortgage.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
The present appeals arise out of a proceeding under the workmen’s compensation act.
The record discloses without dispute that on December 11, 1945, the workman Duncan suffered a compound, comminuted fracture between the knee and the ankle of his left leg, in an accident occurring during the construction of a pipe line by his employer, the W. M. Davidson Construction Company; that the company furnished Duncan with hospital and medical treatment after the accident and throughout the year 1946 in an effort to effect a cure but that the bones did not properly unite. On January 14, 1947, a further operation was performed in which a barrel stave graft was made and a plate put across the fracture site, the bone grafts used being removed from Duncan’s right ilium. Casts were placed on Duncan’s leg, the last one being removed June 15, 1947. During all of the period of disability payments of compensation, as distinguished from medical treatment, were made to Duncan until August 17, 1948, when such payments ceased. On November 30, 1948, Duncan made a claim for compensation, stating therein: “My left leg was broken and shattered between the ankle and knee while laying a sixteen inch pipe.” Thereafter Duncan received further medical attention from the company’s doctor, at least as late as December 14, 1949. Under date of September 27, 1949, Duncan made a further claim, stating that the nature and extent of injury was: “Left leg broken in several places below the knee — In surgery six or seven times. Radiy crippled in left leg and right hip. Unable to resume pipe-line work.” On December 13, 1949, the compensation commissioner heard the claim and on January 30, 1950, found that the claim was filed within the statutory period and that the claimant suffered personal injury by accident resulting in 139 weeks temporary total disability to August 17, 1949, and twenty-five per cent permanent partial disability by reason of the injury to the left foot and the disability resulting from the surgical intervention in the right os ilii, and an award was made for 139 weeks temporary total disability at $18 per week in the sum of $2,502 and twenty-five per cent permanent partial general disability at $18 per week for 276 weeks in the sum of $4,968 making a total of $7,470 of which amount $2,502 had been paid, leaving a balance of $4,968 of which amount $414 was due January 25, 1950, and was ordered paid in one lump sum, leaving a balance of $4,554 which was ordered paid at the rate of $18 per week for 253 weeks thereafter. On January 31, 1950, the respondent company and its insurance carrier served notice of appeal to the district court. On appeal, the district court on August 3, 1950, found that the claim made under date of November 30, 1948, was sufficient and if for any reason might be said to be insufficient the application for hearing under date of September 27, 1949, was still within time, and it affirmed the award, the only change made being as to the amount presently due as of the date of its judgment and the amount thereafter due. From the judgment of the district court, the respondent company and its insurance company appealed to this court, that appeal bearing number 38,220.
On February 27, 1950, the respondent company and its insurance carrier filed with the compensation commissioner their petition for a review of the award of January 30, 1950, for reasons later noted. The claimants objections to a hearing of this petition were sustained, and the respondent and the insurance carrier appealed to the district court. In the district court this appeal was heard at the same time as the other appeal to that court. The district court affirmed the ruling of the compensation commissioner and appeal to this court followed, the appeal bearing number 38,221. In this court the appeals are presented together, the specifications of error being that the trial court erred (1) in holding that the written claim for compensation was in time; (2) in adopting the findings of the compensation commissioner as to the extent of claimant’s disability when there was no substantial competent evidence to support the findings; (3) in holding any compensation was due; which pertain to No. 38,220; (4) in holding that the compensation commissioner did not have jurisdiction to hear the petition for review and that the district court acquired no jurisdiction on appeal; and (5) in refusing to consider the petition for review on its merits; which pertain to No. 38,221.
Before taking up appellants’ contentions of error we note the following: In the statement of facts we noted that the last operation was the barrel stave graft, the bone grafts used being taken from claimant’s right ilium. There was evidence by the claimant, disputed by respondent that at the place from which the grafts were removed, there followed an exostosis or growth of bony spurs which projected into the surrounding soft tissues which interfered with the function of the hip muscles as they glided back and forth in flexion and extension of the hip, resulting in a twenty-five per cent disability of the right hip, unless the mass was removed, and that if removed disability would be practically limited to the left leg. By his award the compensation commissioner resolved the disputed facts in favor of the claimant.
In presenting their specifications of errors appellants have filed an extensive brief and in response appellee has filed another. In both may be found discussion of matters predicated on assumptions, which, if not made, need no treatment. All such argument is supported by citation of numerous cases which have been examined, but which are not set forth herein.
Appellants’ contention that the claim was not filed in time is not predicated on any contention the claim of November 30, 1948, was not filed within time, but on a contention it was not legally sufficient to support the award made. The contention of legal insufficiency is somewhat involved, but shortly stated is that under G. S. 1947 Supp. 44-510 (3) (c) clause 19, the total loss of use of the leg constituted a scheduled injury for which payment of compensation is limited to 125 weeks (clause 13), and that as the compensation commissioner found claimant suffered 139 weeks of compensable temporary total disability, there is no remainder left to which partial permanent loss of use may be applied. As to this portion of appellants’ argument, we think it a sufficient answer to say there was no claim made of permanent total loss of use of claimant’s left leg or that the injury was a scheduled injury. There was no evidence that was the case, and the compensation commissioner in the first instance, and the district court on appeal, made no such finding. Appellants contend further however that although the claim of November 30, 1948, was probably sufficient for any additional compensation due the claimant for disability of the left leg, it was not sufficient as a claim for alleged disability in the region of the right os ilii from which bone, was removed in connection with the bone graft at the fracture site on the left leg made January 14, 1947, and reliance is placed on Schweiger v. Sheridan Coal Co., 132 Kan. 798, 297 Pac. 688, in which the claimant on February 10, 1928, made claim for an award of compensation for loss of sight in his right eye as result of injury sustained December 23,1927. He received an award for 96 weeks which terminated December 10, 1929. On February 4, 1930, he filed a claim for compensation for an affliction of the left eye traceable to the accident to his right eye. Appellants direct our attention to that portion of the opinion on page 801, commencing:
“It is clear that appellee received no injury to his left eye; he made no claim for an injury to that eye; . . . Not until February 4, 1930, which was two years, one month and seven days after the accident and injury to his right eye, did he make demand or file a claim for an injury to his left eye” etc.
In the above case an award was made for a scheduled injury and paid. The second claim was not made until after final payment of the award, and it was predicated on a claimed disability arising out of the original accident but not caused by it, and was properly held to be too late. We are of the opinion that the above case is not controlling here.
In answer appellee directs attention to G. S. 1935, 44-523, that the commissioner or court shall not be bound by technical rules of procedure; to G. S. 1947 Supp. 44-520a which provides for a written claim for compensation but does not specify any form nor require that the claim state the particulars of the injuries, and to our decisions in Eckl v. Sinclair Refining Co., 133 Kan. 285, 299 Pac. 588; Richardson v. National Refining Co., 136 Kan. 724,18 P. 2d 131; and Williams v. Cities Service Gas Co., 139 Kan. 166, 30 P. 2d 97, holding that no particular form of claim is required and that it is sufficient if it advises the employer that the injured employee is claiming compensation for an injury sustained. And see the form of claim set forth and considered in Rubins v. Lozier-Broderick & Gordon, 160 Kan. 499, 500, 163 P. 2d 364.
In the instant case the respondent employer knew from the date of the accident the original extent of the claimant’s injuries, it knew, because it furnished medicine, hospital and surgical treatment, the progress of the claimant’s condition and that the operation of January 14, 1947, was made to alleviate the injury. After that date it continued to furnish surgical and medical treatment, and it made payments of compensation as such to August 17, 1948. The written claim of November 20, 1948, was served within 120 days from that date. While possibly there might be cases where the employer might be misled or prejudiced by reason of lack of particulars in a written claim for compensation, this one is not of that type. We are of the opinion that the written claim made under date of November 20, 1948, was sufficient. Whether the injuries from which claimant was suffering at the date of the hearing was compensable is treated later herein.
Without elaboration, we agree with the district court that if the written claim of November 20,1948, was for any reason insufficient, the one of September 27, 1949, was sufficient. It was served while medical, surgical and hospital treatment was being furnished by the respondent to claimant. Such treatment has been held to constitute payment of compensation. See Bishop v. Dolese Brothers Co., 155 Kan. 288, 124 P. 2d 446, and cases cited. Under the facts of this case we cannot approve appellants’ contention that the employer, having expended sums in excess of the statutory requirement, prior to the operation on January 14,1947, the medical and surgical treatment rendered thereafter is exactly the same as though the claimant had procured such treatment for himself. The case of La Fever v. Olson Drilling Co., 142 Kan. 431, 49 P. 2d 967, cited by appellants does not support their contention.
The appellants next contend there was no substantial evidence to support the findings of the district court as to the extent of the claimant’s disability, stating there was no evidence that claimant suffered twenty-five percent permanent partial disability. This contention is made on the assumption that evidence as to injuries to the right hip caused by the growth of spurs after bone splints were taken to be used in making the barrel stave graft on the left leg, was incompetent. Under repeated decisions of this court, on appeal we are concerned only with questions of law and not of fact and our review is limited only to a determination of whether the findings of the trial court are supported by substantial competent evidence. Assuming that the evidence complained of was competent, a matter later treated, we find, without detailing it, that there was substantial competent evidence to support the finding.
Under a complaint that no compensation whatsoever was due claimant, appellants review at length the facts as to the injury to the left leg, and that in treating it, it becamé necessary to take the bone grafts from the right os ilii on January 14,1947, and argue that it is elemental in workmen’s compensation cases that an injury to be compensable must be occasioned by an accident arising out of and in the course of employment (citing Hilyard v. Lohmann-Johnson Drilling Co., 168 Kan. 177, 181, 211 P. 2d 89); that the injury to the right os ilii was the result of surgery and did not occur during the course of the employment, and therefore no compensation was due on account thereof. In connection with this argument appellants contend that when the operation of January 14, 1947, was performed, they had theretofore exceeded the maximum obligation imposed upon them by the compensation act as then in force; that such additional medical attention was not compensation and that claimant “desired” the surgery to reduce the disability in his left leg, and, in sum, that such self secured treatment constituted an independent, intervening cause of the injury to the right os ilii.
This contention ignores the fact that in January, 1947, claimant was being paid compensation as such; that the medical, surgical and hospital treatment appellants were affording the claimant would probably inure to their benefit and insofar as it assumes claimant “desired” the operation, is not borne out by the record. In support of their position generally, appellants rely on Ruth v. Witherspoon-Englar Co., 98 Kan. 179, 157 Pac. 403, which involved the effect of incompetent or negligent treatment of the claimant’s injuries with the result that his disability, which would otherwise have been merely temporary was rendered permanent, and where it was held that so much of claimant’s incapacity as was the result of unskillful medical treatment did not arise out of and in the course of his employment, and to the later cases of Dinoni v. Vulcan Coal Co., 132 Kan. 810, 297 Pac. 721, and Cooke v. Bunten, 135 Kan. 558, 11 P. 2d 1016, where the rules was approved or reaffirmed. Apparently in the trial court appellee relied on our decision in Bidnick v. Armour & Co., 113 Kan. 277, 214 Pac. 808, where the claimant sustained a hernia which necessitated an operation as a result of which “milk-leg” developed. In affirming a judgment for the claimant it was said:
“Defendant contends that, if plaintiff sustained any injury in the course of his employment, it was the hernia, that the hernia was cured by the treatment and operation; that the milk-leg’ was caused entirely by the operation for hernia; that, therefore, the ‘milk-leg’ was not an accident arising in the course of plaintiff’s employment; and that plaintiff cannot recover. The defendant relies on the case of Ruth v. Witherspoon-Englar Co., 98 Kan. 179, 157 Pac. 437. In that case, however, it was said:
“‘The evidence shows that the permanent character of his (Plaintiff’s) incapacity is actually the result, not of the injury received while working for the defendant, but of improper surgical treatment.’ (p. 180)
“In this case there is no claim that the ‘milk-leg’ was caused by improper surgical treatment or malpractice. The injury itself is the basis of complaint. While a reasonable conclusion from the evidence was that the lifting of the heavy barrel caused the hernia, that the hernia necessitated the operation, as a result of which one of the veins of plaintiff’s leg was dammed or the flow of blood materially restricted, there was evidence ‘that the milk-leg could be caused by an injury.’ In either case the original injury was the contributing cause, if not the direct cause of plaintiff’s condition. From the 600-pound barrel through the various stages to the ‘milk-leg,’ each step was the natural inducement ■ of the next. The result was plaintiff’s condition, from which he will be partially incapacitated, perhaps for life.” (1. c. 279)
The conclusion of this court is reflected by ¶ 2 of the syllabus, which recites:
“Under the circumstances outlined in the foregoing paragraph it is held that, although the plaintiff’s incapacity was immediately due to the milk-leg,’ yet that malady was directly traceable to the hernia sustained in defendant’s service and to tire consequent results of the necessary treatment to cure the hernia; and the plaintiff’s resultant incapacity entitled him to compensation.”
Appellants argue that the instant case is more comparable to and should be controlled by the Ruth case rather than the Bidnick case, and that under the Ruth case the injury to claimant’s right os ilii is not an injury and is therefore not compensable.
In addition to the above cases appellants direct attention to Champerlain v. Bowersock Mills & Power Co., 150 Kan. 934, 96 P. 2d 684, and other cases and distinguish them from the case at bar. We think it unnecessary to review those, cases. They also cite Riggan v. Coleman Co., 166 Kan. 234, 200 P. 2d 271, where the claimant sought recovery for a scheduled injury as well as for other injuries to his shoulder, neck and head. On the hearing it developed that the only testimony as to the last mentioned injuries was that the additional incapacity caused by them was caused by a causalgia condition directly related to and arising from the scheduled injury. It was held that there could not be recovery for both the scheduled and unscheduled injuries, and an award which included the latter was ordered modified. Referring to Duncan, appellants say he “suffered injuries to scheduled members,” then treat his injury as though it were a scheduled injury, which we hold it was not, and say that the analogy between his case and the Riggan case is readily apparent.
In our opinion the present proceeding comes within the rule of the Bidnick case, a sufficient reference to which has been made, and to cases where the rule of that case has been recognized or followed. (Edgar Zinc Co. v. Hamer, 130 Kan. 58, 285 Pac. 550; Dinoni v. Vulcan Coal Co., supra; Evans v. Western Terra Cotta Co., 145 Kan. 924, 67 P. 2d 426; Rogers v. Board of Public Utilities, 158 Kan. 693, 149 P. 2d 632.) The evidence in this case did not disclose that a merely temporary disability was rendered permanent by the operation of January 14, 1947, nor that that operation was performed unskillfully or negligently. There was some dispute as to whether bone spurs would grow and protrude into the fleshy portions surrounding the place on the right os ilii from which the bone grafts were removed to perform the barrel stave grafts on the left leg but that dispute was resolved in favor of the appellee and against the appellants by the trial court and is not open to review now. Further, it cannot be said as a matter of law that the removal of bone grafts from the right os ilii constituted an independent, intervening cause of injury. The treatment of appellee’s left leg, up to the time the barrel stave graft was made, had not resulted in a union of the leg bones, and to accomplish that the operation of January 14,1947, was performed — it was a necessity growing out of the original injury and the disability arising from its performance was a natural result, even though such a result might not always follow. The disability was directly traceable to the injury to the left leg and to the consequent result of the necessary treatment to repair the injuries to that leg.
In our opinion the evidence disclosed the disability in appellee’s right hip, caused by the removal of bone grafts was a closely connected consequence of the primary injury to his left leg, did result from an accident arising out of and in the cohrse of his employment, and constituted sufficient substantial evidence to uphold the award made. The appellants’ contention that no compensation whatever is due claimant cannot be sustained.
The judgment of the trial court in case number 38,220 is affirmed.
We now take up the second appeal. As has been noted above, the award of the compensation commissioner was made on January 30, 1950. At the hearing leading up to that award there was some evidence offered by appellee that the appellee’s disability would be reduced by an operation on his right leg to remove the bone spurs on his right os ilii. The commissioner stated in the history of the case that appellee was in need of further medical care to reduce his disability but that appellants had not offered such medical attention. Reference to the matter is not made in the findings or award. On January 31, 1950, appellants served notice of appeal to the district court, which notice was filed February 1, 1950.
On February 27, 1950, appellants filed with the workmen’s compensation commissioner their petition for review in which they referred to the above statement as to further medical care, to their appeal from the award and then alleged they made a gratuitous award of surgery on February 9,1950, as shown by a copy of a letter attached, and that they received in response a letter dated February 10, 1950, copy of which was attached, which, although ambiguous and difficult of interpretation, could only be interpreted as a denial; that the surgery recommended by appellee’s medical witness would require certain stated things to be done and that the probability of a permanent cure was large and the danger to fife small and because of appellee’s unreasonable refusal of such surgery, appellants should be relieved of obligation to pay any and all compensation under the award. They further alleged that the refusal of appellee to accept the surgery tendered was evidence of and demonstrated that the application for compensation was filed in bad faith and by reason thereof they should be relieved of obligation to pay any and all compensation under the award.
The letter of February 9, 1950, offered surgery to remove bony spurs from appellee’s right os ilii, but stated further it was a voluntary offer over and above the maximum costs provided in the compensation act, did not constitute an admission by appellants that any decisions, findings, awards or rulings of the commissioner, whether of law or of fact, made in the case were valid and that their validity was specifically denied. Appellee’s answer of February 10, 1950, to appellants’ offer stated he neither accepted nor refused for the reason the tender made was not in accordance with the compensation act; was not made until after the hearing was completed and the award made; was in violation of the act in that appellants specifically denied liability for the compensation found to be due and to become due, and failed to provide for medical bills, hospital bills, transportation of appellee or for payment of compensation of appellee during disability, or other detailed expenses; that no tender was made during the hearing and the same could not be ordered by the commissioner, and other reasons not necessary to detail.
On hearing the petition for review the compensation commissioner stated that an award had been made from which an appeal had been taken and was pending, expressed the opinion that the district court had jurisdiction of the questions of law and fact as presented and shown by the transcript of the evidence and proceedings before the commissioner and sustained the appellee’s objections to a hearing. Appellants promptly appealed to the district court. The district court heard the appeal and found that the petition for review was not such as is contemplated by G. S. 1947 Supp. 44-528; that the attempted review was in the nature of a motion for a new trial and such a procedure is not provided in the workmen’s compensation act; that the commissioners was without jurisdiction to hear the matter and the district court acquired no jurisdiction on appeal and the appeal should be dismissed; and it ordered the appeal dismissed. In due time the appellants perfected their appeal to this court.
The gist of appellants’ contention that the trial court erred is that the workmen’s compensation act provides its own procedure and furnishes a substantial, complete, and exclusive remedy from inception of the claim to final judgment thereon, citing Duncan v. Perry Packing Co., 162 Kan. 79, 174 P. 2d 78, and Brewington v. Western Union, 163 Kan. 534, 183 P. 2d 872, and that may be conceded; that the statute providing for review (G. S. 1947 Supp. 44-528) states such review may be had “at any time before but not after the final payment has been made . . that the statute means exactly what it says, citing Gilbert v. Independent Construction Co., 121 Kan. 841, 250 Pac. 261, and Doss v. Cornelison & Kelly, 124 Kan. 631, 261 Pac. 584; and that therefore the award may be reviewed at any time. The two cases last cited did not involve any attempt to have a review while an appeal from an award was pending and are no authority on that point.
We shall not isolate and decide the single question whether the appellants from an award made by the'compensation commissioner, may, while that appeal is pending, petition the compensation commissioner for a review of that award. The petition for review now before us does come within such a time, but an examination of its allegations discloses that what petitioners seek is a hearing before the commissioner of their contention that the claimant by refusing their belated offer of surgery is not entitled to any compensation. They made no timely offer before the commissioner, and their offer after the award was made was coupled with a denial of the validity of the award, without any offer to pay compensation pending review and without any allegation of any changed condition of the claimant which rendered the award excessive. There is no allegation in the petition for review that the award was obtained by fraud or undue influence, was made without authority or as the result of misconduct or that incapacity of the claimant workman was diminished. If it can be said there was any claim made the award was excessive, it would be the same claim as is included in the pending appeal from the award, and at least to that extent would be only a petition or motion for a rehearing of the award.
Although the factual situation giving rise to the discussion was different, this court, in reference to the review provision, said in Brewington v. Western Union, supra:
“The purpose of this statute has been considered on many occasions as reflected by the numerous decisions collected thereunder. Its purpose, as expressly stated in the statute, is to permit the commissioner to modify such award upon such terms as may be just . . .’in order to conform to changed conditions.
“The modification of the award of the district court by the commissioner is in no sense a review of the former judgment of the district court. The modification authorized is based on the existence of new facts, a changed condition of the workman’s capacity, which renders the former award either excessive or inadequate.” (1. c. 537.)
We conclude the instant petition was not sufficient under the statute and that the trial court did not err in so holding.
The last contention made by the appellants is that the relief prayed for in their petition for review should have been granted. A full answer to this contention is that it having been held the petition for review was insufficient there is no need to discuss the argument made under this heading.
The judgment in appeal No. 38,221 is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an action for damages for wrongful death brought by Herbert C. Pizel and Marjorie M. Pizel as the parents and next of kin of their deceased minor son, Donald Lee Pizel, against the estates of Raymond C. Wright and Ida Loraine Wright, grandparents of said decedent, both of whom were killed in the accident which took the life of their grandson. The probate court allowed the claim and an appeal was taken to the district court, where defendant’s demurrer to the evidence was sustained by the court, and judgment entered against appellants. This case has been before this court before (168 Kan. 493, 214 P. 2d 328) on the sole question of constitutionality of the guest statute, and the statute was held to be a proper exercise of the state’s police power.
In their petition appellants alleged, in addition to the facts set forth in the opinion in this case referred to above, that they are the father and mother of Donald Lee Pizel, deceased; that W. L. Wright is the qualified and acting administrator of the estate of Raymond C. Wright and Ida Loraine Wright, both deceased, and the pertinent part of the petition, being paragraph five thereof, reads as follows:
“That on the 4th day of January, 1948, at about ten o’clock in the morning, the same being a bright, clear day with the sun shining and no wind blowing and no other obstruction to the hearing or sight of one about to cross said crossing; the said Raymond C. Wright, who then and there owned an automobile and was driving the same from said Kanorado Airport to his home, which was located about four miles north of said Airport and crossing or thereabout, having as his passengers and riding with him Ida Loraine Wright, Ronald Lee Pizel, and Donald Lee Pizel and while so driving said car at an ordinary rate of speed, it being necessary for him to drive over said railroad track and crossing to reach his home, and while so approaching said crossing there was a freight train approaching the same from the west at a high rate of speed being pulled by a diesel freight engine and hauling a large number of freight cars; that the horn or whistle of said engine was being sounded and the bell thereon was ringing and the train was making a great noise and all was plainly visible to the said Raymond C. Wright and Ida Loraine Wright; that there were no other cars or vehicles at or near said crossing at said time; that the said Raymond C. Wright had actual notice of the danger of trying to cross said crossing ahead of said train; and knew and had actual knowledge that said train was approaching said crossing; that he knew he could not cross ahead of said train or while it was passing said crossing without inflicting serious injury or death upon the said Donald Lee Pizel; that he knew when he was at least seven or eight hundred feet from the said crossing that the train was approaching and that he could not proceed towards the same without imminent peril to the said Donald Lee Pizel and while fully conscious of all such facts above set forth, he intentionally drove his car, occupied as aforesaid, onto said track in such a manner that the car was run into and over and completely demolished, all with a reckless disregard to the consequences of his acts and as a direct and proximate result of each and all thereof the said Donald Lee Pizel was injured and from injuries he died.”
The petition continues with a prayer for recovery for the wrongful death of Donald Lee Pizel, by reason of the reckless and wanton negligence of Raymond C. and Ida Loraine Wright, now deceased.
Appellee, administrator of the estate of Raymond C. and Ida Loraine Wright, filed his answer containing a general denial and a specific denial that the oncoming train was known to or visible to Raymond C. and Ida Loraine Wright, that they had actual notice of the danger in attempting to cross said crossing ahead of the train, that they knew or had actual knowledge that any train was then approaching said crossing, or that they intentionally drove their car onto the railroad track in reckless disregard of the consequences; and alleged that Donald Lee Pizel was at the time and place the guest of Raymond C. and Ida Loraine Wright and was being transported with them in the automobile driven by Raymond C. Wright who was not guilty of gross and wanton negligence in the operation of said automobile, and that the petitioners, as parents of said child, have no cause of action herein by reason of the provisions of G. S. 1949, 8-122b.
Appellants by way of reply denied all the allegations of the answer and specifically denied that the deceased Donald Lee Pizel was a guest of Raymond C. Wright by virtue of the mentioned statute.
Briefly,, these are the facts herein: On January 4, 1948, the mothers and wives of the Flying Farmers living in the vicinity of Kanorado were preparing a breakfast at a church in that town; the deceased, Mrs. Ida Loraine Wright, was one of a committee to assist in preparation of the breakfast; she had assisted at the church on the previous day and was expected to help on the day of the fatal accident. On the morning in question, the deceased Raymond C. Wright had a conversation with his wife, Ida Loraine Wright, in which he told her he would just as soon she did not go to the church to work and asked her to call Marjorie Pizel, their daughter and mother of the twin boys, and see if she would work in her place. This resulted in the telephone conversation wherein Mrs. Ida Loraine Wright called her daughter, Marjorie Pizel, and told her if she would work in her place at the church and serve that morning, to bring the twins over and she would take care of them for her. Subsequent thereto, the children were delivered by their mother to the grandparents’ home and placed in the custody of Mrs. Wright. Later the same morning Mr. Wright took them in his car to the airport where they remained for a short time and then started to return to the Wright farm home. In returning to their home it was necessary for them to cross a Rock Island railroad crossing and tracks at a point a short distance east and north of the airport. Mr. Wright drove his automobile from the airport to U. S. Highway 24 which runs east and west and parallel with the Rock Island railroad tracks and drove a short distance to the highway which runs north and which is intersected by the railroad tracks about 124 feet north of Highway 24. They turned north at this point and proceeded toward the railroad crossing which is about )i mile east of the airport. It was a clear day and there was nothing to obstruct the view of Mr. Wright as to the railroad tracks or the train which was approaching. As Wright left the airport in his automobile, there was a freight train approaching the crossing from the west. This train was being pulled by a Diesel engine equipped with bell and air whistle on both the front and rear of the engine, which equipment was in operation and working. There are four railroad crossings in and about the depot at Kanorado and the whistle of the freight was being sounded almost continuously down the stretch of track approaching the crossing in question. The train was traveling about 45 miles an hour; the engineer saw the Wright car at about the time the train passed the airport. The Wright car was then on Highway 24 going east. The engineer saw Wright turn north and approach the crossing; the train whistle was then blowing and the bell was ringing; the Wright car did not stop, but did appear to slow down, but continued and drove onto the track in front of the oncoming train. As a result of the collision, Mr. and Mrs. Wright and Donald Lee Pizel, one of the grandsons, were killed, the other grandson being seriously injured. At the crossing in question there were the customary crossing signs. Mr. Wright’s eyesight and hearing were good; he did have an artificial leg below the knee.
On a showing of these facts, appellants rested their case. Appellee interposed a demurrer to appellants’ evidence which was by the court sustained. From this ruling, appellants bring the case here and assign as error the following specifications:
1. The court erred in placing the burden of proof upon appellants as to the application, as a matter of defense, of the Kansas guest statute, G. S. 1949, 8-122b.
2. The court erred in sustaining the demurrer to the appellants’ evidence.
3. The court erred in entering judgment for appellee and against appellants.
In ruling on the demurrer to appellants’ evidence, the trial court properly gave first consideration to the capacity in which deceased was riding in his grandparents’ car. Appellants contend that by doing so, the court placed the burden of proof upon them to show that the deceased was not a guest under the provisions of our guest statute. The record does not disclose such to be the case. After the jury was empaneled, the court held that the burden of going forth with proof was on appellants. It is an elementary rule of law that the burden of proof on any point is upon the party asserting it, and it was incumbent upon appellants to prove the allegations of their petition by a preponderance of the evidence. (Miller v. Kruggel, 165 Kan. 435, 195 P. 2d 597; 31 C. J. S. 709; 20 Am. Jur. 134.)
Appellants contend that Donald Lee Pizel was a passenger and not a guest in the automobile and for that reason a showing of ordinary negligence was sufficient to take the case to the jury. Appellee contends there was no showing made by appellants as to the transportation of the deceased which would relieve him from the status of a guest, and that there was no showing of gross and wanton negligence which is necessary to be shown in order to establish liability under the guest statute, G. S. 1949, 8-122b, which statute is as follows:
“That no person who is transported by the. owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle.”
We think the statute is clear that in order for one to recover for an injury or for his representative to recover for a wrongful death occasioned while being transported in the motor vehicle of another, claimant must, to avoid the limitations of our guest statute, affirmatively show that he was not a guest, that he was being transported for “payment” as that term is defined by our decisions hereinafter discussed, or that injury or death was caused by gross and wanton negligence of the operator of the vehicle. This court has held in Srajer v. Schwartzman, 164 Kan. 241, 188 P. 2d 971, that under our guest statute, in order to keep a passenger from being a guest by payment of transportation, there must be a substantial consideration of some sort moving to the operator or owner of the vehicle. In Pilcher v. Erny, 155 Kan. 257, 124 P. 2d 461, plaintiff alleged she was a passenger for hire and set out the contract on which her conclusion was based. This court held that in order to show she was not a guest of defendant under our guest statute, it was incumbent on plaintiff to prove a substantial consideration moving to the operator or owner of the vehicle. To the same effect see Yarnall v. Gass and Montague, 240 Mo. App. 451; 217 S. W. 2d 283; Voelkl v. Latin adm'r., 58 Ohio App. 245, 16 N. E. 2d 519; Clendenning v. Simerman, 220 Ia. 739, 263 N. W. 248; Jenkins v. Nat’l Paint & Varnish Co., 17 Cal. App. 2d 161, 61 P. 2d 780.
In order for appellants to predicate their cause of action on mere negligence, the burden is on them to prove that decedent’s status while riding in the Wright car as a passenger was not one which would exclude recovery for mere negligence as provided in our guest statute. Appellants further contend the Legislature never intended that the provisions of the guest statute should be applicable to a four-year-old child. The weight of authority is that a minor as well as an adult can be a guest even though unaccompanied by parent or guardian, even though no consent of parent or guardian is shown. (Morgan v. Anderson, 149 Kan. 814, 817, 89 P. 2d 866; West v. Poor, 196 Mass. 183, 81 N. E. 960; Shiels v. Audette, 119 Conn. 75, 174 Atl. 323; Audia v. DeAngelis, 121 Conn. 336, 185 Atl. 78; Langford v. Rogers, 278 Mich. 310, 270 N. W. 692) See, also, 60 C. J. S. 1017. This matter was before this court and we held (Morgan v. Anderson, supra):
“Where a young child, who has been left by the parent or guardian in the unrestricted care and custody of another person, is taken on an automobile trip by such person and is injured in an accident while on the trip, the child is to be considered a ‘guest’ within the meaning of the . . . Kansas statutes which limit the liability of automobile owners or operators in the case of injuries to passengers who are riding as ‘guests without payment for transportation.’ ”
This brings us to the question whether there was any evidence of “payment’’ for deceased’s transportation to make the guest statute inapplicable, and if not, whether appellants’ evidence presented a prima facie case of “gross and wanton negligence.” Appellants rely on the following testimony of Bill Wright, son of Raymond C. and Ida Loraine Wright and brother of Marjorie M. Pizel, mother of deceased:
A. “Well, as I was shaving that morning I overheard dad talking to mom and he told her he would just as soon she wouldn’t work down at the church that morning and that she would go with him down to the airport; that maybe she could get Marjorie to work in her place at the church; so she said, ‘OK,’ and she said that she would just as soon that it was that way, too; so she phoned Marjorie and told her if she would work in her place at the church and serve that morning to brin'g the kids over and she would take care of them for her, if she would do this work.
Q. “Then, Bill, your mother said she would take care of the children if Marjorie would go to the church?
A. “Yes, and work in mother’s place.
Q. “That was all that was said that you overheard?
A. “That is all I recall hearing.”
Appellee argues that the above testimony did not prove a contract or payment for transportation for appellants’ deceased son within the meaning of our guest statute. It is unnecessary for us to reiterate the discussion contained in our many decisions construing the word “payment” as the same is used in our guest statute, inasmuch as it has been so recently defined in Sparks v. Getz, 170 Kan. 287, 225 P. 2d 106:
“Within the meaning of the guest statute.(G. S. 1935 [now 1949] 8-122b) payment’ for transportation sufficient to preclude classification of one riding in a car as a ‘guest’ need not be a payment in money, but it must constitute a benefit or advantage to the owner or operator which is a substantial consideration, motivating and not merely incidental in character.”
See also Srajer v. Schwartzman, supra, Pilcher v. Erny, supra, Vogrin v. Bigger, 159 Kan. 271, 154 P. 2d 111, and cases cited, analyzed and discussed therein, including those from other jurisdictions.
The evidence in the instant case discloses that the child was delivered by appellants into the unrestricted custody and care of his grandmother Mrs. Wright, as had been done on previous occasions. Nothing was said by appellants about taking the grandchildren for any ride in an automobile. The most that can be said of the mentioned telephonic conversation is that Mrs. Wright was to keep the children and the daughter was to perform her kitchen duties at the church on the day in question. As alleged in appellant’s petition and as shown by the evidence, Mrs. Wright herself was a guest in the car during the ride. There was no conversation or evidence to show an agreement of any kind made by Mr. Wright, owner of the automobile, with his daughter Marjorie with reference to the care or transportation of the minor child. As stated by this court in Pilcher v. Erny, supra, the exception contained in the guest statute should apply only where the payment, consideration or benefit was the chief motivating cause for the particular transportation. The most that can be said in this case is that on the morning in question, Mr. Wright, owner and driver of the automobile, was taking his wife to the airport, and that' for the pleasure, benefit and enjoyment of the children, he took them along as his guests for the purpose of seeing the landings of incoming planes of the Flying Farmers, and in no event were the children paid passengers as the term has been construed by our decisions.
Again, it is unnecessary for us to reiterate the discussion contained in our many decisions defining the terms "gross and wanton negligence” inasmuch as they have so recently been discussed and our previous decisions analyzed in Bailey v. Resner, 168 Kan. 439, 214 P. 2d 323, where we said:
“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 cases 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, 465-6, 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.’ ”
In the instant case the evidence disclosed that the railroad tracks and highway were nearly parallel and both the automobile and train were traveling in the same direction until just before Mr. Wright turned to cross the track. The train, prior to the turn, was almost directly behind Mr. Wright’s car. Airplanes were flying overhead and were flying in such direction as to make them come low over the crossing. As Wright turned to cross the tracks, he had but 124 feet in which to observe the train and stop his automobile. There is no evidence in the record that Mr. Wright either heard the whistle or rumble of the train or that he saw the train, except the testimony of the engineer that almost simultaneously with the crash, Mr. Wright appeared to see the train. There is no evidence in the record to indicate a realization of the imminence of danger and a reckless disregard and complete indifference and unconcern for the probable consequences thereof. Both appellants testified that Mr. Wright had a love and affection for the child and had his best interests at heart. Moreover, there is a presumption that the deceased Mr. Wright, with the love of life common to all, exercised such due care as the circumstances permitted to protect himself from injury. (Smith v. Bassett, 159 Kan. 128, 152 P. 2d 794, and cases cited therein.)
In view of this presumption and the lack of evidence to clearly overcome it, as a matter of law, we think the lower court’s action in sustaining the demurrer to appellants’ evidence was proper. The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for damages in one count for the alleged unlawful trespass and in a second count for the alleged prosecution of an injunction action, maliciously and without probable cause. Issues were joined and a trial by jury resulted in a verdict for defendant. Plaintiff’s motion for a new trial was overruled and judgment was rendered in harmony with the verdict. Plaintiff has appealed.
The pertinent facts disclosed by the record may be stated briefly as follows: Early in October, 1946, a Mrs. Clara Winger owned an apartment house located at No. 2120 North Broadway street in Wichita, which contained five apartments. A Mrs. McGinnis occu pied the premises, paying $50 per month, unfurnished, and owned the furniture in the apartments, which she rented furnished and for which she received about $34 per week. Sometime in October the plaintiff, Kenneth Seidl, purchased the apartment building. Mrs. McGinnis tried to sell the furniture to Mr. Seidl, asking $1,400 to $1,600. He offered $300. Mrs. McGinnis sold the furniture for $1,250 to the defendant, Helen Shoff, who appeared to occupy one of the apartments. Mr. Seidl began a series of movements to try to get Mrs. Shoff out of the property. Details of this need not be mention further than to say that Seidl brought seven forcible detainer or forcible entry and detainer actions in the city court of Wichita, in each of which he failed. While this series of actions was being brought Mrs. Shoff brought an áction in the district court to enjoin Seidl from his activities, or some of them. One of the forcible detainer actions was continued pending the outcome of the injunction suit, and Mrs. Shoff was required to pay into court the rent from the property for a time; also, in the injunction proceedings, she was required to pay rent collected to the clerk of the court for a time. The injunction case was heard in March, 1947. The court denied the injunction, but held that Mrs. Shoff was a “master tenant by sufferance.” We are told that Siedl got possession of the property about September 1, 1947. Just how that was brought about is not disclosed. Thereafter Seidl brought this action, with the result above stated.
The rulings of the city court of Wichita in the numerous forcible detainer or forcible entry and detainer actions are not before us for review. We are told that one of them — perhaps the last one — was appealed to the district court, where it was decided in favor of the defendant. Neither is the ruling of the district court in the injunction action before us for review. We assume that those cases were properly decided.
In this court appellant’s principal contention is that as soon as he notified defendant, either orally or in writing, to vacate the property, and she did not do so, that she then became a trespasser. This argument is predicated upon our statute (G. S. 1949, 67-509), which reads:
“Where the time for the termination of a tenancy is specified in the contract or where a tenant at will commits waste, or in the case of a tenant by sufferance, and in any case where the relation of landlord and tenant does not exist, no notice to quit shall be necessary.” (Emphasis ours.)
Appellant’s contention goes further than the statute. With respect to that the court instructed:
“If you find that there was a tenancy by sufferance, no notice was necessary to terminate the tenancy, however before any damages other than the actual value of the use and occupancy of the premises, which would be in this case the rental value, there would have to be judgment of the court granting possession of the premises to plaintiff from defendant.”
At the trial of the case, without taking the trouble to introduce the federal government regulation with regard to rental of property and removing of tenants therefrom, it is stated by counsel on the one side, and not objected to by the other, that the ceiling rent for the apartments without furniture was $50 per month. It was further stated that defendant would have no authority to remove the furniture from the apartment without consent of the Office of Price Administration. With respect to that the court gave the following instruction:
“You are further instructed that if you find from the evidence that the defendant had no right to go into the premises and was there unlawfully without any right whatsoever therein, then you may be justified in finding that she was a trespasser; however, if you find that she purchased furniture in or on said premises, she would have the right to go on said premises for the purpose of removing said funiture, and in addition thereto, if there was any law or administrative ruling, of the Federal- Government, commonly referred to as the Office of Price Administration, which totally restrained her or denied her the right to remove said furniture, then she would not be a trespasser in entering upon said premises to care for said premises and her furniture contained therein. Under these conditions, you would be justified in finding that she would be a tenant by sufferance instead of a trespasser.”
While counsel for appellant criticize the above quoted portions of the instructions it is our view that they were correct and properly given in view of the record before the court. Appellant also complains of some of the other instructions and of rulings of the court upon the introduction of evidence, and of the ruling of the court overruling plaintiff’s motion for a new trial. We have examined each of these and find nothing substantial in the criticism.
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
Harvey, C. J.:
This was an action for damages for personal injuries sustained by plaintiff when he was riding as a pass'enger on a bus owned by the defendants, Covert and Larkin, and operated by Patterson, their servant, agent and employee, in which plaintiff sought to recover both actual and punitive damages. The appeal is from an order of the court sustaining defendant’s demurrer to that portion of the second amended petition which attempted to state a cause of action for punitive damages. The sole question is whether the second amended petition stated a cause of action for punitive damages.
While the second amended petition is lengthy, covering eleven pages of the printed abstract, for our purposes it may be stated briefly as follows: The defendants, Covert and Larkin, partners, were the owners of a bus operated by their driver Patterson, engaged in transporting persons living in the vicinity of El Dorado to their work at the Cessna airplant in Wichita, a distance of perhaps thirty-five miles. On the date in question plaintiff purchased a ticket and boarded the bus in El Dorado and became a passenger for hire. After the bus had proceeded about fifteen miles on an improved highway with a black top surface, at a speed of about forty miles per hour, the tie rod between the two front wheels of the bus became disengaged and the bus became difficult to manage. The driver stopped the bus, got out and crawled in under and attempted to fix it. He got back in the bus and proceeded for about five and one-half miles when the tie rod became disengaged again and the bus became difficult to handle. It veered to the side of the road and turned over in a ditch. Plaintiff sustained serious personal injuries from which it is alleged he suffered actual damages in the sum of $74,076.63 and punitive damages in the sum of $25,000. The first petition filed had been attacked by motion to make definite and certain and to strike, which had been sustained in part, and an amended petition had been filed. This was attacked by a motion to strike from the files, or in the alternative to make definite and certain and to strike. It was stricken from the files and by leave of court the second amended petition was filed. In this the facts were stated in much detail and with condemnatory adjectives and phrases, which added little if anything to the pertinent facts, and did include allegations and a prayer for punitive damages.
While the petition contains fourteen grounds of negligence, the principal ground of complaint is that the driver of the bus was negligent in not properly repairing the tie rod when it was first found to be out of repair.
We have examined the petition carefully and find nothing substantial therein which would authorize or justify an award of punitive damages.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Harvey C. J.:
This was an action for damages for personal injuries alleged to have resulted from the negligence of defendant. The appeal is from an order of the trial court sustaining defendant’s motion to strike a part of the plaintiff’s reply.
While other questions are discussed in the briefs our first question is to determine our jurisdiction, that is, is the appeal from an appealable order? We summarize the pleadings to the extent necessary to pass upon that question. In the amended petition it was alleged that on April 9, 1947, plaintiff attended as a paying patron “a stag floor show” promoted and held by defendant for profit in a dance hall at a described location; that when he entered the hall the entertainment was in progress; that no seat was available for plaintiff; that the hall was crowded with patrons, most of whom were compelled to view the floor show from a standing or elevated position, some sitting on rows of benches or standing on window sills, tables or boxes; that one patron was standing on a stepladder which stood upright in the center of the hall, which patron removed himself from the stepladder and plaintiff started to climb the ladder to view the floor show; that the ladder collapsed, throwing plaintiff to the floor and injuring him. The injuries were described and the negligence of defendant is stated in several separate paragraphs. This petition was not attacked by demurrer or motion of any kind.
Defendant filed an amended answer in which it specifically denied all allegations of the petition charging it with negligence, pleaded contributory negligence of plaintiff in several paragraphs, also pleaded assumption of risk, and further alleged “that it is a charitable and eleemosynary corporation of which plaintiff herein was a member, . . . and that by reason thereof, defendant is not liable to plaintiff for damages on account of any alleged injuries sustained by plaintiff, if any such injuries were sustained.” A copy of its charter was. attached to the answer. This answer was not attacked by demurrer or motion of any kind.
Plaintiff filed a reply, which included a general denial, a specific denial that he was guilty of the contributory negligence alleged in the answer, and the following:
“Plaintiff specifically denies that defendant is a charitable and eleemosynary corporation but further alleges that if defendant is a charitable and eleemosynary corporation then a judgment against defendant would in no way affect the defendant’s charitable trust funds, for the reason that it has, for a money consideration, secured a contract of insurance indemnifying it against all liability for the torts of its agents in the conduct of its affairs in an amount sufficient to cover the claim of plaintiff against the defendant in its entirety and therefore the resources and funds of defendant will not be subjected to the payment of any damages which plaintiff may recover in this cause.”
The pertinent portions of the two sections of our applicable statute read:
“The supreme court may reverse, vacate or modify any of the following orders of the district court . . . First — A final order. . . .” (G. S. 1935, 60-3302.)
“A final order which may be vacated, modified or reversed as provided in this article is an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, . . .” (G. S. 1935, 60-3303.)
We think the order striking out a part of the reply is not an appealable order under the statute for the reason that it does not determine the action and prevent a judgment. It will be noted that without the parts stricken from the reply the issues are all made up: The amended petition, which we may assume defendant concedes states a cause of action if established by the evidence, since it was not attacked by motion or demurrer; the amended answer, which we may assume plaintiff concedes states a good defense if established by the evidence, since it is not attacked by motion or demurrer; and a reply, which contains general and specific denials of the allegations of the answer. We see no reason why a judgment could not be rendered upon a trial of those issues. More than that, the insurer is not a party-defendant, neither is the insurance policy set out. If it is an “indemnity” policy, as the portion of the reply stricken tends to show, it certainly has no place in the reply. In Whitlaw v. Insurance Co., 86 Kan. 826, 122 Pac. 1039, it was held:
“An order overruling a motion to strike out parts of an answer, which does not involve the merits nor determine the action, is not appealable, and can only be reviewed in this court after final judgment in the action.”
The result is the questions argued in the brief of counsel should not be determined and the appeal should be dismissed.
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The opinion of the court was delivered by
Wedell, J.:
This was an action by parents against Common School District No. 1 (also known as Consolidated School District No. 1) in Kingman county, to recover the cost of transporting their children, elementary and primary pupils, to and from the defendant school. Judgment was for plaintiffs and defendant appeals.
The pleadings involved a petition, answer and reply. Plaintiffs had demurred to defendant’s answer which, among other things, challenged the budget and cash-basis law as constituting a defense to their claim. The demurrer was originally overruled. Later defendant filed a motion for judgment on the pleadings which was likewise overruled. The court thereafter set aside its former ruling on the demurrer and sustained plaintiffs’ demurrer to defendant’s answer on the ground the budget or cash-basis law did not constitute a defense to plaintiffs’ claim. Defendant has appealed from the order overruling its motion' for judgment on the pleadings. Plaintiffs have cross-appealed from the order treating defendant’s motion for judgment on the pleadings as a demurrer and contend the court should have rendered judgment in their favor on defendant’s motion for judgment on the pleadings.
In view of the admissions of the parties on appeal we shall not labor technicalities but shall go directly to the single question which the parties concede to be fundamental. They, in substance, concede there are no material factual disputes involved and the real question presented is whether the budget or cash-basis laws constitute a defense to plaintiffs’ claim. This was also the basis of the trial court’s decision.
The defendant school district did not furnish transportation facilities for school children. The claim here by the parents was in the sum of $112 for transporting pupils during a part of the 1948-1949 school year. These pupils did not reside two and one-half miles from the school by' the usually traveled road at the time defendant prepared and adopted its budget but during the school year the condition of that road became such that travel thereover was impossible. The shortest usually traveled road capable of being used, and used, thereafter was four miles long. The parents presented the claim for transportation and defendant disallowed it. This action followed.
Defendant’s budget for the 1948-1949 school year contained no separately designated item or fund for transportation costs. Defendant directs attention to G. S. 1947 Supp. 79-2926 (laws 1941) which requires the state accountant to prepare and prescribe forms for annual budgets of all taxing subdivisions or municipalities of the state and provides that the state tax commission shall deliver the forms for all school districts to the superintendent of schools within each county and that the latter shall deliver them to the clerk of the respective school districts and boards of education within each county.
Defendant also emphasizes the fact the budget form so delivered to and used by defendant contained an item for “Cost of Pupil Transportation” but that defendant budgeted no amount therefor. Defendant contends no such item having been specifically budgeted it could not be paid by defendant’s officers; that its officers could not have paid the claim out of some other budgeted fund and the payment of the claim would have been unlawful. It rests these contentions primarily on Superior Grade School District No. 110 v. Rhodes, 147 Kan. 29, 75 P. 2d 251 (1938); Shouse v. Cherokee County Comm'rs, 151 Kan. 458, 99 P. 2d 779 (1940); Gridley High School Dist. v. Woodson County Comm’rs, 155 Kan. 407, 125 P. 2d 383 (1942), and the various budget and cash-basis statutes considered and interpreted therein.
On the other hand plaintiffs’ position is the foregoing decisions cannot control later specific legislation on the subject. They rely, in part, on G. S. 1947 Supp. 72-621, enacted in 1947, which provides:
“That if the district board of any school district shall not provide or furnish transportation for all or any of the elementary or kindergarten pupils who reside in such district at least two and one-half miles, by the usually traveled road, from the public school which they attend in such district, then the governing body of such school district shall pay to the person transporting any such pupil not provided or furnished transportation, mileage at the rate of five cents per mile for each mile actually traveled by the usually traveled road in transporting such pupil to and from the public school attended. . . .”
Plaintiffs also assert that although the budget forms delivered to defendant by the commission under the provisions of G. S. 1947 Supp. 79-2926 (a 1941 law) contained an item under which transportation costs could have been listed separately the defendant was not, under G. S. 1947 Supp. 72-627 (a 1947 act) required to separately itemize the transportation fund. The latter law provides:
“The governing body of any school district may pay the cost of furnishing or providing transportation for pupils and compensate persons transporting pupils as authorized by this' act, from the general fund or special transportation fund of the school district.”
Plaintiffs also refer to G. S. 1947 Supp. 72-630 authorizing all common school districts to levy a tax in the years 1947 and 1948 of not to exceed two mills, each year, on all taxable tangible property to pay the cost of transporting pupils and that such tax is in addition to all other taxes levied or limited by law. Plaintiffs also direct attention to the extension of that statute by chapter 357, laws 1949.
G. S. 1935, 72-4801 compels parents to send all children between seven and sixteen years of.age, with certain exceptions not here involved, to public schools. G. S. 1947 Supp. 72-621, previously noted, is mandatory and not discretionary. It compels defendant to pay the persons transporting pupils if defendant does not itself provide or furnish transportation. G. S. 1947 Supp. 72-627, previously noted, authorizes the defendant to pay the cost of such transportation from the general fund or from the special transportation fund. Here it is obvious the instant cost of transporting plaintiffs’ children could not have been budgeted in either manner as it could not have been anticipated reasonably when the budget was adopted.
Whatever has been said in previous cases involving the budget or cash-basis law must be considered in the light of subsequent legislation. It will not be presumed the legislature intended to leave contradictory enactments on the statute books. (Clark v. Murray, 141 Kan. 533, 537, 41 P. 2d 1042.) The question now is what was the legislative intent as reflected by subsequent or supplemental legislation? This requires consideration of statutes in para materia in order to bring them into workable harmony if reasonably possible to do so. (Rausch v. Hill, 164 Kan. 505, 190 P. 2d 357; State, ex rel., v. Board of Regents, 167 Kan. 587, 593, 207 P. 2d. 373.) Even if statutes may be not strictly in para materia in the construction and interpretation of those relating to the same subject matter or having the same general purpose, reference may be made to them in order to determine the intent of the legislature as to such subject matter or purpose. (Clark v. Murray, supra.)
It is also well to remember the constitutional limitation that no law shall be revived or amended unless the new act contains the act revived or the section or sections amended does not apply to amendments by implication or to independent acts which only incidentally restrict existing legislation. (State, ex rel., v. Rural High-school District, 126 Kan. 166, 267 Pac. 2; Miltonvale Rural High School v. Community High School, 153 Kan. 756, 764, 113 P. 2d 1095.)
Where there exists an irreconcilable conflict the latest enactment will control or will be regarded as an exception to, or qualification of, a prior statute. In other words the later enactments will be held to supersede, repeal or supplant the earlier ones by implication. (In re Moseleys Estate, 100 Kan. 495, 164 Pac. 1073; State, ex rel., v. Rural High-school District, supra; Clark v. Murray, supra.) Provisions of the present law for raising funds to meet demands resulting from occurrences which could not have been anticipated at the time the budget for the current year was prepared must also be noted. See G. S. 1947 Supp. 79-2938, 79-2939, 79-2940.
Assuming defendant, contrary to the legislative mandate, also failed to make provision for transportation costs in the general fund and that it further failed to provide such funds as are authorized by law after the instant unforeseen demand occurred, would those failures render defendant judgment proof? We do not think so. Although we are not presently concerned with the manner in which a judgment against defendant may be enforced but only with a question of its liability, it is not out of place to also direct attention of the parties to the provisions of G. S. 1947 Supp. 72-1032 pertaining to the manner of paying judgments against a common-school district as bearing on the subject of legislative intent.
It has not been our purpose, nor do we deem it necessary in this case, to make an exhaustive review of the legislative history of the budget or cash-basis laws or of all the school laws which might possibly throw additional light on the question before us. We are, however, satisfied it was the legislative intent to permit plaintiffs to recover the statutory compensation for transporting their children under the admitted material facts in this case.
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The opinion of the court was delivered by
Thiele J.:
This appeal arises from a ruling of the trial court sustaining the sheriff’s demurrer to the plaintiff’s evidence in a proceeding to amerce the sheriff.
The record discloses that on November 26, 1946, the plaintiff commenced an action in the city court of Wichita against the defendant Terry on a claim for labor and that he appealed from the judgment of that court to the district court of Sedgwick county, which on May 10,1947, rendered a judgment in his favor and against Terry for the sum of $242.79 for work and labor performed. On June 10, 1947, plaintiff filed a praecipe for an execution, the date of issue of which is not shown, but which was subsequently returned on August 18, 1947, with a notation that levy was made and nothing found. On October 27, 1947, a second execution was issued which was returned January 3, 1948, showing a levy made and nothing found. On January 8,1948, a third praecipe for execution was filed, an execution issued at an undisclosed date and was returned March 16, 1948, bearing a notation showing a levy made and nothing found. On April 16, 1948, a fourth praecipe was filed, and an execution was issued on some undisclosed date and was returned on June 11, 1948, bearing a notation it was returned for issuance of an alias execution. On June 12, 1948, a praecipe for a fifth execution was issued. This execution was returned on August 9, 1948, bearing notation which included a statement that it was not served by reason of the bankruptcy proceeding, that a bond tendered the sheriff was not sufficient, and that the execution was returned not satisfied. A later return was filed on August 11, 1948, showing a levy made and nothing found.
The record further discloses that at some undisclosed date Terry, the present defendant, was declared to be a bankrupt in the United States District Court of Kansas, and that Flowers, the present plaintiff was listed as an unsecured creditor in the amount of $246 and that on January 3, 1948, Flowers filed his proof of claim setting up the above mentioned judgment of $242.79. On April 7, 1948, Flowers petitioned the bankruptcy court for and received permission to pursue his remedies against the exempt property of the judgment debtor in tire state courts of Kansas. On December 7, 1948, the referee in bankruptcy heard the trustee’s objection to the bankrupt’s petition for his discharge, denied the objection and discharged Terry from all debts and claims provable by the bankruptcy act against his estate, except such debts as are by the act excepted from the operation of a discharge in bankruptcy. Later the trustee filed his final report, showing that among the common claims allowed was “Isiah Flowers, Judgment $242.79.”
On October 23, 1948, in the proceeding now before us the plaintiff filed his motion for amercement of the sheriff Gray in the sum of $479.03, for the following reasons: 1. That Gray was the duly-elected, qualified and acting sheriff. 2. That on June 10, 1947, October 27, 1947, January 8, 1948, April 16, 1948, and June 12, 1948, plaintiff had caused successive executions to be issued, each returnable in sixty days. 3. That notwithstanding, the sheriff had failed, neglected and refused either to make or attempt to make any levy. 4. That the judgment with interest amounted to $273.14; that the costs amounted to $62.35 and that plaintiff was obligated to pay an attorney fee of $100 to institute and prosecute the proceeding. Variance between the total of the items in 4 and the amount first stated is not explained.
The trial court granted the sheriff additional time to plead and on November 12, 1948, he filed his answer to the plaintiff’s motion setting forth the judgment in favor of plaintiff, the bankruptcy proceedings, and that they were still pending; that the sheriff had demanded a bond indemnifying him if he levied execution as demanded by the plaintiff and that the bond tendered was insufficient.
The motion for amercement was heard on December 13, 1949, at which time all of the above detailed facts were shown by the plaintiff. The sheriff’s demurrer to that evidence was sustained and from that ruling the plaintiff has appealed to this court.
Appellant directs our attention to the statute requiring return of an execution within sixty days (G. S. 1935, 60-3426) and to provisions for amercement if the sheriff shall refuse or neglect to make his return on or before the return date, in which event he shall be amerced in die amount of the debt damages and costs (G. S. 1935, 60-3429). He also directs attention to G. S. 1935, 60-3815, which provides for a statutory penalty of $1,000. Although the record would indicate the plaintiff, by reason of his allegations, proceeded under the first sections and not the last, we need not here determine that to be the fact for in view of our conclusions it is immaterial. It is clear that with the exception of the fourth execution none was returned within sixty days from its date and other matters aside, assuming plaintiff had instituted his motion for amercement and shown himself clearly within the terms of the statute, it would have been the duty of the court to amerce the sheriff. See Bond v. Weber, 17 Kan. 410, for the reasoning of the court so holding.
Disposal of the present appeal however is not so simple. No contention is made that the debt evidenced by the judgment was not one which could be proved and allowed in a bankruptcy proceeding and it had been, thus distinguishing the instant case from Robinson v. Wilson, 15 Kan. 595, 22 Am. R. 272, relied on by appellant. At the time the motion to amerce was heard, it clearly appeared that the judgment debtor had been adjudged a bankrupt and that the appellant had proved his claim based on the judgment presently involved and that he had received his discharge in bankruptcy. Notwithstanding appellant sought and obtained permission to pursue his remedies against the judgment debtor’s exempt property, he took no effective steps to prevent a final adjudication that the bankrupt Terry be discharged from the debt which appellant had had allowed in the bankruptcy court as an unsecured demand.
In Stove Works v. Caswell, 50 Kan. 787, 32 Pac. 362, in which bankruptcy played no part, a judgment had been rendered on which executions were issued, which it was alleged were not properly served and returned. A motion to amerce was filed but before it was heard, in another district court in another action between the same parties it was adjudged that the first judgment be released, satisfied, canceled and held for nothing. Reference is made to the opinion in the above case for a more complete statement of the facts. It was held that where it appeai-s at the time of hearing the motion to amerce that the judgment on which the execution was issued had been canceled, the trial court did not err in overruling the motion to dismiss. Under the reasoning and holding of the cited case the situation existing at the time of the hearing of the motion is controlling.
In Needham, v. Matthewson, 81 Kan. 340, 105 Pac. 436, 135 Am. St. 374, 26 L. R. A. (ns) 274, cited by the appellee, it was held that the effect of a discharge in bankruptcy is to extinguish a preexisting debt and not merely to bar the remedy thereon. Appellant directs our attention to Butler Bros. v. Twineham, 134 Kan. 547, 7 P. 2d 531, where the above case is discussed and the holding thereof explained. Involved in the case was the question of the liability of a surety of the debtor, a matter later mentioned. For present purposes we direct attention to the first two paragraphs of the syllabus:
“A discharge in bankruptcy of a debtor does not operate to destroy the debt, but does effect a release of the bankrupt which bars the enforcement of the collection of the debt.
“A discharge in bankruptcy is personal to tire bankrupt, and one who joins with him in the execution of an obligation as surety is not released from liability by reason of the discharge of the bankrupt.”
And as bearing on the question of the effect of bankruptcy attention is directed to G. S. 1935, 60-3601, which in substance provides that where any bankrupt shall file an affidavit with requisite certificate of his bankruptcy, it shall be the duty of the court to make an order that no execution or other process shall issue, and to G. S. 1935, 60-3602, that in any case where any person who may be discharged from his debts and shall produce a certificate of discharge, it shall be the duty of the court to enter a discharge of any such person from any and all liability thereon and cause the record to be so endorsed.
Appellant also contends that Terry had made no appearance in the state court since judgment was rendered against him, and that at no time could he have asserted his exempt property could not be taken on execution (see G. S. 1935, 60-3507) and inferentially that the sheriff may not raise such a question. That contention is not good.
By way of summation, it appears that where a judgment on a work and labor claim has been rendered an execution may be issued and that no personal property is exempt from levy, and that when the sheriff neglects or refuses to make a levy or fails to make a due return he may be amerced, but where it appears on the hearing of the motion to amerce that the judgment debtor has received his discharge in bankruptcy, the effect of the discharge is to bar enforcement of the collection of the judgment. In such case whether the property is exempt or nonexempt becomes immaterial.
Appellant also contends that the judgment debtor Terry was primarily liable for the amount of the judgment in his favor, but that the sheriff, by failing “to properly attempt to collect” became secondarily liable, and our attention is directed to textbook authority that a discharge of the bankrupt does not affect secondary liability. There is no argument on that point. We so held in Butler Bros. v. Twineham, supra. It does not follow however that the appellee was in any sense a surety for Terry or that he had any secondary liability in the premises. His liability, if any, arose under the statutes to which reference has been made.
We are of the opinion that the trial court did not err and its judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This is an appeal from an order of the district court granting a father the custody of his two minor children.
A brief historical review of the events leading up to the rendition of the order from which the appeal is taken is essential to an understanding of the issues involved.
On December 15, 1948, the district court of Douglas county, Kansas, granted Mildred Aleñe Ramey a divorce from Alvin Dewey Ramey on grounds of extreme cruelty and awarded her the custody of their minor children, namely, Charles Alvin Ramey, seven years of age, and Carol Darlene Ramey, six years of age. In less than seven months the mother, who was living in Lawrence, married a colored man by the name of McCoy. At that time Mrs. McCoy’s mother, Edna Irene Aills, and her stepfather, James S. Aills, who in the interest of brevity will hereinafter be referred to as the maternal grandparents, were also living in Lawrence. Within a few days after such marriage James S. Aills instituted a proceeding in the juvenile court of Douglas county charging the two children above named were dependent and neglected. Following the institution of this proceeding the juvenile court of that county directed its probation officer to take charge of such minors and keep them in the home of the maternal grandparents. As a matter of fact they were actually placed in their temporary custody and control.
Shortly after the juvenile court’s action Mrs. McCoy contacted the children’s father, who was then living in Oregon, by telephone. As a result of that conversation he returned to Kansas and filed a motion in the district court of Douglas county asking that he be given their custody. This motion was heard four days later. Notwithstanding the mother had been responsible for the father’s action she appeared at the hearing and asked that there be no change in the original custody order. The maternal grandparents also appeared and requested that the grandmother be given the custody of the children. Thereafter all parties were afforded an opportunity to present evidence regarding their fitness and ability to have the care, custody and control, of such minors Two days later, on July 14, 1949, the district court found it was to the best interest and welfare of the children that their care and custody be given to the father, Alvin Dewey Ramey, and that he be permitted to take them to his home in Portland, Ore. Thereupon it entered its order to that effect. On the same day the proceeding to have the minors declared dependent and neglected children was dismissed by the juvenile court. Subsequently both the mother and the maternal grandparents appealed from the order made by the district court. Later the mother dismissed her appeal. For that reason the issues now involved are limited to the appeal perfected by the maternal grandparents.
At the outset it should be stated the appealing parties recognize the established rule (See Phillips v. Phillips, 163 Kan. 710, 712, 186 P. 2d 102, and cases there cited) that ordinarily the jurisdiction of district courts over the custody and support of minor children in a divorce action is a continuing jurisdiction and that the court may on proper motion and notice modify or change any order previously made providing for such custody and support whenever circumstances are shown which make such modification proper. And added, they concede nothing has happened since the rendition of the judgment in the divorce action to deprive the district court of Douglas county of power and authority to make custody orders affecting the Ramey children. In fact appellants frankly concede the sole and only question involved in their appeal is whether, under the facts as found by the trial court, the grandmother was entitled to a decree awarding her the custody of the children.
Refore any consideration is given to the merits of the appeal two contentions advanced by the appellee require our attention. First he claims the maternal grandparents are not the real parties in interest and for that reason have no right to appeal from the district court’s order. This contention has little merit. Heretofore we have indicated the children were in the temporary custody and control of the appellants by direction of the juvenile court at the time appellee filed his application in district court for a change in the custody order. The well settled law of this state is that persons having an interest in the custody of children may appear and present evidence in a proceeding of the kind here involved and may appeal from orders pertaining to their custody even though they are not parties to the action. (See Purdy v. Ernst, 93 Kan. 157, 143 Pac. 429; Lamberson v. Lamberson, 164 Kan. 38, 42, 187 P. 2d 366.) Next appellee insists the appellants have no right to be heard because they filed no motion for a new trial and hence the only questions they can raise on appeal are questions of law. This contention also lacks merit. Appellants’ claim, as we understand it, is that the facts found by the trial court required it to award the grandmother the custody of the children. Otherwise stated that its findings do not support its custody order. This, under our decisions, raises a question which does not require a motion for new trial in order to make it subject to appellate review. See Arnall v. Union Central Life Ins. Co., 157 Kan. 535, 538, 142 P. 2d 838; Cramer v. Browne, 159 Kan. 423, 155 P. 2d 468; Jelinek v. Jelinek, 161 Kan. 362, 168 P. 2d 547.
Since the single question appellants seek to have determined is open to review we turn to the record. It discloses that prior to the making of the involved order the district judge commented at length upon the evidence and gave his reasons for awarding the custody of the children to the appellee. However, no useful purpose would be served by detailing these comments and remarks. It suffices to say that when examined they make it crystal clear that the court failed and refused to find that either the father or mother of the children was unfit to have their custody and based its decision solely upon the premise, which we pause to add is incorporated in the journal entry and is the only formal finding of fact to be found in the entire record, that it was to the best interest and welfare of the children of the parties to the divorce action that their custody be given to the defendant, Alvin Dewey Ramey, and that he take them to his home in Portland, Ore.
Under the foregoing conditions and circumstances we cannot say that as a matter of law the district court’s findings of fact compel a conclusion appellant, Mrs. Aills, was entitled to the custody of the children or that the trial court erred in awarding their custody to the appellee. Indeed our decisions are to the contrary. In the recent case of Stout v. Stout, 166 Kan. 459, 463, 201 P. 2d 637, we said:
“Under our recent and often repeated decisions, to which we have strictly adhered for many years, the established and inviolate rule has been and now is that a parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody, in an action or proceeding where that question is in issue, is entitled to the custody of his children as against grandparents or others who have no permanent or legal right to their custody, even though at the time the natural parent seeks their custody such grandparents or others are giving the children proper and suitable care and have acquired an attachment for them (See Jones v. Jones, 155 Kan. 213, 219, 124 P. 2d 457; May v. May, 162 Kan. 425, 176 P. 2d 533; In re Jackson, 164 Kan. 391, 190 P. 2d 426; Bailey v. Bailey, 164 Kan. 653, 192 P. 2d 190, citing numerous other and early decisions to the same effect).”
It follows the order and judgment of the trial court must be and is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This appeal involves (1) the right of a daughter of her deceased father, J. R. Cline, to have a part of land devised to her exonerated from a mortgage and to have the amount thereof allowed as a claim against decedent’s estate; and (2) her right to royalties paid to the executor for gravel taken from such land during the administration of decedent’s estate, under a lease made by the testator.
The daughter, Anna Waber, filed an application in the probate court to obtain orders in her favor on the two matters above stated. The only other heirs, two devisees, Henry Alfred Cline, a son, and Sarah Elizabeth Hodges, a daughter, sometimes known as Sadie M. Hodges, opposed the application.
The will, omitting immaterial parts thereof, reads:
“ITEM ONE. It is my will that all my just debts be first paid.
“ITEM THREE. I GIVE, DEVISE AND BEQUEATH my real estate as follows:
“1. [Description of 410 acres of land], to my son, HENRY ALFRED CLINE and to my daughter, SADIE M. HODGES.
“2. [Description of 200 acres of land], to my daughter, ANNA WABER.
“3. My home, 802 North Jefferson, Iola, Kansas, including the furnishings to MINNIE MAYS and J. W. MAYS.
“4. All other property to he divided equally among my children.”
The application of Anna Waber set forth item one and paragraph 2 of item three of the will.
The application, in substance, further alleged:
Decedent had executed a first mortgage to the Federal Land Rank of Wichita on which the unpaid balance was approximately $1,200; the mortgagee would not file a claim against decedent’s estate for the debt; the debt was secured by the legacy to petitioner and the executor should be required to pay it from funds of the estate; gravel had been removed, since her father’s death, from the land devised to her for which the executor had received payment and she demanded the sums so paid to him.
The answer of the two other devisees is, in substance, contained in their various contentions on appeal to be stated presently.
Property described in paragraph 3 of item three was conveyed by decedent and is not involved. The probate court sustained the application of the petitioner, Anna Waber, in both respects, ordered the executor to pay the mortgage indebtedness and to file a release of the mortgage. The answering devisees appealed to the district court. The appeal was submitted on an agreed statement of facts as follows:
“1. That the mortgage on a part of the lands devised to Anna Waber was made by the testator, J. R. Cline, to the Federal Land Bank of Wichita, Wichita, Kansas, and that the unpaid balance thereon is $1044.65 with interest at 4% per annum from Dec. 1, 1949. That the Federal Land Bank of Wichita, Wichita, Kansas, has filed no claim or demand against the estate of the decedent on said indebtedness.
“2. That a sale of real estate of the decedent is necessary to procure funds to pay the balance due on tire other claims allowed against the estate of the decedent, and the costs of administration, and that there will be no personal property in the estate of the decedent out of which said indebtedness could be paid, and that if the Court should order payment of said indebtedness, a sale of real estate of the estate of the decedent would be necessary to procure funds to pay the same. That the only real estate belonging to the estate of the decedent is the real estate described in ‘Item Three’ of the decedent’s will devised to the appellants, Henry Alfred Cline and Sadie M. Hodges and the appellee, Anna Waber. That the home of the decedent in Iola, Kansas, was conveyed by the decedent by deed prior to his death.
“3. That after the death of the decedent, Allen County, as lessee under the lease made by the decedent, mined and removed gravel from a portion of the land devised to Anna Waber and paid to the executor the royalty thereon in the sum of $534.83, which money is in the hands of the executor.
“4. That the probate Court file in the estate of J. R. Cline, deceased, and the transcript of the proceedings involved in this appeal shall be considered in evidence without further proof thereof.”
The district court likewise allowed the application of Anna Waber. The journal entry of judgment contains this finding:
“The court further finds that there is insufficient funds in the hands of the executor with which to pay the debts and costs of administration of said estate; and that the only property of said estate out of which such fund can be realized by the executor is the lands devised to the parties in this suit. The court finds that all the lands should be sold, and the debts and costs paid, and the balance divided among the legatees in proportion to the appraised value of said lands as shown from the inventory of said estate; provided, that if any legatee elects not to have the land devised to him, sold, such legatee may advance to the executor his part of the debts and costs, apportioned upon the basis of the appraised value as shown by said inventory.”
Judgment was rendered accordingly.
The land devised to Anna Waber had been appraised at $6,000 and that devised to the two other devisees at $30,000. The latter have appealed.
Appellants argue a demand for the mortgage debt was not exhibited by the owner thereof, as required by G. S. 1947 Supp. 59-2237 and should not have been allowed. They also rely on G. S. 1947 Supp. 59-1303, which reads:
“When a claimant holds any security for his demand, it may be allowed, conditioned upon the claimant surrendering the security or upon the claimant exhausting the security; it shall be allowed for the full amount found to be due if the security has been surrendered, or for any remaining amount found to be due if the security has been exhausted.”
and on G. S. 1947 Supp. 59-1304, which provides:
“When any assets of the estate are encumbered by mortgage, pledge, or otherwise, the executor or administrator may pay such encumbrance or any part thereof, whether or not the holder of the encumbrance has exhibited his demand, if it appears to be for the best interests of the estate and if the court shall have so ordered. No such payment shall increase the share of the devisee, legatee, or heir entitled to receive such encumbered assets, unless otherwise provided in the will.”
In considering the order for the payment of the encumbrance it is apparent these various statutory provisions must be considered together. Such consideration makes it clear it was unnecessary this particular demand should be exhibited in the manner ordinarily required by G. S. 1947 Supp. 59-2237 pertaining to exhibition of demands by petition of the owner.
Appellants also argue the mortgagee had not surrendered the security. That is true but the secured demand was allowed by the probate court with directions to the executor to obtain and file a release of the security.
Appellants further contend an encumbrance cannot be paid unless such payment appears to be to the best interests of the estate and unless the court shall have so ordered and that such an order does not appear. The parties stipulated the funds in the hands of the executor were insufficient to pay the debts and costs of administration and that the only way such debts and costs could be paid was by a sale of some land devised to the parties to this action. The will directed the testator’s debts should be first paid. The court had no alternative concerning the sale of land to obtain funds for that purpose. Of course, it was to the best interest of the estate, and to all the parties, to pay the mortgage debt as soon as possible in order to avoid the continued payment of interest. Under these circum stances we think we would not be justified in setting aside the sale of the property and the payment of the indebtedness on the ground the court did not expressly find it was to the best interests of the estate to sell land and discharge the encumbrance. Appellant argues the mortgage debt was not due and could not be ordered paid, citing G. S. 1947 Supp. 59-2240. We do not so interpret the statute.
Appellee directs attention to G. S. 1947 Supp. 59-1405, the pertinent part of which reads:
“The property of a decedent, except as provided in sections 19 [59-401] and 21 [59-403], shall be liable for the payment of his debts and other lawful demands against his estate. When a will designates the property to be appropriated for the payment of debts or other items, it shall be applied to such purpose. Unless the will provides otherwise for the payment thereof, the property of the testator, subject to the payment of debts and other items, shall be applied to that purpose in the following order: (1) Personal property not disposed of by will; (2) real estate not disposed of by will; (3) personal property bequeathed to the residuary legatee; (4) real estate devised to the residuary devisee; (5) property not specifically bequeathed or devised; (6) property specifically bequeathed or devised. . . .”
Appellee asserts, under the will and stipulated facts, classification (6) of the foregoing statute was applicable. We think the contention is sound.
What about the right of appellee to have the real estate devised to her exonerated from the encumbrance and to have the debt paid out of proceeds from the sale of land? In the absence of a provision to the contrary in a will a testator’s debts are payable primarily out of his personal estate. It has been held if the personal estate in the hands of an executor is sufficient to pay the debts, and he refuses to pay them, a devisee of encumbered real estate may maintain an action to compel the executor to exonerate the encumbrance on the real estate by discharging the mortgage debt out of the personal estate. (Smith v. Kibbe, 104 Kan. 159, 178 Pac. 427.) In Bowlus, Executor, v. Winters, 117 Kan. 726, 233 Pac. 111, it was held:
“Where a probate court has jurisdiction of a testators estate, it likewise has jurisdiction, on petition of the executor, to order the sale of realty belonging to such estate to satisfy an indebtedness secured by a mortgage thereon where the' personal' assets are insufficient to pay it, notwithstanding the indebtedness was not exhibited within two years to the probate court as a claim for allowance against the general estate of tire testator.” (Syl. f 1.)
It is true the Smith and Bowlus cases, supra, were both decided prior to the enactment of the new probate code in 1939 and that some provisions of the old code are no longer applicable. Did the enactment of G. S. 1947 Supp. 59-1304, previously quoted, abrogate or modify the right of exoneration laid down in those cases? If the intent was to abrogate or modify the right of exoneration it appears such intent must be found in the concluding sentence of that statute, to wit: '
“No such payment shall increase the share of the devisee, legatee, or heir entitled to receive such encumbered assets, unless otherwise provided, in the ■will.” (Our italics.)
It seems clear the new statute was not intended to completely abrogate the right to have devised assets exonerated from an encumbrance thereon. At most it appears the purpose of the new code was to modify the rule of exoneration in accordance with the terms of the statute merely provides the payment of the encumbrance shall not increase the share of the devisee, legatee or heir entitled to receive such encumbered assets, unless otherwise provided in the will. It will be observed the will devised the real estate outright to Anna Waber. It was not devised to her subject to the mortgage debt. More important, however, is the fact that item one of the will expressly provided decedent’s debts should be first paid. The mortgage was one of his debts. Considering the entire will we think its fair intendment was all debts, including the mortgage debt, should first be paid and that Anna Waber should take the land devised to her free from the mortgage encumbrance.
We, of course, are aware of the fact the law requires that a decedent’s debts shall be paid before devisees, legatees or heirs may share in the distribution of a decedent’s estate. It is true in certain cases we have held that since this is the law a direction in a will that decedent’s debts shall be paid first is perfunctory and does not add anything to the law on the subject. Here, however, we are confronted with the task of ascertaining the testator’s intent, that is, whether he intended his debts should be paid first in order that appellee would take the land free of the encumbrance. In view of the phrase contained in the last sentence of G. S. 1947 Supp. 59-1304, to wit: “. . . unless otherwise provided . . .”, we are obliged to scrutinize the will in order to ascertain, if possible, the testator’s intent in that particular respect. .Under the wording of this statute and the terms of the will we think we would not be warranted in ignoring and thus deleting the testator’s expressed intention that his debts be first paid.
What an instrument is intended to accomplish must be gathered from its four corners. Where the intent can be ascertained it will be executed unless contrary to law or public policy. (In re Estate of Koellen, 162 Kan. 395, 176 P. 2d 544.) Where provisions of a will are clear and not inconsistent with other provisions the jurisdiction of courts is limited to interpretation, which does not include reformation. (Sipes v. Pessemier, 144 Kan. 300, 58 P. 2d 1085.)
In Regnier v. Regnier, 122 Kan. 59, 251 Pac. 392, it was said:
“While courts, in order to make clear the intention of the testator sometimes transpose words or supply obviously omitted words, it is only with extreme reluctance that the process of excision is indulged in.” ip. 61.)
In the same opinion it was further stated:
“ ‘Words are never to be rejected as meaningless or repugnant if by any reasonable construction they may be made consistent and significant. Excision is a “desperate remedy.” [Citations] It is only a last resort to be availed of when all efforts to reconcile the inconsistency by construction have failed.’ [Citations].” (p. 61.)
See, also, Sipes v. Pessemier, supra.
In the instant case the testator’s direction that his debts be first paid cannot be regarded as meaningless. In view of the problem presented that direction is highly significant and it is in nowise repugnant to any other provision of the will. On the contrary it is entirely consistent with the fact the testator did not devise the land to Anna Waber subject to the mortgage.
Appellants argue it was unnecessary to sell all of decedent’s lands in order to pay his debts and costs of administration and that the order directing the sale of all land devised was void, citing Magaw v. Emick, 167 Kan. 580, 207 P. 2d 448. The present law on the subject of sale of lands irrespective of whether such sale is necessary for statutory purposes is discussed at length in the Magaw case and we need not repeat what is said there. Re-examination of the question convinces us that decision is sound. We, however, do not regard it as controlling here. In that case the decedent died intestate. Here he died testate devising all of his real estate to appellants and appellee. As previously stated we have concluded the testator intended the land should pass to appellee free of the encumbrance. Under these circumstances the lands devised to appellants were just as subject to sale for the payment of debts and costs of administration as the lands devised to appellee.
Which of the land devised should the executor sell? The court did not enter a mandatory order for the sale of all the lands be longing to the estate as was made in the Magaw case, supra. On the contrary the court permitted either of the parties to advance to the executor his part of the debts and costs, as previously set forth herein, if such party desired not to have his land sold. Thus the parties, without injury to any of them, could have prevented the sale of any land. If only the land devised to appellee had been sold appellants, in the final accounting and settlement of the estate, would have contributed their proportionate share of the debts and costs of administration. Likewise, appellee would have contributed in a proportionate amount if only lands devised to appellants had been sold. The election afforded by the judgment provided a method whereby either party could retain lands devised and be required to ultimately contribute no more towards the debts and costs of administration than if only land covered by any one devise had been sold. Under these circumstances we find no prejudicial error in the order made.
Was appellee entitled to the proceeds from the sale of gravel mined and removed after decedent’s death from a part of the land devised to her? The inventory of the estate included no gravel belonging to decedent’s estate at the time of his death. It was stipulated the gravel was mined and removed after decedent’s death by the lessee under a lease made by decedent in his lifetime and that the executor had collected the royalties thereon in the sum of $534.83. The court ordered the executor to pay these royalties to appellee.
Appellants argue these earnings were personal assets to the.estate and were subject to the payment of decedent’s debts and costs of administration. They rely on G. S. 1947 Supp. 59-1401 which, insofar as material, provides:
“The executor or administrator shall have a right to the possession of all the property of the decedent, except the homestead and allowances to the surviving spouse and minor children. He shall pay the taxes and collect the rents and earnings thereon until the estate is settled or until delivered by order of the court to the heirs, devisees, and legatees. . . .” (Our italics.)
The right of the executor or administrator to collect rents and earnings during the process of administration is one thing, the proper distribution thereof is another. The first pertains to possession of property during the process of administration, the second to its distribution to those entitled thereto. The statute contemplates the possibility of such distribution prior to final settlement in that it provides . . or until delivered by order of the court to the heirs, devisees, and legatees.”
It appears worthy of consideration that this particular statute does not direct the “rents and earnings” from the property shall be deemed personal assets and inventoried and administered as such, as is provided in G. S. 1947 Supp. 59-1206 pertaining to annual crops whether severed or not from the land, or as is provided in G. S. 1947 Supp. 59-1409 where the executor or administrator is authorized to make a lease after decedent’s death and receive the income by whatever name called. The instant lease existed on the land at the time of decedent’s death. It may be well to again emphasize the funds in question were not personal property of the estate on the date of decedent’s death. In fact such funds did not then exist. The gravel was mined and removed from the land thereafter.
A will speaks from and takes effect on the date of the testator’s death. At that time the gravel was an integral part of the land devised and title thereto passed to appellee.
G. S. 1947 Supp. 59-614 provides:
“Every devise of real estate shall pass all the estate of the testator therein unless it clearly appears by the will that he intended a less estate to pass.”
There is nothing in the instant devise to indicate the testator intended less than the entire estate in the land should pass to appellee. Under these circumstances title to the proceeds from the sale of the gravel likewise should be regarded as having passed at the same time that title to the land, including the gravel, passed. We think it becomes immaterial in this particular case whether appellee’s proper share of the debts and costs of administration are paid entirely out of the proceeds of sale of land devised to her or whether her share, or a part thereof, is paid by appropriating the proceeds from the sale of gravel. In view of the judgment previously mentioned we think the substantial rights of appellants have not been prejudiced. In so concluding we have not failed to consider decisions relied on by appellants.
The judgment is affirmed.
Thiele, J., dissents from paragraph 5 of the syllabus and the corresponding part of the opinion. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action by Richard Dreiling against various defendants to quiet title to city property. Della Edwards is the only defendant involved in the appeal. She filed an answer and cross petition in which she sought to have plaintiff ejected from the premises and to recover rents for the period of plaintiff’s alleged wrongful possession. Plaintiff’s reply was a general denial.
A jury was expressly waived and the action was tried by the court.
On the trial plaintiff introduced not only the tax deed on which he based his title but also adduced testimony concerning moneys expended in the painting and repairing of the house, cost of shrubbery and improvement of the chicken yard. In rendering judgment in favor of the defendant for possession of the premises the court further set off against the claims of the plaintiff for improvements the amount it determined defendant was entitled to as the rental value of the premises from tire date she first asserted title, to wit, the day she filed her answer and cross petition. The plaintiff appeals.
The first subject requiring our attention is the extent of the appeal. Appellee contends there was no valid motion for a new trial and that trial errors, if any, cannot be considered. The contention requires an examination of the record presented here. The first motion for new trial was filed January 23,1950. It refers to a judgment, findings and orders made January 21, 1950. The record discloses no judgment or findings of any kind or character rendered on that date, or on any other date, prior to January 23, 1950. The record discloses the court made and filed findings of fact and conclusions of law on February 6, 1950. The journal entry of judgment including those findings and conclusions was filed February 10, 1950. It discloses the court’s findings and conclusions were made February 6, 1950. Appellant’s counsel approved that journal entry of judgment. On February 10, 1950, appellant merely refiled his original motion for new trial which referred only to a judgment, findings and orders made on January 21, 1950. The motion included no reference whatever to the findings and conclusions of law filed February 6, 1950, or to the final judgment filed February 10, 1950. Appellee contends the motion for new trial was a nullity, first, by reason of the fact it made no reference to the findings and judgment of February 6,1950, and, second, for the reason the motion for a new trial dated February 10, 1950, was too late even if it had referred to the findings and conclusions of law filed February 6, 1950. No Sunday or any other holiday intervened between February 6 and February 10. Under these circumstances we are forced to conclude there was no valid motion for a new trial. It follows mere trial errors, if any, are not open .to appellate review. (Morgan v. Morgan, 146 Kan. 880, 73 P. 2d 1105; Erskine v. Dykes, 158 Kan. 788, 791, 150 P. 2d 322.)
Appellee also asserts the notice of appeal restricts our review to certain specified matters. Although there may be some merit in the contention we shall not pursue the point. Manifestly, however, there being no valid motion for a new trial the scope of our review cannot be enlarged by a notice of appeal from orders or rulings alleged to constitute trial errors.
As previously indicated the trial court made findings of fact and conclusions of law. We think the principal issue on appeal resolves itself into a question whether the stipulated facts and the findings of the trial court support its conclusions of law. Its findings and conclusions were:
“1. This is an action brought by the plaintiff to quiet title to Lots 12, 13, and 14, Block C in the original town (now city) of Ellis and to bar each and all of the defendants from any and all right, title, estate lien or claim therein.
“2. One of the defendants, Della Edwards, by her answer, denies the allegations of the plaintiffs petition and alleges that she is the owner of said lots and was in the possession thereof until on or about November 20, 1942, when said premises were forcibly and unlawfully seized from her by one M. P. Emanuelson, since which time she has been excluded from the possession thereof. She further alleges that the plaintiff has no title or right to the possession of said premises, and that the reasonable value of the use thereof from November 20, 1942, to the present is $25 per month, or a total of $2,100. She prays that plaintiff take nothing; that she be adjudged to be the owner of said real estate; and that she be given possession thereof, and damages against the plaintiff for $2,100, and costs and such other relief as may be right and proper.
“3. Plaintiffs reply is a general denial.
“4. Upon the hearing of tire issues thus joined between the Plaintiff and the defendant, Della Edwards, on December 14, 1949 and on January 9, 1950, it was stipulated by counsel that the plaintiff claims title by direct and unbroken chain from M. P. Emanuelson who bases his title on a tax deed issued August 5, 1940, and filed for record in the office of the register of deeds of Ellis County, Kansas, on August 28, 1940; a photostatic copy of such record being admitted in evidence as plaintiffs Exhibit 9. It was further stipulated that the Commissioner’s journal, Vol. G, p. 419, shows a resolution under date of September 5, 1921, to accept and adopt the act of the legislature of 1921, governing the sale of real estate for taxes. It was further stipulated that the defendant, Della Edwards, was the record owner of the fee at the date of the tax deed, basing her title on an administrator’s deed dated June 19, 1933 and recorded July 5, 1933.
“5. The main issue concerns the validity of the tax deed issued to M. P. Emanuelson. This deed must be held good unless it is void on its face inasmuch as no action was brought to avoid it within five years from the time it was recorded. G. S. 1935, 79-2505; Madigan v. Smith, 137 K. 269.
“6. Without attempting to be exhaustive as to all of the defects appearing on the face of the tax deed, I first notice the entire absence of any county seal or other seal affixed by the County Clerk. This alone renders the deed void and lapse of time cannot cure the defect. See Reed v. Morse, 51 K. 141. Furthermore G. S. 1935, 79-2501, which was in effect at the date of this deed, requires that the deed recite the amount of the taxes, interest, penalties and costs, the proceedings relating to the sale of said property and the date and dates on which said proceedings were had, and the amount for which said property was sold. The fourth paragraph of the deed recites the taxes and charges for each of the years, 1934 to 1938 inclusive; but do these figures include interest, penalties and costs? The total of these amounts, plus the amount for which the property was bid off in the name of the county as recited in paragraph 3 of the deed, is $108.68. If interest is computed on these various items of taxes as provided by G. S. 79-2004, and dated to the above total, we reach a sum far greater than the amount of $116.69, the consideration recited in the deed. Apparently the consideration stated in the deed was reached by taking the item of $101.89 mentioned in the 7th paragraph of the deed as the subsequent taxes ‘of the year 1933,’ and adding to it the sum of $14.80, the exact amount for which the lots were bid in by the county on the first Tuesday of September, 1934, no interest being added thereto. How was the sum of $101.89 arrived at? The total of the taxes as recited for 1934 to 1938 inclusive is $93.88. Was interest added to this or were the taxes for 1939, then due, included to arrive at the figure of $101.89?
“ ‘Where a tax deed shows on its face that the tax sale certificate was assigned four and one-half years after the date of the sale without adding any interest for such interevening time, the certificate is being sold for less than the cost of redemption, the deed is void upon its face and can be set aside even after it has been of record for more than five years.’ Madigan v. Smith, 137 K. 269.
“See also Finn v. Jones, 80 K. 431.
“7. It follows that the tax deed in this case must be held void and the defendant, Della Edwards, awarded the possession of the property.
“8. The evidence offered in support of the value of the improvements made on the property since the tax deed holder took possession thereof on or about August 28, 1940, is meager; but there is evidence to support the following:
“August 27, 1940, to Wm. Erbert, painting house $15.00
“Oct. 7, 1940, to Wm. Erbert, painting house 13.00
“Aug. 29, to City Plumbing Co., repair toilet 3.51
“Sept. 7, to E. L. Raynesford, repair house 18.00
“Oct. 3, to E. L. Raynesford, repair house ' 10 00
“2 Evergreens at $2.00 each ’ 4.00
“Chicken yard 12.00
“The plaintiff should have credit for the foregoing in addition to- $116.69 paid for the tax deed on February 3, 1940. Each of the items should draw interest at the rate of 6 per cent, per annum from the respective dates thereof. See Blair v. Fooler, 160 K. 201.
“9. Included among the exhibits in the hands of the court reporter, but not identified nor offered in evidence, are found tax receipts covering these lots for the years 1939 to 1940 inclusive. These taxes were paid by M. P. Emanuelson; and in equity, he should be allowed to recover therefor.
‘TO. The defendant, Della Edwards, should receive credit for the rental value of the property from October 25, 1949, the date of filing her answer, at the rate of $2.50 per week, and she should also receive credit for the toilet and coal shed hauled away in the amount of $5.00. The evidence also shows that a barn on the premises was sold by M. P. Emanuelson, but the value thereof or the amount received therefor is not shown. As a matter of equity, she should have credit for the value of this barn.
“11. Judgment will be rendered for the defendant, Della Edwards, and against the plaintiff, setting aside the tax deed and adjusting the equities of tlie parties under the occupying claimant’s law, Ch. 60, Art. 19, G. S. 1935, in accordance with the findings herein. Any amount found due to the plaintiff will be decreed to be a first hen on the premises, and shall be payable within 30 days from the date of said judgment and before the defendant shall be let into possession of the premises. The costs should be equally divided between the plaintiff and the defendant, -Della Edwards.”
We think the court’s findings support its conclusions.
As previously stated trial errors, if any are not now reviewable. This, of course, includes errors, if any, in the consideration of factual matters pertaining to the invalidity of the tax deed. Appellant adduced evidence at the hearing of the motion for a new trial, which he contends could not have been discovered previously with due diligence, that the original tax deed contained the required seal. The photostatic copy of the tax deed, introduced at the trial by stipulation of the parties as constituting the record, disclosed no seal. In the first place the motion for new trial was too late and the trial court was not obliged to entertain a hearing thereon. In the second place it appears the parties had stipulated to accept the photostatic copy of the tax deed on record for what it disclosed on its face. But we need not determine whether the trial court would have been obliged to grant a new trial on the alleged newly discovered evidence if the motion for new trial had been filed in time. The tax deed was invalid for another reason. It did not recite the data required by the statute to make it valid. That was sufficient to sustain the judgment. Evidence adduced on the invalid motion for a new trial that interest, penalties and costs were added, if true, did not comply with the requirements of the statute relative to what the tax deed was required to recite.
Appellant argues that upon his request he was entitled to a jury under G. S. 1949, 60-1903 of the occupying claimant’s act to determine the amount due to him for lasting and valuable improvements made on the land during his occupancy. (Hazen v. Rounsaville, 35 Kan. 405, 11 Pac. 150.)
That ordinarily an occupying claimant, after being defeated in a possessory action, is thereafter on his request entitled to a jury to determine the value of lasting and valuable improvements he has made on the premises seems clear. (G. S. 1949, 60-1901, et seq.) Whether the court committed reversible error in refusing appellant’s request for a jury under the circumstances of this case requires consideration of the record. It is true, as appellant states, his petition did not allege he had made improvement on the land. Appellee in her answer and cross petition, however, made claim for rents during the period of appellant’s alleged unlawful occupancy. In the reply appellant joined issue on that subject by denying appellee was entitled thereto. On the trial appellant, the plaintiff, began the trial by adducing not only evidence in support of his claim of title based on the tax deed but testified in detail concerning the improvements he had made on the premises and the amounts expended therefor, as shown in the court’s findings. Appellant also introduced receipts showing payment for the improvements. Appellee thereafter adduced evidence touching the rental value for which she sought recovery under her answer and cross petition. No objection was made by appellant to this proceeding at the trial. Under this state of the record the court took the case under advisement.
A jury had been expressly waived. The court allowed appellee a small credit for rental value and rendered a money judgment in favor of appellant for the balance. Appellant’s judgment in that amount was made a lien on the real estate.' The journal entry of judgment filed February 10, 1950, recites:
“That plaintiff has made showing under the Occupying Claimant’s Act of the State of Kansas of the value of improvements of said property. . . .”
The record discloses this journal entry was approved by appellant’s counsel. On the hearing on March 13, 1950, of the motion for a new trial appellant requested a jury under the occupying claimant’s act. The request was denied. The pertinent part of the journal entry covering that hearing discloses the court found:
“. . . that the motion or request of plaintiff for a jury to determine the amount due under the Occupying Claimant’s Act should be overruled for the reason that all such charges have heretofore been fully litigated by the parties.”
The record discloses that journal entry was likewise approved by counsel for appellant. Neither of the journal entries mentioned was approved as to form only. In the court’s comments is contained also the following:
“There is no excuse for much of the evidence offered on the first trial of this case unless it was offered under the occupying claimant’s act. The plaintiff offered receipts and other evidence to show the exact amount paid for small items as well as some not so small in connection with this property.”
Appellant argues he did, not introduce evidence on improvements under the occupying claimant’s act but only on the theory of appellee’s estoppel. Appellee states that contention is made for the first time in this court. We shall not pursue the subject. Estoppel must, of course, be pleaded and it was not.
In view of the record appellant is not in a good position to ask a reversal of the judgment on the ground he was not granted a jury trial on the issue of improvements. We think his conduct, in effect, constituted a waiver of his right to demand a jury. (Kuykendall v. Taylor, 93 Kan. 471, 474, 144 Pac. 818; Carlyle v. Pee, 128 Kan. 115, 118, 275 Pac. 1091.)
Another thought intrudes which probably should not be overlooked. It relates to the fundamental issue, the adjudication of appellant’s lack of title. Upon what theory is appellant now entitled, as a matter of right, to appellate review of any question involved in the judgment as to title?
Having requested a jury to determine the value of improvements after the issue of title was determined against him it would appear appellant elected to consider the particular portion of the judgment pertaining to title as final and conclusive and that he is estopped from having appellate review on the issue of title. Such was the holding where a jury was not only requested but was called and performed. (Bradley v. Rogers, 33 Kan. 120, 5 Pac. 374.)
We think the request in the instant case for a jury to determine the value of improvements, after an adverse ruling as to title, constituted an election to regard the adjudication of title as final and conclusive. The denial of the request for a jury did not alter the fact appellant had elected to stand on the judgment which denied his title. Irrespective, however, of the question of election-we are satisfied the judgment of the trial court cannot be disturbed. It is affirmed. | [
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The opinion of the court was delivered by
Arn, J.:
An insurance company brought this action against a garage operator to recover for the loss of a Buick automobile destroyed by fire while said automobile was in the garage operator’s place of business undergoing repairs to its gasoline line and tank. The defendant garage operator’s demurrer to plaintiff’s petition was overruled by the trial court and defendant appealed.
The petition contained only general allegations as to defendant’s negligence and the trial court overruled a motion to make it more definite and certain by setting forth in what manner the defendant or his agents and employees failed to exercise proper care in handling the automobile, and by stating the particular acts of negligence relied upon by plaintiff.
An amended petition was subsequently filed in order to meet other requirements of pretrial motions, but no change was made in the allegations as to defendant’s negligence, plaintiff contending its petition was drawn upon the doctrine of res ipsa loquitur. The amended petition alleged that the plaintiff insurance company issued a policy of automobile fire insurance upon a certain Buick automobile belonging to the H. Drilling Company, and that by the terms of the policy the insurance company paid its assured, the H. Drilling Company, in full for its loss, and was then and there subrogated to any and all rights of assured to recover against third persons for damage by fire to the Buick automobile. It was further alleged that the assured, the H. Drilling Company, delivered the Buick to defendant’s garage and requested that defendant replace, recondition or repair the gasoline tank and gasoline lines because they were believed to contain a syrup substance; and that from and after such delivery, the Buick automobile was in the exclusive and sole possession and control of defendant, his agents, servants and employees. The amended petition continues as follows:
“7. That on or about the 11th day of November while the defendant, his agents, servants, employees or representatives were doing work upon said automobile, and at a time when they were draining gasoline from the gas tank into an open container, a fire suddenly occurred originating near the rear end of said automobile, and before said fire was extinguished the rear end, body, interior, cowl, instrument panel and wiring and other parts from the motor back on said automobile were burned and demolished.
“8. That the plaintiff and Hissom Drilling Company, a Corporation, first learned of said fire and resulting damage at the time of calling at defendant’s garage and repair shop for the return of said car.
“9. That at the time of the occurrence and resulting damage, to said automobile, the defendant, his agents, servants, employees, and representatives were in the sole and exclusive control and management of the vehicle, garage and repair shop in which said vehicle was located and all of the machinery and contents thereof; and had complete and exclusive supervision, control and management of all operations and work done on said vehicle and within said garage and repair shop.
“10. That the defendant, his agents, servants, employees, and representatives have performed similar operations in the operation of said garage and repair shop and a fire such as occurred in this instance does not ordinarily occur if the management thereof uses proper care.
“11. That the fire and resulting damage to said automobile was the result of negligence on the part of the defendant, his agents, servants, employees or representatives in the management and operation of said garage and repair shop and repairing of said automobile; and that such negligence was the sole, direct and proximate cause of the damage to the said Buick automobile.
“12. That the plaintiff and Hissom Drilling Company, a Corporation, were neither negligent nor in any way at fault and did not contribute to the causing of the fire and the resulting damage to said automobile.
“13. That the plaintiff and Hissom Drilling Company, a Corporation, were without knowledge as to the specific act or acts of negligence on the part of the defendant, his agents, servants, employees and representatives which caused the fire and resulting damage to said automobile and are unable to determine said negligent act or acts, and the same are inaccessible to the plaintiff, and the Hissom Drilling Company, a Corporation; that the defendant, his agents, servants, employees and representatives know, or should know or have the means of ascertaining the true cause of the fire and resulting damage to said automobile and the negligent act or acts are peculiarly within the knowledge of the defendant, his agents, servants, employees or representatives.
“14. That by reason of the negligence of the defendant, his agents, servants, employees and representatives the said Buick automobile was damaged and depreciated from the reasonable market value that it had just prior to the fire and resulting damage to the extent of Six Hundred & No/100 Dollars ($600.00) which amount this plaintiff was required to pay the Hissom Drilling Company, a Corporation, under the contract of insurance and became subrogated to the rights of Hissom Drilling Company, a Corporation, for its action against said defendant.
“Wherefore, plaintiff prays judgment against the defendant for the sum of Six Hundred & No/100 Dollars ($600.00) and the cost of this action and such other relief as may be just.”
Ground for the demurrer was that the petition failed to state a cause of action.
Appellee concedes that its amended petition was drafted upon the doctrine of res ipsa, loquitur, and does not now contend that the amended petition, having survived the attack of being indefinite and uncertain, states a cause of action based upon any specific acts of negligence. In fact, appellee contends that it was not necessary to state any specific acts of negligence because the petition was based upon the res ipsa, loquitur doctrine. Both appellant and appellee agree that the sole question now to be determined is whether the amended petition states facts sufficient to constitute a cause of action under the doctrine of res ipsa loquitur.
Appellant contends that under the authority of Emigh v. Andrews, 164 Kan. 732, 191 P. 2d 901, and authorities cited therein, the amended petition in the instant case did not state a cause of action under the doctrine of res ipsa loquitur. Appellee, on the other hand, relies principally. upon Truhlicka v. Beech Aircraft Corp., 162 Kan. 535, 178 P. 2d 252, and Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 249 P. 2d 599, to support his contention that his petition states a cause of action under that doctrine.
Before attempting an analysis of the foregoing cases, let us consider the application and effect of the res ipsa loquitur doctrine. The doctrine is not a substantive rule of law — it is a rule of evidence. Literally the term means “the thing itself speaks” (Emigh v. Andrews, supra; Mayes v. Kansas City Power & Light Co., supra; Stroud v. Sinclair Refining Co., 144 Kan. 74, 76, 58 P. 2d 77; Starks Food Markets, Inc., v. El Dorado Refining Co., 156 Kan. 577, 134 P. 2d 1102; 38 Am. Jur. 994). The doctrine has no application to proximate cause — or perhaps we should say no application to the initial fact, or the fundamental or foundation fact which caused the injury or damage. The doctrine will permit an inference or presumption that the known act — or foundation fact — which produced the injury (proximate cause) was a negligent act, but it will not permit such an inference or presumption as to just what foundation fact did produce the injury- — or, in other words, as to what act was the initial cause of the damage. Thus the doctrine cannot be applied where the thing which actually caused the injury or damage is unknown; but when it is known and disclosed and relied upon as the basis of the damage or injury, the application of the doctrine of res ipsa loquitur will infer negligence in the doing of the thing or in the commission of the act (45 C. J. 1212; Emigh v. Andrews, supra, and cases cited therein at page 735). We said in the last cited case that the inference arises only from the foundation fact after it is known and established, and cannot act to supply a foundation fact.
In the Emigh case, the petition alleged in substance that plaintiff’s wheat field was burned when defendant’s truck was driven through it; that the truck was under the exclusive control of defendant and a fire broke out at a point in the wheat field immediately after defendant’s truck passed said point; that no other persons or vehicles were near that point and when vehicles are properly and carefully operated, such fires ordinarily do not occur; that defendant owed plaintiff the duty to operate the truck carefully through the wheat stubble. It further alleged that plaintiff could not state the specific act or acts of negligence of defendant which caused the fire, but that defendant’s negligence was the proximate cause of the fire and damage to the wheat. In affirming the trial court’s order sustaining a demurrer to the Emigh petition, we said:
“While there is conflict in the decisions relative to the application of that doctrine there is no dispute relative to the meaning of the words res ipsa loquitur. They simply mean ‘the thing speaks for itself.’ And that means the thing or instrumentality involved speaks for itself. It clearly does not mean the accident speaks for itself. It means that when the initial fact, namely what thing or instrumentality caused the accident has been shown then, and not before, an inference arises that the injury or damage occurred by reason of the negligence of the party who had it under his exclusive control. The inference of negligence arising from the initially established fact compels the defendant, in order to -relieve himself of liability, to move forward with his proof to rebut the inference of negligence.”
“Here the truck, under the circumstances alleged, is the instrument which is supposed to speak for itself. Did it cause the damage? The petition does not allege it did. The petition does not allege the truck started the fire. It does not even allege it emitted sparks. Until it is known what thing caused the damage how can it be said ‘the thing speaks for itself’? This petition instead of alleging the truck started the fire at best alleges facts which raise only a presumption the truck caused the damage. On the mere presumption of the initial cause of the fire the further inference is sought to be drawn that the truck was defective or improperly operated. Such an inference cannot be drawn from a mere presumption. The established rule is that liability cannot result from an inference upon an inference or from a presumption upon a presumption. (Schmidt v. Twin City State Bank, 151 Kan. 667, 100 P. 2d 652; 1 Shearman and Redfield on Negligence, rev. ed., § 53, p. 139; De-Glopper v. Railway & Light Co., supra.) The inference arises only from established foundation facts. Manifestly the inference cannot supply the foundation facts from which the inference arises.”
It should be noted that in the Emigh case it was the plaintiffs' who had jurisdiction and control of the premises (i. e., the wheat field) where the fire occurred. It was their land, their field and their crop. Furthermore, as indicated from the above quotation, there was no allegation that the truck started the fire. By way of contrast, compare the allegations of the petition in the instant case: Defendant has sole custody and control of the damaged property (the Buick car) and of the premises where it was located, and of the tools and equipment' used to repair it; defendant was repairing the gasoline line and tank and draining the gasoline into an open container; while defendant was thus working on the rear part of the car in his own garage, a fire broke out at the rear of said car and demolished it; a fire such as this does not ordinarily occur while repairing automobiles if the garage management uses proper care; the fire was the result of the defendant’s negligent operation of the garage and negligent repairing of the Buick car; and neither plaintiff nor the owner of the car, who were not upon the premises, know just what specific acts of negligence of defendant caused the fire.
Thus, in the case at bar the petition alleges the so-called foundation fact to be — the use of the gasoline by defendant, in defendant’s garage and upon defendant’s premises, and while the car and all repair equipment and the gasoline in the open container were in the sole custody and under the sole dominion and control of defendant, caused the fire to destroy the Buick automobile. Having supplied the “foundation fact” or “initial fact” or “thing” which produced the injury, the application of the doctrine of res ipsa loquitur will then infer negligence on the part of defendant in the doing or commission of the act. That is to say, the inference of negligence will arise from the established fact so as to compel the defendant to move forward with his proof in order to rebut such inference of negligence. We would have much difficulty in trying to think of a set of facts and circumstances more susceptible to the application of the doctrine of res ipsa loquitur than are those of the instant case.
Truhlicka v. Beech Aircraft Corp., supra, was a res ipsa loquitur case where we held that the petition stated a cause of action under the doctrine. There a painter was working on a thirty-foot ladder when defendant’s traveling crane, operating on a track on defendant’s premises and under defendant’s jurisdiction and control, struck plaintiff from behind and injured him severely. Truhlicka’s petition alleged that fact and then under the res ipsa loquitur doctrine the defendant’s negligence was properly inferred — at least defendant then had the burden of going forward with his proof to rebut the inference.
The case of Mayes v. Kansas City Power & Light Co., supra, is in itself a treatise on the res ipsa loquitur doctrine. There the plaintiff was'watching a street parade from the sidewalk when a street lamp globe fell from its position overhead and struck plaintiff, causing him serious injuries. The street light fixtures and poles were under defendant’s exclusive control. This court in approving judgment for plaintiff, said:
“Viewing this case as a whole it is a proper one for the application of res ipsa loquitur. The lamp and fixtures were such that ordinarily no injury would be expected from their use if carefully constructed and maintained. Although defendant was not an insurer of the safety of those who use the streets, the duty of carefully constructing and maintaining the lamp so that it would not be likely to cause injury to those who rightfully used the street, was upon the defendant, under its contract with, and the ordinances of, the city, and the injury happened without any voluntary action of plaintiff.”
We cannot distinguish the application of the doctrine of res ipsa loquitur in the Truhlicka and Mayes cases from its application in the case at bar. It follows that the trial court properly overruled the demurrer to the plaintiff’s petition, and the judgment should be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
This is a workmen’s compensation case. From a judgment allowing recovery the respondent company (hereinafter referred to as respondent) and its insurance carrier have appealed.
Claimant, an oil field worker by trade, lived in Larned and for five days prior to September 12, 1948, was employed by respondent as a roughneck in the drilling of an oil test well in Pawnee county. His duties were that of a driller’s helper. On the morning of September 12, 1948, he drove to work in his own car accompanied by his driller, Adams. Upon arrival at the well claimant changed clothes, assisted in oiling and greasing the equipment and then started in to wash down the tool houses with rags and kerosene. In doing so his clothing became partially saturated. Before he finished washing the outside of the second tool house the kerosene became dirty and he then got a bucket of liquid, which he thought was kerosene, from, a barrel which was not marked to indicate that it contained gasoline. After cleaning the tool houses he and one R, a fellow roughneck, decided that inasmuch as there was nothing else to do right at that particular time they would work on their cars. Both drove their cars up next to the drilling rig so as to be available in the event their services were needed on the job. Claimant raised the hood on his car and started to wash the engine with a paint brush and the fluid, which was probably gasoline, remaining in the bucket. In doing so he touched the starter switch or something with the brush, causing a spark which in turn ignited the fluid and set fire to his clothing. As a result he received severe burns, for which he has since been treated.
At the hearing the examiner found that claimant sustained personal injuries by accident arising out of and in the course of his employment, and handed down an award in favor of claimant and against respondent and its insurance carrier.
On appeal, the district court adopted and ratified the findings and award of the examiner and in addition rendered the following finding:
“It is the custom in the oil fields for the employees to provide their own transportation to and from work. It is also the custom for the employees to use their own automobiles in running errands and in going to town for material. They receive no extra pay for this service and the use of their automobiles. It is the custom for the employees when not busy at other work, to work on their automobiles, in order to have the automobiles ready to go on errands and transport the employees to and from work.”
The basic question involved in the appeal before us is whether the injury sustained by claimant arose out of and in the course of his employment. A somewhat detailed analysis and narration of the evidence is therefore necessary.
The claimant testified, in addition to those facts heretofore set out, that he had worked in the oil fields for several years, but had worked for respondent only five days prior to the date of the accident. That respondent did not provide transportation to and from work nor pay him his driving expenses. That he had not seen other men working on their cars on this particular job, but that on other oil-field jobs he had seen men working on their cars in off moments; that he had never worked on a drilling job where the men were not permitted to work on their cars when there was nothing else to do, and that on the particular job in question he had never been told not to work on his car in his spare time. That he thought Adams, the driller and boss, saw him pull his car up near the rig and commence to wiork on it and that he made no objection. He further testified that in his experience every man who drives his car to and from such a job is supposed to go to town at any time to get materials or for repairs whenever necessary. On cross-examination he stated that at the time he received his injuries he was not performing any duties that anyone connected’ with respondent had required him to do. That getting to and from work was not on company time and that he had never used his car for a single errand for his employer, the respondent.
The witness, McGinnis, who did not know claimant personally, testified that he had worked in the oil fields since 1925, and in answer to a question concerning a custom with reference to the men on the job being permitted to work on their cars during their spare time, answered:
“Well in your leisure time, we will say, it is a roughneck’s paradise to get to work on your car around a rig. If you are not very busy and in case your car is not in running condition and you want to keep it up, the driller will give you permission to go ahead and work on your automobile.”
He further testified that on other jobs he had often seen men working on their cars when not otherwise occupied, and that he had never worked for a company that told the men not to work on their cars in their spare time. On cross-examination, when asked whether he had ever worked for a single employer who required or paid him to work on his own personal car on company time his answer was that they never did tell him not to do so.
Witness Copeland, an oil-field worker for approximately fifteen years, when asked concerning any custom as to employees being permitted to work on their cars during slack time, answered:
“It is, it is a privilege granted whenever your work is finished there is a certain amount of work that has got to be done when everything is washed up and cleaned up and everything is in its place, and the drilling machinery working and there is nothing but drilling, and you are at liberty to do what you please because you have got to work hard when there is work to be done under all kinds of conditions, you may be mud all over and may be rain and it may be snow, you have got to do it whenever it is to be done, when it is all done you are granted that privilege when you see fit to do it.”
He further stated that as a driller he had never refused his men the privilege of working on their cars when there was nothing else to be done.
Adams, the driller in charge of the operation for respondent company, was called as a witness for respondent and he testified that he didn’t believe he saw claimant do any work on his car at the time in question, although he had seen him in it, but didn’t see what he was doing with it. That claimant did not ask permission to do any work on his car; that he had never directed employees to work on their personal cars; that he was in the doghouse looking over the reports of the night before at the time of the fire; that it was the order of the tool pusher that no work be done on personal cars on company time and that such rule had been laid down approximately two years prior thereto by his superior. However, he further stated that the company rule referred to was not in writing and was not posted on the premises.
In considering this appeal certain fundamental principles are to be kept in mind.
The provisions of the workmen’s compensation act are to be liberally construed in favor of the workmen with the view of effecting its purpose. Alexander v. Chrysler Parts Corp., 167 Kan. 711, 207 P. 2d 1179.
The purpose of the act is to burden the industry with the economic loss to a workman, or his dependents, resulting from accidental injury sustained by the workman arising out of and in the course of his employment. Rush v. Empire Oil & Refining Co., 140 Kan. 198, 34 P. 2d 542.
In order for an accident to be compensable under the act it must arise out of and in the course of employment. G. S. 1935, 44-501; Carney v. Hellar, 155 Kan. 674, 127 P. 2d 496.
The phrase “out of employment” points to the cause or origin of the accident and requires some causal connection between the accidental injury and the employment. Carney v. Hellar, supra.
The phrase “in the course of employment” means that the injury happened while the workman was at work in his employer’s service, and relates to the time, place and circumstances under which the accident occurred. Carney v. Hellar, supra.
It is the function of the trial court to pass upon the facts in a workmen’s compensation case, and where its findings are supported by substantial, competent evidence they will not be disturbed on appeal. Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846; Alexander v. Chrysler Motor Parts Corp., supra.
The scope of this court’s appellate review is limited to "questions of law,” which in the final analysis simply means that its duty is to determine whether the trial court’s factual findings are supported by any substantial, competent evidence. G. S. 1935, 44-556; Meredith v. Seymour Packing Co., 141 Kan. 244, 40 P. 2d 325; Holler v. Dickey Clay Mfg. Co., supra; Alexander v. Chrysler Motor Parts Corp., supra.
It may be conceded that at the time claimant sustained his injuries he was in his employer’s service — that is, he was “on the job” — and we therefore have no difficulty in agreeing with the trial court that the accident occurred “in the course of” employment. The only question remaining is — did it arise “out of” the employment?
Respondent insists that the answer must be “no” and that by no stretch of the imagination can it be said complainant was performing any service for respondent when working on his own personal car, and that he would have been equally exposed to such hazard and injury had he been at home, or any other place, as he was on this particular job. It is further argued that so-called custom and usage have no function in a case such as this — but that if they do — then such custom and usage were not shown by clear and convincing evidence.
In a number of cases this court has held that incidents and circumstances of employment may be shown by evidence of custom and usage (Thomas v. Manufacturing Co., 104 Kan. 432, 179 Pac. 372, 6 A. L. R. 1145; Chance v. Coal & Mining Co., 108 Kan. 121, 193 Pac. 889; Taylor v. Hogan Milling Co., 129 Kan. 370, 282 Pac. 729; Corpora v. Kansas City Public Service Co., 129 Kan. 690, 284 Pac. 818) and that where such custom is shown recovery is not barred merely because at the exact time of the injury the workman was doing some act not strictly in furtherance of his employer’s business. At 58 Am. Jur., Workmen’s Compensation, § 235, it is said:
“An injury is not necessarily rendered noneompensable by the fact that at the time of its occurrence the employee was engaged in the performance of some act for the benefit of himself or a third person, since such an act may, in many instances, be so related to or connected with the employment as to make it a reasonable incident thereof.”
and in 71 C. J. 678, Workmen's Compensation, § 425, we find the following:
“Where the injury is sustained while the employee, with the permission of the employer, ceases work for a time for purposes of his own, the continuity of the employment is not impaired, and the injury arises in the course of the employment, ... It is not essential that the employee be engaged in an act directly beneficial to his employer in order that the resulting injury may be said to have arisen out of the employment, and the fact that the employee’s action may have been impelled by a personal motive does not prevent the application of the compensation statute.”
Time and space do not permit our extending this opinion unduly with a detailed discussion of the facts of those cases dealing with the question whether the particular accident and injury arose “out of” the employment, but reference is made to Taylor v. Hogan Milling Co., supra, and Repstine v. Hudson Oil Co., 155 Kan. 486, 126 P. 2d 225, for a general discussion of the subject.
Here the evidence showed that there was a general custom in the oil fields for the men to provide their own transportation to and from work; that it was customary for them to work on their own cars when not otherwise occupied and that it was customary for them to use their cars in running errands for materials and repairs whenever necessary. In view of this and the other evidence, can it be said that claimant's working on his car was not incidental to his employment? We think not. The words “causal connection” certainly do not mean that the accident must have resulted directly and immediately from performance of the work for which the workman was employed. Such a narrowed interpretation would mean that whenever a workman was not directly engaged in the actual work to be done he would be without protection under the law. Bailey v. Mosby Hotel Co., 160 Kan. 258, 160 P. 2d 701. He was never told not to work on his car on this or any other oil-field job. The company rule testified to by Adams, the driller, was not in writing and had never been ¡posted on the premises or otherwise communicated to claimant.
The trial court found that claimant sustained injuries by accident arising out of and in the course of his employment and we are unable to say that such finding was not supported by substantial, competent evidence. Such being the case, we have no alternative than to affirm the judgment, and it is so ordered. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action for divorce and child custody. Judgment was for the plaintiff. Defendant appeals.
The statement of some uncontroverted background will be made at the outset.
Defendant is a citizen of Australia, She and plaintiff were married at Sidney, Australia, during the war. They have one child, Leon Charles Marshall. He was born in Australia. There was an earlier divorce proceeding in the Shawnee county district court in July, 1948. Mrs. Marshall had asked for separate maintenance and Mr. Marshall had asked for a divorce. During the trial or shortly thereafter she dismissed her petition and the husband’s cross petition was denied. By some proceedings, about which we cannot be clear, the custody of Leon Charles was given to plaintiff in this case, the father, and the child is now with plaintiff’s parents in Wichita.
The petition in this case alleged that defendant had disregarded her marriage vows and had been guilty of adultery, habitual drunkenness and gross neglect of duty and extreme cruelty; that the plaintiff then had the custody of the minor child and defendant was not a fit person to have his custody. The prayer was for a divorce and custody of the child. To this petition defendant filed a motion for a bill of particulars pursuant to G. S. 1935, 60-1519. The court sustained this motion on November 12,1948. In purported compliance with this order sustaining this motion, the plaintiff filed a document, as follows:
“plaintiff’s bill of particulars”
“Comes now the plaintiff and for his Bill of Particulars, states and alleges to the court that:
“1. The defendant did not take proper care of the parties’ minor child, and is not a fit and proper person to have custody thereof.
“2. Defendant is guilty of adultery and has improper relations with other men.
“3. Defendant frequents beer parlors and is under the influence of liquor at frequent intervals.
“4. Defendant has constantly refused to make a proper home for this plaintiff and plaintiff’s minor child.”
On January 19, the defendant filed a motion to dismiss the petition and alleged that the court had ordered the bill of particulars to be filed, attached a copy of the bill of particulars, stated that it was in no sence a compliance with G. S. 1935, 60-1519, and that defendant was entitled to an order dismissing the petition under the provisions of G. S. 1935, 60-3105, paragraph 5. This motion to dismiss the petition was denied January 19, 1949. January 19, 1949, defendant filed her answer and cross petition. This was first a general denial, then an admission of the marriage and the birth of the child, then a specific denial that defendant was not a fit person to have custody of the child. Her prayer was that the divorce be denied the plaintiff and she be given custody of the child. In her cross petition she alleged that defendant had abandoned her November 1, 1947; that this abandonment had continued without interruption; that he was earning in excess of $250 a month; that they had no property and that she was a fit and proper person to have the custody of the child and her husband had no home and was not in a position to give the child proper care and attention. The prayer of the petition was for a divorce and custody of the child and that she be awarded the household goods.
Trial was held on the 20th of January, 1949. The journal entry discloses that the defendant requested a continuance at that time and that this was denied. On the 21st of January the court found the plaintiff was entitled to a divorce on the ground of adultery and that he was entitled to the care and custody of the minor child.
The motion for a new trial was upon some six grounds, as follows:
“1. Because of abuse of discretion, of the Court.
“2. Because of erroneous rulings of the Court in limiting defendant’s cross-examination of the plaintiff’s witnesses and in holding legally sufficient the Bill of Particulars served by the plaintiff; and for erroneous rulings generally.
“3. Because the Court erred in admitting evidence in support of plaintiff’s petition over defendant’s objection that a proper Bill of Particulars had not been served.
“4. Because the Court erred in refusing to grant defendant a divorce on her cross-petition on the ground of abandonment for more than one year.
“5. Because the Court erred in refusing to award custody of the minor child of said parties to the defendant.
“6. Because the decision and judgment of the Court was contrary to the evidence.”
At the hearing of the new trial an affidavit of counsel was furnished which disclosed that he was employed a few days prior to November, 1948; that he presented the motion to dissolve a restraining order as to child custody, which was denied; that defendant had not returned to counsel’s office until January 17, 1949, at which time he prepared and served the motion to dismiss the,petition on the ground of disobedience of the order requiring plaintiff to serve a bill of particulars. The affidavit then recited that the motion was denied on January 19,' at which time-.the court stated the bill of particulars served was legally sufficient and the court ordered the case set for trial the following day, January 20; that on the 19th defendant’s answer and cross petition were filed; that counsel made an oral request for continuance on January 19 and at the beginning of the trial January 20.
Counsel in his affidavit stated that on account of the above facts he had been unable to make a proper investigation and present the defense of the case. This motion for a new trial was overruled. Proper notice of intention to appeal and notice of appeal were filed. The appeal was from the judgment dated the 21st of January, divorcing plaintiff from defendant, and awarding custody of the minor child to the plaintiff, the order denying defendant’s motion to dismiss for failure to furnish a bill of particulars and from the orders overruling the defendant’s objection to the admission of any evidence and from the order overruling defendant’s motion for a new trial.
When the case came on to be heard at 9 o’clock on the 20th the defendant was not present. However, the case proceeded to trial. She was there at 9:45. There was some colloquy about the motion of plaintiff to dismiss the cross petition of defendant on the ground that the abandonment with which the cross petition charged plaintiff was res judicata. This motion was denied.
There was some evidence on the part of the plaintiff as to gross neglect of duty on the part of the defendant. However, the divorce was allowed on the ground of adultery and the gross neglect of duty does not seem to have been pressed during the trial.
The plaintiff introduced witnesses who testified to circumstances tending to prove defendant had committed adultery. Defendant denied any act of adultery. The trial court entered the judgment, which has heretofore been set out in this opinion.
The serious question with which we are concerned is the effect of denial by the trial court of defendant’s motion to dismiss plaintiff’s petition on account of the failure of plaintiff to file' a bill of particulars in compliance with the court’s order of November 12, 1948. As to adultery, the petition simply alleged “Defendant . . . had been guilty of adultery.” The bill of particulars merely alleged “Defendant is guilty of adultery and has improper relations with other men.” The divorce was granted on the ground of adultery, hence the allegation “and has improper relations with other men” may be disregarded by us. We have then a petition which alleges defendant “has been guilty of adultery,” and a bill of particulars which says “Defendant is guilty of adultery.” It is clear that the bill of particulars told the defendant nothing more than the petition as to the evidence upon which plaintiff expected to rely in proving his charge of adultery. The real question then is “What was the intention of the legislature in the enactment of G. S. 1935, 60-1519?” That section is supplemental to G. S. 1935, 60-1501. That is the section which sets out the different grounds upon which a divorce may be obtained. The third ground is stated simply “Adultery.” G. S. 1935, 60-1519, provides, as follows:
“That in all actions for divorce, or for alimony, or for both divorce and alimony, the petition or cross petition shall allege the causes relied upon as nearly as possible in the language of the statute (R. S. 60-1501), and without detailed statement of facts. If the opposing party desires a statement of facts relied upon the same shall be furnished to him by the petitioner or cross-petitioner in a bill of particulars. A copy of this bill of particulars shall be furnished to the court and shall constitute the specific facts upon which the action is tried. The statements therein shall be regarded as being denied by the adverse party, except as they may be admitted. The bill of particulars shall not be filed with the clerk of the district court, nor become a part of the records of such court, but if the action be appealed, and the question sought to be reviewed relate to the facts set forth in the bill of particulars, it shall be embodied in the abstract for the supreme court.”
This section was enacted, in 1935. (See Laws of 1935, chapter 219.) Until its enactment there had been no similar law on our statute books.
We are all familiar with the eagerness with which the lurid details of a divorce action are pursued by at least part of the public. Published in the press they do not make very uplifting reading. Every one seems to have a morbid interest in the things the members of a once happy couple say about one another. Realizing all this, the legislature sought to lessen the evil a little by providing that in a divorce action the parties need not state the details upon which they relied but should state their cause of action as nearly as possible in the words of the statute. Thus the words “guilty of adultery” might be pleaded and relied upon. That was the purpose of the first sentence of this section. It was realized, however, that pleadings are for the purpose of advising the opposing party of what charge he must be prepared to meet. Hence the next provision “If the opposing party desires a statement of facts relied upon the same shall be furnished to him by the petitioner or cross petitioner in a bill of particulars.” What did the legislature intend by the words “facts relied upon”? Clearly it meant more than the bare allegations in the language of the statute, such as we have in this case. The facts relied on must be a concise statement of what the party expects to prove to sustain his charge of adultery. Otherwise the provision of the statute just quoted would be meaningless. Of all the eleven grounds for divorce in this state, adultery is the one where the defendant should be most clearly advised as to what the plaintiff expects to be able to prove. It is a charge that in its effect on the party charged reaches far beyond the mere severance of the marital relationship. Many parties resist this charge even when they are satisfied to have the marriage bonds dissolved.
This is accentuated by the fact that adultery may be proved by presumptive evidence. The evidence need not show an admission of or an eyewitness to the actual carnal act. (See Burke v. Burke, 44 Kan. 307, 24 Pac. 466.) Hence the party charged with adultery should if he or she requests it be advised of the circumstances upon which the other party relies, the incidents, the place, the person, the time. All these are important so that she may be able to explain suspicious or damaging evidence.
In this connection attention is called to the provisions in the statute, that the facts disclosed in the bill of particulars shall be the specific facts upon which the action is tried; that they shall be regarded as denied unless specifically admitted and to the significant provision that the bill shall not be filed with the clerk or become part of the records of the court but if the action is appealed and the appeal relates to the facts set out in the bill of particulars it shall be embodied in the abstract.
Clearly the legislature intended that the facts contained in the bill of particulars should be more in detail than in the petition and there might very probably be facts alleged which it would not be necesary or proper for the public to have access to. Examination of this bill of particulars discloses that it contained no facts at all that were not contained in the petition. The conclusion is inescapable that it was the same as though no bill of particulars at all had been filed.
This takes us to a consideration of the question “What was the effect of not complying with the court’s order in this respect?” In due time the defendant asked that the petition be dismissed on account of this failure of the plaintiff. He did this pursant to G. S. 1935, 60-3105. That section has to do with reasons for the dismissal of action. It provides, in part, as follows:
“An action may be dismissed without prejudice to a future action; . . . Fifth. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action.”
The court had ordered the plaintiff here to furnish a bill of particulars. We have demonstrated that he filed a paper which in no sense was a compliance of that statute — hence he disobeyed the order of the court.
The request for a bill of particulars in a divorce case is somewhat analogous to a motion to make more definite and certain in an ordinary case. In Anderson v. Denison Clay Co., 104 Kan. 766, 180 Pac. 797, the plaintiff refused to comply with an order directing him to make his petition more definite and certain. The trial court dismissed the action. Pursuant to the statute we are discussing we held:
“If a proper order to make a petition more definite and certain is not complied with the action may be dismissed.” (Syl. ¶ 3.)
(See, also, Burdick v. Investment Co., 71 Kan. 121, 80 Pac. 40.) That was an order to require the plaintiff to separately state and number three causes of action. He refused to comply with the order and the court dismissed the action. We held:
“The court sustained a motion to require these three causes of action to be separately stated and numbered, and upon the refusal of the plainitff to comply with this order dismissed the action. Held, not error.” (Syl. fl 4.)
(See, also, Drake v. National Bank, 33 Kan. 634, 7 Pac. 219; also Investment Co. v. Fuller, 105 Kan. 395, 184 Pac. 727.)
Plaintiff cites and relies on what we said in Hicks v. Parker, 143 Kan. 763, 57 P. 2d 413. He argues that opinion overruled the cases that have just been referred to in this opinion. The opinion does not go that far. It merely holds that the rule announced in those cases did not require a dismissal in that case on account of the peculiar facts in that case. It would add nothing to this opinion to set out the facts in the case of Hicks v. Parker, supra. Moreover, there was no outright disobedience of an order as essential to the preparation of the defense as was the order in this case.
G. S. 1935, 60-1519, was considered in Stegmeir v. Stegmeir, 158 Kan. 511, 140 P. 2d 755. There the court had ordered bills of particulars furnished; the parties had not complied and the original answers and cross petition had been ordered stricken from the files. Later amended bills of particulars were filed. On appeal the appellant argued that it was error for the court to strike the original pleadings from the files. We held that this was of no importance since amended pleadings had been filed. However, it is worthy of note that we quoted from the Judicial Council Bulletin, Part 1, Ninth Annual Report, April, 1935, at page 5, where the Judicial Council said:
“Early in our work we recognized the advisability in an action for divorce or for alimony that a statute should require the cause of action to be stated in the language of the statute only. We mentioned this in our 1928 report, page 14, and a draft of the bill was set out in our 1929 report, page 23. It has been presented to each regular session of the legislature since that time. On two occasions it passed the house of representatives but failed to receive final favorable action in the senate. Its purpose is to avoid having scandalous matter relating to a party to the action appear upon the permanent record or in the files of the court, unless that should be actually necessary. This is especially important when there are minor children of the man'iage. Sometimes such charges were made or threatened when there was little or no foundation for them, with a purpose of forcing a settlement or compromise. This provokes notoriety, to the shame or disgrace of one or both of the parties to the action, or to their children. It is seldom necessary to make such charges even if good grounds for them exist. This year the bill was introduced by the house judiciary committee, H. B. No. 97, and passed both houses without difficulty. It becomes effective when published in the statute book.”
We then stated:
“It will thus be seen that in the case at bar the trial court quite properly ordered stricken whatever pleadings filed by either party did not conform to the intent and purpose of the statute governing pleadings in divorce cases.”
This statute was again considered in Irwin v. Irwin, 162 Kan. 185, 174 P. 2d 1021. There a bill of particulars had been furnished pursuant to an order of the court. The defendant demurred to it and the demurrer was overruled. On appeal he argued this was error. We said the bill was good against a demurrer. However, in that bill of particulars many details were furnished. It was not a case where there were no details at all as in this one.
Thus, it appears that while we have not up to the present time passed on the question before us we have uniformly taken the position that the purpose of G. S. 1935, 60-1519, was, as has been heretofore stated. That purpose would not be served by failure of the party to set out the specific facts upon which he relied. The statute was not intended to relieve- persons from stating the grounds upon which they relied. It was only intended to save parties from having scandalous matter alleged against them unless they made it necessary.
Plaintiff argues that it is discretionary with the trial court whether a petition should be dismissed pursuant to G. S. 1935, 60-3105. In this connection it should be observed that defendant objected to the introduction of any evidence as to acts of adultery because no real bill of particulars had been filed. These objections were overruled. They should have been sustained. Actually the evidence introduced as to adultery was not competent. Apparently the trial court deemed the bill sufficient. We have demonstrated that it was not.
The judgment of the trial court is reversed with directions to dismiss the petition without prejudice. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action to reform a contract for money and to declare a lien. Defendants’ demurrer to the petition was overruled. They have appealed.
The petition alleged that plaintiff and defendant Startz formed a partnership in 1941 and by June 1, 1945, it had become prosperous; that plaintiff entered the navy February 7, 1945, and the partners discussed the matter of dissolving the partnership; that the partnership had paid the income taxes of each partner from the partnership income for 1943 and 1944; that on June 1, 1945, plaintiff was the sole owner of a lumber company and the partners understood that the taxes on the income from it would be paid by him; that on June 1, 1945, plaintiff owed $1,500 income taxes on the income from the lumber company and the partnership income taxes there estimated to be $120,000, as well as an amount to be determined through negotiation; that an appraisal of the partnership property showed it to be worth $128,000 after deducting $120,000 for income taxes; that defendant Startz. orally proposed that he out of the partnership funds would pay all liabilities of the company, including income taxes owed by the company, and plaintiff should pay the income taxes on his income from the lumber business and Startz would pay plaintiff $50,000 and plaintiff would turn over to Startz all the assets of the company and plaintiff was to have a lien upon all the firm’s property until the income taxes were paid; that plaintiff accepted the proposition relying qn Startz to pay the taxes from the partnership funds; that the partners executed Exhibit “A,” which was attached, and plaintiff transferred his interest in the partnership property. The paragraph of Exhibit “A” with which we are interested reads as follows:
“As a further consideration for said conveyance and transfer of the assets to him, the said Startz agrees to assume and pay out all outstanding bills, obligations, and liabilities contingent or otherwise against the partnership and to hold Earl M. Clarkson Jr., harmless from any claim of any kind which might be asserted hereafter as the result of any liability or claim asserted against said partnership, provided, however, that income taxes owed or owing by Earl M. Clarkson, Jr., shall be paid by him individually and shall not be treated as obligations of the partnership.”
The petition then alleged that it was the true understanding of plaintiff and Startz that Startz would pay the income taxes of the plaintiff of about $60,000 and for that purpose plaintiff delivered to Startz all the assets of the firm. The petition contained the following:
“16. That through mutual mistake of law and fact, said plaintiff and defendant Startz did not know and understand that technically the income taxes of each partner was an individual obligation to the Government, and said agreement should be reformed to speak the truth and set forth the true and correct intention, understanding and agreement between Clarkson and Startz, and provide that Startz was to assume and pay all outstanding bills, obligations and liabilities, contingent or otherwise, against the partnership out of said partnership funds, assets and property, including the income taxes due or to become due to the Federal Government from each of said partners for income each had received out of or by reason of said partnership or renegotiation, and that Earl M. Clarkson, Jr., should pay any income taxes owed by him for income from his lumber business and the $5,000.00 paid as salary.”
The petition further alleged that such reformation would be in harmony with the interpretation placed upon the contract by the parties; that plaintiff went overseas and defendant took over the property subject to the lien of plaintiff until the income taxes were paid; that defendant Startz merely changed the name ox the company and though the company was incorporated as Frigidmist, Inc., the assets of the former partnership were at the time suit was filed the assets of the corporation and any transfer of them to Frigidmist, Inc., was in violation of G. S. 1935, 58-101 to 58-104, and Frigid-mist, Inc., was wholly owned by defendant Startz. The petition then contained an allegation as follows:
“21. The defendant, Startz, in fact at all times has owned and now owns ail the stock of the Frigidmist, Inc., and, since the inception of said Company, has directed all the policies and been president and in charge of the general management of the Frigidmist, Inc., and has treated the Corporation as his property and dominated and controlled it and its affairs and was the sole directing spirit of .the' Corporation. He was and is in fact and in reality, for all practical purposes, the Corporation, and the Corporation was and is one and the same as Startz, defendant.”
The petition then alleged that when plaintiff returned from service he received word that a tax lien was to be filed on his property for nonpayment of income taxes in the amount of $60,000 which Startz had agreed to pay; that thereupon he employed a lawyer to file suit against Startz; that thereupon defendants agreed in writing that they would pay the taxes in question at the rate of $5,000 per month, starting May 15, 1944, with two payments of $500 each on March 15 and April 15; that thei'eafter on about March 31,1947, the government filed a lien for the taxes in question against plaintiff in the amount of $50,456.63; that pursuant to the agreement Frigid-mist, Inc., made four $5,000 payments to the collector of internal revenue on April 14, May 16, June 16, July 15, all in 1947, and ordered that $2,000 of each of these payments be applied upon the income taxes assessed against plaintiff; and no additional have been made by either party; that about June 20,1947, the government notified the plaintiff of additional deficiencies for 1944 in the amount of $2,443.22 and the grand total claimed from plaintiff was $54,134.01; that defendants had appropriated to their own use the assets of the partnership and plaintiff had a lien on those assets to the extent of the unpaid taxés and he had a right to a lien on those assests to the extent of the income taxes; that such assets were in danger of being lost unless a receiver was appointed to take charge of them and the assets of the partnership now in possession of defendants were held by the defendants as* security for the payment of'the taxes and defendants held them in trust for such payments; that by reason of the facts pleaded plaintiff was entitled to have the written contract between the parties reformed so as to conform to the contract originally made and to have the agreement of the defendants to pay the amount of the income taxes — $500 on March 15, 1947; $500 on April 15, 1947; $5,000 May 15,1947, and $5,000 on the 15th of each month until the amount of the taxes was paid specifically enforced and establishing plaintiff’s lien on the funds of the old partnership for the amount of the unpaid taxes and for the appointment of a receiver to take possession of the assets of the old partnership or in the alternative for judgment against the defendants for damages in the sum of $54,-134.01, with interest from October 3, 1947. The prayer was for a judgment as above stated.
Exhibit “B,” which was referred to in the petition, was as follows:
“Feiqidmist, Inc.
“Wellington, Kansas
“March 3, 1947
“Foulston, Siefken, Sehoeppel, Bartlett & Powers, Attorneys at Law
“Fourth National Bank Bldg.
“Wichita, Kansas.
“Re: Clarkson-Startz Income Tax Matter
“Attn. Mr. Siefken
“Dear George:
“In reference to the conversations over the telephone I have had with you and which you have had with Mr. Startz in regard to the above matter we advise you that this company feels its obligation to take care of the income tax that was asessed against Mr. Clarkson for income tax becoming due on or prior to June 1, 1945, the date of the dissolution. We know that Mr. Clarkson has received notice from the Collector of Internal Revenue that a little over $50,000.00 is due. This company has just undergone a slack season in its business during the winter months and has also made some commitments for the purchase of materials so that the company is unable to pay the amount in full but authorizes you to try to arrange with the collector’s office that the amount be paid in installments as follows:
“$500 March 15, 1947
“$500 April 15, 1947
“$500 May 15, 1947
and $5000 on the 15th of each and every month thereafter'until the amount is paid in full with interest. The company would, of course, pay off the amount in larger sums if their income justifies it but will make arrangements to pay these amounts definitely.
“This is with the understanding that Mr. Clarkson will report to this company any refunds that he gets on his income tax returns prior to June 1, 1945, either state or federal, in order that the amount of any such refunds be turned over to this company so that this company can apply these refunds on the tax that is still unpaid. Mr. Startz himself received a refund on his state income tax for time prior to June 1, 1945, and expects to receive another. He is informed that Mr. Clarkson received approximately $250.00 and will receive another refund from the state.
“Mr. Clarkson’s company, the Sportsman Trailer Company, is also- indebted to the Frigidmist Company on open account in the sum of $1,114.59 and this company will, of course, expect that item to be taken care of in the adjustment of this matter. I realize that the federal government will make no concessions or be interested in any indebtedness between the Frigid-mist Company and anyone else but I feel between Mr. Startz and Mr. Clark-son those adjustments can and should be made.
“Yours very truly,
“Frigidmist, Inc.
“/s/ R. H. Stewart
“R. H. Stewart
“RHS/di.” “Secretary & Treasurer
The defendants demurred to this petition on the ground that several causes of action were improperly joined and that the amended petition did not state facts sufficient to constitute a cause of action. This demurrer was overruled and defendants have appealed.
The first argument of defendants is that the petition was demurrable because it did not state facts sufficient to constitute a cause of action for the reason that the mutual mistake pleaded was one of law and not one of law and fact. The defendants cite many authorities wherein it has been held that in order for equity to reform a contract on account of a mutual mistake the mistake must be one of fact and not of law and if the error consists in erroneously supposing that the words of the instrument, with which the parties had made themselves acquainted, were legally effective to secure the desired result the mistake was one of law. In this connection they argue that the contract in question provided that the defendant Startz would pay the claims asserted against the partnership and that plaintiff pleaded in his petition that both parties thought this included income taxes when as a matter of law income taxes were a liability of the individual and not of the partnership. Plaintiff in response to this cites amongst other cases Federal Land Bank v. Bailey, 156 Kan. 464, 134 P. 2d 409, where we quoted with approval the rule set down in 23 R. C. L. 325, to the effect that whether the mistake be regarded one of law or of fact is not of so much consequence and the real question is whether it is a mistake which a court of equity will correct.
We find it not necessary, however, to decide that interesting question. It is pleaded in the petition that whatever the words of the written contract the parties, after the plaintiff returned from service and discovered that the income taxes had not been paid,’ interpreted the contract to mean that the defendants were bound to pay the taxes in question and not only made arrangements to pay them but actually made some payments upon the amount due, in conformance with this operative interpretation. We discussed such a situation in Kirkpatrick v. Chrysler Sales Corp., 127 Kan. 724, 275 Pac. 155. There we cited many cases in which we held the operative interpretation of a contract should be given controlling significance. In that case we stated:
“And so here. That the rights and liabilities of those litigants were not altogether and exclusively defined by the literal terms of the contract July 1, 1925, and ending June 30, 1926, was clearly revealed by the constant and unequivocal recognition of the' continuity of the business relationship existing between plaintiff and the Maxwell, Chalmers and Chrysler companies from 1918 to 1926 regardless of successive changes in their corporate control.”
It would be difficult to state a case where the rule would be more clearly applicable than here. Defendants are bound by the operative interpretation pleaded and the petition was not demurrable on the ground it did not state a good cause of action.
Defendants next argue that the petition was demurrable because several causes of action were improperly joined. The argument is that the petition asked for a reformation of the contract and also for the creation of a lien. Defendants argue that if we hold that the contract should not be reformed, then there is no lien to be enforced. The answer to that argument is that while we do not hold the contract should be reformed we hold that the operative interpretation of the contract is such that the petition states a good cause of action against the defendants for the recovery of money and for the payment of taxes regardless of whether or not the contract is reformed. Since we so hold in view of the fact that the petition alleges that the assets upon which the lien is asked are actually assets of the old partnership and that actually the change to Frigidmist, Inc., was in name only, a mere matter of form, the petition states a good cause of action for the lien also — hence there is no misjoinder of causes of action. It is well settled that it is proper in an action for specific performance to plead in the alternative and ask for damages for nonperformance. See Nelson v. Schippel, 143 Kan. 546, 56 P. 2d 469; Owen v. Christopher, 144 Kan. 765, 62 P. 2d 860; and Stramel v. Hawes, 97 Kan. 120, 154 Pac. 232.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Wedele, J.:
This appeal involves the validity of an appointment of an administrator of a decedent’s estate.
Appellant, sister of the decedent, contends she should have been appointed. The probate and district courts denied her petition and appointed a person wholly disinterested in the estate in response to a counter petition filed by seven appellees, all the other heirs at law. Appellees are two brothers and five nephews and nieces. The qualifications of the person appointed are not in dispute.
The real questions presented are whether the probate court was compelled to appoint appellant, one of the next of kin, or whether it had the power to exercise sound judicial discretion in the premises and, if so, whether it abused such discretion.
Elmer Anderson died intestate, a resident of Pottawatomie county. As stated, he left surviving him eight heirs at law: One sister, the appellant; two brothers and five nephews and nieces, appellees.
In the petition for the appointment of appellant it was alleged decedent at his death owned property of the following probable value: Personal property, $5,000; real estate, $22,500 with a probable annual income of $1,200. There was considerable unfriendly feeling among most, if not all, of the appellees towards appellant. Some of them testified they did not trust her. From the evidence of appellees it is quite apparent some of them did not regard her as competent and none of them regarded her as a desirable or suitable administratrix.
Part of this attitude arose from her conduct as administratrix of the estate of Oscar Anderson, deceased, another brother, in which estate the instant estate of Elmer Anderson had a one-half interest and appellant had the other half. The Oscar Anderson estate remains in the process of administration. Appellant is indebted to the Elmer Anderson estate in an unliquidated amount of a least $4,000. It appears she first denied such indebtedness in the probate court and later admitted the same. Appellant was also preparing to assert a claim against the estate of Elmer Anderson of at least $4,000 and possibly for a larger amount.
The district court found the facts previously stated concerning appellant’s indebtedness to and her claim against the estate of Elmer Anderson; that appellant was the administratrix of the Oscar Anderson estate in process of administration; the Elmer Anderson estate had the interest, previously stated, in the Oscar Anderson estate ; all heirs at law of Elmer Anderson, deceased, except appellant, objected to the appointment of appellant and joined in the petition for the appointment of Jesse W. Yantiss, a banker of Cleburne, Riley county; the latter was a satisfactory, competent and suitable person to be appointed and appellant was not a suitable or proper person to administer decedent’s estate.
Appellant contends the evidence does not support the finding she was not a competent or suitable person and the action of the district court in refusing to appoint her was oppressive and arbitrary. We cannot agree. There was substantial evidence to support the trial court’s finding. Where that is true this court will not disturb the finding on appeal.
From the record presented here it is quite apparent considerable estrangement existed between appellant and appellees. An examination of the record discloses probably the most generous thing that could be said is appellees lacked confidence in appellant to act for the best interests of the estate and all the heirs. Appellant was clearly a controversial figure. Her interests were adverse to those of the estate and the other heirs. A statement of one of the appellees is indicative. Referring to appellant the witness said:
“Hannah Nyquist don’t seem to remember what she borrowed from the estate.”
It is, of course, the duty of an administrator to represent the interests of the decedent’s estate and not his own. An administrator should not be placed in a position in which he is torn between a legal duty to protect the estate and a natural desire to advance his own interests. Here appellant admitted she would file a claim for an undetermined amount, probably in excess of $4,000, a claim for more than she admitted owing the estate. It is clear the amount she owed the estate and the amount of her claim were to be contested. The expressed lack of confidence and distrust of appellant by some of the heirs might have been sufficient grounds under the circumstances for the denial of her appointment. That point need not be determined. Certainly, however, the general feeling of all other heirs towards appellant combined with the circumstances of her indebtedness to and her claim against the estate were sufficient to support the finding she would be an unsuitable administratrix. (In re Estate of West, 165 Kan. 483, 486, 195 P. 2d 616.) In Justice v. Wilkins, 251 Ill. 13, 17, 95 N. E. 1025, it was well said:
“In passing upon the application of two or more persons equally entitled to administer, a large discretion must necessarily be left to the court appointing. The office of administrator is one of trust and confidence, and should not ordinarily be committed to one, if any choice is permitted by the statute, who has a special interest opposed to the interests of the other heirs.” (p. 17.)
See, also, extended annotation on subject in 1 A. L. R. 1245. A person who possesses personal qualifications as to education, ability, character, etc., is not necessarily a suitable person where he is of necessity a partisan of one faction in a contest of the character here presented. (In re Estate of Tracy, 214 Ia. 881, 883, 243 N. W. 309.)
See general treatment of subject in 1 Bartlett’s Kansas Probate Law and Practice, § 541.
Here we have two antagonistic factions among the heirs. It was obvious to' the trial court, as it is to us, that a just, fair and equitable administration of the estate would require a firm and impartial hand to conserve the estate and promote the just interests of all concerned. A qualified disinterested person was a wise choice under these circumstances.
Appellant argues the new probate code, G. S. 1947 Supp. 59-705 compels the appointment of next of kin. We cannot agree. The statute reads:
“Administration of the estate of a person dying intestate shall be granted to one or more of the persons hereinafter mentioned, suitable and competent to discharge the trust, and in the following order: (1) The surviving spouse or next of kin, or both, as the court may determine, or some person or persons selected by them or any of them. (2) If all such persons are incompetent or unsuitable, or do not accept, administration may be granted to one or more of the creditors, or to a nominee or nominees thereof. (3) Whenever the court determines that it is for the best interests of the estate and all persons interested therein, administration may be graned to any other person, whether interested in the estate or not.”
Even prior to the enactment of the new probate code this court in Brown v. Dunlap, 70 Kan. 668, 79 Pac. 145, said:
“Whether the plaintiff in error was the next of kin, and therefore entitled, as a matter of law, to be appointed administrator of the estate, we are not called upon to decide. The court found that he was not a suitable' person to administer the estate and refused to appoint him. Such finding is conclusive unless we can say that there was no substantial evidence to support it.” (p. 671.)
Touching this quotation and comment on the rule announced in the Brown case and the possible intention to enlarge the discretion of the probate court under the new code see the rather recent case of In re Estate of Grattan, 155 Kan. 839, 850, 130 P. 2d 580. The same rule has been announced in other jurisdictions. (Waverly Trust Co., Petitioner, 268 Mass. 181, 167 N. E. 274, as follows:
“While the legislative enumeration of classes and preferences is strong, it is not' aboslutely imperative. It has an element of flexibility to 'the extent that for sound judicial reasons appealing to the wisdom and conscience of the judge the statutory order of precedence may be varied and some other suitable person be appointed, provided the interests of all parties concerned will be promoted thereby.” (p. 184.)
Referring again to the first classification in the foregoing statute it may be well to state: There was no surviving spouse; none of the brothers, nephews or nieces desired the appointment for himself; they all opposed appellant’s appointment and joined in the selection of a wholly disinterested person.
Since there was substantial testimony with respect to appellant’s unsuitability she did not qualify under the preference classification of the statute. In order to be entitled to the appointment it was necessary that she be not only competent, but suitable as well. (In re Estate of West, supra, p. 486.) In determining the question of suitability the court of necessity was vested with discretionary power. (In re Estate of Grattan, supra, p. 850; In re Estate of Paronto, 163 Kan. 85, 180 P. 2d 302; In re Estate of West, supra; In re Estate of James, 168 Kan. 165, 211 P. 2d 123.) No abuse of the exercise of such power appearing the judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Parker, J.:
These two cases, consolidated after being appealed to this court, originated as probate court proceedings. The all decisive issue in each requires judicial construction of the Kansas probate code.
The facts responsible for the proceedings as initially instituted are relatively unimportant to a decision of the appellate issues and need not be detailed. At the moment essential features of those facts and the primary issues involved can be joined in one statement thus:
Eight months after the death of Cecil L. Brasfield, who died on August 22,1947, a resident of Sedgwick county, the appellees as tort creditors of the decedent filed a petition in the probate court of that county fully setting forth the nature of their claims against him as an alleged negligent wrongdoer and asking for the appointment of a general administrator for his estate. Decedent’s father and mother answered stating their son left no property subject to administration and hence there was no legal basis for the relief sought by the petitioners. Thereupon the probate court denied the petition and refused to appoint a fiduciary as therein requested on the ground there was no estate requiring administration. Upon appeal the district court of Sedgwick county, on July 13, 1948, found the probate court’s action was erroneous, reversed its order, and directed it to proceed to appoint an administrator. Appeal No. 37,546, perfected on September 10,1948, by the father and mother, is from that order and judgment.
Within a few days after rendition of this district court judgment the tort creditors petitioned the probate court for, and obtained the appointment of, a special administrator to accept exhibition of and make defense to their demands against the decedent’s estate in the same manner as a regular administrator might do, if acting. There after, and on August 21, 1948, -they filed petitions for the allowance of those demands in probate court. Later they procured their transfer to the district court for trial. There the special administrator demurred to all claims so transferred on the single ground they were barred because the petitioning creditors had failed to obtain the appointment of an administrator for the estate of the decedent Brasfield on or before August 22, 1948. This demurrer was overruled. Appeal No. 37,657, perfected by the special administrator, seeks a reversal of that order.
The foregoing brief factual statement should perhaps be supplemented by a statement relating to stipulated facts in both the probate and district courts. There the parties agreed decedent was a resident of Sedgwick county on the date of his death and that appellees were creditors within the meaning of the probate code, entitled to petition for the appointment of an administrator for his estate. They also stipulated, although the record with respect thereto is not clear and leaves much to be supplied by inference, that the known tangible assets of the estate of Cecil Brasfield, who was killed in the automobile accident giving rise to appellees’ claims, were of the approximate value of $25 and insufficient to defray funeral and administration expenses. However, it cannot be said, as appellants suggest, the stipulation purported to cover all assets of the estate or that the parties were in agreement respecting its intangible assets. As to them, we are constrained to hold, the record clearly discloses appellees contended the estate had certain rights under the omnibus clauses of an automobile insurance policy, covering liability incurred by decedent while he was driving his father’s automobile, involved in the accident, which constituted assets while appellants insisted, that notwithstanding and irrespective of such policy, the only assets consisted of the tangible property referred to in the stipulation.
Appellants specify two errors in the rendition of the judgment involved in the first appeal. , We now direct our attention to the first specification charging the district court with error in reversing the order of the probate court denying the petition for appointment of an administrator. They state the question involved under this assignment of error is whether it is proper, over the objection of heirs at law, who have paid a decedent’s funeral expenses, to appoint an administrator for his estate where it consists entirely of clothing and personal effects which do not exceed $25 in value. At the outset we pause to observe this question, and.much of appellants’ argument dealing with it, erroneously assumes a situation where creditors, notwithstanding they have petitioned for administration of the estate of a decedent whose funeral expenses have been paid by his heirs, have positively stipulated there are no assets in the estate, tangible or intangible, exceeding the amount required to reimburse the heirs for advanced funeral expenses. Here, as we have heretofore pointed out, the petitioning creditors have made no such stipulation and are insisting to the contrary.
Thus, in view of the record, it appears the actual question involved, under the first specification of error, is whether admitted creditors of a resident intestate decedent are entitled to the appointment of an administrator for administration of his estate over objection of his heirs at law when the known tangible assets of his estate are conceded by the petitioning creditors to be less than the amount required to pay funeral expenses and costs of administration.
When analyzed the principal argument advanced by appellants in support of their position on the question just stated seems to be that the existence or nonexistence of assets is the test to be applied in determining whether administration of a resident intestate’s estate is required under our statute and that failure of a petitioning creditor on the hearing of his petition for letters of administration to establish assets in an amount more than sufficient to pay funeral bills and expenses of administration justifies, if it does not actually require, refusal of letters of administration, and administration of such an estate, by the probate court in the first instance and on appeal by the district court. On the other hand appellees’ position with a respect to this particular point is that where — as here — the sufficiency of assets to satisfy claims in whole or in part is controverted the tribunal having statutory authority to appoint an administrator for such an estate cannot inquire into the existence or value of those assets or make their existence or nonexistence a prerequisite to its administration but is required to appoint an administrator to the end that the exact value and extent of the estate can thereafter be ascertained in the course of its administration as contemplated by statute.
We find much in pertinent provisions of our comparatively new probate code, especially when they are considered together, indicating that administration of the estate of an intestate resident decedent, regardless of its known assets, is required if and when a creditor demands it.
All statute references appearing hereinafter are to the 1947 Supplement to the General Statutes of Kansas for 1935 unless otherwise indicated.
Section 59-2221 provides that any person interested in an estate after the death of an intestate may petition for administration. In construing this section we have held (see In re Estate of Erwin, 167 Kan. 316, 205 P. 2d 925) that under its terms a person is interested in the estate of a decedent if he has a claim against it which he desires to present and prosecute. 59-2219 sets forth what a petition for administration shall contain. One of its requirements is that the petition shall state the general character and probable value of the real and personal property. 59-2232 directs the probate court to appoint an administrator for an estate upon the hearing of a petition for administration and proof thereof. 59-705 permits the appointment of a creditor as administrator if other persons named therein are incompetent or unsuitable or do not accept the trust. 59-2237 provides that any person may exhibit his demand against the estate of a decedent by filing his petition for its allowance in the proper probate court.
The provisions of the five sections of the statute to which we have just referred contain nothing limiting or restricting the right of a creditor to compel administration of an estate so long as his petition, and on its hearing the proof, neither of which is in issue here, meet their requirements. Certainly it can scarcely be doubted they contemplate that he will be granted that right. Therefore, unless the restriction appears elsewhere, we cannot read something into those provisions that is not there and hold that it is contemplated by their terms.
So far as we have been able to discern from our examination of the code there is but one section which could possibly be construed as limiting the right of a creditor to compel administration. It is section 59-2203 which reads in part as follows:
“Proceedings for the probate of a will or for administration shall be had in the county of the residence of the decedent at the time of his death; if the decedent was not a resident of this state, proceedings may be had in any county wherein he left any estate to be administered . . .”
Definitely, the foregoing language, which we note is substantially the same as that to be found in statutes (see G. S. 1935, 22-301) antedating the enactment of the present probate code, makes the existence of assets a condition precedent to administration of the estate of a nonresident decedent. We so held in In re Estate of Rogers, 164 Kan. 492, 190 P. 2d 857.
Appellants stress that 59-2203 relates to venue and insist it has no significance or bearing on the question now under consideration. To say the least their conclusion as to its force and effect is highly debatable. We are inclined to believe that insofar as a resident of the county is concerned the failure to make the existence of assets a jurisdictional prerequisite to administration under such section is indicative of legislative intent to refrain from doing so. But we need not labor the question. The important point for present purposes is that such section, like all others heretofore mentioned, neither limits nor restricts the right of a creditor to force administration of such an estate.
A further and more conclusive indication of like intent is to be found in section 59-1507, which reads:
“Whenever it is established that the estate of a decedent, exclusive of the homestead and allowances to the spouse and minor children, does not exceed the amounts required for funeral expenses, expenses of last sickness, wages of servants during the last sickness, costs of administration, debts having preference under the laws of the United States or this state, and taxes, the executor or administrator may by order of the court pay the same in the order named, and present his account with an application for the settlement and allowance thereof. Thereupon the court, with or without notice, may adjust, correct, settle, allow or disallow such account, and if the account is allowed, summarily determine the heirs, legatees, and devisees, and close the administration.”
To say that this section, which by the very nature of the language used therein obviously has reference to resident estates only, does not contemplate the appointment of administrators for resident estates before inquiry is made as to their assets would fail to give due import to its plain and unequivocal terms.
But that is not all. We have repeatedly held (see West’s Kansas Digest, Executors and Administrators, §§ 224, 225 [1]; Hatcher’s Kansas Digest, Executors and Administrators, § 40), as the clear and unequovical terms of the nonclaim section of the code (59-2239) require, that all demands against estates must be exhibited in probate court and that creditors have no claim against the property of an intestate decedent, other than liens existing at the date of his death, unless an administrator has been appointed for his estate within one year after his death. To so hold and at the same time hold those same creditors, because known assets of the estate appear to be inconsequential are to be denied an opportunity of ever estab lishing their claims or attempting to bring assets into the estate to pay them, would lead to results so incongruous and unfair and so lacking in fundamental justice as to preclude any necessity for further discussion.
Our review of the statutory sections heretofore mentioned convinces us the probate code of this state not only contemplates but requires administration of the estates of intestate resident decedents when petitioned for by creditors even though the value of their known or apparent assets appears to be inconsequential. This conclusion in our opinion does not require authorities to fortify or support it. Even so they are to be found in decisions construing our earlier statutes relating to the same subject. See Nickel v. Vogel, 76 Kan. 625, 92 Pac. 1105, holding that the jurisdiction of the probate courts of this state to appoint administrators does not depend upon the existence of either assets or creditors; Brown v. Baxter, 77 Kan. 97, 94 Pac. 155, which clearly infers, if it does not actually so hold, that creditors are entitled to have the estates of resident decedents administered; and Hotchkiss v. Ogle, 153 Kan. 156, 109 P. 2d 134, where it is said there are many circumstances under which necessity for administration exists. We have also held (see Richards v. Tiernan, 150 Kan. 116, 91 P. 2d 22) that an administrator represents both heirs and creditors and always recognized that among others one of his duties is to marshal, even to ferret out if necessity requires, the assets of an estate. How, we inquire, is that to be done if requests for letters of administration are to be summarily denied?
Appellants suggest the conclusion just announced would result in no benefits to heirs at law who oppose administration and expense to them or to the county in those cases where creditors are unable to establish assets in amounts sufficient to pay their demands. The answer to one phase of this contention is to be found in our decisions holding that administration is for the benefit of creditors as well as heirs. Be that as it may, our decision need not result in financial injury to heirs or to the county. The provisions of 59-2214 authorize the probate court to tax costs against creditors and even permit it to require them to give security for costs if and when, in the exercise of its discretion, it deems that action is just and equitable.
The second specification of error is that the district court erred in directing the probate court to appoint an administrator. Baldly stated, appellants’ position with respect thereto is that once it found administration of the estate was required the district court was obliged to appoint an administrator. We do not agree. It is true, as appellants assert, that under the provisions of 59-2408 the district court has the same general jurisdiction and power as though the controversy had been commenced by action in that court. What was the controversy in probate court? Resort to the pleadings, likewise the probate court’s judgment, reveals the issue there involved and decided was whether administration of the estate was required, not who should be appointed administrator. In such a situation the appeal, as we indicated in Hutchinson v. Pihlblad, 157 Kan. 392, 395, 139 P. 2d 835, while it transferred jurisdiction over the controversy passed upon to the district court, did not take from the probate court the original jurisdiction possessed over the other phases of the proceeding still pending and undisposed of. Therefore the trial court did not err in ordering the probate court to proceed with the appointment of an administrator.
In view of what has already been decided in this opinion appellants’ claim that possible liability under the insurance policy heretofore referred to is not an asset of the involved estate is premature and hence not involved in this appeal.
The error assigned in the second appeal is that the trial court erred in overruling the demurrers of the special administrator to the petitions filed in probate court by the appellees for allowance of their demands against the decedent’s estate. Before this claim is given consideration it should be stated that these petitions contained a full recital of the facts relied on by the claimants, including allegations disclosing (1) the filing of the petition for appointment of an administrator on April 15,1948; (2) the denial of that petition in probate court; (3) the appeal from such order to district court; and (4) the judgment of the district court reversing the probate court and directing the appointment of the requested fiduciary. Likewise, it should be pointed out that on the date the demurrers were overruled the trial court knew that an appeal had been taken from such judgment. Although it has already been said, we desire to repeat for purpose of emphasis that the demurrers were predicated solely upon the ground the petitioning creditors had not obtained the appointment of a general administrator for the estate of Cecil Brasfield within one year after the date of his death.
In support of this specification of error the appellant special administrator states, and practically all of his argument is devoted to the proposition, the requirement of the nonclaim statute (59-2239), that “no creditor shall have any claim against or lien upon the property of a decedent, other than liens existing at the date of his death, unless an executor or administrator of his estate has been appointed within one year after the death of the decedent . . is not satisfied by the appointment of a special administrator. In view of the facts of this case we do not believe questions relating to the effect of the appointment of a special administrator, under the provisions of 59-710, or the nonclaim section of the statute, or the extent of his powers once he is approved, are proper subjects for appellate review on this appeal. The only issue as we see it, at least that is what the district court passed upon, is whether under the facts and circumstances of this case, as they have been related, the petitioning creditors’ claims were barred for the express reason set forth in the demurrers. If they were not it is elementary the rulings on the demurrers were not only proper but required.
Since the enactment of the Kansas probate code we have not been required to pass upon the appellate issue thus raised. That is nothing new or startling. Neither does it make its decision particularly difficult if it be kept in mind that one of the purposes responsible for the new legislation was to provide for uniform and orderly procedure in cases not within the purview of the code of civil procedure and remembered that its provisions, like those of the civil code, are to be practically construed in the light of well recognized and fundamental rules of judicial construction. When so construed it must, of course, be conceded at the outset that under its terms the institution of proceedings leading up to and required to permit the filing of claims against the estate of a decedent are tantamount to the commencement of an action in the probate court. In Hurst v. Hammel, 153 Kan. 827, 829, 113 P. 2d 1045, we expressly stated that its so-called nonclaim provision (59-2239) is clearly a statute of limitations and in other cases (see Allen v. Turner, 152 Kan. 590, 106 P. 2d 715; Cartier v. Central Trust Co., 155 Kan. 191, 194, 125 P. 2d 435; In re Estate of Hill, 162 Kan. 385, 392, 176 P. 2d 515) have recognized that to be the import of its terms. A like construction (see In re Estate of Colyer, 157 Kan. 347, 350, 351, 139 P. 2d 411) has been given to 59-617, a similar provision fixing the period of limitation in which interested persons must make application for the probate of a will.
We discern no sound reason for giving statutes of limitation in the probate code any greater or less effect than is given to lim itation statutes to be found in the code of civil procedure (ch. 60, art. 3, G. S. 1935) and we hold there is none. Turning to our decisions dealing with the force and effect to be given the terms of those appearing in the civil code we find the law of this state has always been that if a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the running of the statute of limitations applicable to the remedy is postponed, or if it has commenced to run, is suspended or tolled, during the time the restraint incident to the proceedings continues (City of Hutchinson v. Hutchinson, 92 Kan. 518, 141 Pac. 589; Lindholm v. Heithecker, 113 Kan. 96, 213 Pac. 671; Campbell v. Durant, 110 Kan. 30, 35 202 Pac. 841; Harrison v. Scott, 77 Kan. 637, 641, 95 Pac. 1045; Baker v. Craig, 128 Kan. 676, 679, 280 Pac. 771; Hill v. Grand Lodge of I. O. O. F., 157 Kan. 34, 138 P. 2d 438; Preston v. Shields, 159 Kan. 575, 583, 156 P. 2d 543).
That the foregoing decisions are in accord with the weight of authority will be found upon resort to 54 C. J. S. 278, § 247; 34 Am. Jur. 194, § 237; American Digest System, Limitation of Actions, §§ 105 to 111, inclusive.
From the record of the appeal now under consideration it clearly appears appellees filed their petition for appointment of an administrator in ample time to permit the appointment of such a fiduciary within the limitation period prescribed by 59-2239 and that their failure to obtain his appointment within the time required by its terms was not due to any lack of diligence on their part but to protracted litigation by persons who were interested in seeing to it that the estate of Cecil Brasfield was not to be administered. Under such conditions and circumstances the decisions to which we have heretofore referred compel the conclusion that the running of the statute of limitation has been tolled during the pendency of the litigation which has prevented appellees from obtaining the appointment of the administrator.
Appellants rely heavily upon our decisions holding that anyone having a claim against a decedent’s estate is obliged to have an administrator appointed within one year after the decedent’s death in order to assert a claim against his estate. They place special emphasis upon our decision in In re Estate of Dumback, 154 Kan. 501, 119 P. 2d 476. We have no desire to recede from what was held in the Dumback case or in any of our other decisions of similar import. We point out, however, that when carefully examined it will appear those cases all deal with situations where creditors have failed to institute proceedings until it is too late to obtain the appointment of an administrator in the due course of procedure provided in the probate code and that none of them go so far as to hold that its nonclaim or limitation section is not tolled when proceedings are instituted in time and the appointment of an. administrator prevented by litigation of the character here involved.
It has been suggested the conclusion just announced will permit creditors other than those who have been denied the right of administration to file claims long after the period fixed by the non-claim or limitation section of the probate code. Not so. The running of the statute is tolled only as to the diligent creditor who seeks the appointment of an administrator and fails to procure his appointment within the year through no fault of his own.
The district court did not err in the rendition of the judgment involved in appeal No. 37,546 nor in the overruling of the demurrer in appeal No. 37,657. It follows all judgments herein involved must be and they are hereby affirmed- | [
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The opinion of the court was delivered by
Price, J.:
This was an action to recover a real estate broker’s commission under a written listing agreement. At the conclusion of defendant’s evidence the court directed the jury to return a verdict for plaintiff in the sum of $1,475. Motion for a new trial was overruled and judgment being entered upon the verdict, defendant has appealed.
At the outset it may be stated that defendant admitted the execution of the listing agreement but contended, both in his answer and oral testimony, that it was contemporaneously orally agreed between the parties such agreement would become valid and effective only upon plaintiff ascertaining for him information from the federal taxing authorities to the effect that the proposed sale could qualify as an installment sale for income tax purposes.
The written agreement was as follows:
“CONTRACT
“April 26, 1947
“To Cherry Realty Company:
“For and in consideration of One Dollar ($1.00) the receipt of which is acknowledged I hereby appoint you exclusive agent to make sale of the real property herein described as Section 16, Township 21, Range 31, Finney County, Kansas, for the price of $44,000.00 upon the following terms $22,000.00 cash, $22,000.00 secured by mortgage thereon for 5 years at 6 per .cent, and you are hereby authorized to accept a deposit to be applied on the purchase price, and to execute a binding contract for sale on my behalf.
“In case the above described property is sold or disposed of within the time specified, I agree to make the purchaser a good and sufficient warranty deed to the same, and to furnish a complete abstract of title, if required; and it is further agreed that you shall have and may retain from the proceeds arising from such sale 5 percent commission on the $15,000. and 2%% on balance.
“This contract to continue until June 10th, 1947, and thereafter until terminated by me giving unto you as agent 10 days notice in writing.
“One-half of growing wheat crop to be delivered at market by
/S Edw. E. Joyce.”
Plaintiff testified that for several years he had been engaged in the real estate business in Wichita and that .he first met defendant Joyce a few days prior to April 26, 1947; that on the latter date they had a general discussion concerning the sale of defendant’s land in which defendant said he wanted $44,000 for it, that he wanted a quick sale, and that defendant gave him the legal description of it. That he then prepared the agreement and defendant read and signed it without objection; that about a week later defendant came into his office complaining that he wasn’t making enough effort to sell the land; that he denied this accusation and told defendant he had advertised it in a Wichita newspaper and was making every effort to sell it; that on May 30, 1947, being Memorial Day, he drove Mr. and Mrs. Haiber of Halstead (who had come in to see him in response to the ad) and two friends of theirs out to Finney county to look over the land. There they met Joyce and the six of them inspected the land. That Haiber asked defendant if he wanted to sell and the latter remarked that he guessed he would have to. Plaintiff and his party then returned to Wichita. A few days later he drew up a contract of sale, Haiber and his wife signed it and he then mailed it by registered mail, together with Haiber’s down-payment check for $5,000, to defendant. The latter did not reply, but about ten days later returned to Wichita, at which time he, Haiber and plaintiff all met at the latter’s office. During this conversation defendant said he had been up to see the internal revenue officials about his income tax, that he had learned he would have to pay a tax on the total sale price in one year, rather than being able to spread it over a period of years, and therefore he could not afford to go through with the deal. Plaintiff testified this was the first time pefendant ever had said anything about the matter of income tax; that Haiber then offered to pay him the full purchase price in cash, but defendant refused to go through with the deal and handed the contract and check back to Haiber, who then seemed somewhat provoked and tore up the check and threw it in the waste basket. Plaintiff recovered and preserved the check and it was introduced in evidence together with the agreement of April 26, 1947, and the contract of sale which Haiber and his wife had signed. He further testified that he had made demand of defendant for his commission but that payment had been refused.
Mr. Haiber, testifying in behalf of plaintiff, stated that when he met defendant at- the farm in Finney county he said to him, “Mr. Joyce, I understand you want to sell your farm,” and the latter replied, “Well, I don’t want to but I may have to.” That they discussed a division of the growing wheat and defendant suggested it would be most convenient to him to be made at the elevator; that defendant said he would want the sale to be on the basis of one-half down with one-fifth of the remainder payable annually for five years with six percent interest, and that he, the witness, was ready, willing and able to buy it on those terms; that about a week later he met defendant and plaintiff in the latter’s office in Wichita, at which time defendant said he had been to see the income tax authorities and that as it would cost him about $7,000 in taxes he could not afford to go through with the deal; that nothing was said about income taxes during their conversation in Finney county and that he didn’t know what defendant meant when he said, “Well, I don’t want to (sell) but I may have to.” The witness further testified that he was ready, willing and able to pay all cash or buy the land on the terms suggested by defendant at the time the inspection of the land was made, but that defendant simply refused to gO’ through with the deal on account of having to pay so much income tax on the sale price.
Defendant’s demurrer to plaintiff’s evidence was overruled by the court.
The defendant testified that he was sixty-one years of age; that he was a retired shop foreman and mechanic, had lived in Wichita since 1921; that he had had experience with real estate firms in Wichita and had bought and sold property other than that involved in the present litigation; that he first met plaintiff in the latter part of April, at which time something might have been discussed concerning his land; that on April 26,1947, he and plaintiff discussed the sale of it and in this conversation plaintiff told him that during the current year he would only have to pay income tax on the amount he received as a down payment, but that he doubted the correctness of plaintiff’s statement and so advised him; that he and plaintiff discussed and worked out a schedule of payments, being one-half down and one-fifth of the remainder payable annually for five years, and that he signed the listing agreement in question, but that before signing he said to plaintiff, “We want it understood —fully understood — that this part of this contract, if the income people have to collect on more than this half, this is no contract.” That plaintiff said he would find out about the income tax matter and let him know right away. That when plaintiff and Haiber were out in Finney county he, defendant, was all ready to go ahead with the deal but that he did not at that time discuss the matter of taxes with plaintiff as he just took it for granted plaintiff had checked on the matter and ascertained the law to be in his, defendant’s, favor. That upon receiving the check and form of contract signed by Haiber he took the abstract of title to the property to Garden City and had it brought down to date and then returned to Wichita to contact plaintiff. On this occasion plaintiff was temporarily out of his office and in the meantime defendant went to the internal revenue offices to see the man who had prepared his income tax returns for several years, at which time he first learned the amount of tax he would have to pay in the event he sold the land in question. He then met plaintiff in the latter’s office, at which time plaintiff admitted he had not ascertained what the law was with reference to the tax matters but insisted that “they can’t collect on anything but that half because- that is all you are receiving.” That he told plaintiff he had just been to the revenue office and had learned differently and that under the circumstances he could not go through with the deal because of the large amount of tax he would be required to pay. That plaintiff then suggested they get in touch with the Haibers and later the four of them met in plaintiff’s office, at which time the witness explained the situation to the Haibers. That Haiber seemed to understand and said, “I will just call the deal off” and then took the check from the desk, tore it up and threw it in the waste basket. Defendant further testified that he had not previously consulted his income tax man about the proposed sale for the reason that plaintiff had agreed to find out and he was just leaving it up to him. On recross-examination he admitted that the whole matter had been discussed between him and plaintiff before the listing agreement was signed.
The testimony of defendant was the only evidence offered in his behalf and plaintiff demurred thereto and moved to- strike all evidence which in any way attempted to vary the terms of the written listing agreement of April 26,1947. Plaintiff also moved for a directed verdict in his favor.
This demurrer and the two motions were sustained and under direction of the court the jury returned a verdict in favor of the plaintiff in the amount of $1,475.
Defendant’s motion for a new trial was overruled. Judgment was entered upon the verdict and this appeal followed.
In view of defendant’s admission of the execution of the listing agreement, the only question before us is whether he was entitled to show the alleged oral agreement pertaining to the ascertainment of facts by plaintiff concerning the income tax regulations.
He concedes the general rule to be that parol evidence is never admissible to vary or contradict the terms of a complete and unambiguous written agreement, but seeks to bring his position under the well recognized exception to the effect that such evidence is admissible, not to contradict the writing, but to prove that a writing purporting to be an agreement is not to take effect until the happening of some event or the ascertainment of some fact, and he relies on the cases of Stroupe v. Hewitt, 90 Kan. 200, 133 Pac. 562; Little v. Liggett, 92 Kan. 385, 140 Pac. 838, and Mayse v. Grieves, 130 Kan. 96, 285 Pac. 630.
In the Stroupe case, swpra, which was an action to cancel a note and mortgage executed pursuant to a written agreement for the sale and exchange of property between the parties, the contract was placed in escrow in a bank but the conditions of the deposit, which in substance were that the contract was not to take effect until one of the parties should have five days in which to investigate the truthfulness of the representations made by the other party concerning the property to be exchanged, were not stated in writing. The court held that evidence of such oral agreement was admissible — • not to contradict the writing — but to show when it took effect or that it never took effect.
In the Little case, supra, the court held the written agreement under consideration to be uncertain, ambiguous and also incomplete—and followed the holding in the Stroupe case, supra, in permitting the introduction of parol evidence to show that the written agreement was not to take effect until the ascertainment of some additional fact.
In the Mayse case, supra, in the course of the opinon, at page 100, the court commented on the fact that the contract in question was not only silent as to the condition of being able to get the money at a local bank or from another party, but it was also incomplete and inaccurate to the extent that neither party might wish to be bound thereby because it recited that the purchaser had paid a certain amount of cash for which the owner had acknowledged receipt, when in fact no money had been paid. The court quite properly held that where a written contract is incomplete or silent in some essential or vital point incident thereto, parol evidence is admissible to aid in its construction.
On the other hand, plaintiff argues that the written listing agreement was complete in every detail, free from ambiguity, and that to admit evidence of the alleged prior and contemporaneous oral agreement is to permit defendant to come into court and say that the written contract does not mean what it says.
The force and effect of the written listing agreement is the vital question involved in this appeal. By its terms defendant appointed plaintiff his exclusive agent to sell the described land for a stated amount and on certain terms, and he authorized him to accept a deposit to be applied on the purchase price and to execute a binding contract of sale in his behalf. In turn, defendant agreed to execute a warranty deed and furnish an abstract of title, and then followed the provision relating to the commission due plaintiff. The contract was to be in force until June 10,1947, and thereafter until terminated by defendant upon the giving of ten days’ notice in writing. Is there any uncertainty or ambiguity about the agreement? By its terms was there anything remaining to be done?
The general rule that parol evidence is not admissible to vary or contradict the terms of a complete and unambiguous written agreement is elementary and is universally applied.
“It is a general principle that where the parties to a contract have deliberately put their engagement in writing in such terms as import a legal obligation without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the entire engagement of the parties and the extent and manner of their undertaking have been reduced to writing; in other words, the parol agreement is merged in the written agreement and all parol testimony of prior or contemporaneous conversations or declarations tending to substitute a new and different contract for the one evidenced by the writing is incompetent.” (20 Am. Jur., Evidence, § 1099, p. 958.)
“It is a general rule that parol or extrinsic evidence is not admissible to add to, subtract from, vary, or contradict judicial or official records or documents, or written instruments which dispose of property, or are contractual in nature and which are valid, complete, unambiguous, and unaffected by accident or mistake. This rule, which is known as the parol evidence rule, is one of substantive law and not merely one of evidence; and it obtains in equity as well as at law.” (32 C.J.S., Evidence, § 851, p. 784.)
In the case of Guaranty Co. v. Grabske, 111 Kan. 271, 207 Pac. 322, this court said:
“It is elementary that a written contract in itself complete and free from ambiguity cannot be altered or enlarged by showing prior or contemporaneous oral agreements where the writing purports to be a full expression of the agree ment. When parties have deliberately put their engagements in a written contract it is deemed to be the best and only evidence of their agreements, and it is not competent for one of them to assert or show that there were conditions or limitations of liability different from those specified in the writing. The indemnity contract in question is a complete instrument which purports to embody the conditions upon which the liability of defendant should depend. The pleaded oral agreement so closely relates to the subject matter of the writing as to be in fact a part of the transaction, and not only adds conditions not in the writing, but some of them are contrary to its terms and obligations. In such a case all prior or contemporaneous negotiations and understandings are deemed to be merged in the contract and must be determined from the writing itself.”
See, also, Gerlach-Barklow Co. v. Moore, 118 Kan. 274, 234 Pac. 958; Continental Supply Co. v. Morgan, 133 Kan. 121, 298 Pac. 790; Arensman v. Kitch, 160 Kan. 783, 165 P. 2d 441; McKay v. Clark, 162 Kan. 653, 178 P. 2d 679, and Frogge v. Belford, 168 Kan. 74, 211 P. 2d 49.
Here we aré not concerned with the weight and credence to be given defendant’s evidence concerning the alleged oral agreement. That was a question for the jury in the event it was admissible. Our question is whether it tended to vary, qualify or in fact nullify the written listing agreement. If defendant’s theory is correct there was no contract at all between the parties until plaintiff should ascertain from the federal taxing authorities that defendant would not have to pay tax on the full sale price in one year. In other words, defendant now contends the listing agreement does not mean what it says and is a complete nullity. He admitted the alleged oral understanding was prior or contemporaneous to the execution of the listing agreement, and following the general rule we hold that it was not competent for him to assert that there were conditions or limitations of liability different from those specified in the writing. The court did not err in striking such evidence.
And finally, it is argued the court erred in failing to sustain defendant’s demurrers to plaintiff’s petition and evidence. We think the petition was clearly sufficient to withstand the demurrer, and with respect to the demurrer to the evidence defendant’s argument is based upon the proposition that as the contract itself provided plaintiff should retain his commission from the proceeds arising from the sale, then it clearly contemplated that he would be entitled to a commission only when and if a sale had been completed. The answer to this argument is that it was the defendant himself who blocked the sale, for all of the evidence clearly shows that Haiber was ready, willing and able to purchase either for cash or on the terms set out in the agreement itself.
The lower court committed no error in removing from the jury’s consideration the evidence of the alleged prior and contemporaneous oral agreement and in directing a verdict for the plaintiff. The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
HortoN, C. J.:
An information was filed charging the defendant with the violation of the prohibitory law. This information contained five counts, charging as many distinct offenses. The jury returned a verdict finding the defendant guilty upon the third, fourth and fifth counts, and not guilty upon the first and second counts. • The defendant was sentenced to pay a fine of $150 for the offense charged in the third count, $200 for the offense charged in the fourth count, and $250 for the offense charged in the fifth count. He was also adjudged to pay all the costs, and was committed to jail until the fine and costs were paid.
The first objection presented to the ruling of the district court is, that H. T. Chittenden, on his examination as to his competency, disclosed such a condition of his position, sympathy, and bias, as rendered him incompetent to sit as a juror. It appears from the record that Chittenden, after his preliminary examination to ascertain whether he was competent as a juror, was challenged for cause by the defendant, and that the challenge was overruled by the court; but soon after, and before any other jurors were examined and before any juror was challenged peremptorily by the defendant, the court excused Chittenden, and he did not sit as a juror. After Chit-tenden was excused, the defendant challenged peremptorily five other jurors — Morgan, -Kibbe, Tabor, Gates, and Wood. Therefore the overruling of the challenge of Chittenden for cause did not prejudice the defendant, and if any error was committed by the court, it was not injurious to the defendant. Section 293 of the criminal code provides:
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
After the state had introduced all of its evidence, and before the defendant was put on his defense, the county attorney, in behalf of the state, elected to rely on sales made to William Porter for convictions under the fourth and fifth counts of the information. It is now claimed that there was no proof of any sale made to William Porter. The record shows that W. R. Porter was sworn as a witness, and testified to sales made by the defendant to him, but did not upon his examination state his Christian name. It is a general rule, however, that the names of the witnesses, when known, are required to be indorsed on the information. Among the names so indorsed was that of William Porter. W. R. Porter was called, and testified that he had bought beer and whisky of the defendant. No other Porter testified as a witness. If W. R. Porter had not been William Porter, doubtless objection would have been taken to his being sworn as a witness. Again, if W. R. Porter was not William Porter, his name should have been indorsed on the information at the time he was called to testify, by leave of the court, as other witnesses’ names were. In electing to rely for conviction on the sales testified to, the county attorney evidently referred to W. R. Porter as William Porter, and we think it was fully understood by all the parties and the jury, that W. R. Porter was the identical William Porter whose name appeared upon the information. It cannot be urged seriously that the defendant had no knowledge that he would be required to prepare his defense for sales made to William Porter, or that he was surprised in being required to answer for sales of intoxicating liquors to said person. The information notified him that William Porter was a witness against him, and before he introduced any evidence, the state, through the county attorney, gave him the further information that convictions were sought for under the fourth and fifth counts of the information on account of sales made to William Porter.
It is alleged, as a third objection, that the evidence proved that the defendant had a place of business in two different buildings within a period of a month or so — one building being a story and a half high, on lot 58 on Brownie avenue, in Scranton, and the other a building of one story, upon another lot; that the sales charged in the information were alleged to have been made in the building on lot 58; that the evidence showed that the sales to W. R. Porter or William Porter were not made on lot 58, the one described in the information, but in the building in another place, and therefore that the jury erred in finding the defendant guilty upon the fourth and fifth counts. We have read all of the record, and carefully examined the witnesses’ testimony referred to by counsel to sustain the foregoing statements, but we differ with counsel as to what the evidence establishes. John W. Lord, a witness produced on the part of the state, testified that he resided in Scranton, Osage county, and knew the defendant; and knew where his place of business was. He testified that he did business in a story- and-a-half frame building, located on lot 58 on Brownie avenue, in West Scranton, in the city of Scranton, Osage county, and state of Kansas. No witness contradicted the location of the building in which the defendant did business, but one testified that the building was one story only. The jury were the judges of the credibility of the witnesses and the weight of their testimony, and we think there was ample evidence to show that the sales were made at the place charged in the information.
It is further objected that the court erred in instructing the jury that “each and every sale of intoxicating liquor made without' a druggists5 permit therefor from the probate judge of the county wherein such sale is made, is unlawful.55 Under the allegations in the information upon which the defendant was tried, this instruction was proper. The offenses alleged were for unlawfully selling intoxicating liquors without first having procured a permit therefor, as required by law. The instruction declared the law as applicable to the facts presented to the jury.
Finally, it is contended that the evidence tending to show that the defendant had no permit, was insufficient. It appears that Alexander Blake testified on the part of the state that he was probate judge of Osage county; that he had occupied that position for over two years and a half prior to the trial; that he had in his custody the records pertaining to druggists5 permits ; that he had never issued any druggists5 permit to the defendant; that the defendant had never made an application for one, and that he was positive that there had never been issued to the defendant a permit from his office. This at least made out a prima fade case that the defendant had no permit to sell intoxicating liquors. (The State v. Schweiter, 27 Kas. 499.) The evidence in the case did not tend to show that the defendant was a manufacturer of intoxicating liquors, or that he sold such liquors in original packages. It did not appear anywhere that any of the witnesses to whom intoxicating liquors were sold by the defendant were druggists, or that they were purchased for scientific or mechanical purposes.
The judgment of the district court will be affirmed.
VALENTINE, J., concurring.
Johnston, J., not sitting in the case. | [
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The opinion of the court was delivered by
VALENTINE, J.:
This was an action in the nature of ejectment, brought in the district court of Osage county, Kansas, by A. J. Utley against J. H. Fee and ~W. W. Cochins, to recover certain real estate situated in said county. Utley’s title is founded upon a tax deed executed by the county clerk of Osage county to C. L. Fliut; a judgment quieting the title to the land in favor of Flint and against H. X>. Fisher, the original patentee from the United States, and E. D. Hammond, and a quitclaim deed from Flint to the plaintiff, Utley. Fee’s title is founded upon a chain of title from Fisher down to Fee himself, and the actual, visible and exclusive possession of the property by Fee. Cochins has no interest in the property, except as the agent of Fee. As dates and some other matters are of importance, we shall here give them as follows: August 25, 1869, Fisher conveyed the property to Hammond; May 5,1874, the property was sold for the taxes of 1873 to Flint;. February 2,1875, Hammond conveyed the property to Henry E. Benson; July 20, 1877, the county clerk of Osage county executed a tax deed to Flint, which tax deed was recorded the same day; September 19,1877, Benson conveyed the property to Mrs. P. A. Griffith; October 28, 1878, the property being vacant and unoccupied, Flint, by an action in the district court of Osage county, Kansas, quieted his title against Fisher and Hammond; May 7, 1880, Mrs. Griffith and her husband executed a quitclaim deed for the property to the defendant Fee;. July 26,1880, Fisher executed a quitclaim deed for the property to Fee, and the deed was recorded on October 26, 1880;. March 1,1881, the defendant Fee, by his agent, Cochins, took possession of the property and inclosed the same with a fence. Prior to that time it had been vacant and unoccupied, and since that time Fee has been in the actual, visible and exclusive-possession thereof, though no one has ever resided upon it; July 17, 1882, Flint executed a quitclaim deed for the property to the plaintiff, Utley, and the deed was recorded on August 12, 1882. .
August 15, 1882, Utley commenced this action of ejectment against Fee .and Cochins, obtaining proper- service of summons upon Cochins, in Douglas county, Eansas, where he resided, but did uo.t obtain or attempt to obtain any service of summons upon Fee, .except by publication and as a non-resident of the state of Eansas, although Fee at the time and for several years prior thereto, and since, up to the present time, resided in Lawrence, Douglas county, Eansas. ■ The answer-day under-the publication notice.was fixed for September 28, 1882. No summons was ever issued in the case against Fee; October 26, 1882, the- deed from Hammond to Benson was duly recorded; November 15,1882, the deed from Fisher to. Hammond was. duly recorded; November 23, 1882, the deed from Benson to Griffith was duly recorded; April 4,1883, Fee voluntarily appeared in this action and answered to the plaintiff’s petition; October 5,1883, the deed from Mrs. Griffith and husband to Fee was duly recorded; October 6,1883, the second and final trial in this case was had before the court without a jury, and the court made special findings of fact and a conclusion of law;. November 2,1883, the plaintiff Ut-ley moved for a new trial, which motion was overruled and judgment was rendered in favor of the defendants and against the plaintiff-for costs; February 11, 1884, the case for the supreme court was duly settled, signed and authenticated; August 21, 1884, such case with a petition in error was filed in the supreme court by Utley, who asks that the judgment of the district court shall be reversed.
None of the .evidence introduced on the trial of the case has been brought to this court, but the findings of the court below have, and from them the foregoing facts of the case appear. It also appears from such findings that the tax deed upon which the plaintiff partially relies is at least voidable; but whether it is absolutely void, or not, or whether it is void upon its face, or not, is not expressly shown by the record. It also appears from the findings that the deed executed by Fisher to the defendant Fee, on July 26,1880, was executed “ without consideration, and for the purpose of making an apparent chain of title from the United States to Fee;” and this was done for the reason that the prior deeds in the chain of title from Fisher to Fee had “been lost, and the grantors removed from the country into parts unknown.” The deed itself, however, contains no reference to any lost or unrecorded deed. With reference to the decree quieting title in favor of Flint and against Fisher and Hammond, and the action in which such decree was rendered, it is not shown what the issues were, or what the plaintiff alleged in his petition, or what kind of service of summons was made upon the defendants, or whether the defendants made any appearance in the case, or not, or whether the decree was rendered upon default, or not. It however seems to be admitted by the parties, that the decree was founded solely upon Flint’s tax deed; but what was alleged with regard to the tax deed, or with regard to .possession under it or adverse to it, is not shown. The defendants state in their brief, that the decree was in fact rendered upon service by publication only, and upon default. We however must decide the case upon the record brought to us.
We suppose that if the plaintiff had no other title than his tax deed, he would not claim title; for, as before stated, the tax deed is at least voidable, and if it were standing alone it might be avoided by any person. having any interest in the property. But the plaintiff also claims title upon other grounds: First, upon the decree quieting title in favor of Flint and against Fisher and Hammond; and second, upon his purchase of Flint’s title without any actual knowledge of Fee’s title or of any of the unrecorded deeds in the chain of title from Fisher to Fee. And he claims title upon these grounds for the following reasons: First, Flint quieted his title against Fisher and Hammond, the only persons who at that time had any record title adverse to Flint’s title, and no one at that time had any adverse possession; and Flint thereby obtained all the title and interest which Fisher and Ham mond at that time oi’ previously possessed. He claims that under § 21 of the act relating to conveyances, all the unrecorded deeds executed by Fisher and Hammond and others were void in law and in equity as to Flint and as to Flint’s assignees; and that the placing of such unrecorded deeds on record afterward would not render them valid by relation or otherwise as to Flint or his assignees. Second, he further claims that when he purchased the property, Fee’s possession of the same was no notice to him of such unrecorded deeds, or of any unrecorded deed, and was no such fact or circumstance as would put him upon inquiry with reference to Fee’s unrecorded title or interest; and this he claims, for the reasons— first, that when Fee put his deed from Fisher to himself upon record and left the other deeds unrecorded, it must be presumed that he abandoned every other source of title which he then had; and second, that by such acts Fee is estopped from asserting any other title or interest as against any person who may have innocently and in good faith acquired rights, interests or equities in or to the premises, relying upon the records as made by Fee himself. In other words, Utley claims that as Fee put one title upon record, all persons not knowing that he had any other title had the right to assume, and to act upon the assumption, that Fee had no other title.
Upon the other side, the defendant Fee claims the reverse of what the plaintiff Utley claims. He claims that the decision in this case depends largely, if not entirely, upon the validity or invalidity of the aforesaid tax deed, which as he claims is not only void, but is also barred as to Fee by a two-years statute of limitations; that the decree quieting title is also void under the decision in the case of Hart v. Sansom, 110 U. S. 151, for the reason that no service of summons'was made upon the defendants in the action quieting title except by publication, and no appearance was made in the case; also, that the decree quieting title is void for the reason that the plaintiff was not in the possession of the property at that time or any other time, (Pierce v. Thompson, 26 Kas. 714;) that yhen the plaintiff purchased the property the defendants were in the actual, open, visible, notorious and exclusive possession; and that Utley was required to take notice of all their rights and interests; .and that Utley procured his interest in the property only by a quitclaim deed, and therefore could not be an innocent and bona fide purchaser.
For the purposes of this case, we shall assume that the tax deed is valid upon its face,, for nothing has been shown to the contrary. We shall also assume, for the purposes of this case, that the decree quieting the title to the property in Flint is valid as against Fisher and Hammond, for nothing appears to the contrary.. And in all cases it must be presumed, where nothing appears to the contrary, that the acts of public officers and of courts are valid. There is nothing shown in this case sufficient to bring it within the decision in the case of Hart v. Sansom, 110 U. S. 151, or the decision in the case of Pierce v. Thompson, 26 Kas. 714. While it is true that a person who is not in the actual possession of real estate by himself or tenant cannot quiet his title under § 594 of the civil code, (Pierce v. Thompson, 26 Kas. 714,) yet if he holds the legal title, and the premises are vacant and unoccupied, he may maintain an action to quiet his title independent of said section. (Douglass v. Nuzum, 16 Kas. 515.) And in this case we must assume that enough was alleged and proved in the case quieting Flint’s title against Fisher and Hammond to render the decree valid, whatever may be the real facts of the case; and, assuming the decree to be valid, then of course Flint, when he obtained the decree, obtained all the estate and interest, legal and equitable, which Fisher and Hammond may at that time have had in the property. (Belz v. Bird, 31 Kas. 139, 143.) The two titles were then merged, and Flint, in addition to his original title, also held Fisher and Hammond’s record title, and stood in their place.
But the difficult question now arises, What effect did the decree quieting Flint’s title have upon the titles of the several grantees of Fisher and Hammond, who held no evidences of title except unrecorded deeds? We would think that it virtually destroyed their titles and rendered them ineffectual and void. Indeed, at the time when the decree quieting Flint’s title was rendered, the unrecorded deeds held by the grantees of Fisher and Hammond were void as against Flint, without, any decree of any kind, (Comp. Laws of 1879, ch. 22, relating to conveyances, § 21;) for such deeds had never been recorded, and there is no claim that Flint had any actual notice of them, or notice of any fact that would have put him upon inquiry; and the holders of the deeds were not in the possession of the property. Many authorities might be cited supporting these propositions, but it is not deemed necessary to cite them. And the deeds being void, they cannot in and of themselves, or separate and alone, so operate as to constitute the foundation of any kind of title or estate, legal or equitable. While it is true that unrecorded deeds, with visible, open, notorious and exclusive possession in the grantee, constitute an equitable estate, and constitute such notice as will put subsequent purchasers and others upon inquiry, yet an unrecorded deed, separate and alone, and without any additional fact or circumstance to aid or assist it, constitutes no notice, but is an utter nullity except as between the parties thereto. The title and estate of a person holding an unrecorded deed is as to third persons without notice, wholly in the grantor, and the grantee is in privity with its grantor, and any decree rendered against the grantor affecting the grantor’s title is also in effect a decree rendered against the grantee, and it equally affects his title; and the decree is res adjudieata as to the interests of all.
In the present case, when Flint quieted his title against Fisher and Hammond, the only title that could be considered as adverse to Flint’s — having reference to our registry laws— was the record title of Fisher and Hammond; and Flint, by his decree quieting his title against Fisher and Hammond, procured this record title from them. Now if Fisher and Hammond’s grantees can ever afterward procure any title by recording their previously unrecorded deeds, from whom will they obtain it? They cannot procure it from Fisher or Hammond, because Fisher and Hammond’s title has already passed to Flint; and. we hardly suppose it will be claimed that they can procure it from Flint. Where a deed is recorded a long time after its execution, it probably takes effect, as to innocent-third persons without notice, at the same time that it would if it were executed and recorded on the day on which it is recorded. (Norton v. Birge, 35 Conn. 250. See also Cameron v. Marvin, 26 Kas. 627, 628; McVay v. English, 30 id. 371.) After Flint procured his decree quieting title against Fisher and Hammond, we think that all titles were merged in him.
This virtually disposes of this case, for although Fee was in the possession of the property when Utley procured his title, and although Utley procured such title by a quitclaim deed, yet we think he obtained all the title which Flint possessed. It is true, that possession, with a claim of ownership, is evidence of title, (Gilmore v. Norton, 10 Kas. 491, 505, 506; Mooney v. Olsen, 21 id. 691, 697;) and if the possession is actual, visible, exclusive, and notorious, it is sufficient to put all persons upon inquiry. (Lyons v. Bodenhamer, 7 Kas. 455; Johnson v. Clark, 18 id. 157; School District v. Taylor, 19 id. 287; Greer v. Higgins, 20 id. 420; Tucker v. Vandermarh, 21 id. 263; McNeil v. Jordan, 28 id. 7.) But such possession is only prima facie evidence of title,, and only of title generally, and is not evidence of any particular title, or of any particular kind of title. (Gilmore v. Norton, 10 Kas. 491.) It is merely evidence of some kind of title, or estate, or interest, or equity in the person in the possession of the property; and it is sufficient evidence to put all others upon inquiry. But there are exceptions to this general rule. The rule is never extended so far as to enlarge the estate or interest of the party in possession, or to give him more than he actually owns; or at least this is true until some statute of limitations has completely run in his favor and given him all the estate that he claims. And where a party is in the possession of real estate, and has two or more titles, each founded upon a separate written instrument, each capable of being recorded under the registry laws, and such party has one of his titles recorded and fails to have the others recorded, and his possession is consistent with his recorded title, there would be some reason for holding that he abandons and loses all the titles which he does not have recorded, as against persons who subsequently and in good faith procure rights or interests in or to the property. (2 Pomeroy’s Eq. Jur., § 616, and cases there cited.) This applies to titles which are capable of being recorded, and not to titles which cannot be recorded. But whether the foregoing proposition is true, or not, there is no rule that prevents any person from purchasing a title from the owner out of possession, and a title which the party in possession does not own. There is also much reason for holding that a person who procures a title by virtue of a quitclaim deed cannot be considered as an innocent or bona fide purchaser. (Martindale on Conveyancing, §§ 56, 285, and cases there cited; Richards v. Snyder, decided by the supreme court of Oregon, February 19, 1885; 6 Pac. Rep. 186.)
But, as heretofore stated, there is no rule that will prevent a purchaser who takes a quitclaim deed from procuring all the title which his grantor at the time possesses. A quitclaim deed is as much a conveyance as any other kind of deed, and it will convey what the grantor has just as well as any other-deed. It is generally held, however, that a quitclaim deed will convey nothing more than what the grantor actually owns while a general warranty deed, with all the usual covenants, may sometimes convey to an innocent and bona fide purchaser-more than the grantor owns, and all in fact that he may seem to own from the records.
We do not think that it is necessary to consider the other-points presented by counsel. Flint’s tax deed was not barred by any statute of limitations when he quieted his title, and since then Flint and the plaintiff Utley hold under Fisher’s-original patent title as well as under the tax deed; and it really makes no difference whether the tax deed, independent of the-decree quieting title, be considered as valid or void, barred or not barred. The decree is valid, and that is sufficient.
The judgment of the court below will be reversed, and the cause remanded with the order that judgment be rendered in favor of the plaintiff and against the defendants for the recovery of the land and for costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The controversy in this case is between Herman Markson, as assignee of the Leavenworth Savings Bank, and W. J. Buchan, as trustee for A. T. Hines and others, as to which of them is entitled to the proceeds arising from the sale of certain lands embraced in two mortgages executed July 1, 1873, and April 26, 1875, by George B. Hines and wife. On October 20,1877, Markson, as assignee, recovered in the United States district court for Kansas, a judgment against George B. Hines for $12,444 and costs, and claims that this judgment is a first lien upon all the lands embraced in the said mortgages not released. The district court-rendered judgment on July 4, 1884, in favor of Buchan, as trustee, against Geoi’ge B. Hines, upon his note executed July 1, 1873, of $13,250 for the principal and all interest due upon said note, and decreed that the lands embraced in said mortgages, given to secure this note and not released, should be sold, and the proceeds, after payment of certain taxes, improvements and costs, should be applied: First, to the amount found due Buchan, as trustee, upon the note of George B. Hines of July 1, 1873; and second, to the payment of the judgment recovered by Markson, as assignee, against George B. Hines, on October 20, 1877. The promissory note of George B. Hines of July 1, 1873, and the mortgages of July 1,1873, and April 26,1875, were given to the Alliance Mutual Life Assurance Society to secure the payment of one hundred and thirty-two and one-half shares of capital stock of that corporation, owned by George B. Hines at the time of the execution of the note and mortgages. Soon after the execution of the note, it and the first mortgage were deposited by the Life Assurance Society with the treasurer of the state of Kansas, in pursuance of §§16 and 49 of the act to establish an insurance department in the state of Kansas, approved March 1, 1871. The note came due on the lst-3d of July, 1878. On September 29,1876, a written contract was executed between the Life Assurance Society and the Pacific Life Insurance Company of California, whereby the latter company insured the outstanding policies held by the Life Assurance Society. In the contract between these insurance companies, it was provided, among other things, that—
“For and in consideration of the promises, covenants and agreements of the Life Assurance Society hereafter contained, the Pacific Life Insurance Company, its successors or assigns, does hereby promise, covenant and agree to and hereby does reinsure to said party of the second part and to each and all of the said second paidy’s policyholders or their assigns, any and all risk and risks upon the lives of individuals now outstanding and in force; and hereby guarantees unto said party of the second part and each and all said policyholders that the said risks due, or as the same may become due, shall and will be by said party of the first part promptly and duly paid, according to said several policies or contracts, and to assume and does hereby assume and promise to pay and discharge all debts and liabilities of every nature and kind whatever of said party of the second part, as per schedule hereto attached; and by virtue and force of the said assumption and promise it is intended, and said party of the first part hereby agrees, that each policyholder of the party of the second part who may choose so to do may have and maintain and enforce his or their legal claim or claims directly against said party of the first part, its successors or assigns, and take notice of loss or demand as against said second party, and in the same manner and with like effect as they might have enforced and maintained his, her or their claim or claims against said party of the second part.
“And the said party of the first part does hereby, in consid-ation as aforesaid, further promise, covenant and agree to save, keep harmless, and indemnify said party of the second part, its successors or assigns, from and against any and all debts and liabilities, costs, payments, expenses or demands of every kind and description in law and equity or otherwise, at the date of this instrument outstanding and in force against said party of the second part, or that may hereafter accrue or exist against said party of the second part, on account, by reason, or in any way growing out of any liability or demand of any kind now existing against said party of the second part, on account of its policy liabilities; but said party of the first part hereby reserves all legal defense to said demand or liabilities, or either of them."
It was agreed further in the contract that—
“All the mortgages and notes given by the stockholders of the Life Assurance Society to secure the payment of their stock should be returned to the parties who gave the same, or their assigns, upon the execution of the contract, or as soon thereafter as practicable.”
After tbe execution of this contract between the insurance companies, the Life Assurance Society commenced to close up its business, and on March 9,1880, a resolution was adopted by the stockholders of the company that “the affairs of the corporation be immediately closed up and the securities be surrendered to the respective shareholders.” The board of directors of the corporation were also directed by the stockholders at said time to dispose of the securities as follows: That “ when received [from the superintendent of insurance of the state] they be delivered to the present owners of the stock for the payment of which said securities were respectively given.” The resolutions of the stockholders were adopted by the board of directors on March 10, 1880. ' On March 27, 1880, the board of directors, among other things, adopted the following:
“Resolved, That the owners of stock in that company be requested to pay the amount of three per cent, on their capital stock, and that the money so paid shall be used as a fund to take up all outstanding debts of this company; the money so paid to be paid into the hands of G. H. Hyde, and to be expended under the direction of the executive committee for the purpose aforesaid, and the claims so taken up to be assigned to said G. H. Hyde, to be held by him against said company to the full amount thereof, till settled as herein provided.
“As soon as all debts against the company shall be taken up, and the securities held by the officers of the state can be surrendered and assigned to any holder of such stock, who shall contribute as much or more than his proportion of the amount necessary to take up said debts, the securities of all who fail to so contribute shall be foreclosed, and the money arising from such foreclosure shall be applied to the expense of the same and to the payment of the share which the holder of the stock is liable on the debt so taken up.”
On April 12, 1880, the board of directors took the following action:
“Resolved, That proceedings be commenced to foreclose all mortgages given for stock on which assessment shall not be paid as heretofore called, within thirty days from this date, and that the executive committee secure counsel and make all necessary arrangements for the foreclosure of said mortgages; and that George H. Hyde is authorized to order the board of directors of said society to transfer to the holders of the stock the securities given for payment of the stock upon payment of the assessment made therefor aforesaid.”
At the July term of this court for 1881, in the case of The Life Assurance Society v. Orrin T. Welch, as Superintendent of Insurance, &c., 26 Kas. 632, judgment was rendered in favor .of the society, compelling the superintendent to deliver up to the Assurance Society all securities belonging to the company and deposited with the treasurer of state, except an amount of such securities equal to what was known as the reserve liability on the outstanding policies of the company. The note of July 1,1873, of $13,250, and the first mortgage to secure the same, remained with the treasurer of state under the deposit of the Life Assurance Society to about December 8, 1881, when, in pursuance of the judgment of this court, the note and mortgage were returned to the Assurance Society. Afterward the directors of the society made assessments amounting to $500 on the one hundred thirty-two and one-half shares of capital stock, which was, in March, 1882, paid by William Buchan, A. T. Hines, G. Y. Bryant, and E. S. Bartlett, as the owners of said shares. The transfer and sale to W. J. Buchan, as trustee, etc., of the note of July 1,1873, and the mortgages given to secure the same, was the payment of $500 in pursuance of said resolutions heretofore cited and the assessments thereunder, and the transfer to him, and the parties he represented, of their portion of the assets of the Assurance Society on account of their being stockholders of stock for which the note and mortgages had been given.
The theory upon which Markson bases his claim that he is entitled to the proceeds of the sale of the lands embraced in the mortgages and ordered to be sold, prior to Buchan, as trustee, is, that he acquired a lien against the lands at the date of his judgment as assignee, on October 20, 1877, and that as the note and moi’tgages were returned to the Life Assurance Society in pursuance of the contract between the Pacific Mutual Life Insurance Company of California and said society, and under the judgment of this court, rendered in the action of the Life Assurance Society against- Orriu T. Welch, as superintendent of insurance, said uote was thereby discharged, and the mortgages released and wiped out, subject only to the rights of the policyholders of the society and the insurance department in relation thereto. It is also contended by Mark-son that the Life Assurance Society received the note and mortgages from the state treasurer in December, 1881, as fully satisfied, to be surrendered to George R. Hines as discharged.
It is further contended that the Life Assurance Society, having provided substantially for the discharge of the notes and mortgages by'the contract of September 29, 1876, it was not competent or in the power of the society to afterward dispose of the note and mortgages to Buchan or any other parties. The notes and mortgages are also claimed to have been released and discharged for various other reasons.
It is sufficient, however, to say that in our opinion all of these claims are untenable. The evidence produced before the trial court is not before us. The findings of that court, therefore, must be taken as conclusive. One of the findings is—
“ That the said W. J. Buchan, and the other parties for whom he is trustee in this suit, are and were bona fide holders of said stock, and had been for a long time before the institution of this suit, and before the rendition of the judgment in the circuit court of the United States for the district of Kansas, at its June term, in 1881, in the action pending in that court by James N. Burnes, as administrator, etc., and Herman Markson, as assignee, etc., against George R. Hines, A. T. Hines, G. W. Bryant, and others.”
In the latter action, the complainants were defeated as to said stock, and under the decree and judgment of that court, Buchan and the parties for whom he is trustee were decided to have been, prior to 1878, the bona fide owners of the stock issued in the first instance to George R. Hiues. Here was an adjudication against Markson that Hines had not fraudulently disposed of his stock, and that Markson has no lien or claim thereon. This matter cannot be relitigated in this suit. When the note and mortgages were returned from the state treasurer to the Life Assurance Society, in December, 1881, George R-Hines had sold and transferred all of his stock to Buchan, A. T. Hines, and others. The resolutions of the stockholders of the Life Assurance Society of March 9, 1880, which were subsequently adopted by the board of directors, looked to the closing up of the affairs of the society; but before the note and mortgages were returned to the parties who gave the same, or their assigns, or any demand was made therefor, the subsequent resolution of March 27,1880, was adopted, requiring the owners of the capital stock in the society to pay an assessment of three per cent, on their stock to take up outstanding debts of the company. Buchan, Hines and other parties, as the owners of the stock issued to George R. Hines, paid this assessment, and subsequently received the transfer of the notes and mortgages.
Neither the Life Assurance Society, nor the Pacific Mutual Life Insurance Company, nor any of the stockholders of either company, nor any of the creditors of said corporations, are here objecting to the resolutions or proceedings of the Life Assurance Society in making assessments upon its stockholders, or in disposing of its securities. No fraud is established, or can be assumed from any of the findings, and Markson, who has, as assignee, simply a judgment against George R. Hines, cannot, against the findings of the trial court, question the bona fides of Buchan as trustee in obtaining the note and mortgages in suit. Markson has no judgment against Buchan, or any of the parties he represents; no judgment against the Life Assurance Society; and is in no way the representative of the Pacific Mutual Life Insurance Company. As George R. Hines sold and disposed of his stock in the Life Assurance Society before 1878, it was not the proper thing for the society, in the matter of closing up its affairs, to return to him the note and mortgages, because Buchan and the parties he represents paid the assessment on the stock originally issued to him; and further, because by the resolutions of the stockholders and directors of the society, the securities, when received from the state treasurer, were to be delivered to the present owners of the stock. "While the contract between the insurance companies of September 29,1876, provided “that the notes and mortgages given by the stockholders to secure their stock issued by the Life Assurance Society should be returned to the parties who gave the same, or their assigns, upon the execution of that contract, or as soon thereafter as practicable,” yet the Life Assurance Society had the right to retain such notes and mortgages until all outstanding debts of the society had been paid and all equities adjusted. It is true that the Pacific Mutual Life Insurance Company obligated itself to pay certain claims and debts of the Life Assurance Society, and under such contract it was adjudged liable to pay the costs and expenses of the prosecution of the action of the Life Assurance Society against Orrin T. Welch, tried in this court; but there is no finding of the court that the Pacific Mutual Life Insurance Company, at the date of the assessments under the resolutions of March 27, 1880, had paid the debts for which said assessments were made, nor can we judge from the contract or the findings that there was any liability upon the part of said Pacific Mutual Life Insurance Company to pay the particular outstanding debts of the Life Assurance Society, for which said assessments were made and collected. Therefore we cannot assume from the contract, or the findings of the trial court, that the assessments made upon the stock owned by Buchan and others were unnecessary .and invalid.
Something is said to the effect that the judgment of the United States circuit court of June, 1881, would have been different if the note and mortgages had been surrendered to the Life Assurance Society when the action was commenced. There is a statement in the opinion filed in that case, that if' the securities had been surrendered at the commencement of the action, the matter would have been considered in the determination of the cause. This is about all. It however appears from the opinion that in the investigation of the transactions of George R. Hines in that case, that no fraud was established upon his part, and the court makes the positive finding therein that certain shares of stock held by A. T. Hines in the Life Assurance Society were transferred to him. in good faith.
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
Fatzer, J.:
The defendant was convicted by a jury on two counts of forgery in the second degree. The first count of the information charged that on December 24, 1963, the defendant forged a $28 check drawn on the Condon National Bank of Coffeyville, Kansas, purportedly made by one H. A. Alters and payable to one Joe Louis Vaughn, in violation of G. S. 1949, 21-608 (now K. S. A. 21-608). The second count of the information charged that on the same day the defendant uttered and passed the check in exchange for valuable consideration in violation of G. S. 1949, 21-609 (now K. S. A. 21-609). He was sentenced as an habitual criminal to serve two concurrent terms of fifteen years each in the Kansas State Penitentiary at Lansing, Kansas, under the provisions of G. S. 1949, 21-107a and 21-631 (now K. S. A. 21-107a and 21-631). He is presently confined in the Kansas State Penitentiary and has appealed from the district court’s order overruling his motion for a new trial.
A preliminary examination was held and the defendant, not being represented by counsel, was bound over to the district court for trial. When the. defendant was presented for arraignment in the district court, he was without counsel and the court appointed Earl Thomas Reynolds, a member of the Montgomery County Bar, to represent him. The case was ordered continued to give the defendant an opportunity to plan his defense with his attorney. After counsel and the defendant conferred, the defendant was arraigned in his counsels presence, and he entered a plea of not guilty to both counts as contained in the information. Following the defendant’s pleas of not guilty, the county attorney served a notice in writing upon the defendant and his counsel notifying them as follows:
“You and each of you are hereby notified that in the event of conviction in the above entitled case the State of Kansas will ask for an increased sentence under the provisions of Section 21-107a, G. S., Kansas, 1949, and will introduce evidence of prior convictions in support thereof.”
On April 16, 1964, the defendant’s case was called for trial and both the state and the defendant made opening statements, introduced evidence, and rested. The jury was fully instructed in writing, and it found the defendant guilty on both counts of forgery as charged in the information.
Upon the defendant’s request, the district court fixed the time for filing his motion for a new trial on April 21,1964, and on May 1, 1964, the motion was heard and overruled.
Following the overruling of the defendant’s motion for a new trial, the state announced that it wanted to introduce evidence of the defendant’s prior convictions, and their being no objection by the defendant or his counsel, permission was granted. The states evidence showed the following:
“. . . on the 24th day of June, 1960, in Case No. 1929, The State of Oklahoma vs. Curtis Lewis, the defendant was found guilty of forgery in the second degree in the District Court of Nowata County, Oklahoma; and on the 22nd day of June, 1962, in Case No. 1979, The State of Oklahoma vs. Curtis Lewis, the defendant was found guilty of forgery in the second degree in the District Court of Nowata County, Oklahoma.”
The district court found, from the record and other competent evidence, the fact of defendant’s former convictions of felony committed in the state of Oklahoma and that he was subject to an increased sentence in accordance with the provisions of K. S. A. 21-107a, and sentenced the defendant to two consecutive terms of fifteen years each in the Kansas State Penitentiary as heretofore related.
In order to present and discuss the defendant’s contentions on appeal, it is necessary to briefly summarize the state’s evidence. Carl W. Hartzell, an employee at Lee’s 24 Hour Truck Stop, a Coffeyville service station, positively identified the defendant as being the man who passed the check in question on December 24, 1963, at the service station. The defendant endorsed the name of Joe Louis Vaughn on the back of the check and at Hartzell’s direction, wrote his address thereunder as Route 1, Wann, Oklahoma. Hartzell paid the defendant $28 in cash, the amount of the check. H. A. Alters, the man whose name was forged by the defendant, testified that he did not write the check purportedly issued by him on December 24, 1963, nor did he write any of the checks in question hereafter related, nor authorize anyone, including the defendant, to sign his name to a check, and knew nothing of the checks forged by the defendant. Hartzell further testified that on December 28, four days after the defendant passed the check he was charged with having forged, the defendant came again to the service station—this time in the automobile owned by one Glen Starr— and passed another check identical to the one he passed on December 24, 1963, except for the amount which was in the sum of $38. The defendant again endorsed the name of Joe Louis Vaughn on the back of the check and purchased some gasoline and a tire.
The state introduced evidence, over the defendant’s objection, that the defendant on other occasions passed two checks at places in Coffeyville similar to the two checks passed at Lee’s 24 Hour Truck Stop. Both checks were made payable to one Joe Louis Vaughn, and the defendant was positively identified as having passed each of those checks. All of the checks including the one upon which the defendant was charged were drawn on either the Condon National Bank of Coffeyville or the First.National Bank of Coffeyville. Representatives from both banks testified that the checks in question were submitted to them and payment refused because the banks were unable to locate accounts upon which the checks were purportedly written.
The defendant testified on his own behalf and on direct examination stated that he did not forge or pass any of the checks involved; that he had been in trouble in Oklahoma, and that he had done ■“time” in Oklahoma for forgery. On cross-examination the defendant testified he was prosecuted for forging checks in Oklahoma; that in the past five years he was twice convicted and served time in the Oklahoma State Penitentiary; that he had finished serving his sentence on the last forgery conviction and was released from that penitentiary on August 8, 1963, and that he was first convicted of forgery in the state of Oklahoma in 1960.
We now turn to the defendant’s specifications of error in the order and manner they were discussed by the parties.
The defendant first contends the district court erred in admitting evidence of other similar forgeries committed by the defendant. He concedes that evidence of other similar crimes is admissible, under proper instructions, where the other similar crimes occurred prior to the one with which the defendant is charged, but argues that since two of the three forgeries shown by the state were committed on December 28, 1963, four days after the one with which he was charged, such subsequent forgeries were inadmissible and the district court committed reversible error. The defendant makes no objection to the instructions of the district court and it must be assumed that such instructions were proper.
The defendant’s contention cannot be sustained. In State v. Wright, 194 Kan. 271, 398 P. 2d 339, it was held that the Rules of Evidence under Article 4 of the Code of Civil Procedure (Ch. 60, K. S. A.) are designed to have application to every proceeding, both criminal and civil, conducted by or under the supervision of a court, in which evidence is produced, except to the extent to which they may be relaxed by other procedural rule or statute applicable to the specific situation. K. S. A. 60-455 reads:
“Subject to section 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but, subject, to sections 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” (Emphasis supplied.)
In State v. Wright, supra, it was said:
“The rule of evidence stated in 60-455, supra, as applied to criminal proceedings has not materially changed the case law as it has developed in Kansas prior to the enactment of 60-455, supra.” (1. c. 274.).
Almost since statehood, this court has applied the general rule that evidence is inadmissible to prove that the accused has been convicted of another crime independent of, and unrelated to, the one on trial; it is not competent to prove one crime by proving another. (State v. Myrick, 181 Kan. 1056, 1058, 317 P. 2d 485.) But this court has also recognized that to this general rule there are several distinct exceptions which have been permitted from absolute necessity to aid in the detection and punishment of crime. In the Myrick case it was said:
“. . . proof of an independent crime is admissible in the discretion of the court, and may be received in the state’s case in chief, under proper instructions, if it is relevant to the proof of the guilt of the defendant for the crime with which he is charged. To be relevant it must prove or tend to prove identity of person or crime, to prove scienter or guilty knowledge, to prove intent, to show inclination or motive, to prove plan, scheme or system of operation, to prove malice and to rebut special defenses. (Cases cited.) See, also, 2 Hatcher’s Kansas Digest, (Rev. ed.) § 268, p. 237. If the evidence is competent, material and relevant to the issues on trial, it is-not rendered inadmissible because it may show that the defendant is guilty of another crime, or has been previously convicted. Such evidence is not admitted because it is proof of the other crime, but because of its relevancy to the charge on trial. . .” (Emphasis supplied.) (1. c. 1059.)
In State v. Stephenson, 191 Kan. 424, 381 P. 2d 335, it was held:
“The rule against the admissibility of evidence of other similar but independent offenses should always be strictly enforced, and to justify any departure therefrom the evidence should come under one of the well-recognized exceptions to the general rule, among which are identity of the person committing the offense, to prove scienter or guilty knowledge, to prove intent, to show inclination or motive, to prove plan, scheme or system of operation, and to rebut a special defense.” (Syl. ft 2.)
In State v. Marshall, 152 Kan. 607, 106 P. 2d 688, this court held that evidence of the fact that the defendant had given a worthless check two years subsequent to his giving the worthless check upon which he was then being tried, was properly admitted by the district court.
As previously indicated, the evidence introduced by the state tended to show that the defendant had committed other forgeries four days subsequent to the one on which he was charged. Proof of the two subsequent forgeries meets the test of relevancy in that the defendant was positively identified by the person to whom he passed the check; the payee of each check—Joe Louis Vaughn— was identical; the purported drawer of each check—H. A. Alters —was identical; the handwriting appeared similar; each check was purportedly made in payment for plumbing and the word plumbing was misspelled on each of them, being spelled “pluming.” It is apparent that all of the checks introduced in evidence logically and naturally tended to establish: (1) The identity of the defendant; (2) the defendant’s intent to defraud and guilty knowledge; and (3) to prove his plan, scheme and system of operation.
The defendant contends he was entitled to have court-appointed counsel at his preliminary examination. It is a well-established rule in this state that failure to appoint counsel at a preliminary examination is not error. No useful purpose would be gained in discussing this matter further. Suffice it to say the question has been thoroughly dealt with in the well-annotated opinion in the case of Bergin v. State, 194 Kan. 656, 400 P. 2d 978, wherein many previous decisions were cited and discussed and where it was held that an accused has no constitutional right to be furnished counsel at his preliminary examination. See, also, Tarr v. State, 194 Kan. 798, 402 P. 2d 309.
The defendant contends that the district court erred in finding that he had twice been previously convicted of felonies in the state of Oklahoma and thus subject to an increased sentence under the Kansas Habitual Criminal Act. (K. S. A. 21-107a.) The statute provides that every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the penalty of the second conviction; and if convicted a third time of felony, he shall be confined in the penitentiary for a period of not less than fifteen years. The statute further provides:
“. . . Judgment in such cases shall not be given for the increased penalty, unless the court shall find, from the record and other competent evidence, the fact of former convictions for felony committed by the prisoner, in or out of this state.” (Emphasis supplied.)
The record discloses there was ample evidence to support the district court’s finding that the defendant had twice previously been convicted of the crime of forgery in the state of Oklahoma, and was subject to sentence under the Kansas Habitual Criminal Act. In the first place, the defendant himself admitted his previous convictions in that state when testifying on his own behalf, and no claim is made that his testimony in that respect was untrue. (State v. Graham, 172 Kan. 627, 242 P. 2d 1067; State v. Watkins, 190 Kan. 446, 375 P. 2d 634.) Moreover, the state attempted to introduce in evidence authenticated copies of the journal entries of the defendant’s two prior convictions for forgery in the state of Oklahoma. The district court refused to admit such authenticated copies, but permitted the sheriff of Nowata County, Oklahoma, to testify that he had been the sheriff of that county for 21 years; that he was personally acquainted with the defendant and was personally present in the district court of that county each time the defendant was convicted of the crime of forgery in that court. In passing, we observe it would have been proper for the district court to admit the authenticated copies of the journal entries of the defendant’s two prior convictions of felony. (State v. Hall, 187 Kan. 323, 356 P. 2d 678; State v. Loyd, 187 Kan. 325, 356 P. 2d 825.) See, also, K. S. A. 60-460, 60-461 and 60-465.
We lastly note that the defendant attempted to join with his direct criminal appeal, an appeal from a civil proceeding commenced pursuant to the provisions of K. S. A. 60-1507 (a). This he cannot do. Rule No. 121 adopted by this court on October 16, 1964, (194 Kan. xxvn) supplements the procedure provided under K. S. A. 60-1507. Rule No. 121 (c) (3) provides;
“A motion to vacate, set aside or correct a sentence cannot be maintained while an appeal from the conviction and sentence is pending or during the time within which an appeal may be perfected.”
See, also, State v. Richardson, 194 Kan. 471, 399 P. 2d 799. The district court correctly summarily dismissed the defendant’s motion filed under K. S. A. 60-1507 as being premature.
We have fully reviewed the record and conclude that the district court did not err in any of the particulars complained of and the judgment of conviction and sentence is affirmed. | [
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The opinion of the court was delivered by
Doster, G. J. :
This was an action by Oscar Felix, the plaintiff in error, against the receivers of the St. Louis & San Francisco Railway Company for damages on account of the loss of services of his minor son, Effer Felix, caused by injuries negligently inflicted upon the minor by running upon and over him with & train of •■cars. Previous to the commencement of the abtion, Oscar Felix, as guardian and next-friend of his son Effer, made with the receivers an agreement of settlement and compromise in behalf of the minor for the injuries received by him, and also for himself in respect ■of his right of action for loss of his son’s services, and for the medical care and attention he had been compelled to bestow upon him. By the terms of this agreement suit was to be instituted in behalf of the minor by the father and next-friend, and when instituted was to be compromised with the approval of the court. The suit was brought, a sum of damages agreed upon, ap proved by the court, paid, and receipted for. The material portion of the agreement of compromise is as follows :
“And in consideration of the foregoing agreement, and the settlement of said suit when brought, said1 Oscar Felix agrees to waive and release all claims he-may have against said receivers for loss of the services, of said Effer Felix, and for extra medical care, assistance and attention rendered or to be rendered said. Effer Felix on account of said injury.”
Among other defenses to this action the receivers pleaded the making and carrying out of the agreement of settlement and the execution of the release. To-this the plaintiff filed the following verified reply :
“Second. Plaintiff never executed the pretended release or discharge set forth in the answer of the defendants for the purposes therein stated on its face. Plaintiff never kneio that the alleged release or discharge-had been executed until after this action had been commenced and until after the defendants had filed their answer in this action. Plaintiff did not even know that such release had been executed as claimed until he was informed by his attorney. If this plaintiff ever signed said release, he signed it in ignorance of its contents or legal effect, and believing that it was simply a statement that he was the father of Effer Felix, and was-willing to commence an action as the next-friend of Effer Felix; but this plaintiff did not know that said instrument was a release of the defendants from damages for the loss of the services of his son Effer Felix. Said release or discharge was never read or explained to this plaintiff. Plaintiff is illiterate and uneducated, and is unacquainted with legal terms and methods of doing legal or general business. The defendants well knew this, and at the time when the alleged release purports to be signed the defendants fraudulently persuaded and induced this plaintiff not to employ a lawyer, in order that the plaintiff might not be advised of his rights. The defendants represented that if he- employed a lawyer they would not pay his son anything, and that the lawyer would cheat his son out of all that he might recover by the lawsuit. At the time when said release purports to be executed, and at the time of the rendition of the judgment in the action of Effer Felix, a minor, by Oscar Felix, his next-friend, vs. A. Walker, John J. McCook, and J. C. Wilson, as receivers of the St.,Louis & San Francisco Railway Company, plaintiff did not know that a father was entitled to damages for the loss of the services of his minor son, when such loss was caused by an injury carelessly and negligently inflicted by another, without fault on the part of the father or son ; nor did he know, until after the rendition of said judgment,, that he had a cause of action against these defendants for the loss of services of his son, Effer Felix, by reason of the negligent acts of the defendants as complained of in the petition. At the time when said alleged release purports to be executed, plaintiff was suffering from brain, fever and great pain and grief from the injury to his son, and was not in a mental condition to know what he was doing. The plaintiff’s mental condition, as described, was aggravated by the serious injury which his head had received a few years before from being hit with rocks and clubs. Plaintiff never executed the pretended release set forth in the answer.”
At the conclusion of .the testimony in behalf of plaintiff a demurrer to it was filed and sustained. From the order sustaining the demurrer error is prosecuted to this court. It cannot be maintained. Upon 'the trial no evidence whatever was introduced by the plaintiff to support the allegations of the reply above quoted, or to avoid the effect of the release which the defendants had pleaded in their answer. Rightly interpreted, the allegations of the reply constituted in several instances an admission of the execution of the release, and an attempt to avoid its effect by averments of fraud or mistake. The reply was in reality a plea of confession and avoidance. The defendants’ case was sufficiently made out for them by the admitted allegations of their answer'; hence it was incumbent upon the plaintiff to supplement his case in chief with evidence in avoidance of the answer. (Coal Co. v. Whittaker, 40 Kan. 123, 19 Pac. 330.) By observing the italicized portions of the above-quoted reply it will be seen that the plaintiff at the most pleaded only hypothetically and in the subjunctive mode. Nowhere, except in the last sentence, is there anything approaching to a direct denial of the execution of the release, but the reply, taken as a whole, admits its execution and seeks to avoid its effect. Where there are inconsistent allegations in a pleading the party making them is bound by those most unfavorable to himself. (Bierer v. Fretz, 32 Kan. 330, 4 Pac. 284.)
The reply is identical in effect with the answer in Dinsmore v. Stimbert, 12 Neb. 433, 11 N. W. 872. There the court said :
“The answer of the defendant in the court below is altogether indefinite and uncertain. He first alleges that he never signed the note, and that thé signature thereto is not genuine. He then alleges that if he did sign the note, or the signature thereto is genuine, then, that it was procured through the ‘ fraud and circumvention of either Laird or Dezendorf or both of them, in some way or manner unknown to the defendant, in the transaction and negotiation by the defendant had with the said Laird and Dezendorf in and about the appointment of the defendant as agent to sell a certain patent fence-post, without any fault or negligence on the part of the defendant.’ . . .
“ The answer in Douglass v. Matting, 29 Iowa, 498, cited by plaintiff in error, is substantially the same as this, and that was held by the supreme court of that state to substantially admit the execution of the note. And such must be true of the pleading under consid eration. The defendant in the court below must be held to know his own signature. If the signature to thé note was not his, then it was simply a case of forgery, and all of his pleadings and testimony in regard to the representations of Laird and Dezendorf, his own inability to readily read English, etc., became immaterial. We think the court below erred in submitting the question, ‘ Did the defendant sign the note sued on?’ for a special finding, and thereby placing prominently before the jury a question which, as we have seen, must be regarded as admitted by the answer.”
The reply borrowed no strength from the verification attached to it. There was, as we have seen, no denial of the execution of the release, but, on the contrary, an admission of its execution ; hence, there was nothing in the reply to which the verification could be related.
There is nothing in the views herein expressed in conflict with De Lissa v. Coal Co., 59 Kan. 319, 52 Pac, 886. The decision of that case was controlled by the general rules of pleading and in nowise by any particular statute, and accordingly it was held that a general denial of the execution of a written instrument as and for the writing of, the defendant, it not purporting on its face to be the defendant’s obligation, and the plaintiff only charging the defendant with liability upon it because of certain special circumstances, coupled with an averment of fraud in procuring the execution of the instrument by the person who signed it, were not inconsistent as defenses and did not amount to a plea of confession and avoidance. In that case the writing in question did not purport to be that of the defendant; therefore the denial of its execution by the defendant did not require verification upon oath. In this ease the execution of a written release of the cause of action by the plaintiff is alleged in the answer. The execution of that release, though in form denied in the reply under oath, is in fact admitted in the reply. The case, therefore, is governed by section 108 of the civil code (Gen. Stat. 1897, ch. 95, § 108, Gen. Stat. 1889, ¶ 4191), which ordains that unless the execution of written instruments be denied under oath they shall be taken as true. The execution of the release being taken as true, or rather being in fact admitted as true, with all the inferences and intendments resulting therefrom, its effect could not be neutralized except by proof in the first instance of the special matter set up in avoidance óf it.
In the case of De Lissa v. Coal Co., supra, the allegations of the answer were epitomized as follows : “The note was not executed in my behalf, and I therefore deny liability, but if the person executing it undertook to bind me by its terms, I assert he was fraudulently induced to do so.” The reply in this case may be summarized as follows : “I admit I executed the release set forth in the answer, but I assert I was fraudulently induced to sign it.” Having thus admitted the execution of the instrument, the plaintiff was compelled by force of section 108 of the code to show reasons why he should not be bound by it, while in the former case the defendant was not bound in the first instance to give evidence in avoidance of the note, because he was not charged with having executed it. In the one case the plaintiff was bound to show that what did not purport- to be the obligation of the defendant was such in reality, while in the other case the plaintiff was bound to show that what did purport to be his obligation was not in reality binding upon him..
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Smith, J. :
The appellant, Henry Swan, was convicted of forgery in the second degree. His motion to quash the information was overruled, and a demurrer sustained to his plea in abatement of the action. A verdict of guilty was returned as to each of the two counts of the information. The court below granted a new trial on the first count, and sen. tenced the defendant under the second. The conviction was had under paragraph 2257 of the General Statutes of 1889 (Gen. Stat. 1897, ch. 100, § 143). The second count charges:
' “That on or about the 17th day of June, 1898, in said county and state, the defendant, Henry Swan, a certain false, forged and counterfeit check, purporting to be drawn by one R. PI. Jordan on the Farmers’ National Bank, a banking corporation organized under the laws of the United States of America, which said false, forged and counterfeit check is as follows : ‘No. 3. To the Farmers’ National Bank, of Salina, Kansas. Salina, Kansas, 17th June, 1898. Pay to order of H. Swan $12.00 twelve dollars. R. H. Jordan. (Indorsed) H. Swan,’ feloniously did sell, deliver, pass, utter, and publish as true, to one William Hogben, for the consideration and sum of twelve dollars, with the intent, him, the said William Hogben, then and there and thereby to injure and defraud, he, the said Henry Swan, then and there well knowing the said check to be false, forged, and counterfeit.”
The information sufficiently shows that the defendant had the false check in his possession. It alleges a delivery of the same by him to William Hogben, the person defrauded. The statute requires that the instrument “be passed, uttered, sold, or exchanged, with intent to defraud.” ' This charge was made with sufficient certainty.
This information was filed on November 22, 1898, duly verified by W. A. Norris, the county attorney of Saline county. Before this, on September 16, 1898, Norris had,' by the judgment of the district court, been disbarred from practicing and his license as an attorney at law revoked. The competency of the county attorney to file the information was challenged in the court below. It is urged by the appellant that the disbarment of Norris disqualified him from practicing in • the district court as the representative of the state, and that the power given by statute to the district court to revoke or suspend the license of an attorney or counselor at law to practice therein, and its exercise by that tribunal, deprived him of authority to file a pleading in a criminal case, such as an information. The statute does not require that a person be admitted to the bar or have a license to practice before he is eligible to the office of county-attorney. ( The State v. Smith, 50 Kan. 69, 31 Pac. 784.) In case of a vacancy in the office, the judge of the district court is authorized to appoint a county attorney, but is not restricted in his selection to an attorney at law. The learned counsel for the appellant contends (and in this he is fortified with much authority) that the right to a license to practice law in the courts is conferred by judicial and not by legislative authority. No denial of this doctrine is necessary to a decision of this case. The legislature has power to prescribe the qualifications requisite to admission to the bar, but it has no power to provide that persons possessing them must be admitted to practice. Whether the prescribed qualifications exist or not is a judicial question. (1 A. & E. Encycl. of L. 944.)
The revocation of the license of Norris and his disbarment place him in the same status as if he had never at any time been admitted to practice. The cause of his disbarment is not a material consideration. After it he was no longer an officer of the court, but he was still an officer of the county. It cannot be held that he ceased to be county attorney. A different question would be presented if the statute required that the county attorney be an attorney at law. In that case his right to exercise official duties would by law depend upon his continued relation to the court as one of its officers.
The statute provides that the -office of county attorney, as well as any other county office, shall become vacant on the happening of either of the following events: (1) Death of .the incumbent; (2) his resignation ; (3) his removal; (4) ceasing to be an in habitant of the county from which he was elected or appointed; (5) his conviction of an infamous crime or any offense involving a violation of his official oath ; (6) his refusal or neglect to take his oath of office or renew his official bond, or to deposit such oath and bond within the time prescribed by law; (7) the decision of a competent tribunal declaring void his election or appointment. (Gen. Stat. 1897, ch. 27, § 166; Gen. Stat. 1889, ¶ 1884.) An attorney at law may be 'suspended from practice and his license revoked for the following causes : (1) When he has been convicted of a felony or of a misdemeanor involving moral turpitude, in either of which cases the record of conviction is sufficient evidence; (2) when he is guilty of a wilful disobedience or violation of the order of the court, requiring him to do or forbear an act connected with or in the course of his profession; (3) neglecting or refusing on demand to pay over money in his hands due or belonging to a client; (4) destroying, secreting, fraudulently withdrawing, mutilating or altering any paper or record belonging to the files or records in' any action or proceeding; (5) the wilful violation of any of the duties of an attorney or counselor. (Gen. Stat. 1897, ch. 90, § 13; Gen. Stat. 1889, ¶ 398.) Again: “An attorney or counselor who is guilty of deceit or collusion, or consents thereto, with intent to deceive a court or judge, or party to an action or proceeding, or brings suit or commences proceedings without authority therefor, is liable to be disbarred and shall forfeit to the injured party treble damages, to be recovered in a civil action. ’ ’ (Gen. Stat. 1897, ch. 90, § 11; Gen. Stat. 1889, ¶ 393.)
If a layman with none of the qualifications required by statute for admission to the bar be elected to the office of county attorney (as he may be in this state), we think he may hold the office and perform its duties, which are defined by statute as follows :
“It shall be the duty of the county attorney to appear in the several courts of their respective counties, and prosecute or defend, on behalf of the people, all suits, applications, or motions, civil or criminal, arising under the laws of this state, in which the state or their county is a party or interested.” (Gen. Stat. 1897, ch. 89, § 2; Gen. Stat. 1889, ¶ 1796.)
The preceding section of the statute provides that “a county attorney shall be elected in each county organized for judicial purposes, who shall hold his office for the term of two years,” etc. A county attorney who has been an attorney at law but whose license to practice has been revoked, or a person elected to that office who has never been admitted to the bar, acts in the capacity of agent for the state in discharging his official duties which are prescribed by law. The disbarment of a lawyer who at the time holds the office of county attorney does not revoke his agency as the servant of the state. This can only be done by his removal from office for the reasons prescribed by statute above set forth. The disbarment does not depose him from office. In this case Norris was recognized by the court as the representative of the state, and it is difficult to see how the defendant could have been prejudiced by his prosecution of the case — much less had the prosecution been conducted by a person who had no legal attainments whatever.
The claim that there was no evidence of the incorporation of the Farmers’ National Bank at the time the offense charged is alleged to have been committed is not tenable. John F. Merrill testified that he was vice-president of and was in said bank in 1898, and that at the time of the trial it was a corporation.
The court refused the following instruction asked by the appellant:
“In case you find from the evidence, beyond a reasonable doubt, that the name of R. H. Jordan is signed to the check introduced in evidence, you must further find from the evidence, beyond a reasonable doubt, that said name was signed without authority from said R. H. Jordan so to do, before you can find the defendant guilty.”
This instruction should have been given. There was evidence showing that the appellant signed the name of R. H. Jordan to the check in question. It is presumed where one person signs the name of another to an instrument that he does so with authority. There was evidence that the appellant and R. PI. Jordan were seen together on the 17th day of June, the date of the check. If the appellant had authority from Jox-dan to sign his name, the act was not forgery. Under the instructions given by the court to the jury there was a failux*e toinfox’m them of the nature of the offense of forgery in the second degree. The instruction relating to the second count of the information merely stated that if the jury found the facts stated in that count to be true, the appellant was guilty of forgex’y in the second degree. The burden of proof was upon the state to show that the check was signed by the appellant without authority from Jordan. (Romans v. The State, 51 Ohio St. 528, 37 N. E. 1040; The People v. Lundin, 117 Cal. 124, 48 Pac. 1024; Commonwealth v. Bowman, 96 Ky. 40, 27 S. W. 816.) For the refusal to give this instruction the judgment of the court below is reversed and a new trial ordered.
Poster, C. J., concurring. | [
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